CITATION: R. v. Abdo, 2016 ONSC 7240

COURT FILE NO.: 4-423/15

DATE: 20161121

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and -

ABEL ABDO

JOHNATHAN MCLENNAN and

DOMINIQUE JERMAINE WILKS

Allison Macpherson and Oslyn Braithwaite, for the Crown

Hussein Aly, for the accused, Abdo

Yoni Rahamim, for the accused, McLennan

Ayderus Alawi, for the accused, Wilks

HEARD: November 18, 2016

K.L. Campbell J.

Ruling: Scope of Cross-Examination

of Complainant (Asher Jalal-Din)

A. Overview

[1] The three accused, Abel Abdo, Johnathan McLennan and Dominique Wilks, are charged with six offences, namely: (1) conspiracy to commit murder; (2) attempted murder; (3) discharging a firearm with intent to wound; (4) discharging a firearm with intent to endanger life; (5) unlawful possession of a loaded prohibited or restricted firearm; and (6) unlawful possession of a firearm (a handgun). All of these offences are alleged to have been committed by the accused in Toronto on or about July 16, 2014. With respect to the first four offences, the alleged victim of the offences is the complainant, Asher Jalal-Din.

[2] Essentially, the Crown alleges that the three accused conspired together to kill the complainant, and tried to do so on July 16, 2016, but were unsuccessful in the execution of their murder plot, notwithstanding the gun-shot wound the complainant suffered to his lower body on that date.

[3] Prior to the testimony of the complainant, the parties seek to resolve the precise scope of the legal parameters of the potential cross-examination of Mr. Jalal-Din regarding his alleged prior acts of misconduct, which may impact upon his credibility as a Crown witness.

[4] Generally speaking, the disclosure materials the Crown has provided to defence counsel prior to trial detail: (1) factual allegations in support of earlier criminal charges that led to findings of guilt against the complainant; (2) factual allegations in support of earlier criminal charges that led to the acquittal of the complainant; (3) factual allegations in support of earlier criminal charges against the complainant that were ultimately withdrawn by the Crown prior to trial; and (4) factual allegations contained in occurrence reports that never resulted in any criminal charges against the complainant.

[5] In the final analysis, after hearing the submissions of the parties, it is apparent that the points of controversy between the Crown and the defence are relatively small and largely academic. The parties are, essentially, agreed on the main issues. Nevertheless, for purposes of clarity, this ruling will outline the generally permissible scope of cross-examination of the complainant in relation to his alleged prior acts of misconduct.

B. The Applicable Legal Principles

[6] Generally speaking, defence counsel may attempt to undermine the credibility of a Crown witness by attacking the character of that witness. Any Crown witness who, for example, has an unsavoury character, or a criminal record, or a disreputable past, is liable to be questioned by defence counsel in a manner that is designed to reveal any flaws in their character. In so doing, the defence may attack his or her general character by exploring, within reasonable limits, all manner of past acts of alleged misconduct. Such questioning is relevant to the credibility of the witness. See R. v. Davidson, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont.C.A.) at pp. 441-442, leave denied, [1974] S.C.R. viii; R. v. Mitchell, 2008 ONCA 757, at paras. 17-19; R. v. Boyne, 2012 SKCA 124, at para. 47, leave denied, [2013] S.C.C.A. No. 54.

[7] The application of this general principle permits defence counsel to cross-examine Crown witnesses, within reasonable limits, on the details of their criminal records, investigating all of the various factual nuances that support each conviction or finding of guilt. Defence counsel are only limited in this regard by the bounds of relevance and the discretion of the trial Judge, who must balance the probative value of such cross-examination against its prejudicial effect. See R. v. Davidson, DeRosie and MacArthur, at p. 443; R. v. Miller (1998), 1998 CanLII 5115 (ON CA), 131 C.C.C. (3d) 141 (Ont.C.A.) at paras. 15-25; R. v. Burgar, 2010 ABCA 318, at para. 12.

[8] The application of this general principle also permits defence counsel to cross-examine Crown witnesses, again within reasonable limits, as to the factual details of alleged misconduct by the witness that did not result in any criminal charge or subsequent conviction. See R. v. Gassyt and Markowitz (1998), 1998 CanLII 5976 (ON CA), 127 C.C.C. (3d) 546 (Ont.C.A.) at paras. 34-40; R. v. Miller, at paras. 15-25. Accordingly, a Crown witness may properly be cross-examined in relation to the factual allegations regarding an outstanding indictment against them that has not yet come to trial. See R. v. Titus (1983), 1983 CanLII 49 (SCC), 2 C.C.C. (3d) 321 (S.C.C.); R. v. Chartrand (2003), 2002 CanLII 6331 (ON CA), 62 O.R. (3d) 514 (C.A.), at paras. 10-11. Similarly, a Crown witness may properly be cross-examined by defence counsel on the factual allegations underlying a finding of guilt that did not result in a conviction, but rather led to the imposition of a conditional or absolute discharge. See R. v. Cullen (1989), 1989 CanLII 7241 (ON CA), 52 C.C.C. (3d) 459 (Ont. C.A.).

