Court File and Parties

COURT FILE NO.: CR-18-10000572-0000 DATE: 20181102 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – NERVILLE FERDINAND

COUNSEL: J. Capozzi, for the Crown D. Smith and G. Igbokwe, for Mr. Ferdinand

HEARD: October 29, 2018

RULINGS RE: MISTRIAL APPLICATION AND AFTER-THE-FACT CONDUCT

SCHRECK J.:

[1] Nerville Ferdinand is charged with having committed an aggravated assault on Tristan Kelly and has elected to have a jury trial. There is no issue that Mr. Ferdinand was holding a handgun which discharged and that the bullet hit Mr. Kelly, causing him serious and permanent injuries. The central issue for the jury to determine is whether the handgun discharged while Mr. Ferdinand was committing an assault contrary to s. 265(1)(a) or 265(1)(b) of the Criminal Code, or whether it was discharged accidentally. Four witnesses testified as to the circumstances leading up to the discharge of the handgun.

[2] Following counsel’s closing addresses, I dismissed a defence application for a mistrial and also declined to instruct the jury that certain evidence of Mr. Ferdinand’s conduct after the alleged offence had no probative value. I gave brief oral reasons for both decisions and advised counsel that more detailed reasons would follow. These are those reasons.

I. Evidence

A. The Events Leading Up to the Discharge of the Firearm

[3] On the evening of June 17, 2014, Mr. Ferdinand went to the apartment of a friend of his, who was referred to at trial as Salih. Salih lived in an apartment on Bathurst Street which he shared with another individual known as Jimbo. Jimbo claimed and was believed to be associated with the Hell’s Angels outlaw motorcycle gang. Also present that evening were Jimbo’s girlfriend, Amy, Salih’s girlfriend, Josephine Lymberopoulos, and two other women. Of these people, only Mr. Ferdinand and Ms. Lymberopoulos testified at trial.

[4] After drinking significant amounts of alcohol, everybody at the apartment except Jimbo decided to go to a nightclub and took a taxi there. Prior to arriving at the nightclub, Mr. Ferdinand and Jimbo’s girlfriend, Amy, began to argue. The argument escalated and culminated with Mr. Ferdinand spitting on Amy. Amy then called Jimbo and told him what had happened. As a result, Jimbo demanded that Mr. Ferdinand pay him a sum of money, failing which he would be killed by the Hell’s Angels.

[5] Mr. Ferdinand decided to return to Jimbo’s apartment to resolve the issue with him. Before doing so, however, he called his best friend, Michael Godelia, and asked him to meet him near the apartment. Mr. Godelia did so. His younger brother, Tristan Kelly, came with him.

[6] Mr. Ferdinand then returned to the apartment together with Mr. Godelia, Mr. Kelly and Salih. There was some dispute as to whether Amy and Ms. Lymberopoulos returned with them, although there is no dispute that they were at the apartment at the time of the shooting.

[7] Four witnesses testified about what happened at the time Mr. Kelly was shot: Ms. Lymberopoulos, Mr. Kelly and Mr. Godelia testified for the Crown and Mr. Ferdinand also testified. All agreed that upon arriving, Mr. Ferdinand and Jimbo went into a bedroom to talk and Mr. Godelia and Mr. Kelly waited on the stairs. While Mr. Ferdinand and Jimbo were in the bedroom, Ms. Lymberopoulos and Amy demanded that Mr. Godelia and Mr. Kelly leave, which they refused to do. A verbal and possibly physical altercation ensued. While it was ongoing, Mr. Ferdinand came out of the bedroom and removed a gun from a bag he had over his shoulder. The gun discharged and a bullet hit Mr. Kelly, causing him to fall down the stairs. Mr. Kelly is now a paraplegic.

[8] There were also significant differences between the witnesses’ accounts.

[9] According to Ms. Lymberopoulos, when Mr. Ferdinand came out of the bedroom, he was yelling at everybody to be quiet. As he approached the stairs, he reached into the bag and removed the gun. Ms. Lymberopoulos described him as “flailing” the gun or “trying to flaunt it”. At another point, she described him as “sloppily taking the gun out”. According to her, he did not point the gun at anybody, wave it around or threaten to shoot anybody. Ms. Lymberopoulos had the impression that Mr. Ferdinand produced the gun because nobody was listening to him. As Mr. Ferdinand removed the gun, it went off and the bullet struck Mr. Kelly, who then fell down the stairs. Ms. Lymberopoulos said that it all happened very fast and that the gun went off before Mr. Ferdinand had a chance to “flaunt” it.

