COURT FILE NO.: CR-19-30000281
DATE: 20211112
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TAUFIQ STANLEY
Accused
Donna Kellway and Joshua Chan, Counsel for the Crown
Dirk Derstine and Laura Remigio, Counsel for the Accused
HEARD: October 15, 2021
M.A. CODE J.
Reasons for judgement on a mid-trial rULING concerning the scope of cross-examination of the accused.
A. OVERVIEW
[1] The accused Taufiq Stanley (hereinafter Stanley) was convicted on October 30, 2021 of the first degree murder of Samatar Farah, after a six week jury trial. During the fourth week of trial, Stanley testified as the first witness for the defence. On October 15, 2021, I made a brief oral mid-trial ruling, with written Reasons to follow, during the Crown’s cross-examination of Stanley. The mid-trial ruling concerned the scope of cross-examination of the accused. These are my written Reasons for the mid-trial ruling.
[2] There had been colloquies with counsel about this issue, on October 13 and 14, 2021, where I expressed some preliminary views and provided some preliminary guidance concerning the cross-examination of the accused. It was not until the morning of October 15, 2021, after the Crown had completed a full day of cross-examining Stanley, that the Crown brought a formal Motion seeking leave to cross-examine in areas that had been the subject of an earlier pre-trial Motion. In that earlier Motion, I had made rulings about the admissibility of evidence of prior discreditable conduct. In particular, I made a ruling in October 2020 about certain photographs found in Stanley’s cell phone, depicting him about two weeks prior to the murder in possession of two handguns and a large amount of cash. One of the guns in his possession in the photographs was a revolver and it was alleged to be one of the two murder weapons used in the shooting of Farah on April 15, 2017, some 13 days after the photographs were taken. I ruled that Stanley’s prior possession of the revolver was admissible and that the parties should attempt to negotiate an Agreed Statement of Fact that would permit cropping or editing of the second handgun and the cash which were also depicted in the photographs. See: R. v. Stanley, 2020 ONSC 6673.
[3] As a result of the above pre-trial ruling, the Crown tendered an Agreed Statement of Fact on the second day of trial (September 21, 2021) in which Stanley admitted that he was in possession of a particular revolver on April 2, 2017. The revolver was depicted in heavily cropped or edited photographs that were attached to the Agreed Statement of Fact. The second handgun and the large amounts of cash also seen in the unedited photographs were not visible, as a result of the cropping agreed to by the parties. See Exhibit 10. When Stanley testified in-chief on October 13, 2021, he gave an account of his admitted possession of the revolver depicted in the cropped photographs. That account significantly diminished his possession of the revolver in various ways. The Crown did not accept Stanley’s account in-chief and sought to challenge it by bringing out the facts relating to the second handgun and the large amount of cash that Stanley also possessed when the photographs were taken on April 2, 2017.
[4] In the mid-trial ruling on October 15, 2021, I held that there had been a material change in circumstance since the earlier ruling on the pre-trial Motion in October 2020. I ruled that the Crown was entitled to cross-examine on the facts disclosed by the April 2, 2017 photographs, including Stanley’s possession of a second gun and a large amount of cash. However, I ruled that the Crown could not use the actual photographs during the cross-examination. The main issue, on both the earlier pre-trial Motion, and on the mid-trial Motion re-visiting the earlier ruling, was the balancing of legitimate probative value and prejudicial effect.
B. FACTS
[5] It can be seen from the above overview, that there is a somewhat complicated procedural and factual background to the mid-trial ruling that is the subject of these Reasons.
[6] The accused Stanley was alleged to be one of two gunmen who shot and killed Samatar Farah in the early morning hours of April 15, 2017. The second gunman is alleged to be one Alexander Fountain. He is awaiting trial in this Court on a separate indictment. Two different guns were used to kill Farah, who was unarmed at the time. One of the guns was a Taurus revolver which was seized the day after the murder, on April 16, 2017, from one Trevor Barnett (who was an associate of Stanley and Fountain). The Taurus revolver fired a bullet or bullets to Farah’s head, one of which was recovered during the autopsy. The second gun was a semi-automatic pistol that left shell casings at the scene. It fired a bullet or bullets to Farah’s back, one of which was also recovered during the autopsy. Both of the recovered bullets were fatal or potentially fatal. The main issue in dispute at Stanley’s trial was the identity of the two gunmen.