[9] One of the few legal restrictions placed upon the scope of such cross-examination of Crown witnesses is that, where the witness has been tried on criminal charges and acquitted, defence counsel may, generally speaking, not question the witness as to the factual allegations underlying those “not guilty” verdicts, by suggesting that the witness may actually have engaged in the alleged misconduct. The governing authorities hold that such a verdict of acquittal is generally viewed as a verdict of “legal innocence.” See R. v. Grdic (1985), 1985 CanLII 34 (SCC), 19 C.C.C. (3d) 289 (S.C.C.), at p. 293; R. v. Grant (1991), 1991 CanLII 38 (SCC), 67 C.C.C. (3d) 268 (S.C.C.), at p. 279; R. v. Verney (1993), 1993 CanLII 14688 (ON CA), 87 C.C.C. (3d) 363 (Ont. C.A.), at p. 371; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339 (S.C.C.), at p. 383; R. v. M. (W.) (2007), 2007 ONCA 720, 87 O.R. (3d) 425 (Ont. C.A.), at paras. 22-27. For cross-examination purposes, the verdict of acquittal renders “entirely innocent” the person’s “connection to the conduct underlying the charge.” See R. v. Akins (2002), 2002 CanLII 44926 (ON CA), 59 O.R. (3d) 546 (C.A.), at para. 16; R. v. Jama, 2012 ONSC 7095, at paras. 22, 30-31; R. v. Hillis, 2016 ONSC 450, at paras. 88-101; R. v. Camacho (1998), 1998 CanLII 4930 (ON CA), 129 C.C.C. (3d) 94 (Ont.C.A.); R. v. Martin (1980), 1980 CanLII 2837 (ON CA), 53 C.C.C. (2d) 425 (Ont.C.A.). Needless to say, an acquittal is not a “conviction” for the purposes of s. 12(1) of the Canada Evidence Act, R.S.C. 1985, chap. C-5.

[10] Where criminal charges against an individual are withdrawn, however, there has been no judicial determination made that the person was “not guilty” as no verdict was ever reached in relation to the charges. As Thorburn J. aptly observed in R v. Frater, [2008] O.J. No. 5329 (S.C.J.), at para. 22, criminal charges may be withdrawn by the Crown for “a number of reasons” and, accordingly, the withdrawal of criminal charges does not mean that there has been any determination of guilt or innocence in relation to the charges laid but subsequently withdrawn. Given that Crown witnesses may be properly questioned about the facts surrounding acts of alleged prior misconduct on their part where no criminal charges were ever initiated, it follows that such witnesses may also be properly questioned about the factual basis of alleged prior misconduct on their part that led to criminal charges that were ultimately withdrawn against them.

[11] It is important to appreciate, however, that it is the factual basis of the alleged prior acts of misconduct on the part of the Crown witness that may be relevant to the credibility of the Crown witness, not the mere fact that the witness may have outstanding criminal charges pending against them, or that the witness may have been originally charged with some criminal offences before those charges were ultimately withdrawn. Accordingly, the proper focus of permissible cross-examination of a Crown witness must remain on the factual basis underlying the charges, not the charges in and of themselves. See R. v. Gonzague (1983), 1983 CanLII 3541 (ON CA), 4 C.C.C. (3d) 505 (Ont.C.A.), at pp. 510-511; R. v. Hoilett (1991), 1991 CanLII 7285 (ON CA), 3 O.R. (3d) 449 (C.A.) at paras. 15-18; R. v. Gassyt and Markowitz, at paras. 36-39.

[12] Of course, generally speaking, given that cross-examination on the factual basis of prior acts of alleged misconduct is relevant only to the credibility of the Crown witness, defence counsel is generally bound by the answers given by the witness, and is prohibited from calling other witnesses to contradict those answers, unless an exception to the “collateral fact rule” is applicable. See Fox v. General Medical Council, [1960] 1 W.L.R. 1017 (J.C.P.C.); R. v. Cassibo (1982), 1982 CanLII 1953 (ON CA), 70 C.C.C. (2d) 498 (Ont.C.A.), at p. 506; R. v. Gassyt and Markowitz, at para. 39.

