Court File No. 16-83
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
SEVIM ZAKUTI
RULING
BEFORE THE HONOURABLE JUSTICE A. SKARICA
on June 21, 2017 at HAMILTON, Ontario
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4 and 517(4) OF
THE CRIMINAL CODE OF CANADA
APPEARANCES:
V. Reid
Counsel for the Crown
M. Puskas
Counsel for Sevim Zakuti
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4 and 517(4) OF
THE CRIMINAL CODE OF CANADA
T A B L E O F C O N T E N T S
Ruling
1
Transcript Ordered: .................... June 28, 2017
Transcript Completed: .................. September 22, 2017
Ordering Party Notified: ............... September 27, 2017
WEDNESDAY, JUNE 21, 2017
...PROCEEDINGS RECORDED, NOT TRANSCRIBED
CITATION: R. v. Zakuti, 2017 ONSC 5685
RULING
SKARICA, J. (Orally):
All right. This is regarding the Crown's application to allow post-offence conduct.
Overview
The accused was charged with sexual assault. He was released on bail. A judicial pre‑trial was held and he was remanded to appear in court a month later to set a date. He did not appear in court and a warrant was issued for his arrest. The accused did not appear because he fled the country. Approximately five years later, the accused returned to Canada voluntarily and was arrested. The Crown seeks to tender evidence of the accused's flight from Canada.
Issue
Is the accused's post-offence conduct of flight admissible at this trial regarding an allegation of sexual assault?
Facts
The chronology of facts according to the agreed statement of facts is as follows:
The accused was arrested on October 28th, 2009 regarding charges of sexual assault and sexual assault causing bodily harm.
On October 30th, 2009, the accused was released in Hamilton on bail on a recognizance in the amount of $10,000 and $500 with two sureties. He was required to report to the police on the first Sunday of every month.
On February 9th, 2009, a judicial pre-trial was held before Justice Agro.
The accused was then remanded to appear in Hamilton Ontario Court of Justice on March 18th, 2010 to set a date for a preliminary hearing.
The accused did not appear as required on March 18th, 2010 and a bench warrant was issued for his arrest.
The accused had previously failed to report to the Hamilton Police as required by his recognizance on March 7th, 2010.
Subsequent investigation revealed that the accused left Canada in 2010.
The accused re-entered Canada after an approximate five-year absence on February 6th, 2015. He indicated he'd been living in Kosovo. The accused was arrested on the outstanding bench warrants on file in Hamilton.
The accused has filed an affidavit. He indicates that in December of 2009 - he can't remember the exact date - he was at a party at a bar in Mississauga called Body English. That was the name of the bar. He got involved in a struggle with an armed man. After the struggle, the armed man escaped.
Subsequently, the accused's parents heard "rumours" that the armed man was threatening to kill the accused. His parents persuaded the accused to leave the country.
The accused indicates he left due to these threats to protect his life and not because of the criminal charges, and that he was not fearful of any potential sentence which defence counsel indicated would be no longer than three years.
The Law - The Onus of Proof
Counsel agreed that Justice Goodman accurately states the law regarding the onus of proof on this application, R. v. Millard [2015] ONSC 6437 at paragraph 3...
Post offence conduct evidence is presumptively admissible and the onus falls on the party seeking to exclude such evidence on a balance of probabilities. See Rule 31.01 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario).
Post-Offence Conduct
Post-offence conduct may or may not be admissible depending on the circumstances of each individual case. In R. v. Barriera [2017] ONSC, 2540, I summarized the law of after-the-fact conduct as follows at paragraph 54 of that judgment:
Regarding post-offence conduct, the authorities make it clear that this is circumstantial evidence that may or may not be relevant depending on the live issues at trial and what proper inferences can be made regarding the post-offence conduct surrounding those live issues. Hoy A.C.J.O. in Chambers summarized the law regarding post-offence conduct evidence as follows at paragraphs 76 through 82.
I should provide a citation for Chambers. It's [2016] ONCA 684. In any event, quoting from paragraphs 76 through 82.
- The term post-offence conduct evidence, which is sometimes called after-the-fact conduct evidence, refers to evidence of facts or omissions of the accused occurring after the commission of an alleged offence. It is circumstantial evidence that a jury may use when considering the charges against an accused if and to the extent that it is relevant to a live issue.
I won't refer to the accused as quoted in the two White cases.
At the same time, the jurisprudence recognizes that post-offence conduct evidence 'is a special brand of circumstantial evidence that carries a heightened risk of misapplication and prejudice' and that the relevance and available uses of such evidence are not always matters of common sense ... In some cases, trial judges will be obliged to deliver 'cautions' and 'limiting instructions' that are not generally required for other forms of circumstantial evidence.