[10] Mr. Kelly testified that when Mr. Ferdinand came out of his bedroom, he, his brother and the two women were involved in a physical altercation. One of the women had reached over the railing and grabbed Mr. Kelly’s shirt. Mr. Kelly grabbed her wrists and pushed her hands back. At that point, he looked up and saw Mr. Ferdinand, who was holding a gun with his right hand and pointing it at him. Mr. Kelly did not see where the gun had come from and had not seen the movement of the gun. He agreed that it was possible that the gun had been moving upwards and that at some point during that motion, it had gone off. He then saw a light, heard a bang, and fell down the stairs. He was not aware of any reason why Mr. Ferdinand would want to shoot him.

[11] Mr. Godelia testified that Mr. Ferdinand came out of the bedroom after he had called for him to come. He testified that Mr. Ferdinand ran to the top of the stairs and pulled out the gun. He stopped, extended both of his arms, pointed the gun at Mr. Kelly, who was about a metre away from him, and fired. According to Mr. Godelia, Mr. Ferdinand shot Mr. Kelly deliberately, although he was unaware of Mr. Ferdinand having any motive for doing so.

[12] Mr. Ferdinand testified that he came out of the bedroom after hearing a commotion and saw Mr. Godelia and Mr. Kelly fighting with the two women. Salih and Jimbo were also shouting and two dogs were barking. He testified that he wanted to quiet everybody down, so he decided to take the gun out of the bag. He did so without thinking. He testified that his intention was to get everybody’s attention in the way a teacher in a noisy classroom might strike a table with a ruler. He did not intend to threaten anybody. As he pulled the gun out of the bag, it discharged accidentally and Mr. Kelly was hit by the bullet. Mr. Ferdinand did not intend to aim at, shoot or threaten anybody.

II. The Mistrial Application

A. Overview

[13] After the closing addresses, the defence moved for a mistrial on the basis of alleged improprieties in Crown counsel’s closing address. The defence submitted that it was improper for the Crown to invite the jury to reject the testimony of Ms. Lymberopoulos, who was a Crown witness, and that the closing address had contained improprieties similar to those that had been found to exist in R. v. Soobrian (1994), 21 O.R. (3d) 603 (C.A.) and the cases that followed it. The defence also objected to Crown counsel’s submission that the fact that Ms. Lymberopoulos had agreed with suggestions made by defence counsel was a reason to reject her evidence.

[14] The relevant portions of Crown counsel’s closing address were as follows:

You have the evidence of Josephine Lymberopoulos. Was she a reliable and credible witness? Remember her evidence about the copious amounts of alcohol she had that night. By any estimation, she was heavily under the influence of alcohol. Remember that her boyfriend, Salih, who is still her boyfriend, is a friend of Mr. Ferdinand’s. And was she being forthright when she told you about how Mr. Ferdinand held the gun? Or did she seem like she was tailoring her evidence to help Mr. Ferdinand in terms of how he held the gun when she described his action as flaunting the gun?

Crown counsel then summarized Ms. Lymberopoulos’s testimony and continued:

And in cross-examination, did you notice that she agreed with every single suggestion put to her by Mr. Smith about how the situation appeared and how Mr. Ferdinand held the gun at the time, including that he never pointed the gun at anyone, including that he didn’t seem like he was threatening anyone? Did that seem to be because she was speaking the truth, or because she was trying to minimize Mr. Ferdinand’s actions when he pulled the firearm that night? So you will consider in your deliberations what weight to give her evidence when she told you how Mr. Ferdinand drew the gun that night and whether or not he pointed it at anyone in the room, and whether or not it appeared as if he was attempting to threaten anyone in the room, and you will consider was she the least bit believable when she told you her version of that.

B. The Propriety of the Crown Inviting the Jury to Disbelieve Its Own Witness

[15] Although Ms. Lymberopoulos was a Crown witness, the Crown was not obliged to accept her testimony. This was made clear in R. v. Walker (1994), 18 O.R. (3d) 184 (C.A.), at para. 30, where Finlayson J.A. stated:

I do not accept that the Crown must vouch for the veracity of every statement uttered by every witness that it calls and does not impeach…. Crown counsel is entitled to invite the jury to be selective as to what part or parts of the evidence of any witness they should choose to believe.