[7] The trials of Stanley and Fountain became separated because Stanley was arrested in June 2017, about two months after the alleged murder. Fountain, on the other hand, was not arrested until July 2020. By this time, Stanley’s trial had already been adjourned once and was scheduled for a second trial date in November 2020. I began hearing pre-trial motions in relation to Stanley’s trial in October 2020 and made a ruling concerning evidence of prior discreditable conduct on October 30, 2020. That ruling concerned Stanley’s alleged prior possession of both handguns used in the murder of Farah. As summarized above, he was alleged to have been in possession of the Taurus revolver on April 2, 2017, some 13 days before the murder, on the basis of photographs forensically extracted from his cell phone. He was also alleged to have been in possession of (or had access to) the semi-automatic pistol on April 13, 2017, one day before the murder, on the basis of his alleged involvement in another shooting on that day where shell casings from the pistol were left at the scene.
[8] I made two separate rulings relating to the admissibility of this evidence of Stanley’s prior possession of (or access to) the two murder weapons. The two rulings raised a common legal issue but they depended on separate factual bases. It is only the ruling relating to Stanley’s prior possession of the revolver that the Crown sought to re-visit during the cross-examination of Stanley at trial. The substance of the earlier pre-trial ruling relating to the revolver was as follows:
In summary, the first body of evidence relates to the Taurus revolver and it emerged from Stanley’s arrest on June 29, 2017, some two and a half months after the homicide. He was found in a bedroom in his mother’s home lying on the bed with his hand on a laptop computer and with a cell phone attached to the computer. It can be inferred that it was Stanley’s bedroom and that it was his cell phone. A forensic search of the cell phone led to the discovery of a series of colour photographs taken on April 2, 2017, that is, less than two weeks before the homicide. The photographs depict a person who the Crown alleges is Stanley. This person is holding large stacks of cash, with his hand on his shoulder, while looking down at two handguns located in his lap. Enlarged images of the right side and the left side of one of the handguns reveal a number of detailed characteristics. This particular gun is a revolver. When the enlarged images of the revolver in the photographs are compared to the Taurus revolver seized from Trevor Barnett shortly after the homicide, there are a number of relatively detailed similarities. The issues on the present motion are whether the person depicted in the photograph is Stanley, whether the revolver on that person’s lap is the seized Taurus revolver used 13 days later in the Farah homicide, and whether the legitimate probative value of this evidence in relation to the issue of identification outweighs any prejudicial effect from the accused’s apparent possession of stacks of cash and two handguns depicted in the photographs while he takes a particular pose.
In my view, the photographs seized from the cell phone are clearly admissible (subject to comments I will make about potential admissions and editing that may usefully limit this evidence). There is a compelling body of circumstantial evidence inferring that the cell phone in question belonged to Stanley and that the person depicted in the colour photographs is Stanley. There are also a number of distinctive similarities between the revolver in the person’s lap in the photographs and the Taurus revolver seized from Trevor Barnett on April 16, 2017. In addition, there is evidence that the photographs were taken on April 2, 2017, which is proximate to the date on which the gun was used (April 15, 2017), and the date on which it was seized (April 16, 2017). Finally, there is evidence of an apparently close association between Barnett and Stanley on April 13, 2017 (and arguably on April 15, 2017, depending on the inferences drawn from all the evidence relating to that date). In all these circumstances, it will be open to the jury to infer that Stanley was in possession of the Taurus revolver used in the murder of Samatar Farah. Indeed, this inference is stronger on the facts of the present case, than it was on the facts of Backhouse, as explained above.
The one aspect of the cell phone photographs in the present case that concerns me is that they depict more than the accused Stanley’s alleged possession of the Taurus handgun on April 2, 2017. As noted previously, they also depict the person alleged to be Stanley in possession of a large amount of cash and a second handgun. There are at least three possible ways of removing these prejudicial aspects of the images. First, the parties should explore the device suggested by defence counsel at trial and adopted by the Court of Appeal in R. v. Backhouse, supra at paras. 162 and 172, namely, an admission that Stanley was in possession of the Taurus revolver on April 2, 2017. Such an admission would remove the main reason for tendering the photographs found in the cell phone. Alternatively, the parties should see whether the images can be edited by way of “photo shopping”, in order to remove the images of cash and the second gun. This may be difficult, without giving rise to suspicion in the jury that the images have been altered and are not reliable. Nevertheless, it should be attempted if the Backhouse admission is not forthcoming. Finally, it may be possible to structure a more limited admission that simply attaches cropped images of the revolver and admits that it was in Stanley’s possession on April 2, 2017, together with cropped images and an admission of certain identifying details seen in the photographs that day (such as a ring, chains and a bracelet). It should be noted that these identifying details are not discreditable and are independently admissible.
