R. v. Andrew Aaeon Douglas, 2023 ONSC 1541
Court File No.: CR-19-10000600-0000 Date: March 6, 2023 Superior Court of Justice - Ontario
Re: R. v. Andrew Aaeon Douglas
Before: Justice N. J. Spies
Counsel: Karen Simone and Tara Cassidy, for the Crown Richard Posner and Zaid Shams, for Mr. Douglas
Heard: October 13 and 19, 2022
Ruling on Corbett Application
Overview
[1] Mr. Douglas was charged with first degree murder of Michael Lewis, who died on September 2, 2018, after being shot six times, contrary to s. 235(1) of the Criminal Code. His trial began before me with a jury on September 26, 2022. With the consent of counsel, the Corbett application was first argued before the close of the Crown's case as there was a delay in hearing the evidence of a key Crown witness, Emily Chamberlain. It was agreed that I would reserve my decision after hearing the preliminary submissions on October 13, 2022, and make my decision after hearing any further submissions once the evidence of Ms. Chamberlain was completed at the close of the Crown’s case. That occurred on October 19, 2022, and after hearing further submissions from counsel, I ruled that if Mr. Douglas elected to testify, the jury would only hear that he had been convicted for obstruction of a Peace Officer and theft. I advised counsel that I would provide written reasons for my decision. These are my reasons.
[2] Mr. Douglas did testify and after several days of deliberation he was acquitted of the charge by the Jury.
Mr. Douglas’ Criminal Record
[3] Mr. Douglas was convicted on August 2, 2018 of obstruction of a Peace Officer and given a $500.00 fine. On July 5, 2019, he was convicted of robbery, discharge of a firearm with intent to wound or endanger life, and aggravated assault. He was sentenced to eight years on each charge, to run concurrently. After a credit of one year and six months for pre-sentence custody, he had six years and six months left to serve. In addition, a mandatory weapons prohibition s. 109 order was made.
The Positions of Counsel
[4] The theory of the Crown’s case was that Mr. Douglas had a motive to exact revenge on Mr. Lewis for his role in the public humiliation of his brother Smoke Dawg, and that he went to confront Mr. Lewis at a memorial BBQ in a park, with a loaded firearm. The Crown’s position was that he approached Mr. Lewis and after a brief conversation, shot Mr. Lewis six times and executed him.
[5] Relevant to the hearing of the Corbett application was what the nature of the defence would be. Ms. Simone submitted that I needed to know the full picture before ruling. When the preliminary submissions were made on the application, Mr. Posner was not prepared to be specific about what the defence would be. It appeared to me, based on the cross-examination of the Crown witnesses to that point, that the main issue for the jury would be identity, namely whether the Crown had proven that it was Mr. Douglas who shot Mr. Lewis. The evidence before the jury was that there was only one firearm involved in their altercation and Ms. Simone was concerned that the defence would take the position that the firearm was in Mr. Lewis’ possession. She submitted that Mr. Douglas needed to advise me of his defence so that I could make an informed decision. I was not prepared to insist on that at the time of the preliminary submissions as Ms. Chamberlain had not yet testified. By the time the evidence of Ms. Chamberlain was complete, it became clear that if Mr. Douglas testified, he was going to say that Mr. Lewis had the firearm in his possession and argue that he acted in self-defence.
[6] There was no issue that the jury could learn of Mr. Douglas’ conviction for obstruction of a Peace Officer as that would be relevant to his credibility should he testify. When I suggested to Mr. Posner that Mr. Douglas’ criminal conviction for robbery could be read down to theft with a penitentiary sentence, he fairly conceded that he could not say that would be prejudicial to Mr. Douglas. The argument accordingly centred on whether the jury should hear that the theft was in fact a robbery and the balance of Mr. Douglas’ convictions which were all crimes of violence.
