CITATION: R. v. Asante, 2017 ONSC 5471
COURT FILE NO.: CR-16-50000081-0000
DATE: 20170919
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: May 25, 26 and 29, 2017
RULING ON ADMISSIBILITY OF EVIDENCE
B. P. O’MARRA J.
OVERVIEW
[1] Benard Asante and Franklin Afrifa were 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.
[2] The shootings were witnessed by several civilians who were in other vehicles near the intersection. Some of them later provided police with descriptions of the suspect vehicle, including a licence plate. Some of them provided a generic description of the shooter. None of them could identify the shooter.
[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. Pretrial motions related to the admissibility of numerous items of evidence began on May 8, 2017. One of the contentious items was a photograph of what appeared to be a handgun that was retrieved by members of the Toronto Police Service (“TPS”) when they searched the contents of a cell phone that belonged to Asante.
[4] On May 29, 2017, I gave oral rulings with reasons to follow in regard to several of the contested items. The photograph of the handgun was ruled admissible. These are my reasons in regard to that specific item.
THE CELL PHONE AND THE PHOTO
[5] Based on information from the civilian witnesses, the police confirmed that Asante was the owner of the suspect vehicle that sped away from the scene. Later on that same evening, the vehicle was found parked in an underground garage at an apartment building at 30 Falstaff Avenue. A search warrant was obtained and items were recovered from inside the vehicle. They included a cell phone in the driver’s side door pocket.
[6] A search of the cell phone revealed numerous photos, including one of a handgun lying on a bedspread with a distinct design. There were other photos of Asante as well as a woman and a small child.
[7] On August 24, 2014, a search warrant was executed on an apartment unit at 40 Falstaff Avenue. That was the residence of the mother of one of Asante’s children. The police seized a bedspread from that unit that appeared to be the same as the one shown in the photo of the handgun. There was evidence that Asante stayed overnight at that apartment from time to time. The handgun used in the shootings of August 18, 2014 has never been found by police. Several spent casings were found at the scene of the shooting.
EXPERT OPINION EVIDENCE RELATED TO THE HANDGUN SHOWN IN THE PHOTO
[8] Bruce Finn of TPS testified and was qualified on consent to give opinion evidence as an expert related to the identification and classification of firearms and ammunition. He was specifically qualified to testify about the identification of firearms from photos. He testified that the item in the photo appeared to be a particular make and model of handgun. He further indicated that such a firearm was capable of firing the same type of spent shell casings found at the scene of the shootings on August 18, 2014.
[9] He could not determine whether the item shown was an authentic working firearm in the absence of a physical examination of the item. He agreed that there are very realistic-looking replica handguns in the public domain.
POSITION OF THE PARTIES
[10] The Crown submitted that this evidence was relevant to the following:
(1) Means to commit murder by use of a firearm;
(2) Opportunity; and
(3) Narrative.
The defence submitted the following:
(1) The limited probative value of this evidence was exceeded by its prejudicial impact;
(2) There were significant factual issues in dispute that reduced the probative value of the photo, including the following:
(a) When and where the photo was taken and by whom; and
(b) Whether the item shown was a real gun or a replica.
ANALYSIS
[11] Counsel for the Crown provided me with the brief unreported decision of R. v. Donzel Young dated February 12, 1991 of Moldaver J. (as he then was) of the Ontario Court of Justice, General Division. That case involved a double homicide involving a firearm. The Crown tendered evidence that approximately one month prior to the shootings the accused was observed in possession of a gun similar to the murder weapon. The court referred with approval to the decision of McIntyre J.A. of the British Columbia Court of Appeal in R. v. Boyko (1975), 28 C.C.C. (2d) 193 and ruled that evidence admissible. At page two of the ruling, Justice Moldaver indicated as follows:
In my opinion, this evidence that the Crown seeks to tender is but a piece of circumstantial evidence which the jury may take into account, along with all of the other evidence, in deciding at the end of the day whether or not the Crown has proved beyond a reasonable doubt that Mr. Young was indeed the shooter.
[12] Factual issues related to when the photo was taken and by whom as well as the qualification in the evidence of Bruce Finn relate to weight rather than admissibility.
[13] The Crown does not allege and need not prove that the handgun shown in the photo was the murder weapon. It is a piece of circumstantial evidence that connects Asante to the type of handgun used in these shootings. It is circumstantial evidence that he had access to and possession of such a handgun sometime before the shootings on August 18, 2014. The jury will be instructed that they may not use this as evidence of bad character or propensity.