In White #2, at paragraph 31, Rothstein J. explained that the rules governing the need for and scope of limiting instructions are those that govern the admissibility of circumstantial evidence in general: is the evidence relevant to a live issue; is the evidence subject to any specific exclusionary rules (for example, the hearsay rule); and should the evidence be excluded under a recognized judicial discretion?
Laskin J.A. explained how to determine the relevance and permissible use, if any, of post-offence conduct evidence in R. v. Angelis. Post-offence conduct, therefore, is not subject to blanket rules. It is circumstantial evidence whose probative value depends on the nature of the evidence, the issue at trial and the positions of the parties. Thus, we do not automatically label certain kinds of post-offence conduct as always or never relevant to a particular issue. Rather, we must consider all the circumstances of a case to determine whether the post-offence conduct is probative and, if so, what use the jury may properly make of it. In the words of Rothstein J. in White #2, the overriding question is this: what do 'logic and human experience' suggest that a jury can legitimately or rationally infer from the accused's post-offence conduct?
In some cases, the post-offence conduct will have no probative value because it is not relevant to any live issue; in such cases, a trial judge must deliver a blanket 'no probative value' instruction informing the jury that they should not consider the post-offence conduct. For instance, in R. v. Arcangioli, the accused was charged with aggravated assault for having allegedly stabbed someone. He admitted to having punched the victim several times before he fled from the scene. The trial judge permitted the jury to consider the post-offence conduct of flight as evidence on the aggravated assault charge, but the Supreme Court concluded that was an error. Because the accused had admitted culpability in respect of one offence [that is] (assault) and the evidence could not logically support an inference of guilt with respect to another offence he was charged with, the evidence of the appellant's flight had no probative value and the jury could make no use of it.
In some instances, however, evidence of post-offence conduct can logically support an inference of guilt with respect to one offence rather than another. As the Supreme Court explains in White #1, at paragraph 32: It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused's flight or concealment is out of all proportion to the level of culpability admitted, it might be found to more consistent with the offence charged.
And post-offence conduct may be probative of one live issue, but not of another. For example, flight per se may be relevant in determining the identity of the assailant, but may not be relevant in determining the assailant's level of culpability, as between manslaughter and murder. In that circumstance, the judge must give a limiting instruction as to the appropriate and inappropriate inferences to be drawn from the evidence. A trial judge's failure to instruct a jury on the limited use of or inferences available from the post-offence conduct evidence may constitute reversible error.
Application of law to the Facts
The defence relies on paragraph 94 in Chambers and Warner and says that:
Where the evidence is equally consistent with two different inferences, it cannot be used as evidence of the matter at issue.
The evidence here is that the accused fled the jurisdiction after a pre-trial on a serious matter, sexual assault. He says he left the jurisdiction because he feared for his life. The man who threatened him is not named or described in any meaningful way in the materials before me. The accused relies on the hearsay statements of his parents. The parents have not filed affidavits. There are no police reports or occurrence reports filed before me. It appears that the accused, despite his alleged extreme fear that caused his flight from this country, did not complain to the police. At a trial, this explanation by the accused based on rumours and hearsay would have virtually none or very little probative value.
Logic and human experience suggests that if a person charged with a serious criminal offence flees the jurisdiction, that evidence, absent an adequate explanation, is logically relevant to the accused's culpability and/or the accused's awareness of his culpability.
As is indicated in the Bible, "The wicked flee even though no man pursueth, while the righteous stand bold as a lion." The accused's explanation on the material before me based on hearsay and rumours does not provide an adequate probative explanation that is equally consistent with an innocent explanation for the accused's flight.
Conclusion
In all the circumstances, the accused's evidence of flight from the jurisdiction is relevant to a live issue, the accused's culpability at trial. Its probative value exceeds any prejudicial effect, and there are no exclusionary rules that are applicable in these circumstances.
ORDER
The Crown's application is allowed. The post-offence conduct of the accused failing to comply
with his condition of bail, his non-attendance in court and his flight and absence from Canada are admissible at this trial.
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Leanne Osborne, certify that this document is a true and accurate transcription of the recording of R. v. Sevim Zakuti in the Superior Court of Justice held at 45 Main Street East, Hamilton, Ontario taken from Recording(s) No. 4799-604-20170621-095054-10-SKARICT, which has been certified in Form 1.
September 27, 2017 ______________________________
(Date) (Signature of authorized person)
This certification does not apply to Rulings which were judicially edited.