See also R. v. Benji, 2012 BCCA 55, 316 B.C.A.C. 132, at paras. 156-163; R. v. Ryan, 2014 ABCA 85, 569 A.R. 376; R. v. Biniaris (1998), 124 C.C.C. (3d) 58 (B.C.C.A.), at paras. 9-11, rev’d on other grounds 2000 SCC 15, [2000] 1 S.C.R. 381.

[16] However, the Crown’s ability to invite the jury to disbelieve its own witnesses is not without limits. Absent an evidentiary foundation, the Crown is not entitled to suggest that the witness’s lack of credibility is relevant to the credibility of the accused or his guilt, which is what happened in Soobrian. As Paciocco J.A. recently put it in R. v. Kiss, 2018 ONCA 184, at para. 76, “the law does not permit the Crown to discredit its own witnesses as liars in an effort to discredit the accused.” See also R. v. Figliola, 2011 ONCA 457, 105 O.R. (3d) 641, at paras. 62-64; R. v. Figliola, 2018 ONCA 578, 141 O.R. (3d) 662, at paras. 41-52.

[17] In this case, Crown counsel clearly suggested that Ms. Lymberopoulos was “tailoring” her evidence to assist Mr. Ferdinand. However, she did not suggest that she did so at the behest of Mr. Ferdinand or after colluding with him. Rather, she suggested that Ms. Lymberopoulos was motivated to assist Mr. Ferdinand because of her boyfriend’s friendship with him. In my view, there is no danger that any of this would have had an impact on the jury’s assessment of Mr. Ferdinand’s credibility. In any event, the submission that Ms. Lymberopoulos was biased in favour of the defence because of her boyfriend’s friendship with Mr. Ferdinand was not particularly compelling. Mr. Ferdinand and her boyfriend had only known each other for a few months at the time of the shooting, which had taken place four years earlier. Neither Ms. Lymberopoulos nor her boyfriend lived in Canada at the time of the trial and according to her, her boyfriend and Mr. Ferdinand were no longer friends.

C. The Relevance of the Witness’s Agreement With Defence Counsel’s Suggestions

[18] I am, however, somewhat concerned about the submission that Ms. Lymberopoulos’s evidence should be viewed with scepticism because “she agreed with every single suggestion put to her” by defence counsel. The fact that a witness agrees with the defence is no reason to question the witness’s credibility. It is in no way unusual for defence counsel to put suggestions to a witness which advance his case and which he believes, based on the witness’s prior statements and testimony, the witness will agree with. Furthermore, the submission undermines the standard instruction given to juries that questions put by counsel are not evidence, only the answers given by the witness are. The weight given to the witness’s answer should not depend on whether it is in response to a suggestion by the defence as opposed to an open-ended question from the Crown.

[19] All of that said, a mistrial is clearly not warranted. In my view, any concerns about Crown counsel’s closing address can be easily remedied by an instruction to the jury to the effect that the fact that the witness agreed with suggestions put by defence counsel is not relevant to the assessment of the witness’s credibility.

[20] I would add that while I do have some concerns about the submission made during the Crown closing, I have no doubt that Crown counsel did not intend to do anything improper.

III. After-the-Fact Conduct

A. The Evidence

[21] It was not in dispute that immediately after Mr. Kelly was shot, Mr. Ferdinand ran down the stairs, jumped over Mr. Kelly’s prone body without checking on his condition, and ran out onto the street. He flagged a taxi and asked to be taken to the lakeshore, where he threw the gun into the lake. He then took the taxi to his home, where he lived with his mother. There, he changed his clothes, obtained his travel documents, and left without waking his mother. He discarded the clothes he had been wearing and took a taxi to the airport. Once there, he attempted to purchase a ticket to St. Lucia but discovered that there were no available flights on that day. He instead purchased a ticket to Barbados. After clearing the security screening, he waited approximately three hours before boarding his flight. He did not call anybody to check on Mr. Kelly’s condition. Once in Barbados, he waited two days for a flight to St. Lucia. A few weeks later, he surrendered to the St. Lucian authorities and was returned to Canada.

[22] Much of the evidence of Mr. Ferdinand’s departure from Canada was admitted as part of the Crown’s case by way of an admission made pursuant to s. 655 of the Criminal Code. Mr. Ferdinand also testified about his actions following the shooting. He explained that he had fled the scene without thinking because he had panicked. He disposed of the gun because he did not want to be in possession of an illegal firearm. He testified that he went to St. Lucia because he had relatives there and because it was a place of comfort for him, although he acknowledged that he was also running away.

