COURT FILE NO.: CR-19-181
DATE: 2021 09 20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Paulo Egbobawaye
Mr. Morrow, for the Crown
Mr. Manek, for Mr. Egbobawaye
HEARD: September 16, 2021
RESTRICTION ON PUBLICATION
Pursuant to s. 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
REASONS FOR DECISION ON PRETRIAL APPLICATIONS:
ALTERNATE SUSPECT, INADEQUATE POLICE INVESTIGATION,
PRIOR DISCREDITABLE CONDUCT, AND OTHER ISSUES
Conlan J.
I. Introduction
The Charges
[1] Mr. Paulo Egbobawaye is charged in a two-count Indictment with (i) fraud over $5000.00 contrary to section 380(1)(a) of the Criminal Code and (ii) breach of probation (the alleged actus reus being impersonation) contrary to section 733.1(1) of the Criminal Code.
The Trial
[2] The accused is scheduled to be tried by a judge and jury in December 2021.
The Background
[3] It is alleged by the authorities that the accused participated in a fraudulent “romance scam”. The complainant had an online relationship with a fictitious person. The complainant was persuaded to send a very significant amount of money to various bank accounts, the named holders of which were also fake persons. Surveillance footage allegedly shows the accused withdrawing money from these bank accounts. It is also alleged that he used bank cards associated with the accounts. The accused was arrested by the police under warrant, and a search of his residence resulted in the seizure of what the prosecution alleges are incriminating items including bank documents, notebooks, and a sizeable amount of cash.
[4] The Crown theory is that the accused was a knowing participant in the scam, or alternatively that he was wilfully blind to it. It is anticipated that the chief theory of the defence at trial will be that the accused was an unwitting dupe and, thus, the mens rea component of the offences cannot be made out.
The Applications and the Issues to be Decided
[5] The defence has brought an alternate suspect application – it wants to be able to argue at trial that a man named Justin Asoata (“Justin”) and/or others was/were involved in the fraud.
[6] The Crown has brought a prior discreditable conduct application – it wants to be able to cross-examine the accused at trial, if indeed he testifies and if indeed he advances the unwitting dupe theory, on his prior related criminal conviction for fraud under $5000.00 (Hamilton, December 13, 2017) and its underlying facts and circumstances, which facts include the involvement of Justin.
[7] Although not the subject of any formal application before the Court, when the hearing was held on September 16, 2021, which hearing lasted one day and did not include any viva voce evidence, other issues were raised and argued:
i. whether the defence can advance at trial an argument about inadequate police investigation, and
ii. whether the defence can cross-examine police witnesses at trial in order to elicit statements made to them by the accused which are favourable to the defence, and
iii. whether the defence can admit into evidence at trial (through the testimony of the accused) an alleged recording of a conversation, post-arrest of the accused, between the accused and Justin, which recording the accused previously surrendered to the police (the defence retained a copy of it, however).
II. Analysis
The Alternate Suspect Application
[8] “Sometimes, a person accused of a crime will point to someone else as the person who committed it. And sometimes, a person accused of a crime will claim that the police investigation of the offence that resulted in the charge was seriously flawed. Both happened here”. R. v. Spackman, 2012 ONCA 905, at paragraphs 1-3, 300 O.A.C. 14, 295 C.C.C. (3d) 177, 274 C.R. (2d) 196, [2012] O.J. No. 6127.
[9] Neither is the case here, however. This accused is not alleging that he did not defraud the complainant but rather X (whether Justin and/or someone else) did. And he is not alleging that the police investigation, whether of him specifically or of Justin or of the offence generally, was seriously flawed.
[10] The second item will be dealt with further below.
[11] As to the alternate suspect application, I agree with the Crown that it does not apply here. A succinct and instructive review of the legal principles was provided by Justice Watt, the opinion concurred in by Justices Laskin and Feldman, in Spackman, supra, at paragraphs 120 through 123, set out below.
