R. v. Asante, 2017 ONSC 4741
CITATION: R. v. Asante, 2017 ONSC 4741
COURT FILE NO.: CR-16-50000081-0000
DATE: 20170913
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
BENARD ASANTE Applicant
Patrick Travers and Sarah Leece, for the Crown
Paul Burstein and Karen Symes, for the Applicant
HEARD: June 20, 2017
RULING ON A CORBETT APPLICATION
B. P. O’MARRA J.
the application
[1] Benard Asante was charged with first degree murder and attempt murder. He proposed to testify in his own defence. Before doing so, he applied to excise reference to some parts of his criminal record. On June 20, 2017, I allowed the application in part. These are my reasons.
OVERVIEW
[2] This jury trial commenced with Benard Asante and Franklin Afrifa jointly charged with first degree murder and attempt murder. In the early evening of August 18, 2014, the two victims were in a car that had stopped as it approached a red light. Another car pulled up towards the same intersection with two men inside. The passenger got out of the second car carrying a handgun and fired several shots at close range at the two men in the first car. The driver was killed and the passenger was rendered a quadriplegic by a shot to his neck and spinal area. The shooter re-entered the second car and it sped away from the scene.
[3] Benard Asante was the driver of the second car. The crown alleged that the shooter was Franklin Afrifa and that Benard Asante was a party to both alleged offences. In cross-examination of crown witnesses, counsel for Benard Asante suggested the following:
(1) Benard Asante was indeed the driver of the second car;
(2) Franklin Afrifa was the shooter;
(3) Benard Asante did not know or intend that either victim would be shot; and
(4) Benard Asante did not do anything or omit to do anything for the purpose of assisting Franklin Afrifa to shoot either victim.
[4] In the course of the crown’s case in chief, counsel for Franklin Afrifa applied for severance. That application was granted and the case proceeded against Benard Asante alone.
THE UNEDITED CRIMINAL RECORD
[5] The first entry in the applicant’s criminal record is from 2005 and the most recent conviction is from 2011. The record includes both youth and adult convictions. His youth criminal record is as follows:
2005-11-23 Robbery x2 (s. 344 CC)
2006-05-10 Sexual Assault (s. 271 CC)
2008-03-19 Possession of a Weapon (s. 88 CC)
Carrying a Concealed Weapon (s. 90 CC)
Possession of a Firearm Knowing its Possession is Unauthorized (s. 92(1) CC)
Possession of a Prohibited or Restricted Firearm with Ammunition (s. 95 CC)
Possession of a Schedule I Substance (s. 4(1) CDSA)
Fail to Comply with Disposition x2 (s. 137 YCJA)
Possession of a Firearm or Ammunition Contrary to Prohibition Order x2 (s. 117.01(1) CC)
His adult criminal record is as follows:
2009-07-06 Robbery (s. 344 CC)
2011-02-22 Traffic in Schedule I Substance x5 (s. 5(1) CDSA)
Obstruction (s. 129(a) CC)
Fail to Comply with Probation Order x2 (s. 733.1(1) CC)
POSITION OF THE PARTIES
[6] The parties agree that there should not be reference to the sexual assault entry dated May 10, 2006. The applicant further seeks to excise the weapons-related entries dated March 19, 2008 for the following reasons:
(1) They date back to when Benard Asante was a young offender and thus have little probative value related to his credibility many years later;
(2) The nature of those convictions have little or no bearing on Benard Asante’s credibility;
(3) The proposed edits would not result in an unfair or misleading portrayal of his criminal record; and
(4) Reference to those entries would risk significant prejudice to the fairness of the trial.
[7] The crown submits that there should be reference to all of the entries and dispositions, other than the sexual assault entry in 2006. This would be accompanied by a careful limiting instruction as to the use the jury may make of this evidence.
THE LAW
[8] Section 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5 governs the admissibility of a witness’ criminal record and reads as follows:
Examination as to previous convictions
12 (1) A witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as a contravention under the Contraventions Act, but including such an offence where the conviction was entered after a trial on an indictment.
[9] In R. v. Hines, [2001] O.J. No. 1435, Justice Dambrot of the Superior Court set out a very useful review of the relevant principles at paras. 4-11 inclusive. They can be summarized as follows:
Section 12(1) of the Canada Evidence Act provides that any witness, including an accused who testifies at their trial, may be questioned and cross-examined on prior convictions.
The rationale for this rule is that any prior conviction(s) are relevant to credibility, since they evince contempt for the law.
In R. v. Corbett, [1988] 1 S.C.R. 670, the court held that trial judges do have discretion to exclude prejudicial evidence of previous convictions.
In exercising their discretion, judges should err on the side of inclusion. This is because concealing a witness’ prior criminal record deprives the jury of information relevant to credibility.
In Corbett, the majority endorsed the following list of factors for use in guiding a judge’s exercise of discretion to exclude convictions:
(1) The nature of the previous convictions;
(2) The remoteness or nearness of the previous convictions to the present charge;
(3) The similarity of the previous convictions to the present charge – previous convictions for the same crime should be admitted sparingly, particularly where there are multiple convictions for various other kinds of offences;
(4) Whether or not there has been a deliberate attack on the credibility of a Crown witness, particularly where the resolution of the case boils down to a credibility contest between the accused and that witness;
Point (4), above, was the subject of some controversy in Corbett. Justice La Forest expressed reservations about this consideration. Chief Justice Dickson, for the majority, expressed strong support for it, arguing that the trial judge must avoid presenting a misleading picture to the jury.