[7] Ms. Simone argued that if the position of the defence was going to be that Mr. Lewis was the one with the firearm, then that was in fact an attack on the character of Mr. Lewis. She submitted it is illegal to carry a firearm and so it would be essentially accusing Mr. Lewis of committing a crime by bringing a firearm to a memorial BBQ. She also pointed out that Mr. Posner had asked the forensic pathologist, Dr. Williams, about the level of THC in Mr. Lewis' blood and she argued that Mr. Posner would try to portray Mr. Lewis as a "firearm-toting drug-using criminal". For these reasons, she argued that the jury ought to have Mr. Douglas’ full criminal record before them.
[8] Mr. Posner objected to any reference to the balance of Mr. Douglas’ convictions. He advised that depending on my decision on the Corbet application, that he might seek leave to tender evidence relevant to a defence of self-defence of a photograph on Mr. Lewis’ phone of a semi-automatic handgun with the magazine extracted that was on social media on August 23, 2018, which was of course very shortly before he was killed. He argued that this would support an argument that Mr. Lewis had the firearm in his possession because he was shot with a semi-automatic firearm. Mr. Posner advised as well that at the time of the preliminary hearing, Mr. Lewis was on bail for having been convicted of a very brutal kidnapping at gun point that involved torture, which no doubt he would have sought to elicit as part of the defence if the Corbet application was denied. Ms. Simone did not challenge the accuracy of any of this information provided to me about Mr. Lewis’ background or how it might be used by Mr. Posner at trial.
[9] Mr. Posner submitted that if the balance of Mr. Douglas’ criminal record was not before the jury, he would be fastidious in cross examining Ms. Chamberlain to avoid any attack on Mr. Lewis' character and he would not elicit any prior discreditable conduct on the part of Mr. Lewis. At the end of the evidence of Ms. Chamberlain, it was clear that Mr. Posner had in fact cross-examined as he promised, save for the suggestion to Ms. Chamberlain, by implication, that it was Mr. Lewis who had the firearm. Mr. Posner argued that if Mr. Douglas testified and took the position that Mr. Lewis had the firearm, that would not be an attack on the character of Mr. Lewis. Mr. Posner also submitted that if Mr. Douglas chose to testify, there would be no evidence concerning Mr. Lewis' background, either positive or negative from Mr. Douglas and that he would give no evidence that Mr. Lewis had any criminal propensity the day he was killed, provided that evidence was not led by the Crown to suggest that Mr. Lewis was of good character.
The Law
[10] The general principles of law to be considered were not in dispute.
[11] In R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493, the Court of Appeal for Ontario at paras. 81-82 sets out the relevant principles on a Corbett application, including:
[81] Pursuant to s. 12 of the Canada Evidence Act (…) a witness may be questioned as to whether he or she has been convicted of a criminal offence. Typically, the relevance of such evidence is in respect of the witness’s credibility, and the evidence cannot be used as bad character evidence or for propensity reasoning (…) The right to a fair trial is the context in which the balancing exercise must be effected (…)
[82] The question in each case is whether excision of the conviction in question would leave the jury with incomplete and therefore incorrect information about an accused’s credibility as a witness. Relevant factors include: the nature of the previous conviction; its remoteness or nearness to the present charge; and the similarity to the offence charged: Corbett, at pp. 740-744. Another potential factor identified in Corbett is the need to maintain a balance between the position of the accused and that of a Crown witness who has been subjected to a credibility attack on the basis of his or her criminal record or otherwise, although this factor should not override the concern for a fair trial: Corbett, at pp. 742-744. Any attack on the integrity of a Crown witness is not sufficient to make the accused's entire record admissible; rather, what is contemplated is an attack on the Crown witness's credibility based on his or her character, especially as disclosed in his or her criminal record … [citations omitted].