[120] It is fundamental that if A is charged with the murder of X, then A is entitled, by way of defence, to adduce evidence to prove that B, not A, murdered X: R. v. McMillan (1975), 1975 43 (ON CA), 7 O.R. (2d) 750 (C.A.), at p. 757, affirmed, 1977 19 (SCC), [1977] 2 S.C.R. 824; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 46. The evidence on which an accused relies to demonstrate the involvement of a third party in the commission of the office with which the accused is charged must be relevant to and admissible on the material issue of identity: McMillan, at p. 757; Grandinetti, at para. 46.
[121] It is essential that there be a sufficient connection between the third party and the crime, otherwise any evidence about the third party would be immaterial. An accused must show that there is some basis upon which a reasonable jury, properly instructed, could acquit based on the claim of third party authorship: Grandinetti, at paras. 47-48; R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 70. Absent a sufficient connection, the “defence” of third party authorship lacks an air of reality and cannot be considered by the trier of fact: Grandinetti, at para. 48.
[122] Where the “defence” of third party authorship is in play at trial, it is open to the Crown, as with other defences advanced on an accused’s behalf, to introduce evidence that rebuts the claim that a third party committed the offence. The evidence may take various forms and originate in different sources. The Crown’s rebuttal must be relevant to and admissible on this material issue: see e.g. R. v. Mullins-Johnson (1996), 1996 1214 (ON CA), 112 C.C.C. (3d) 117 (Ont. C.A.), at pp. 123-124, affirmed, 1998 831 (SCC), [1998] 1 S.C.R. 977; R. v. Parsons (1993), 1993 3428 (ON CA), 84 C.C.C. (3d) 226 (Ont. C.A.), at p. 238; and McMillan, at pp. 767-768.
[123] The “defence” of inadequate investigation may be related to but can be discrete from a claim of third party authorship. The decision by an accused to attack the integrity of the police investigation of the offence charged is a permitted, but risky strategy. The risk involved is that, by invoking the strategy, the accused will make relevant, material, and admissible, evidence that would never have seen the light of day if tendered by the Crown as part of its case in-chief: R. v. Dhillon (2002), 2002 41540 (ON CA), 166 C.C.C. (3d) 262 (Ont. C.A.), at para. 51; and R. v. Mallory, 2007 ONCA 46, (2007), 217 C.C.C. (3d) 266, at para. 87. Included among the evidence that may be made admissible is investigative hearsay, albeit subject to instructions about its limited use: Dhillon, at para. 51; Mallory, at para. 92; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 184; and R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 33. To deny the Crown the right to adduce evidence to rebut a claim of inadequate investigation, as with the “defence” of third party authorship, would be to leave an entirely distorted and incomplete picture with the jury.
[12] In our case, there is no argument by the defence that X (whether Justin and/or someone else), not the accused, defrauded the complainant. There is simply a theory being advanced that there were others, including Justin, involved in the scam (which is no surprise to the police or the Crown), and whatever role that was played by the accused does not rise to the level of a crime in that he did not knowingly, recklessly, or with wilful blindness defraud the complainant.
[13] Through the police investigation, including the statements made to the police by the accused (which statements are admitted by the defence to have been made voluntarily and, thus, are admissible at trial) and the extraction report that resulted from the analysis of the accused’s cellular telephone that was seized by the police, the authorities are well aware of Justin.
[14] It is simply not necessary for this Court to adjudge the alternate suspect application. It is enough for it to be said, and I so rule without any opposition by the Crown, that the defence is free to advance at trial, and elicit evidence at trial in support of, the following:
i. that the accused was an unwitting dupe at the hands of others, including Justin, and
ii. Justin and/or others were involved in the fraudulent scheme, and
iii. Justin was the mastermind of the scheme, and
iv. the accused simply carried out instructions and directions given to him by others including Justin, and
v. in doing so, the accused did not know or have cause to reasonably suspect that he was doing anything illegal, and so on.
The Inadequate Police Investigation Issue
[15] The defence filed no application on this issue and provided no authorities to the Court relevant to it. The Crown raised the issue as being one worthy of some pretrial discussion because of its relation to the alternate suspect theory. I agree with the Crown that it should be dealt with now.