[13] These principles, which have developed in the governing jurisprudence, conveniently mesh with the general ethical requirement that defence counsel may properly make factual allegations or suggestions to Crown witnesses in cross-examination that they may not be in a position to prove, provided that they have a “good faith” basis for such suggestions, and that their questions are not simply based on speculation, innuendo, or wholly unreliable information.

[14] In R. v. Lyttle, 2004 SCC 5, at paras. 47-48, the Supreme Court of Canada confirmed that a cross-examiner may pursue any hypothesis that is honestly advanced in good faith on the strength of reasonable inference, experience or intuition. More specifically, the court, indicated that: (1) counsel may properly frame questions based upon information “falling short of admissible evidence” provided that the suggestions are based upon what counsel “genuinely” thinks is possible based upon “known facts or reasonable assumptions;” (2) it is “improper and prohibited” to “assert or to imply” facts in a manner “that is calculated to mislead;” and (3) a cross-examiner should not put suggestions to a witness “recklessly” or advance assertions “that he or she knows to be false.” See also R. v. Bencardino and DeCarlo (1973), 1973 CanLII 804 (ON CA), 15 C.C.C. (2d) 342 (Ont.C.A.), at p. 347; R. v. Wilson (1983), 1983 CanLII 229 (BC CA), 5 C.C.C. (3d) 61 (B.C.C.A.), at p. 85; R. v. Dixon (1984), 1984 CanLII 475 (BC CA), 16 C.C.C. (3d) 431 (B.C.C.A.), at pp. 451-452; R. v. Chambers (1989), 1989 CanLII 2846 (BC CA), 47 C.C.C. (3d) 503 (B.C.C.A.), affirmed, (1990), 1990 CanLII 47 (SCC), 59 C.C.C. (3d) 321 (S.C.C.), at pp. 334-335; R. v. K.(B.), [1998] O.J. No. 1165 (C.A.), at paras. 3-10; R. v. Tombran (2000), 2000 CanLII 2688 (ON CA), 142 C.C.C. (3d) 380 (Ont.C.A.), at paras. 37-45.

C. The Application of These Principles in the Present Case

1. The Details of the Complainant’s Criminal Record

[15] The Crown has disclosed materials to the defence revealing that, on September 18, 2012, the complainant was convicted of the offences of fraud over $5,000 and failing to comply with a recognizance and, after being credited with serving the equivalent of 90 days in pre-sentence detention, the complainant was sentenced to a further period of three months imprisonment on each charge. The specific details of these convictions were not provided to the court. The parties are agreed, however, that defence counsel are entitled to cross-examine the complainant with respect to the specific factual details underlying each of these offences and the resulting convictions and sentences. The fact that there is no conveniently available transcript of this proceeding outlining the precise factual basis of the guilty plea, does not serve to prevent defence counsel from conducting a detailed inquiry of the complainant in cross-examination regarding the factual basis for these convictions.

[16] The Crown has also disclosed materials indicating that, on March 6, 2013, the complainant was found guilty of two other offences, namely: (1) that on December 23, 2012, the complainant threatened another individual with death, indicating that he was going to “shoot up his place” because he had contacted the police in connection with his fraudulent activities; and (2) that on February 17, 2012, the complainant failed to comply with a recognizance by failing to keep the peace and be of good behavior. In the result, the accused was given a conditional discharge and placed on probation for a period of 18 months (from March 6, 2013 to September 5, 2014). Again, the parties are agreed that defence counsel are entitled to cross-examine the complainant on the factual details of these offences, and the resulting discharge and sentence.

[17] Cross-examination on the details of these various offences committed by the complainant is permissible as such evidence is relevant to the complainant’s credibility as a witness.

2. The Various Withdrawn Criminal Charges

[18] On a number of occasions over the past number of years, the complainant has been charged with certain criminal offences, only subsequently to have those charges withdrawn by the Crown. As I understand the various disclosure materials, which were helpfully provided to the court on the argument of this matter, they reveal the following.

