COURT FILE NO.: CR-17-912 DATE: 20190116 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – JORDAN OSBORNE Defendant
Lisa Wannamaker for the Crown Magdalena Wyszomierska for the Defendant
HEARD: January 14, 2019 admissibilty of evidence of manslaughter convictions
BOswell J.
Introduction
[1] Jordan Osborne is accused by the Crown of the first degree murder of Terence Pringle. The Crown has prosecuted a number of other individuals who allegedly participated in the killing, including two young offenders, DC and ZH. Both young offenders were purportedly present when Mr. Pringle was beaten to death in his apartment. Both have been convicted of manslaughter for their roles in the offence.
[2] The Crown intends to call each of DC and ZH to testify against Mr. Osborne. Defence counsel has signalled an intention to cross-examine them both on their convictions for manslaughter. The Crown objects to that line of questioning and seeks a pre-emptive ruling limiting defence counsel’s scope of cross-examination in that area.
[3] The following reasons explain my views on the importance of cross-examination in the adversarial process and why I am not satisfied that the scope of defence counsel’s cross-examination of DC and ZH should be fettered as proposed by the Crown.
The Offence
[4] Terence Pringle lived in a basement apartment on Stewart Street in Peterborough. He was beaten to death in that apartment on the night of November 25, 2016.
[5] The Crown’s position is that a female by the name of Samantha Hall persuaded Mr. Osborne to pay a visit to Mr. Pringle for the purposes of doing whatever it took to “shut him up”. Mr. Pringle had apparently been trash-talking Ms. Hall and she did not like it. Mr. Osborne, in exchange for a small amount of cocaine, attended at Mr. Pringle’s apartment with DC and ZH. Mr. Osborne was armed with a hammer. One of the other males was armed with a baseball bat.
[6] Mr. Osborne allegedly struck Mr. Pringle in the head with the hammer a number of times, causing his death. He faces one count of first degree murder. Both young offenders were also charged with first degree murder. Each has already been convicted of manslaughter for their roles in the killing. DC offered a plea to manslaughter, which was accepted by the Crown and the court. ZH was convicted following a trial.
[7] Both young offenders are expected to testify for the Crown in the case against Mr. Osborne. ZH will apparently describe seeing Mr. Osborne strike Mr. Pringle with a hammer. DC apparently did not witness the hammer strikes, but will describe what happened both before and after the assault.
The Positions of the Parties
[8] Defence counsel proposes to cross-examine each of DC and ZH about their prior convictions for manslaughter. She intends to raise these convictions for the purpose of undermining their credibility in two ways:
(a) To establish that they each have character defects and should therefore be considered less trustworthy by the jury; and,
(b) To establish that each of them had a personal interest in distancing himself from the offence of first degree murder by pinning the worst of the conduct on Mr. Osborne, both in statements given to the police and in trial testimony.
[9] Defence counsel contends that she is presumptively entitled to cross-examine any witness on a prior conviction. She submits that, in this instance, the witnesses’ convictions are highly relevant and probative of their motivations and general credibility.
[10] Crown counsel argues that the fact that the witnesses have been convicted of manslaughter in relation to the death of Mr. Pringle is not in any way relevant to or probative of Mr. Osborne’s culpability. In the result, any questions designed to elicit evidence that a witness was convicted of manslaughter in relation to the same offence are improper.
[11] The Crown appreciates the defendant’s interest in challenging the subject witnesses’ credibility, but asserts that it is sufficient for defence counsel to cross-examine the witnesses on the basis that they have been convicted of an offence, without identifying manslaughter as the specific offence they have been convicted of. She expresses concern that if the jury learns that two of the three males involved in the killing of Mr. Pringle were convicted of manslaughter, they may reason, improperly, that they should similarly conclude that Mr. Osborne is guilty of manslaughter.
The Governing Authorities
[12] As a general proposition, evidence is admissible in a criminal trial provided it is relevant, material and not otherwise excluded by a specific rule of evidence: R. v. Candir, 2009 ONCA 915, para. 46.
[13] In this case, the Crown seeks to limit defence counsel’s ability to cross-examine on the prior convictions of two eyewitnesses based on two assertions: (1) the evidence is not relevant to any live issue in the case against Mr. Osborne; and (2) even if relevant, the prejudicial impact of the evidence will outweigh its limited probative value.
[14] When the evidence in issue is a prior conviction of a witness, s. 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, specifically provides that the witness may be questioned about it. Section 12 has been described as “a legislative judgment that prior convictions do bear upon the credibility of a witness.” See R. v. Corbett, [1988] 1 S.C.R. 670 at para. 21, per Dickson, C.J.C. In other words, prior convictions are legislatively deemed to be relevant to the issue of credibility.
[15] Section 12 is permissive, not absolute. In the result, trial judges have a discretion to limit the cross-examination of a witness on his or her prior conviction(s). This discretion is typically exercised where the probative value of the evidence of a prior conviction is outweighed by its prejudicial effect on the fair trial right of the accused: R. v. McManus, 2017 ONCA 188, at para. 81.