[16] As Justice Watt put it at paragraph 123 of Spackman, supra, this is a “risky strategy” on the part of the defence. Nevertheless, I will allow the accused to raise at trial the “defence” of inadequate police investigation, and have his counsel cross-examine police witnesses accordingly, if he chooses to do so.
[17] I have concluded that evidence in support of this “defence”, on our facts, is relevant, and I have determined further that the probative value of any such evidence outweighs its potential prejudicial effect.
[18] On relevance, although not put this way in argument by the defence, I think that the ability of the prosecution to prove the mens rea component of these offences on the part of this accused is likely to be affected by evidence as to what degree the criminal operation was orchestrated and directed by Justin. In other words, I think that the trier of fact is entitled to find that the more and more that Justin controlled the entire operation and, in doing so, misled and concealed information from the accused, the more likely it is that a reasonable doubt may exist as to the accused’s knowledge, recklessness, or wilful blindness of what was going on.
[19] I do not see it as rank speculation (my expression), a concern raised by the Crown.
[20] Thus, it follows that the defence should be able to question the police at trial about the adequacy, or inadequacy, of its investigation of Justin. I rule that the defence is permitted to do so.
The Issue of the Defence Cross-examining Police Witnesses on the Accused’s Statements
[21] Again, the defence filed no application on this issue and provided no authorities to the Court relevant to it. The Crown raised the issue.
[22] During the hearing held on September 16th, this Court asked defence counsel directly whether he intended at trial to cross-examine police witnesses in order to elicit favourable statements made by the accused to the police (the accused gave multiple formal statements to the police). The answer was in the affirmative.
[23] This Court rules that the defence is prohibited from doing so.
[24] In my view, what the defence proposes to do at trial runs directly contrary to a well-established line of jurisprudence, much of it binding on this Court, starting with the seminal decision of Justice Martin of the Court of Appeal for Ontario in R. v. Campbell, 1977 1191, 17 O.R. (2d) 673, 38 C.C.C. (2d) 6, 1 C.R. (3d) 309, 1 W.C.B. 619, [1977] O.J. No. 1684, and continuing through to and beyond the decision of Justice Sharpe of the Court of Appeal for Ontario in R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, 269 O.A.C. 171, 260 C.C.C. (3d) 1, 78 C.R. (6th) 106, [2010] O.J. No. 3152. Set out below are paragraphs 27 through 36 of the judgment in Edgar, supra.
[27] The starting point in Canadian law for analysis of the exclusionary rule with respect to exculpatory out-of-court statements resides in Martin J.A.'s judgment in Campbell. In that case, the accused was charged with the murder of his wife. She died as a result of gunshot wounds and her body was set on fire. Shortly after he left the scene of her death, the accused made exculpatory statements to customs officials as he left Canada through a border crossing. The accused argued that these statements were admissible to rebut the Crown's allegation of [page172] recent fabrication. His counsel argued that, upon giving his undertaking to call the accused as a witness, he should be permitted to elicit the accused's prior exculpatory statements through cross-examination of Crown witnesses.
[28] Martin J.A. held that the trial judge had properly excluded the statements at issue. He explained the rationale for the exclusionary rule in the following terms, at p. 685 O.R.:
The refusal of the trial Judge to admit the evidence of other witnesses, whether in cross-examination or otherwise, of previous statements made by the appellant, involves two separate rules of evidence:
I. The rule which precludes an accused from eliciting from witnesses self-serving statements which he has previously made.
II. The rule which provides that a witness, whether a party or not, may not repeat his own previous statements concerning the matter before the Court, made to other persons out of Court, and may not call other persons to testify to those statements.