R. v. Brown (2002), O.J. No. 2562 (C.A.) clarified that the attack referred to in point (4) must be against a Crown witness’ character, particularly an attack based on their criminal record.
Relevant to this idea of preventing a misleading picture is R. v. Gagnon (2002), 147 CCC (3d) 193 (Ont. C.A.). The court added to the list of factors from Corbett, stating that a judge should also consider the importance of a particular prior offence in the context of an accused’s entire criminal record.
In R. v. Charland, [1997] 4 S.C.R. 1006, the court confirmed that the overriding test to be applied by a trial judge on a Corbett application is whether or not the probative value of the evidence of prior convictions exceeds the risk of prejudice.
Charland emphasized that it is not only crimes that demonstrate a lack of respect for human life (as in R. v. Saroya (1994), 36 C.R. (4th) 253 (Ont. C.A.)) and dishonesty that are relevant to credibility.
As McFayden JA stated in the Alberta Court of Appeal decision in Charland (1996) 110 CCC (3d) 300, crimes of violence such as sexual assault do not directly reflect on credibility. However, they do have some relevance, because a jury could reasonably conclude that these convictions reflect a disregard for the rules of society and make it more likely that the person would lie.
R. v. P. (M.) [2001] O.J. No. 100 (C.A.) upheld a trial judge’s refusal to exclude a sexual assault conviction in a sexual assault trial, on the grounds that to do so would create a misleading picture of the accused, particularly as his remaining record consisted of two older, relatively minor offences.
In Charland, the Alberta Court of Appeal upheld the trial judge’s refusal to exclude sexual assault convictions from the accused’s record, reasoning that to exclude them would leave the jury with a misleading impression that the accused had been “crime free” in the six years prior to trial despite his lengthy record.
ANALYSIS
[10] There is no dispute that the shooter emerged from a car driven by Benard Asante. The shooter re-entered that car after the shooting and was quickly driven away by Benard Asante. The conduct of Benard Asante had the effect of aiding the shooter but the crown must prove beyond a reasonable doubt that Benard Asante aided the shooter for the purpose of carrying out his intentions. There is non-contentious evidence of after-the-fact conduct that related either to involvement in these crimes or for some other reason. That evidence includes a flight from the scene with the shooter and days later a flight from the jurisdiction to Alberta where he was arrested weeks later.
[11] Benard Asante intends to testify that he was not a party to either offence. He will also testify that his after-the-fact conduct related to fear of the shooter, fear of retribution in the community and fear that he was implicated in crimes he did not commit. His credibility will be the critical issue in the case. The jury will be instructed in accord with the principles in R. v. W.(D), [1991] 1 SCR 742.
[12] The victim on count 2 was cross-examined as to his drug use and criminal lifestyle, including access to firearms.
[13] The contentious entries on the applicant’s record include possession of a firearm or ammunition contrary to a prohibition order. Willful breaches of prior court orders may properly be considered by the jury in assessing the degree to which an accused will feel bound by his oath or affirmation to tell the truth. Possession of a firearm in contravention of a court order is a particularly serious contravention. Excision of those entries in this case that hinges on the credibility of the accused would deprive the jury of information they should consider on that issue.
[14] I understand that the four weapons charges related to the breach of a prohibition order involve one firearm. While they may be legally distinct delicts, it is unnecessary that the jury be referred to more than one of those counts.
[15] On June 20, 2017, I made the following ruling:
The parties have agreed that there should be no reference before the jury to the finding of guilt and disposition for sexual assault on May 10, 2006. The applicant concedes that certain entries on the record can be referred to in the course of the anticipated evidence of the applicant.
The contentious entries relate to findings of guilt related to firearms offences, including breaches of prohibition orders dated March 19, 2008. There were also findings of guilt on that date related to drugs and failures to comply offences that the applicant does not take issue with.
For reasons that I will release on a later date, I make the following ruling relating to the contentious entries dated March 19, 2008.
The applicant can be referred to two counts with their dates and dispositions as follows:
(1) The count of possession of a firearm, knowing its possession is unauthorized, contrary to s. 92(1) of the Criminal Code; and
(2) One count of possession of a firearm or ammunition, contrary to a prohibition order, contrary to s. 117.01(1) of the Criminal Code.
The Crown is not entitled to explore the facts that relate to those two findings of guilt unless the defence chooses to do so first, or if the issue is revisited based on the testimony of the applicant. If the Crown seeks to revisit this aspect of the ruling, it should be vetted in the absence of the jury beforehand.
[16] I also advised counsel that I would give a mid-trial instruction to the jury as to the limited use of Benard Asante’s criminal record before his testimony concludes as well as in my final instructions.
B. P. O’Marra J.
Released: September 13, 2017
CITATION: R. v. Asante, 2017 ONSC 4741
COURT FILE NO.: CR-16-50000081-0000
DATE: 20170913
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent
– and –
BENARD ASANTE Applicant
RULING ON A CORBETT APPLICATION
B. P. O’Marra J.
Released: September 13, 2017