• The complainant was charged with the offences of impaired driving and operating a motor vehicle with over 80 mgs. of alcohol per 100 mls. of blood. These offences were alleged to have taken place on September 26, 2004. These charges were subsequently withdrawn.
• The complainant was charged with the offences of mischief under $5,000 and assault. These offences were alleged to have taken place on July 20, 2006. These charges were subsequently withdrawn.
• The complainant was charged with the offence of possession of property (a purse and a gold ring) obtained by crime under $5,000. This offence was alleged to have taken place on December 14, 2006. This charge was subsequently withdrawn.
• The complainant was charged with the two counts of threatening death and one charge of criminal harassment. These offences were all alleged to have taken place on or about February 17, 2012. These charges were subsequently withdrawn when the complainant, on January 8, 2013, entered into a common law peace bond in the amount of $500, for a period of 12 months.
• The complainant was charged with a series of fraud under $5,000 offences, which allegedly took place on March 12, March 28, April 11, and April 12, 2012. All of these charges were subsequently withdrawn.

[19] While the Crown suggested that some of these alleged incidents may be irrelevant, I am satisfied that defence counsel may properly cross-examine the complainant on the factual basis of these incidents as such questioning may, depending upon the answers provided by the complainant, impact upon the complainant’s credibility as a witness.

3. The Dismissed Charges

[20] The disclosure materials provided to defence counsel suggest that the complainant was charged with the offences of forcible confinement and robbery. These offences were alleged to have taken place on April 26, 2012, and were committed after the victim refused to voluntarily participate in a cheque fraud on a nearby bank. Subsequently, on August 9, 2013, these charges were both dismissed.

[21] Defence counsel conceded that, given the acquittal of the complainant on these charges, they do not have a “good faith” basis to allege that the complainant is actually guilty of the offences of forcible confinement and robbery. Further, as I have already observed, the jurisprudence suggests that any such cross-examination would be legally inappropriate given that the verdicts of acquittal render “entirely innocent” the complainant’s alleged connection to the conduct underlying the charges.

[22] At the same time, however, the acquittals on the charges of forcible confinement and robbery do not prevent defence counsel from cross-examining the complainant upon the factual details of the cheque fraud the complainant proposed to the victim upon the nearby bank. As the Supreme Court of Canada noted in R. v. Mahalingan, 2008 SCC 63, at para. 23, it is not every factual issue in a trial resulting in an acquittal that must be viewed as having been resolved in favour of the accused, but rather only those factual issues that were necessarily resolved in favour of the accused by virtue of the acquittal. In the circumstances of this case, I am not satisfied that the acquittal of the complainant on the charges of forcible confinement and robbery legally prevents defence counsel from cross-examining the complainant on his alleged accompanying fraudulent activities. Accordingly, defence counsel may cross-examine the complainant on that limited aspect of these allegations.

4. The Occurrence Reports – No Charges Commenced

[23] Various “Occurrence Reports” that have been disclosed to the defence by the Crown suggest that the complainant may have been engaged in other acts of misconduct, for which he has never been charged. More particularly, these “Occurrence Reports” suggest the following:

• On June 29, 2009, the complainant may have become involved in a domestic dispute with his former common law spouse, during which he sought to acquire money from her bank account through the use of her automated bank machine (ATM);
• Between June 19 and 26, 2012, the complainant may have been engaged in fraudulent activities concerning the cashing of some cheques;
• Between April 11 and 14, 2014, the complainant may have engaged in fraudulent activities in connection with the purchase of music mixing services.

[24] As I have indicated, these “Occurrence Reports” suggest that no criminal charges were ever commenced in connection with any of these various incidents. Defence counsel are free, however, to cross-examine the complainant in relation to the factual foundation of these various allegations, if they are so advised, as these reports provide them with a “good faith” basis to suggest that the complainant was involved in these prior acts of alleged misconduct, and such cross-examination may be relevant to the credibility of the complainant.

D. Conclusion

[25] This ruling is meant to provide general guidance to counsel as to the permissible legal scope of the cross-examination of the complainant, Asher Jalal-Din. It is somewhat difficult, however, to predict how the cross-examinations may unfold, and the potential twists and turns that may be taken depending upon how the complainant responds to the questioning of defence counsel. In the result, it may well be that aspects of this ruling will have to be revisited as the evidence unfolds, and I invite all counsel to raise any such issues in a timely way.

___________________________

Kenneth L. Campbell J.

Released: November 21, 2016

CITATION: R. v. Abdo, 2016 ONSC 7240

COURT FILE NO.: 4-423/15

DATE: 20161121

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and -

ABEL ABDO,

JOHNATHAN MCLENNAN and

DOMINIQUE JERMAINE WILKS

RULING

SCOPE OF CROSS-EXAMINATION

OF COMPLAINANT (ASHER JALAL-DIN)

K.L. Campbell J.

Released: November 21, 2016