Statements made by an accused which infringe rule I are excluded as hearsay. The narration by a witness of earlier statements made to other persons out of Court appears to be excluded under rule II, because of the general lack of probative value of such evidence, save in certain circumstances, in support of the credibility of the witness. Each of the above rules is subject to well-recognized exceptions or qualifications, and there is some overlap, both in the rules and in the exceptions to them: see Phipson on Evidence, 12th ed. (1976), at pp. 650-3; Cross on Evidence, 4th ed., at pp. 207-20; Previous Consistent Statements, [1968] Camb. L.J. 64, by R. N. Gooderson.
[29] I will return below to the significance of the English authorities cited by Martin J.A.
[30] In rejecting the argument that the trial judge had erred by refusing to allow the accused to elicit the prior consistent statements through cross-examination of Crown witnesses, Martin J.A. identified a further rationale for the exclusionary rule:
an accused person should not be permitted to advance his or her own evidence of a defence through out-of-court statements and avoid cross-examination. Martin J.A. added, at p. 686 O.R., that even where counsel for the accused undertakes to call the accused to the stand, the defence should not be allowed to elicit the prior consistent statements from third parties before the accused testifies:
I am, however, unable to assent to the proposition that upon counsel giving an undertaking to call the accused as a witness, although given in the utmost good faith, counsel is then entitled to elicit from third persons statements made to them by the accused in order to rebut an implicit and anticipated allegation that his evidence, not yet given, will be a recent fabrication.
The accused, of course, remains free to alter his instructions to counsel, or to change his mind with respect to testifying. Such an extension of the [page173] exception is unwarranted, would be destructive of an orderly trial and might be productive of mistrials if the accused did not testify after his self-serving statements had been introduced on the basis that such statements would become admissible under this exception.
[31] In R. v. Simpson, 1988 89 (SCC), [1988] 1 S.C.R. 3, [1988] S.C.J. No. 4, at p. 22 S.C.R., the Supreme Court of Canada reiterated that the lack of cross-examination constitutes a rationale for excluding the exculpatory out-of-court statements of an accused:
This rule is based on the sound proposition that an accused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses and thus put his defence before the jury without being put on oath and being subjected, as well, to cross-examination. See, also, R. v. Graham, 1972 172 (SCC), [1974] S.C.R. 206, [1972] S.C.J. No. 117, at p. 214 S.C.R.; Rojas, at paras. 36-37.
[32] Another argument advanced in support of excluding the prior consistent statements of the accused, almost certainly inspired by the same thinking that produced the common law rule precluding an accused person from testifying, is the risk of fabrication. For instance, see R. v. Béland, 1987 27 (SCC), [1987] 2 S.C.R. 398, [1987] S.C.J. No. 60, at p. 410 S.C.R., citing R. v. Hardy (1794), 24 St. Tr. 199, at pp. 1093-94, and putting forth the following proposition: ". . . the presumption . . . is that no man would declare anything against himself, unless it were true; but that every man, if he was in difficulty, or in the view of difficulty, would make declarations for himself".
[33] Trial efficiency is also advanced as a reason to limit the admissibility of prior consistent statements: see Béland, at p. 411 S.C.R., refusing to admit evidence that the accused had willingly agreed to take a polygraph as "[t]o do otherwise is to open the trial process to the time-consuming and confusing consideration of collateral issues and to deflect the focus of the proceedings from their fundamental issue of guilt or innocence".
[34] Exclusion of the prior consistent statements of the accused is also viewed as a product of the rule against oath- helping or adducing evidence solely for the purpose of bolstering a witness's credibility: see Béland, at pp. 405-409 S.C.R. (e) Exceptions to the traditional rule
[35] It is well recognized, however, that the prior consistent statements of an accused are not always excluded. Two established exceptions have already been mentioned. First, where an accused's prior consistent statement is relevant to his or her state of mind at the time the offence was committed, it may be admitted. Second, where the Crown alleges recent fabrication, the accused may adduce evidence of a prior consistent statement [page174] to rebut the allegation. A third exception is made for "mixed" statements that are partly inculpatory and partly exculpatory. Where the Crown seeks to adduce evidence of such a statement, the inculpatory portion is admissible as an admission against interest and, as a matter of fairness to the accused, the Crown is required to tender the entire statement, with the exculpatory portion being substantively admissible in favour of the accused: Rojas, at para. 37. A fourth exception is that the prior statement will be admitted where it forms part of the res gestae, in other words, where the statement itself forms part of the incident that gives rise to the charge: see Graham; R. v. Risby, 1978 184 (SCC), [1978] 2 S.C.R. 139, [1978] S.C.J. No. 4.
