COURT FILE NO.: CR-16-50000291-0000 DATE: 20170605 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – DEREK OPPONG, AKIDO THOMAS, AND RAHEEM THOMAS-STEWART
Paul Zambonini, for the Crown Talman Rodocker, for Derek Oppong Neil Singh, for Akido Thomas William Jaksa, for Raheem Thomas-Stewart
HEARD: May 30, 2017
R.F. GOLDSTEIN J.
REASONS FOR JUDGMENT ON “Corbett” application
BACKGROUND
[1] Mr. Oppong is charged, along with Mr. Thomas and Mr. Thomas-Stewart, with several offences relating to a young man named Dontay Haye. Mr. Haye has testified before the jury. The Crown has closed its case.
[2] Mr. Haye testified that on May 19, 2015 he went to the Jamestown area of Toronto. He was a member of YTS, or the Young Town Shooters, a sub-group of IDS, or InDaStreets. IDS is a street gang that identifies with the Jamestown Crips. Two members of IDS, Mr. Thomas and Mr. Thomas-Stewart, accosted him. He testified that they assaulted him and accused him of stealing a firearm belonging to the group. They then turned him over to Mr. Oppong. He says that Mr. Oppong assaulted and threatened to kill him if he didn’t turn over either the firearm or $2500.00. He says that Mr. Oppong directed A.R., a young person, to shoot him. A.R. didn’t. Mr. Haye was able to get away. He ran to a nearby home where he was able to call 911.
[3] The three accused men are charted as follows:
- Count 1 – Kidnapping with a firearm for the benefit of or in association with a criminal organization (all three men);
- Count 2 – Unlawful confinement for the benefit of or in association with a criminal organization (all three men);
- Count 3 – Assault on Dontay Haye (Mr. Thomas and Mr. Thomas-Stewart only);
- Count 4 – Threatening death to Dontay Haye for the benefit of or in association with a criminal organization (Mr. Thomas and Mr. Thomas-Stewart only);
- Count 5 – Extortion with a firearm for the benefit of or in association with a criminal organization (all three men);
- Count 6 – Assault with a weapon for the benefit of or in association with a criminal organization (Mr. Oppong only);
- Count 7 – Possession of a firearm knowing that they were not the holders of a licence and a registration certificate (all three men);
- Count 8 – Attempted murder for the benefit of or in association with a criminal organization (Mr. Oppong only).
[4] Detective Nasser gave extensive evidence about IDS including the characteristics and methods of street gangs. All three accused men have conceded that IDS is a street gang and meets the definition of criminal organization. Mr. Oppong and Mr. Stewart have conceded, through their counsel, that they are members of IDS.
[5] Mr. Rodocker, on behalf of Mr. Oppong, now applies to prohibit the Crown from cross-examining him on his criminal record should he testify. Mr. Oppong’s record consists of the following convictions:
- November 2, 2009: One youth conviction for assault and one conviction for theft under $5000 for which he received concurrent sentences of 15 months probation;
- August 19, 2010: One youth conviction for fail to comply with a recognizance for which he received a sentence of 6 months probation;
- September 23, 2010: One youth conviction for robbery for which he received probation for two years; and,
- July 24, 2013: One adult conviction for threatening death for which he received a suspended sentence in light of time served (31 days) and two years probation.
POSITIONS OF THE PARTIES
[6] Mr. Rodocker’s position is that the entire record should be excised. If I am inclined to permit cross-examination on some of the offences I should edit it. He says I should edit the assault and the threaten death, as they are violent offences and carry with them the danger of propensity reasoning. I could also edit the robbery down to a theft. Thus, the jury would be aware that Mr. Oppong has one conviction for fail to comply with a recognizance and two for theft. Mr. Rodocker further argues that there is no danger that the jury will be left with an incomplete picture or there will be a lack of balance between the treatment of Mr. Haye and the treatment of Mr. Oppong. The jury is well aware of the discreditable conduct evidence against him. The jury is aware that he is a gang member and is aware of what that means. Further, he, as Mr. Oppong’s counsel, did not attack Mr. Haye’s character. He did not mention Mr. Haye’s criminal record. He did not mention Mr. Haye’s drug-dealing, alleged crack-cooking, or drug-dealer-robbing. That was left to counsel for Mr. Thomas and Mr. Thomas-Stewart.
[7] Mr. Zambonini, for the Crown, argues that it would be unfair to the jury in their capacity as trier of fact if they were left with the impression that Mr. Oppong had a minor record in comparison to Mr. Haye’s more serious record. He argues that it makes no sense to trust that the jury will not engage in propensity reasoning with the very serious disreputable conduct evidence and not trust the same jury with criminal convictions.