B. The Defence Position

[23] During the pre-charge conference, counsel for Mr. Ferdinand submitted that the jury should be instructed that Mr. Ferdinand’s after-the-fact conduct had no probative value. As I understand the submission, the defence seeks this instruction on the basis that the evidence has no probative value or, in the alternative, that its probative value is outweighed by its prejudicial effect. This is because Mr. Ferdinand’s conduct is equally explainable as being due to his being in shock or his admitted guilt for the offence of illegal possession of a firearm.

C. Flight From the Apartment and Failure to Render Assistance

[24] Evidence of after-the-fact conduct is a form of circumstantial evidence. The degree, if any, of its potential probative value will depend on the nature of the evidence, the issues in the case, and the positions of the parties: R. v. Vorobiov, 2018 ONCA 448, at para. 62. In this case, the primary issues for the jury to determine are whether Mr. Ferdinand discharged the firearm intentionally and, if not, whether his intention in removing the firearm from the bag was to use it to threaten others. It is Mr. Ferdinand’s position that he removed the firearm to get everybody in the room to be quiet and that it had discharged accidentally.

[25] In my view, Mr. Ferdinand’s immediate flight from the apartment and his failure to render assistance to Mr. Kelly was probative with respect to the issue of whether the shooting had been accidental. I base this conclusion on what was said by Rothstein J., writing for a majority of the Supreme Court of Canada in R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 79:

… [L]ogic and human experience suggest that people are more likely to show some outward sign, such as hesitation, before continuing on with their actions, when they do something accidentally than when they do it on purpose. This is all the more so when the accident involves a sharp physical effect on the person (the discharge of a gun in one’s hand) and results in a terrible consequence, such as having killed another person. As I have discussed, lack of hesitation prior to flight, is less consistent with shooting and killing someone accidentally than it is with doing so intentionally. Thus, in the context of determining relevance, evidence of flight per se is different from evidence of lack of hesitation prior to flight.

See also para. 126, per Charron J., concurring; R. v. Campbell, 2018 ONCA 837, at paras.10-12; R. v. McLellan, 2018 ONCA 510, 362 C.C.C. (3d) 183, at paras. 41-44.

D. Should There be a “No Probative Value” Instruction?

[26] Mr. Ferdinand also submits that his disposal of the gun and flight from Canada is equally consistent with fleeing because of his illegal possession of a firearm as it is with fleeing because of his unlawfully firing the gun, therefore there should be a “no probative value” instruction such as the one required in R. v. Arcangioli, [1994] 1 S.C.R. 129. In this regard, he relies on R. v. Chambers, 2016 ONCA 684, 342 C.C.C. (3d) 285, where the Ontario Court of Appeal had concluded that evidence of an accused’s flight from Canada had no probative value with respect to whether he was guilty of murder because the accused had admitted that he was guilty of an aggravated assault. In my view, Chambers is distinguishable.

[27] In Chambers, two accused were charged murder and aggravated assault based on allegations that they had shot three people during a confrontation at a party. One of the victims died and the other two had been wounded. One of the accused, Warner, admitted that he had shot one of the victims who had survived. Because of this, the Court concluded that his flight had no probative value (at paras. 94):

Warner’s post-offence flight to Guyana is as consistent with having committed the admitted offence of aggravated assault of Tsibu-Darkoh as with having committed that offence and the aggravated assault of Chinambu, as principal offender or as an aider or abettor. Therefore, his post-offence flight to Guyana is not probative of who shot Chinambu or whether he aided or abetted Chambers to shoot Chinambu.

While the offence of murder is more serious than that of aggravated assault, and fleeing the country is perhaps a relatively extreme instance of post-offence conduct, it cannot be said that Warner’s flight to Guyana was out of all proportion to the admitted offence of wounding Tsibu-Darkoh. Accordingly, in my view, the trial judge should have directed the jury that Warner’s post-offence flight to Guyana could not be used to infer guilt of Musgrave’s murder either.