[36] This list of exceptions is not exhaustive. In Simpson, the Supreme Court of Canada stated, at p. 22 S.C.R., that general exclusion of the prior consistent statements of an accused person is "not an inflexible rule, and in proper circumstances such statements may be admissible".
[25] In our case, these out-of-court, self-serving statements made to the police by the accused do not fall within any of the exceptions recognized in the law before, as a result of, or since Edgar, supra. They may be relevant, but their probative value is limited and far outweighed by their potential prejudicial effect.
[26] Simply put, the defence has been unable to articulate before this Court any legitimate reason as to why the Court should depart from the well-established state of the criminal law to date and permit the defence to utilize the accused’s police statements in the manner advertised.
The Issue of the Alleged Recorded Conversation Between the Accused and Justin
[27] Similarly, the defence filed no application on this issue and provided no authorities to the Court relevant to it. Again, the Crown raised the issue.
[28] During the hearing held on September 16th, this Court asked defence counsel directly what use at trial he intends to make of the alleged recorded conversation between the accused and Justin that took place on September 28, 2018, post-arrest of the accused. The answer was that the defence plans to play the recording for the jury and file a translation of it (because the recording is in a Nigerian dialect) during the testimony of the accused.
[29] This Court rules that the defence is prohibited from doing so.
[30] Justin is not being called as a witness at trial, I am told. If he is the other man speaking in the recorded call, then he is a declarant who is not testifying. The only purpose for adducing the evidence of the recorded conversation would be for the truth of the statements made therein, by both declarants. Thus, there is a classic hearsay problem with permitting the defence to do what it wants to do. The defence has failed to demonstrate on what legal basis the proposed evidence is admissible – whether by virtue of a traditional exception to the hearsay rule or under the more modern, principled approach to hearsay.
[31] Further, if the accused is the other man speaking in the recorded call, then his utterances made during the conversation are inadmissible prior consistent statements.
[32] Finally, the recorded conversation is useless to the jury without a properly accredited English translation of it, which we do not have.
[33] As an aside, I must confess that I do not comprehend why the defence wants to play the recorded conversation at trial. If the unofficial translated synopsis of the call is at all accurate, and I have read it carefully, only harm could come to the accused from the jury receiving the evidence. It establishes that the two men know each other intimately. It contains numerous comments from “Justin” that implicate the accused in some illegal scam whereby the accused gets “20%” of the money. I just do not understand the utility of the conversation from the perspective of the defence.
The Discreditable Conduct Application
[34] The Crown’s application to adduce evidence at trial regarding the accused’s prior fraud conviction, and its underlying facts, is dismissed.
[35] In R. v. Saliba, [2013] O.J. No. 5887, 2013 ONCA 661, 311 O.A.C. 196, 304 C.C.C. (3d) 133, 111 W.C.B. (2d) 121, 2013 CarswellOnt 18359, which case was an appeal by the Crown from acquittals on charges of sexual offences and child luring over the internet, Justice Doherty of the Court of Appeal for Ontario observed the following, at paragraphs 33 through 36.
[33] The Crown also challenges an evidentiary ruling made by the trial judge. Although it is not necessary to address this issue given my conclusion on the first ground of appeal, I will do so as it may arise on the retrial.
[34] At trial, the Crown argued that, in determining whether Mr. Saliba took all reasonable steps to ascertain A.’s age before engaging in sexual activity with her, it was relevant that Mr. Saliba knew that he had been previously lied to by H. about her age on the same website. As I understand the argument, the Crown contends that knowledge that a source of information had previously proved unreliable as to a person’s age is relevant to the steps that a reasonable person would take in confirming information subsequently received from the same source about another person’s age.