At present, I am satisfied that the evidence of Stanley’s possession of the Taurus handgun on April 2, 2017 is “highly probative”, as the Court of Appeal put it in Brown, on the central issue of identity. Indeed, the evidence of the photographs is more compelling in the present case than it was in Brown, as explained above. There are means available to attenuate or remove any prejudice arising from the images of cash and a second handgun. I appreciate that these more extraneous parts of the photographic images are useful in identifying Stanley as the person depicted with the revolver because they are part of a series of similar photographs showing a number of identifying details such as a ring on one finger, particular clothing, particular jewelry or chains around the person’s wrist and neck, and particular facial hair, all in association with a particular kind of pose while holding guns and money. The prejudice associated with possession of large amounts of cash and a second handgun can be controlled to some degree with a strong limiting caution to the jury, such that the prejudice would be unlikely to outweigh the high probative value of Stanley’s alleged possession of the Taurus revolver shortly before the homicide. However, I will await the parties’ efforts to arrive at a satisfactory admission, like the one in Backhouse, or some more limited admissions and potential editing, cropping, or “photo shopping” of the images. The parties can ask me to re-visit this issue once they have addressed the possibility of such admissions, editing, cropping, or “photo shopping”. [Emphasis added].
See: R. v. Stanley, supra at paras. 12, 26, 29, and 30.
[9] It can be seen that the above pre-trial ruling did not hold that the images in the photographs of a second handgun, large amounts of cash, and certain features helping to identify Stanley (such as clothing, a ring, necklaces, and facial appearance) were inadmissible. It simply encouraged the parties to negotiate an admission of Stanley’s prior possession of the Taurus revolver used in the murder or, at a minimum, Stanley’s prior possession of a strikingly similar revolver depicted in a cropped version of the photographs. In the event of such an admission, the need for the other images in order to prove Stanley’s identity “as the person depicted with the revolver” would be reduced.
[10] In this regard, the position that counsel for Stanley had taken on the pre-trial motion is important. As set out above (at para. 12 of my Reasons on the pre-trial ruling), the issues relating to the probative value of the photographs were “whether the person depicted in the photographs is Stanley” and “whether the revolver on that person’s lap is the seized Taurus revolver used 13 days later in the Farah homicide.” In his Factum on the pre-trial motion, Stanley’s counsel had stated the following in relation to these two issues and their impact on the probative value of the photographs (at paras. 21-24 and 61):
A forensic search of Taufiq Stanley’s iPhone revealed a series of photographs of an individual wearing a white t-shirt, black pants, and a black toque, looking down and away from the camera, with a firearm in his lap. The face of the individual cannot be seen in the photographs and the individual’s identity is unclear. The [Crown] Applicant’s contention that the individual depicted in the photographs is Taufiq Stanley is without foundation or explanation.
The make and model of the firearm in the photographs is similarly unknown. Revolvers produced by various manufacturers take similar shapes and styles to those depicted in both sets of photographs; the appearance of the revolver in the photos found on Mr. Stanley’s iPhone is not entirely unique to a Taurus revolver.
While the Respondent acknowledges some resemblance between the firearm in the iPhone photographs and the Taurus firearm seized from Trevor Barnett, it is the Respondent’s submission that the similarities are overstated by Applicant. Just as some characteristics of the guns appear similar, others appear different. For example, the trademark Taurus logo, which is readily apparent in the photographs of the seized firearm, is absent in the iPhone photographs.
Though there is an inference available to the court, the Applicant Crown is mistaken in stating, in a conclusory manner, that the iPhone photographs show Taufiq Stanley holding a Taurus firearm.
Further, the fact that Taufiq Stanley had photos of an individual holding a handgun similar to the Taurus revolver found on Trevor Barnett and used in the murder is not strong evidence that he personally was in possession of the murder weapon. The ease with which firearms can move hands need not be overstated. The probative value of the evidence is slight.
[11] After the various rulings on the pre-trial motions in the fall of 2020, including the above ruling relating to prior possession of the two murder weapons and a subsequent ruling related to jury selection, the case was ready for trial. However, the pandemic intervened just prior to jury selection, and all jury trials were prohibited by order of the Chief Justice in November 2020. As a result, Stanley’s trial was adjourned and was eventually rescheduled for a date in September 2021. As noted above, the trial eventually proceeded with a jury in September and October 2021.