[12] Deciding a Corbett application is very much dependant on the facts of the case at hand. Counsel relied on a number of decisions, and I considered them all. With respect to the cases provided by the Crown, I agree with Mr. Posner that they are all distinguishable, primarily on the basis that the defence had attacked the character of one or more principal Crown witnesses. In particular:
a) In R. v. Corbett, [1988] 1 S.C.R. 670, at trial, counsel for the defendant had vigorously attacked the credibility of the Crown witnesses and much was made of the criminal records of the two of them that had been admitted in chief, at para. 36. b) In R. v. Ally, 2022 ONCA 558, the appellant’s criminal record was already part of the narrative at trial and the defence had elicited evidence of the deceased’s violent nature through the cross-examination of various witnesses. The Court on appeal held at para. 165, that it would have been unfair to exclude evidence relating to the appellant’s violent past. c) In R. v. McRae, 2021 ONCA 525, 157 O.R. (3d) 144, the defendant was convicted of the second-degree murder of his son. At trial he was successful in part on a Scopelliti [^1] application, permitting him to testify to what he knew of his son’s prior acts of violence. On the Corbett application, the trial judge noted that the defendant had already introduced a substantial portion of his criminal record through his evidence in chief and permitted the Crown to cross-examine him on his record without restriction. On appeal, the Court found that the appellant had suffered no prejudice as a result of the Scopelliti ruling and found that exclusion of the appellant’s criminal record would have resulted in an imbalance, upholding the ruling of the trial judge. d) In R. v. Gagnon, [2000] O.J. No. 3410 (ONCA), the Court of Appeal upheld the Corbett ruling where the defendant was charged with conspiracy to commit a robbery at gunpoint in 1991, and the trial judge permitted the jury to hear that he had a criminal conviction for manslaughter in 1982. The trial judge saw the connection between the offences as “tenuous” and concluded at para. 69 that to remove a serious conviction in the middle of an otherwise very minor record would give the jury a completely false impression. The Court on appeal noted that the appellant had not shown that the trial judge had applied the wrong test or failed to weigh the appropriate factors but argued that the trial judge had erred in the weight assigned to the factors. e) In R. v. Thompson, [2000] O.J. No. 2270 (ONCA), the Court held, at para. 30 that it was open to the trial judge to conclude that defence counsel’s attempt to portray the victims as significant drug users and traffickers amounted to an attack on their character and inferentially an attack on their credibility. f) In R. v. R.D., 2019 ONCA 951, 382 C.C.C. (3d) 304, the Court of Appeal for Ontario dismissed an appeal of the trial judge’s ruling on a Corbett application, which allowed a conviction for attempted murder to be the subject of cross-examination and excluded all of the other entries in the defendant’s criminal record, at para. 11. Again, the court held at para. 17 that the defence had mounted an “all-out attack on the complainant’s credibility and good character,” and acknowledged at para. 19 that there was no other evidence to neutralize this attack. g) In R. v. Marshall, 2019 ONSC 6989, Goldstein J. permitted cross-examination on an edited criminal record. Although he noted at para. 13 that the defence had not generally attacked the credibility of the Crown witnesses, in that case he also found there was no danger of propensity reasoning, at para. 21. h) In R. v. Asante, 2017 ONSC 4741, at para. 12, the trial judge noted that one of the victims had been cross-examined as to drug use and a criminal lifestyle including access to firearms and refused to excise the defendant’s two firearm convictions. This decision was affirmed on appeal at 2022 ONCA 657, with the Court noting, at para. 21 that trial judges are owed deference on their determinations of Corbett applications. i) In R. v. Hines, [2001] O.J. No. 1435 (ONSC), Dambrot J. noted that the defence strategy was to conduct a “concerted attack on the credibility” of two principal Crown witnesses, at paras. 13 and 14 which Justice Dambrot found at para. 16 while not determinative, weighed in favour of permitting cross-examination on the defendant’s entire criminal record.
[13] The one case relied upon by the Crown that Mr. Posner conceded is a bit of an outlier, is R. v. Saroya, [1994] O.J. No. 2920 (ONCA). In that case, the defendant appealed from his conviction for assault in part on the grounds that the trial judge erred in refusing to exclude evidence of his criminal conviction for attempted murder. On appeal, the Court noted that the balancing exercise in this case was “particularly difficult” (at para. 10) and since the conviction for attempted murder was his sole prior conviction, this was not a case where one could conveniently “excise from the record the prejudicial entry and leave the jury with some appreciation of the diminished credibility of the witness in light of past convictions” (at para. 12). The Court concluded that on a balance, the probative value of the prior conviction outweighed the potential risk of misuse by the jury, at para. 13. In my view, this case is still distinguishable from the case at bar since leaving in the prior convictions for obstruction of a Peace Officer and reading down the robbery conviction to theft gives the jury some appreciation of the diminished credibility of Mr. Douglas, particularly given my conclusion, for reasons to follow, that there would be no attack on the character of Mr. Lewis.