[28] In my view, the circumstances of this case are significantly different. In Chambers, the accused Warner had admitted to participating in the shooting and his flight was therefore of no assistance with respect to the remaining issue of how he had participated in the shooting. This was because the actus reus and mens rea of the offence he admitted to and the one he was charged with were so similar that the evidence of flight did not lead to any inference with respect to the issues that had to be determined. In this case, Mr. Ferdinand admitted guilt for possession of a firearm but not aggravated assault. I cannot agree with the defence submission that the two offences do not vary greatly in seriousness. This is especially so given that at the time he fled the country, Mr. Ferdinand was unaware of the extent of Mr. Kelly’s injuries. In my view, Mr. Ferdinand’s flight from Canada was “out of all proportion” to the firearm possession offence he admitted to.

[29] Moreover, on his own account, Mr. Ferdinand had been in possession of the firearm since the time he entered the bedroom with Jimbo. Yet it was not until the gun discharged that he took steps to dispose of it and flee the country. It is therefore open to the jury to conclude that his after-the-fact conduct was due not to his possession of the firearm but, rather, his use of it. The situation here bears greater similarity to that of the second accused in Chambers, who did not admit to participating in the shooting but admitted to violating a firearms prohibition (at para. 89):

I reject Chambers’ argument that a jury could not legitimately and rationally infer that Chambers had participated in one or more of the shootings because of his flight to Halifax. Unlike Warner, Chambers did not admit to any of the offences he was charged with. He relied on the fact that he was subject to a firearms prohibition at the time of the offences to explain his flight. It is not necessarily true that Chambers’ post-offence flight to Halifax is equally consistent with someone fleeing because he had violated a firearms prohibition and someone fleeing because he had participated in a shooting. On this record, it may be open to the jury to conclude as a matter of logic and human experience that Chambers’ post-offence flight to Halifax is consistent with someone participating in a shooting and not just someone fleeing because he had violated his firearms prohibition. It is for the jury to decide - on a proper instruction - which available inference to accept.

Similarly, in this case it may be open to the jury to conclude as a matter of logic and human experience that Mr. Ferdinand’s flight to St. Lucia is consistent with someone participating in an intentional shooting and not just someone fleeing because he had illegally possessed a firearm. It will be for the jury to decide which available inference to accept.

E. The First Trial

[30] I am cognizant that this is a retrial and that at the first trial, the jury was instructed that Mr. Ferdinand’s flight from the scene, failure to render assistance, and disposal of the gun and clothes (but not his flight from Canada) had no probative value with respect to whether he had committed a culpable act, although some of the evidence did have probative value with respect to the defence of intoxication. [1] However, the issues at the first trial were different. Mr. Ferdinand faced a number of charges, including attempted murder. The jury had to determine not only whether he had fired the gun intentionally, but also whether he had done so with the intent to kill. Mr. Ferdinand had raised the defence of intoxication. The after-the-fact conduct had little, if any, probative value with respect to Mr. Ferdinand’s level of intent: R. v. S.B., 2018 ONCA 807, at para. 70; R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at paras. 52-53. At this trial, Mr. Ferdinand is charged only with aggravated assault. This an offence of general intent. The jury must determine whether Mr. Ferdinand had the requisite intent, but not the level of his intent, and intoxication is not an available defence: R. v. Tatton, 2015 SCC 33, [2015] 2 S.C.R. 574, at paras. 42-43. In my view, these differences warrant a different conclusion with respect to the probative value of this evidence.

F. Conclusion

[31] For these reasons, I conclude that the evidence of after-the-fact conduct in this case cannot be said to have no probative value, nor is its probative value outweighed by its prejudicial effect. I accept that this type of evidence carries with it certain dangers: White, at paras. 23-25; Chambers, at para. 77; Angelis, at para. 52. However, in my view those dangers can be adequately addressed through an appropriate instruction to the jurors warning them that other explanations for Mr. Ferdinand’s after-the-fact conduct must be considered and rejected before any inference of guilt can be drawn from it.

Justice P.A. Schreck

Released: November 2, 2018.

Footnote:

[1] At the first trial, Mr. Ferdinand had been charged with attempted murder, aggravated assault, discharging a firearm with intent, and several firearm possession charges. He was acquitted of aggravated assault and discharging a firearm and convicted of some of the firearm possession charges, but the jury was unable to reach a verdict on the attempted murder count. The Crown successfully appealed the acquittal for aggravated assault: R. v. Ferdinand, 2018 ONCA 836. The Crown chose not to proceed on the attempted murder count at the retrial and Mr. Ferdinand was arraigned only on one count of aggravated assault.