[12] When Stanley gave his testimony in-chief at trial, in October 2021, the account that emerged was different from the way in which the issues had been presented during the pre-trial motion in October 2020. Stanley’s account was that the person depicted in the April 2, 2017 photographs was him and that he had taken the photographs himself. However, he testified that the revolver depicted in the photos did not belong to him. It belonged to his older brother Tariq who had been arrested on a parole violation warrant in March 2017. When Tariq was in jail as a result of this arrest, he asked Stanley to “grab a bag” from Tariq’s apartment in Gatineau and to “hold it.” Stanley was attending university in Ottawa at the time. He testified that he picked up Tariq’s knapsack and brought it to his own apartment. He was curious about the contents of the knapsack, opened it, and saw “a couple of things that I thought were cool at the time, including a silver revolver, which I did take out and took some pictures with.” He explained his curiosity, testifying that he “had not seen one before.” About a week after Stanley had taken possession of the knapsack, Tariq instructed Stanley to bring “something silver in the bag” to Toronto and give it “to one of his friends”, who was known as T.J. (which was Trevor Barnett’s nickname). On April 13, 2017, Stanley travelled home to Toronto for the Easter weekend, in order to visit his girlfriend. He brought the revolver with him and gave it to Barnett, when they met while seated in Barnett’s red car, soon after Stanley had arrived in Toronto. Barnett was already in possession of the semi-automatic pistol at this time and he showed it to Stanley, while they sat in the front seats of the red car. Stanley testified that he was “nervous” and “uncomfortable” carrying the revolver and he had encouraged Barnett to take it from him as quickly as possible. Finally, he testified that the silver revolver that he brought to Toronto and gave to Barnett on April 13, 2017 looked the same as the Taurus revolver seized from Barnett on April 16, 2017, shortly after the shooting of Farah. Stanley regretted taking photographs of himself with the revolver and he regretted bringing it to Toronto and giving it to Barnett. These were stupid youthful mistakes.
[13] There is one further aspect of Stanley’s evidence-in-chief that should be mentioned. He explained that his original defence strategy had not included testifying at trial. It was halfway through the trial that he decided to change strategy. It was only at this point that he decided to testify. The defence brought out this otherwise privileged information during examination-in-chief, in order to explain the admitted failure to give timely notice of an alibi defence (which was the main subject of Stanley’s testimony). This late change in the defence strategy may help to explain why the issues relating to the photographs of the silver revolver appeared to be somewhat different at the time of the pre-trial Motion in October 2020, than at the time when the defence case was called at trial in October 2021.
[14] At the end of Stanley’s examination-in-chief, on October 13, 2021, the Crown raised the issue as to whether the pre-trial ruling concerning prior possession of the revolver would now need to be re-visited. I instructed Ms. Kellway to proceed as far as she could in her cross-examination, without raising this issue. As a result of this preliminary guidance, Ms. Kellway conducted a full day of cross-examination on October 14, 2021, without seeking to re-visit the earlier ruling. During this first day of cross-examination, Stanley agreed that he was briefly holding both murder weapons on April 13, 2017, when he met with Trevor Barnett in the front seats of Barnett’s red car, but that he gave both guns to Barnett. He reiterated that he was worried and uncomfortable carrying the revolver and he testified that he did not know whether it was loaded. The Crown challenged this account in various ways, pointing out in cross-examination that Stanley had hugged people while carrying the gun, had played basketball with children while carrying the gun, and had shown the gun to friends. Stanley agreed that he did all these things and that it was stupid, but he insisted that he was worried, uncomfortable, and uptight while carrying the revolver and that he was relieved when he got rid of it. Stanley also agreed that he got back into Barnett’s red car with Fountain on April 13, 2017, knowing that two handguns were in the car (both of which were admittedly used the next day in the murder of Farah).
[15] It was after this first day of cross-examination was complete that the Crown formally applied on October 15, 2017 to re-visit the earlier pre-trial ruling concerning prior possession of the revolver. The Crown sought leave to question Stanley about “the couple of things” that he admittedly found in the knapsack and about what he did with them, in order to challenge the credibility of Stanley’s account to the effect that the silver revolver was a “hot potato” that he had to quickly get rid of, as Ms. Kellway put it during her submissions. Ms. Kellway agreed not to use the actual photographs of the second gun and the large amount of cash during her proposed cross-examination.
[16] On behalf of Stanley, Mr. Derstine submitted that possession of a second handgun and a substantial amount of cash (which all belonged to Tariq, according to Stanley) had minimal probative value in relation to the credibility of Stanley’s account about the Taurus revolver. On the other hand, it would result in moral prejudice and procedural prejudice because the defence had relied on the pre-trial ruling and the Agreed Statement of Fact, and had not brought out any details about these other items in the knapsack during examination-in-chief.