ADMISSIBILITY OF THE PHOTO ON A JOINT TRIAL WITH A CUT THROAT DEFENCE
[14] It was made clear during the pretrial motions and proceedings before the jury that both accused were engaged in a cut throat defence. On a joint trial, this situation often involves one accused eliciting evidence relating to a co-accused that would not be admissible at the instance of the Crown.
[15] Watt’s Manual of Criminal Evidence (2017) addresses this issue under the heading “Bad Character of Co-Accused” at 32.02 with the following commentary:
There is no policy rule that absolutely prohibits an accused in a joint trial from eliciting evidence of the bad character of a co-accused. In a joint trial, each co-accused is entitled to make full answer and defence. It is permissible, where an adequate evidentiary foundation exists, for any of several accused to cross-examine P's witnesses, or adduce evidence in defence, which is relevant to show that a co-accused is a person of bad character who is more likely to have committed the offence than the accused who has elicited the evidence. To decide whether to admit evidence on behalf of one co-accused of another co-accused's disposition, a trial judge must balance the fair trial rights of each accused. One way in which to balance those competing fair trial rights is to instruct the jury about the limitations that apply to their use of the evidence. Careful limiting instructions are essential.
Evidence that shows or tends to show the bad character of a co-accused may be elicited in any way that does not contravene an exclusionary rule. Evidence may be elicited of:
(i) expert opinion, which enhances the likelihood of the co-accused’s participation;
(ii) reputation; and
(iii) specific acts of extrinsic misconduct, which need not qualify as evidence of similar acts.
[16] Counsel for Afrifa cross-examined witnesses called by the Crown and elicited evidence of bad character, dishonesty, propensity for violence and access to firearms related to Asante. This evidence would not be admissible to further the Crown’s case against Asante. In cross-examination of the officer in charge, counsel for Afrifa tendered further photos of a handgun recovered from Asante’s cell phone. One of the photos showed the handgun held in a man’s right hand. Counsel for Asante did not object to the admissibility of any of this evidence.
[17] The evidence elicited by counsel for Afrifa related to Asante’s bad character, dishonesty, propensity for violence and access to firearms would require a careful limited instruction as to its use, and to its prohibited use.
[18] The jury must be instructed as follows:
(1) They should consider whether this evidence, alone or with other evidence, raises a reasonable doubt that Afrifa committed the offences; and
(2) This propensity and character evidence must not be used in any way in deciding whether the Crown has proven beyond a reasonable doubt that Asante committed these offences: R. v. Sheriffe, 2015 ONCA 880; R. v. Suzack (2000), 2000 5630 (ON CA), 30 C.R. (5th) 346 (Ont. C.A.).
[19] The photo of the gun initially tendered by the Crown was admissible against Asante. It was a piece of circumstantial evidence for the jury to consider as to whether Asante had access to or possession of the specific type of handgun used in these events.
[20] The fact that this photo was tendered on a joint trial with a cut throat defence reinforces my view that the photo was inevitably admissible. Counsel for Afrifa would have been entitled to elicit this evidence through cross-examination of a Crown witness as an aspect of his defence. Specifically, he could elicit the photo and other evidence to ultimately submit that it was more likely that Asante was the shooter.
POST-SCRIPT
[21] Before the Crown’s case in chief was completed, counsel for Afrifa applied for a mistrial and severance. That was after he had elicited the bad character and propensity evidence related to Asante. The mistrial/severance application related to a potential third party records application relating solely to Afrifa. Counsel for Asante took no position on the mistrial/severance application but wanted to complete his trial before this jury. I ordered a mistrial and severed Afrifa to have a separate trial on a later date. The jury on the continuing trial of Asante were instructed that the trial would proceed against Asante alone and that they must not concern themselves as to why Afrifa would be tried separately. Asante did not apply for a mistrial related to the bad character and propensity evidence that had been led at trial before the severance was ordered.
B. P. O’Marra J.
Released: September 19, 2017
CITATION: R. v. Asante, 2017 ONSC 5471
COURT FILE NO.: CR-16-50000081-0000
DATE: 20170919
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
BENARD ASANTE
Applicant
RULING ON ADMISSIBILITY OF EVIDENCE
B. P. O’Marra J.
Released: September 19, 2017