Analysis
[14] The previous convictions in issue are all crimes of violence. Although not argued by the Crown, I accepted that as serious convictions, they could be relevant to the jury’s assessment of the credibility of Mr. Douglas if he testified, as they could find that because of the nature of these convictions Mr. Douglas would not consider lying in court to be serious. I also recognized that his credibility would be a very important factor for the jury, particularly as compared to the credibility of Ms. Chamberlain in assessing her evidence.
[15] However, the conviction for discharge of a firearm with intent to wound or endanger life, given the theory of the Crown in this case, is very similar to the allegations underlying the charge of first-degree murder, particularly as the evidence before the jury was that there was only one firearm and the Crown’s position was that it was in the possession of Mr. Douglas and that he brought it to the BBQ with the intent of murdering Mr. Lewis. Furthermore, these convictions for crimes of violence were virtually contemporaneous with the alleged murder of Mr. Lewis. Given the nature and timing of these convictions, in my view the risk of prejudice to Mr. Douglas was significant if the jury learned of them.
[16] My concern in this regard was heightened by the fact that very early on in the Crown’s case, out of the blue, the jury asked the question of whether Mr. Douglas has a criminal record. I instructed the jury that the answer to that question was not relevant but clearly it was something they considered important as they heard the case for the Crown.
[17] For these reasons, in considering how to ensure a fair trial, there was never any doubt in my mind that if the jury learned that Mr. Douglas had been convicted of discharging a firearm with intent to wound or endanger life less than a year after his altercation with Mr. Lewis, that the prejudicial effect of that conviction would give rise to a very serious risk that the jury would engage in impermissible propensity reasoning notwithstanding whatever strong instruction I might give to the jury both mid trial and in my final Charge, advising them of the limited and proper use of that conviction. As Doherty J.A. stated in R. v. Talbot, 2007 ONCA 81 at para. 34: “acknowledging the prejudice recognizes that despite proper instructions and the best intentions by juries, faulty propensity based reasoning can infect a jury’s deliberations. This is particularly so where an accused’s criminal record lends considerable credence to propensity based reasoning”.
[18] What became the dominant issue in my mind was therefore the argument that was vigorously pursued by Ms. Simone that by testifying that the firearm was in the possession of Mr. Lewis, Mr. Douglas was challenging Mr. Lewis’ character and credibility. This was a memorial barbecue and Mr. Lewis was present with his pregnant girlfriend and his two children. Ms. Simone submitted that if I were to exclude reference to Mr. Douglas' violent criminal record and have the jury hear that it was Mr. Lewis who had possession of an illegal weapon that was used to cause death, there would be an imbalance when they assessed credibility between Mr. Douglas and the Crown witnesses and it would be completely misleading to the jury.
[19] Mr. Posner argued that taking the position that Mr. Lewis had the firearm was not an attack on his character because this was the subject of the Indictment. It was simply a direct response to the allegation that Mr. Douglas had committed first degree murder. He would be testifying to the events, whether they were flattering or not to Mr. Lewis. It was Mr. Posner’s position that to suggest Mr. Lewis had the firearm was not circumstantial evidence to suggest that he was the type of person who would carry a firearm. Mr. Posner stated that he was not going to submit that Mr. Lewis had a firearm as part of his character but rather this was simply what happened that day. He submitted as well that the consumption of weed at the time was legal, and that in any event he was not going to be suggesting that Mr. Lewis' cannabis consumption went to his character.