C. ANALYSIS
[17] I ruled mid-trial that there had been a material change in circumstance since the time of the pre-trial Motion in October 2020 and that the Crown could now question Stanley about “the couple of things” that he found in the knapsack, and about what he did with them, in order to test the credibility of Stanley’s account about the Taurus revolver.
[18] At the time of the pre-trial Motion in October 2020, it appeared from the photographs found in Stanley’s cell phone (and from the metadata relating to those photographs) that Stanley was in possession of two illegal handguns and a large amount of cash on April 2, 2017. This was about 13 days before relevant events relating to the murder of Farah on the night of April 14/15, 2017. One of the two handguns depicted in the photographs was a revolver and it appeared to be strikingly similar to the Taurus revolver that was seized by the police on the day after it was admittedly used in the murder of Farah. There was a substantial body of circumstantial evidence linking Stanley to the murder of Farah, including video surveillance evidence, cell tower tracking evidence, text messages forensically extracted from Stanley’s cell phone, and his apparent possession of or access to the second murder weapon on April 13, 2017. On the basis of this record filed on the pre-trial Motion, and given counsel for Stanley’s position set out in their Factum filed on the Motion, there appeared to be two realistic issues relating to the probative value of the April 2, 2017 photos as follows: first, was Stanley the person depicted holding the guns and the money; and second, was the revolver depicted in the photos the Taurus revolver subsequently used in the murder of Farah. Both of these issues appeared to be contested by the defence.
[19] By the time that the defence case was called at trial, the above landscape had fundamentally changed. There was no longer any dispute that Stanley was the man depicted in the April 2, 2017 photos and there was no longer any dispute that the revolver in his possession in the photos was the Taurus revolver used in the April 14/15, 2017 murder of Farah. Both of these facts were admitted in Stanley’s testimony, prior to the mid-trial ruling. In other words, the two issues disputed at the time of the October 2020 pre-trial Motion were now conceded. In their place, an entirely new issue relating to the probative value of the photos was raised. It was asserted that the items depicted in the photos did not belong to Stanley. Rather, they belonged to Stanley’s older brother Tariq, and Stanley was only nervously and uncomfortably and temporarily in possession of them, on behalf of his brother. Finally, it was asserted that Stanley delivered the Taurus revolver to Tariq’s friend Trevor Barnett, as quickly as he could on April 13, 2017, and that Stanley was no longer in possession of the revolver on the night of April 14/15, 2017 when the murder occurred.
[20] I am not critical of the defence for not making it clear during the pre-trial Motion in October 2020, that the real issues at trial relating to the probative value of the April 2, 2017 photos were likely to change. It appears that Stanley’s instructions at the time of the pre-trial Motion were that he was unwilling to testify. It was only during the trial itself, in September or October 2021, that Stanley’s instructions changed. Accordingly, the defence had raised the only issues it could legitimately raise at the time of the earlier pre-trial Motion, namely, the identity of the person depicted holding the revolver and whether that revolver was the Taurus revolver used in the murder of Farah.
[21] The legal effect of this change in the defence position by the time of trial was that there was now a new issue. That new issue was the credibility of Stanley’s account in which he greatly diminished his now admitted prior possession of the Taurus revolver, by testifying as follows: that the revolver belonged to his older brother; that he had never previously seen a revolver; that he only took a photo of it because he was young and stupid and thought it was cool; that it made him nervous and uncomfortable to carry the revolver but he followed his older brother’s instructions and delivered it to his brother’s friend Barnett; that he was relieved when he got rid of it by giving it to Barnett, shortly after arriving in Toronto on April 13, 2017; and that he regretted this youthful mistake.
[22] The Crown was entitled to vigorously challenge the veracity of the above account in cross-examination. Stanley’s prior possession of the Taurus revolver shortly before it was used in the murder was an important primary fact in the Crown’s circumstantial case, relating to proof of the element of identity. Stanley’s above account, if believed or if it raised a reasonable doubt, would remove that primary fact because it meant that Stanley was no longer in possession of the Taurus revolver by the late afternoon of April 13, 2017. The Crown successfully pointed to a number of improbabilities in Stanley’s account concerning his allegedly nervous, uncomfortable, and temporary possession of the Taurus revolver (as set out above when summarizing the first day of cross-examination). However, there were further potential improbabilities in Stanley’s account related to the other “couple of things” that he claimed to have found in the knapsack. If these items also truly belonged to Tariq, and if Stanley was also only “holding” them for Tariq, then what were Tariq’s instructions in relation to these other equally significant items, was Stanley told to also deliver them to Barnett, if so when and how did he deliver them, if not was Stanley equally nervous and uncomfortable “holding” these other items, for how long did he “hold” them, and what did he eventually do with them? These were only some of the questions that suggested themselves as obvious lines of cross-examination, if the Crown was to thoroughly and effectively test Stanley’s evidence in-chief about his limited and reluctant possession of the Taurus revolver.