[16] Where evidence sought to be excluded through the court’s residual discretion to exclude evidence whose probative value is exceeded by its prejudicial effect is defence-led, then the court must be satisfied that the probative value of the evidence is substantially outweighed by its potential for prejudice. See R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577, at para. 43.
Discussion
[17] It is essential to our collective sense of justice and fairness that Canadian criminal trials focus on the twin goals of the search for truth and fairness to the accused person: see R. v. Handy, 2002 SCC 56, at para. 44.
[18] Canadian trials, both civil and criminal, are conducted in accordance with an adversarial model. The manner in which the truth is arrived at in a justice system based on the adversarial model is not, perhaps, as obvious as one might suppose. Justice Paciocco has, for instance, characterized the search for truth in adversarial proceedings as “nuanced”: see David M. Paciocco, Understanding the Accusatorial System, 14 Can. Crim. L. Rev. 307.
[19] In our adversarial system, a prosecutorial authority levels an accusation (charge) against an accused person and has the burden of proving that accusation. The trier of fact is ultimately not focused on the search for truth, but rather on the question of whether the prosecution has proven its accusation to the reasonable doubt standard.
[20] The search for truth, in the adversarial context, is grounded largely in the process whereby evidence is adduced and subjected to “adversarial scrutiny”. It is the testing of evidence through adversarial scrutiny – in other words, cross-examination – that principally serves the truth-seeking function of the trial.
[21] Cross-examination is therefore a critical feature of the adversarial system and the nuanced manner in which it seeks out the truth. Indeed, Justice Charron has described our adversarial system as premised “on the assumption that sources of untrustworthiness or inaccuracy can best be brought to light under the test of cross-examination”: R. v. Khelawon, 2006 SCC 56 at para. 48. Professor Wigmore famously described cross-examination as the “greatest legal engine ever invented for the discovery of truth.” See 5 J. Wigmore, Evidence, §1367, p. 32 (J. Chadbourn rev. 1974).
[22] It is unsurprising then, that counsel are afforded wide latitude when cross-examining adversarial witnesses. The permissible scope of cross-examination, while wide, is not entirely unfettered. The questions posed by the examiner must be relevant to a live issue in the proceedings, or to the credibility of the witness. And they must comply with the governing rules of admissibility. See D. Watt, Manual of Criminal Evidence, 2018, (Toronto: Carswell, 2018) at §20.01.
[23] Crown counsel’s position, as I have noted, is that evidence of the manslaughter convictions of DC and ZH are not relevant in the case against Mr. Osborne. In the alternative, they should be excluded through an exercise of the court’s discretion to exclude otherwise relevant evidence where its probative value is outweighed by its potential for prejudice.
[24] Crown counsel relies on two cases in support of her attempt to pre-emptively prevent defence counsel from cross-examining DC and ZH on their manslaughter convictions. She argues that these cases support a general rule that where multiple parties are alleged to have participated in an offence, the prior convictions of one or more of those parties – with respect to the offence in issue – are not admissible in evidence at the subsequent trial of any other of the involved parties. The inadmissibility of such evidence is grounded in an absence of relevance.
[25] The first case relied on by the Crown is R. v. Martin, [1980], O.J. No. 1951, a decision of the Court of Appeal for Ontario arising from the conviction of Mr. Martin for the murder of Ronald Blais in Ottawa in June 1977. Two men were charged with Mr. Blais’ murder: Mr. Martin and Mr. Comeau. They were tried separately; Mr. Comeau first. He was acquitted by a jury. At issue on Mr. Martin’s appeal was the decision of the trial judge to permit Crown counsel to elicit from Mr. Comeau, in direct examination, the fact that he had been tried and acquitted of the murder of Mr. Blais.
[26] The trial judge had provided the jury with an instruction to the effect that the evidence of Mr. Comeau’s acquittal had been admitted on the very narrow ground of credibility only.
[27] Lacourciere J.A. held, for a unanimous court, that evidence of a prior acquittal could only bolster the credibility of a witness, not impeach it. Evidence is inadmissible for that purpose as there is no general principle that a witness who has been acquitted of a charged offence is inherently more trustworthy than someone who has never been charged. (Para. 17).
[28] Justice Lacourciere went on to hold, however, that evidence of the prior acquittal was admissible for the limited purpose of demonstrating that Mr. Comeau lacked a motivation to pin the crime on Mr. Martin in order to avoid his own jeopardy. In other words, it was admissible to refute any suggestion that he had a personal interest in the outcome of the trial. (Para. 20).
[29] In the end result, the case was sent back for a retrial. Though the evidence of the prior acquittal was properly admitted, the jury had not been misdirected on its proper and limited use.
[30] The distinction between this case and the Martin decision is readily identifiable. First, Martin was concerned with a prior acquittal, not prior convictions. A prior acquittal may not be relevant to the issue of credibility. Prior convictions are not only relevant, but are legislatively deemed to be admissible by virtue of s. 12 of the Canada Evidence Act.