[35] This issue was raised and argued at trial as an application to introduce similar fact evidence. This characterization was unfortunate. In my view, the admissibility of the evidence does not engage the complexities of the similar fact analysis. The relevance is the product of the common sense proposition that if a person knows that information obtained from a source was inaccurate in the past, that knowledge may affect the steps that a reasonable person would take to confirm similar information received from the same source on a subsequent occasion. The evidence was admissible for the limited purpose advanced by the Crown.
[36] In holding that Mr. Saliba’s knowledge that H. had lied to him about her age in her Mocospace profile was relevant to the reasonable steps necessary to confirm the same information provided by A., I do not suggest that this knowledge was determinative or even necessarily entitled to significant weight. The weight of the evidence is for the trial judge. These reasons also should not be taken as any comment on the possible admissibility on the charges involving A. of other conversations involving H. and Mr. Saliba.
[36] A close parallel can be drawn with our case, which runs in favour of the Crown’s application. If the accused testifies at trial, and if he advances the unwitting dupe theory, and especially if he disavows any knowledge of Justin and Justin’s criminal antecedence, then it would seem a matter of common sense and trial fairness to permit the Crown to confront the accused about the prior Hamilton fraud and its underlying facts, which facts (according to the transcript of the proceeding before Campling J. of the Ontario Court of Justice, which transcript I have reviewed) are somewhat similar to (though not strikingly so) the allegations in our case and which do, and this is significant, involve Justin.
[37] Despite that, I have decided to dismiss the Crown’s application. I am comforted by the knowledge that the Crown will have plenty of other ammunition at its disposal to dispel any notion, if it arises through the evidence of the accused at trial, that the accused was not aware of Justin and Justin’s, at a minimum, “suspect” past. That other ammunition includes the accused’s own statements to the police and the extraction report that emanated from the police seizure of the accused’s cellular telephone.
[38] I remind the reader of the inherent dangerousness of admitting into evidence at trial prior discreditable conduct on the part of the accused. There is good reason why it is presumptively inadmissible. By that I mean that it is subject to a general exclusionary rule that operates unless and until the scales tip in favour of its probative value. It is, undoubtedly, inherently prejudicial. R. v. B.(L.), 1997 3187 (ON CA), 35 O.R. (3d) 35, 102 O.A.C. 104, 9 C.R. (5th) 38, 116 C.C.C. (3d) 481, [1997] CarswellOnt 2711, [1997] O.J. No. 3042.
[39] To that I would add that, in my experience, there are instances where the prejudice is so obvious and likely to be so strong that it would be naïve to think that any correcting or limiting instruction to the jury could reasonably overcome it.
[40] That is the situation here, in my assessment. Imagine the jury hearing and then being specially instructed, probably twice, that the accused committed the same offence charged (fraud) mere months before, and with the same person, Justin, and admitted to it all by pleading guilty, but that should not cause the jury to engage in impermissible propensity or moral reasoning in the case at Bar. I hesitate to think that any such special instruction would be effective.
[41] In short, although the proposed evidence is certainly (i) conduct of the accused, and (ii) relevant, and (iii) material, and (iv) reliable, it is also (v) highly discreditable such that its prejudicial effect outweighs its probative value. It is also unnecessary, as alluded to above, in light of the other evidence at the Crown’s disposal.
[42] Of course, this pretrial ruling could be revisited depending on what, precisely, the accused says during his testimony before the jury. The accused has a very experienced counsel working on his behalf. I am sure that some caution will be exercised.
(“Original signed by”)
Conlan J.
Released: September 20, 2021
COURT FILE NO.: CR-19-181
DATE: 2021 09 20
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Paulo Egbobawaye
REASONS FOR DECISION ON PRETRIAL APPLICATIONS ALTERNATE SUSPECT, INADEQUATE POLICE INVESTIGATION, PRIOR DISCREDITABLE CONDUCT, AND OTHER ISSUES
Conlan J.
Released: September 20, 2021