[23] In short, it was the Crown’s position that Stanley remained in ongoing possession of the Taurus revolver right up until the time of the murder. I was satisfied that the credibility of Stanley’s account in-chief, about a limited and reluctant possession of the Taurus revolver that ended on the late afternoon of April 13, 2017, was an important new issue at trial and that cross-examination in relation to the other items in the photographs could potentially have substantial probative value in relation to that issue.
[24] Turning to the relevant legal principles, it is well established that the Crown can cross-examine an accused who testifies, in order to challenge the credibility and attempt to establish the falsity of the accused’s evidence in-chief. In R. v. Morris (1978), 1978 CanLII 168 (SCC), 43 C.C.C. (2d) 129 at 152-3 (S.C.C.), Pratte J. gave the majority judgement. He explained this basic proposition relating to cross-examination of an accused, while citing the leading English and Ontario authorities:
…where the cross-examination is directed at eliciting from the witness answers that are contrary to his evidence-in-chief, the attack on credibility is no longer based on an inference of unreliability of the witness, but on the actual proof of the witness’s unreliability in the case itself, as established by the contradiction between various portions of his evidence. This type of cross-examination is essential if the search for truth is ever to be successful. Cross‑examination would become pointless if it were not available to attempt to prove the falsity of the evidence given in chief. In Jones v. Director of Public Prosecutions, [1962] A.C. 635, Lord Devlin said, at p. 708: “If a witness cannot be cross-examined to test the veracity and accuracy of his evidence-in-chief, he cannot be cross-examined at all…”.
In Stirland v. Director of Public Prosecutions, [1944] A.C. 315, the proposition was laid down by the Lord Chancellor, Viscount Simon at p. 326, that the accused “may… be cross-examined as to any of the evidence he has given in-chief, including statements concerning his good record, with a view to testing his veracity or accuracy or to showing that he is not entitled to be believed on his oath.” It is true that in Jones v. D.P.P., ibidem, doubts were expressed by some of their Lordships as to the generality of this proposition, but those were based exclusively on the wording of proviso (f) of s.1 of the Criminal Evidence Act, 1898 which has no counterpart here. I have therefore no reservation that the rule enunciated in Stirland is a correct statement of the law as it exists here.
In R. v. Davison, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424, Martin J.A., speaking for the Ontario Court of Appeal, properly said at p. 444:
I conclude that, save for cross-examination as to previous convictions permitted by s. 12 of the Canada Evidence Act, an accused may not be cross-examined with respect to misconduct or discreditable associations unrelated to the charge on which he is being tried for the purpose of leading to the conclusion that by reason of his bad character he is a person whose evidence ought not to be believed. Cross-examination, however, which is directly relevant to prove the falsity of the accused’s evidence does not fall within the ban, notwithstanding that it may incidentally reflect upon the accused’s character by disclosing discreditable conduct on his part.[Emphasis added].
In the leading Ontario case relied on in Morris, namely, R. v. Davison, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 at 437-446 (Ont. C.A.), the relevant passages from Martin J.A.’s Reasons are as follows:
An accused who gives evidence has a dual character. As an accused he is protected by an underlying policy rule against the introduction of evidence by the prosecution tending to show that he is a person of bad character, subject, of course, to the recognized exceptions to that rule. As a witness, however, his credibility is subject to attack. If the position of an accused who gives evidence is assimilated in every respect to that of an ordinary witness he is not protected against cross-examination with respect to discreditable conduct and associations.
If an accused could in every case be cross-examined with a view to showing that he is a professional criminal under the guise of an attack upon his credibility as a witness it would be virtually impossible for him to receive a fair trial on the specific charge upon which he is being tried. It is not realistic to assume that, ordinarily, the jury will be able to limit the effect of such a cross-examination to the issue of credibility in arriving at a verdict.
In my view the policy rule which protects an accused against an attack upon his character lest it divert the jury from the issue which they are called upon to decide, namely, the guilt or innocence of the accused on the specific charge before the Court, is not wholly subordinated to the rule which permits an accused who elects to give evidence to be cross-examined on the issue of his credibility. In this area of the law, as in so many areas, a balance has been struck between competing interests, which endeavours so far as possible to recognize the purpose of both rules and does not give effect to one to the total exclusion of the other.