[20] I accepted the submissions of Mr. Posner that he would not be putting Mr. Lewis’ character in issue if Mr. Douglas took the stand and testified that it was Mr. Lewis who had the firearm in his possession. As the Court of Appeal held in R. v. Brown, 166 C.C.C. (3d) 570, a trial judge who accepted a similar argument had made an error, at para. 24 and concluded:
In my view, the trial judge made an error in the exercise of his discretion. It cannot be said that the cross-examination of the police officers required the evidence of the appellant's narcotics conviction to avoid an imbalance. The trial judge erred in proceeding on that basis. While the cross-examination attacked both the reliability and the honesty of the police officers, it did so on the basis of matters which were directly connected with the offence and which were raised in an attempt by the defence to meet the prosecution's evidence. This is unlike Corbett where the attack on the credibility of the Crown witnesses was based on their character, especially as disclosed in the criminal record, rather than arising out of events surrounding the offence. This distinction is elucidated in R. v. Batte (2000), 145 C.C.C. (3d) 498 at p. 515 (Ont. C.A.) [Emphasis added].
[21] In Batte, Rosenberg J.A. speaking for the court stated at para. 46:
There is a distinction between an attack on the character of Crown witnesses initiated by the defence and attempts by the defence to meet the prosecution's evidence that incidentally impacts on character. The attack on the Crown witnesses in the appellant's case was directed at the lack of credit of their accounts of the events, not their character and certainly not their character for criminal conduct.
[22] Mr. Douglas’ evidence putting the gun in Mr. Lewis’ hand would simply be having Mr. Douglas tell the jury what happened and meeting the Crown’s case. In line with these authorities, any impact on Mr. Lewis' character would be an incidental consequence, not a defence rooted in bad character. This was quite different than introducing evidence that Mr. Lewis was in possession of a firearm and posted a picture on Facebook.
[23] I considered whether I should allow the jury to hear that Mr. Douglas had previously been convicted of assault or crimes of violence, but given how close in time those convictions were to the charge before the jury I was still very concerned about the serious risk of propensity reasoning. I was also of the view that excluding any reference to the prior convictions for crimes of violence would not present the jury with an unbalanced picture of someone who had had no prior convictions.
[24] In considering the need to prevent an unbalanced picture being presented to the jury while also ensuring a fair trial, I concluded that given what Mr. Posner advised about how he intended to approach the case, and in particular that he did not intend to attack the character of Mr. Lewis in any way, it was sufficient that the jury know that Mr. Douglas had been twice convicted of crimes that are more clearly linked to his honesty as a witness should he chose to testify; namely the obstruction of a Peace Officer and theft with a penitentiary sentence, suggesting it was a serious theft conviction. Awareness of these convictions would allow the jury to properly assess Mr. Douglas’ credibility and they would not be led to believe that he had no criminal record. Furthermore, for those convictions, there was no risk of prejudice resulting from propensity reasoning.
[25] Mr. Posner clearly made a tactical decision to avoid the risk of the jury being prejudiced by Mr. Douglas’ propensity for violence even though he could have sought to lead robust evidence to support the proposition that Mr. Lewis was at least just as likely to have had the firearm in his possession. Had the jury heard Mr. Douglas’ complete criminal record as advocated by Ms. Simone, and as a result learned of the criminal background of Mr. Lewis, I was also concerned that they would have been distracted by the inevitable comparison of who as between Mr. Douglas and Mr. Lewis had the most serious background of criminality. Furthermore, as it turned out, who had possession of the firearm in the first place was not likely very important to the jury’s deliberations. Mr. Douglas testified that he immediately took the firearm from Mr. Lewis and that it remained in his possession until after he left the scene and discarded it. It was the actions of Mr. Lewis and Mr. Douglas immediately following their meeting that were important to the determination of the factual issues and whether Mr. Douglas shot Mr. Lewis in self defence.
Disposition
[26] For these reasons, I concluded that excluding any reference to convictions for crimes of violence, but letting the jury know about the two convictions clearly relevant to Mr. Douglas’ credibility should he choose to testify, was necessary to achieve a fair trial for Mr. Douglas.
SPIES J. Date: March 6, 2023