ANALYSIS:
[8] Section 12 of the Canada Evidence Act permits the introduction of an accused person’s criminal record. R. v. Corbett, [1988] 1 S.C.R 670 is the seminal case dealing with the admissibility of a criminal record. Chief Justice Dickson characterized s. 12 while discussing the section’s constitutionality:
Clearly section 12 creates no presumption of guilt nor does it deprive the accused of the right “to be presumed innocent until proven guilty”. The effect of the section is merely to permit the Crown to adduce evidence of prior convictions as they relate to credibility. The burden of proof remains upon the Crown and the introduction of prior convictions creates no presumption of guilt nor does it create a presumption that the accused should not be believed. The prior convictions are simply evidence for the jury to consider, along with everything else, in assessing the credibility of the accused.
[9] Chief Justice Dickson noted, however, that convictions can be excluded in order to preserve an accused person’s right to a fair trial. In practice, this means weighing the probative value of the record against the prejudicial effect.
[10] In determining whether to permit cross-examination on the record, and if so on which parts, a trial judge must weigh the following factors:
- the nature of the previous conviction
- the remoteness or nearness of the conviction to the present charge
- whether it is a conviction for a similar offence (in which case there is a greater risk of prejudice to a fair trial)
- and the nature of the defence attack on the Crown witnesses.
[11] See: Corbett, supra, at paras.152-158; R. v. W.B. (2000), 145 C.C.C. (3d) 498 at para. 48.
[12] Applying the Corbett factors here, I agree that Mr. Oppong’s convictions for violence carry some risk of propensity reasoning, but not an overwhelming risk. I also note that the attack on the chief Crown witness has been a wholesale attack on his character and his credibility. Mr. Oppong’s youth convictions are somewhat remote but still play a role.
[13] I am aware that Mr. Oppong’s counsel did not adduce evidence of Mr. Haye’s drug dealing except in a very limited way, or of his criminal record. That said, Mr. Oppong will no doubt benefit from the attack on Mr. Haye by counsel for the other men. It would be artificial to suggest that the jury will compartmentalize who made which attack. The jury will be instructed in a general that they are to consider the whole of the evidence. They will not be instructed that they should consider the attack on Dontay Haye’s character and criminality only in respect of his testimony against Mr. Thomas and Mr. Thomas-Stewart. They will not be instructed that they should ignore that evidence in respect of his testimony against Mr. Oppong.
[14] Ultimately, as I have noted, a trial judge must weigh the probative value of the evidence against its prejudicial effect. This is a balancing that will turn on the facts in any given trial. It must also be born in mind that at the end of the day Chief Justice Dickson’s faith in the ability of juries to follow instructions is remains a statement not only of law but of our legal philosophy. It also comports with the experience of trial judges, including me. As Chief Justice Dickson stated:
In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often long and difficult, but the experience of trial judges is that juries do perform their duty according to the law. We should regard with grave suspicion arguments which assert that depriving the jury of all relevant information is preferable to giving them everything, with a careful explanation as to any limitations on the use to which they may put that information. So long as the jury is given a clear instruction as to how it may and how it may not use evidence of prior convictions put to an accused on cross-examination, it can be argued that the risk of improper use is outweighed by the much more serious risk of error should the jury be forced to decide the issue in the dark.
[15] On the one hand, there is a risk that the jury will be left with an unbalanced picture if Mr. Haye is portrayed as a hardened criminal and Mr. Oppong is portrayed as relatively unblemished, at least in comparison to Mr. Haye. Certainly Mr. Haye’s testimony could not leave anyone with any illusions that he is a person of good character. Whether he is credible or not is another matter and is for the jury. On the other hand, the risk of propensity reasoning is not unrealistic, especially in light of the bad character evidence pertaining to IDS and Mr. Oppong’s membership in it.
[16] In my view the answer is to edit the criminal record. In doing so I consider the remoteness of the some of his convictions, the similarity of some of the convictions, and the possibility of propensity reasoning.
[17] My ruling is this: the Crown is prohibited from cross-examining on the 2009 conviction for assault and the 2010 conviction for robbery. The Crown is permitted to cross-examine on the 2009 conviction for theft under, the 2010 conviction for fail to comply, and the 2013 conviction for threatening death. In my view, it would be unbalanced for the jury to have the impression that all of Mr. Oppong’s convictions are all the result of minor youthful offences. I am aware that Mr. Oppong is charged with extortionate behaviour and that there is a danger of propensity reasoning given the evidence of gang membership. That said, I am confident that I can craft a proper jury charge that properly instructs the jury as to the limited use that they may make of it.
R.F. Goldstein J.