Consequently, limitations are imposed with respect to the cross-examination of an accused which do not apply in the case of an ordinary witness.
I conclude that, save for cross-examination as to previous convictions permitted by s. 12 of the Canada Evidence Act, an accused may not be cross-examined with respect to misconduct or discreditable associations unrelated to the charge on which he is being tried for the purpose of leading to the conclusion that by reason of his bad character he is a person whose evidence ought not to be believed. Cross-examination, however, which is directly relevant to prove the falsity of the accused's evidence does not fall within the ban, notwithstanding that it may incidentally reflect upon the accused's character by disclosing discreditable conduct on his part.
The limitations which the majority in the House of Lords in Jones v. Director of Public Prosecutions (1962), 46 Cr. App. R. 129, held were imposed by proviso (f) to s. 1 of the Criminal Evidence Act, 1898, c. 36, even with respect to cross- examination directly relevant to the veracity of the accused's evidence, do not apply in Canada.
Thus, if an accused found in possession of goods recently stolen were to give evidence that he had purchased them from X in good faith without knowing that they were stolen, it would not seem open to doubt that he could be cross-examined for the purpose of showing, if such were the fact, that he had been associated with X in the commission of prior thefts. Such cross-examination would be permissible as being directly relevant to the veracity of the accused's explanation. Such cross-examination would also be relevant to prove guilt since the rejection of the accused's explanation would permit the normal inference to be drawn from the unexplained possession of recently stolen property.
In the present case the evidence of the appellant's possession of the incriminating material previously described was relevant and admissible to prove design and on the issue of identity, as I have held. The appellant in his evidence given in examination-in-chief attempted to neutralize the inference arising from his possession of such material by an explanation that he possessed it for an innocent purpose.
Crown counsel was entitled to show, if he could, by cross-examination that the appellant's explanation of the purpose for which he had the material was untrue by endeavouring to show the use that had been or might be made of some of the material in carrying out the criminal activities to which the appellant had testified in his examination-in-chief. If the appellant's explanation of innocent purpose was rejected, the jury was entitled to draw such inferences as the appellant's possession of such material properly permitted with respect to design and on the issue of identity.
I do not consider that Crown counsel exceeded the legitimate bounds of cross-examination conducted for that purpose. [Emphasis added].
Also see: R. v. McNamara et al (No. 1) (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 at 349-352 (Ont. C.A.); R. v. Chambers (1980), 1990 CanLII 47 (SCC), 59 C.C.C. (3d) 321 at 336-8 (S.C.C.).
[25] In my view, the cross-examination of the accused that was held to be permissible in R. v. Davison et al, supra, is analogous to the cross-examination of the accused that Ms. Kellway sought in the case at bar. The Crown in Davison relied on the accused’s possession of two incriminating publications as “the means” by which a sophisticated bank robbery was carried out. The accused had testified in-chief in a way that minimized his possession of the two publications, namely, the Safeman’s Guide and the Locksmith’s Ledger. In the present case, the Crown similarly relied on the accused’s possession of the Taurus revolver as “the means” by which the murder was committed. The accused had similarly testified in-chief in a way that attempted to minimize his possession of the revolver. In both cases, possession of the instrumentalities of a crime related to proof of the element of identity. See: R. v. Stanley, supra at paras. 21-8. The credibility of the accused’s account in relation to that central issue in the case had significant probative value.
[26] Turning to the prejudicial effect side of the balancing, I am of the view that the photographs themselves are what is most prejudicial about this evidence. They reveal an arguably self-satisfied, boastful, or proud kind of posing, associated with gangster culture. They also reveal a very large amount of cash. The character of this kind of posing, and this substantial amount of cash, would likely offend a hard-working, law-abiding lay juror. The Crown wisely agreed not to seek leave to use the photographs themselves in cross-examination.
[27] In terms of the additional moral prejudice that could emerge from the fact that there was a second gun, and from an unspecified amount of cash in Stanley’s possession, it is important to remember that Stanley’s explanation for these further items was no different than his explanation for the Taurus revolver. He had already testified in-chief that he was “holding” the knapsack and its “couple of things” temporarily for Tariq. In this regard, he had also testified in-chief that Tariq had served a six year sentence for firearms and drug trafficking, that Tariq was arrested for a parole violation in March 2017, that Stanley retrieved the knapsack and its contents for Tariq while Tariq was in jail, and that Stanley then delivered a revolver from the knapsack on Tariq’s behalf to a friend in Toronto. In other words, Stanley’s minimizing explanation for his possession of the knapsack and its contents was already before the jury and it already raised risks of improper reasoning based on bad character and criminal disposition. By knowing all the facts relating to this explanation, the jury could properly assess its veracity. All of the above evidence brought out in-chief was already going to require a strong limiting instruction about impermissible reasoning based on bad character and criminal disposition. Stanley’s admitted prior possession of or access to the two murder weapons also required a strong and similar limiting instruction. In these circumstances, any additional moral prejudice due to the fact of a second gun and an unspecified amount of cash being in the knapsack was not significant and it was equally amenable to a strong limiting instruction. In this regard, see my original pre-trial ruling: R. v. Stanley, supra at para. 30.