[31] The second case relied upon by Crown counsel is R. v. Tingle and Dunkley, 2018 ONSC 7109. Tingle is a decision of Justice K. Campbell of this court. Justice Campbell defined the issue engaged in his ruling in its opening paragraph:
If the principal offender in a killing is acquitted of first degree murder but convicted of second degree murder, can evidence of that jury verdict be subsequently admitted into evidence at the later trial of two alleged parties to this killing, also facing charges of first degree murder?
[32] Justice Campbell answered the question in the negative. He concluded that the outcome of the separate trial of the principal offender was irrelevant and not determinative of any of the live issues in the Crown’s case against the two other alleged parties to the offence.
[33] Again, Tingle is readily distinguishable from the case at bar based on the purpose for which the evidence was tendered. In Tingle, defence counsel sought to introduce evidence of the prior conviction for second degree murder through cross-examination of a police detective called by the Crown. Defence counsel contended that the evidence was relevant and, moreover, that the jury was in fact bound by the earlier decision. The defence argument was premised on the assertion that an aider could not be convicted of first degree murder if the principal had only been found guilty of second degree murder. Campbell J. rejected the defence argument, citing the Supreme Court’s decision in Remillard v. The King (1921), 62 S.C.R. 21.
[34] Ms. Wyszomierska seeks to introduce evidence of the two manslaughter convictions for entirely different purposes than those at issue in Martin and Tingle. In this case, evidence of the manslaughter convictions is relevant to the credibility of DC and ZH. Unlike in Martin and Tingle, the foundational requirement of relevance has been established here.
[35] Relevance to one live issue in a proceeding is generally sufficient to support admission. In this case, however, there is a secondary purpose for the introduction of the evidence. In particular, Ms. Wyszomierska intends to cross-examine DC and ZH on evidence they gave in the prior proceedings; whether through statements to the police or trial testimony. Her goal is to establish that these young offenders, facing charges of first degree murder, were highly motivated to distance themselves from the most serious aspects of the offence and to point to someone else (Mr. Osborne) as the principal offender. This stated purpose would appear to me to be, again, relevant to the issue of credibility and, more particularly, to the issue of whether the witnesses have a vested interest in the outcome of the case.
[36] Concurrently, one might anticipate that the Crown may assert that the fact that the two young offenders have already been convicted of and sentenced for manslaughter means that they no longer have a vested interest in the outcome of the case against Mr. Osborne.
[37] In any event, having determined that the proposed line of questioning is relevant to the live issue of credibility, it remains only to determine if the evidence should nevertheless be excluded on the basis of its potential for prejudice.
[38] As I noted earlier, as defence-led evidence, it may only be excluded under the court’s residual discretion, if I am satisfied that its potential for prejudice substantially outweighs its probative value.
[39] In terms of the probative value of the manslaughter convictions, I would have to say that it is far from “game changing” evidence. But I agree with defence counsel that it is an important factor for the jury to consider when assessing the credibility and reliability of the evidence of the two young offenders. It is made all the more significant for two reasons. First, because DC and ZH are the only two eyewitnesses to the killing who will be testifying. Second, because they are arguably unsavory witnesses.
[40] In terms of the potential for prejudice associated with the evidence, I will begin by recognizing that prejudice generally falls into two categories: moral prejudice and reasoning prejudice. No argument was made that Mr. Osborne would likely be morally prejudiced by the cross-examination of DC and ZH on their prior convictions. The argument focussed instead on reasoning prejudice.
[41] Two concerns were raised with respect to the risk of reasoning prejudice and they are two sides of the same coin:
(a) First, the risk that the jury might improperly reason that Mr. Osborne must be guilty because two separate courts have concluded that the other two alleged parties to the offence are guilty. In other words, that the established culpability of the other two parties is determinative of Mr. Osborne’s guilt;
(b) Second, the risk that the jury might improperly reason that Mr. Osborne should not be found guilty of any offence more serious than manslaughter given that the other two parties to the offence were convicted of manslaughter and not murder.
[42] In my view, any potential for reasoning prejudice can be attenuated by a limiting instruction to the jury. Such an instruction will explain the way(s) in which the evidence may be used and the way(s) in which it must not be used. The required instruction will not be particularly complicated and it is one I am confident the jury will follow.
[43] In the result, I am not satisfied that the probative value of the evidence of the manslaughter convictions is substantially outweighed by its potential for prejudice.
Conclusion
[44] The right of an accused person to cross-examine Crown witnesses is essential to the twin goals of seeking the truth and ensuring a fair trial. It should not be fettered without compelling reasons.
[45] That said, the right of cross-examination is not unlimited. Evidence sought to be adduced through cross-examination must meet the foundational requirements of relevance, materiality and admissibility.
[46] I am satisfied that the prior convictions of DC and ZH are relevant to the jury’s assessment of their credibility. I am also of the view that the probative value of this impugned evidence is not substantially outweighed by the risk that it will prejudice Mr. Osborne or the trial process.
[47] I am not, in the result, satisfied that the Crown has established a compelling justification for the fettering of defence counsel’s right of cross-examination on the issue of the witnesses’ prior convictions. I conclude therefore that defence counsel may question each of DC and ZH about their convictions for manslaughter.
Boswell J.