[28] In terms of any procedural or reasoning prejudice, relating to the defence decision not to bring out additional details about the “couple of things” in the knapsack during examination-in-chief, there are a number of reasons why this argument was not persuasive. First of all, it was brought out in-chief that there were other items in the knapsack. There was simply a lack of further detail about those items. I explained to the jury, in my limiting instruction, that this is a normal part of the adversarial trial process (at p. 56 of the written Charge to the Jury, which was made an Exhibit at trial and was provided to the jury during their deliberations):
I should make it clear that there is nothing improper or misleading about the way in which this evidence emerged. There is nothing wrong with a witness addressing a topic in-chief in a general way, knowing that additional details will come out in cross-examination. That is what happened here as Mr. Stanley testified in-chief that there were “a couple of things” in the bag that he thought were cool, and then the Crown brought out the details in cross. This is normal trial process and you should not infer that Mr. Stanley “left something out”.
[29] Second of all, I do not agree that the defence was entitled to rely on the earlier pre-trial ruling, and on the Exhibit 10 Agreed Statement of Fact, as a sword that somehow prevented legitimate challenges to Stanley’s evidence-in-chief about his limited and reluctant possession of the Taurus revolver. That testimony raised an important new issue that was never known or taken into account at the time of the pre-trial ruling and at the time of the Exhibit 10 Agreed Statement of Fact. See: R. v. Adams (1995), 1995 CanLII 56 (SCC), 103 C.C.C. (3d) 262 at paras. 27-30 (S.C.C.); R. v. Underwood (1998), 1998 CanLII 839 (SCC), 121 C.C.C. (3d) 117 at paras. 8-11 (S.C.C.). In addition, the pre-trial ruling and the Exhibit 10 Agreed Statement of Fact had the effect of editing or cropping the photographs, so that all the facts were not disclosed to the jury. It is implicit in any decision taken during a trial relating to the editing of evidence, that neither party may conduct their case in a way that causes the editing to distort the truth or mislead the jury or prejudice an opposing party. See: R. v. Beatty (1944), 1944 CanLII 22 (SCC), 81 C.C.C. 1 (S.C.C.); R. v. Otis (1978), 1978 CanLII 2350 (ON CA), 39 C.C.C. (2d) 304 at 307-9 (Ont. C.A.); R. v. Brown, 2020 ONSC 3280 at para. 9. Stanley’s account of a limited and reluctant possession of the Taurus revolver, that came to an end on April 13, 2017, meant that the edited facts became much more relevant and probative. The defence must have understood that this account given in-chief could legitimately be challenged by the Crown in cross-examination, by seeking to re-visit the earlier ruling and refer to the edited facts. Indeed, it appeared during submissions on October 15, 2021 that Stanley had already been prepared by counsel to answer questions about the other items in the knapsack. See: R. v. Savojipour (2006), 2006 CanLII 3458 (ON CA), 205 C.C.C. (3d) 533 (Ont. C.A.); R. v. Gager, 2012 ONSC 2697 at paras. 5, 30-35, and 79-103; aff’d, 2020 ONCA 274.
[30] In all the above circumstances, I was satisfied that any risk of improper prejudice arising from the proposed cross-examination could be addressed by a strong limiting instruction, and that any such prejudice was not greater than the legitimate probative value of the proposed cross-examination. As a result, I allowed the Crown to cross-examine on the facts disclosed by the April 2, 2017 photographs. I did not allow cross-examination on the photographs themselves, which were never seen by the jury. I then gave the jury a strong limiting instruction, as set out in the written Charge to the Jury at pp. 51-57, concerning the permissible and impermissible uses of the evidence that emerged in cross-examination.
M.A. Code J.
Released: November 12, 2021
COURT FILE NO.: CR-19-30000281
DATE: 20211112
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TAUFIQ STANLEY
REASONS FOR JUDGEMENT ON A MID-TRIAL ruling concerning the scope of cross-examination oF the accused
M.A. Code J.
Released: November 12, 2021