R. v Barreira et al., 2017 ONSC 2447
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[23] In Barreira, cited in para. 21 of these reasons, at para. 17, I held that it is settled law that that a guilty plea of an accomplice or co-accused has no relevance to the ultimate issue of the guilt or innocence of the accused – see R. v. Berry, 2017 ONCA 17, at para. 35; R. v. P.C., 2015 ONCA 30, at para. 44.; R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3, at p. 17; and R. v. Duong (1998), 1998 CanLII 7124 (ON CA), 39 O.R. (3d) 161, 124 C.C.C. (3d) 392.
[24] In Barreira, at para. 18, I also held that it is settled law that, pursuant to section 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, a witness may be questioned as to whether the witness has been convicted of any offence including where the conviction was entered after a trial on an indictment.
[25] At para. 20 of Barreira, I noted that the Crown in P.C. was able to adduce guilty pleas and convictions of two of their witnesses, “particularly given defence counsel’s refusal to refrain from cross-examining on their pleas and convictions.” The Court of Appeal indicated that those convictions were relevant to their credibility as witnesses but were not admissible as evidence against the accused in determining his guilt – see P.C., at paras 40-46.
[26] Then, at para. 22 of Barreira, I referenced Berry, where the Court of Appeal held the trial judge was correct in not editing out the guilty plea and conviction of an accomplice, holding, at paras. 33-42:
32 The trial judge declined to edit the evidence of the guilty plea and conviction out of what was read to the jury.
33 In the trial judge’s view, this evidence was important for credibility purposes. As he said, the jury could not assess the credibility of Jovanovski's evidence in a vacuum: “the status of an accomplice's charge is a vital factor in assessing the credibility of the accomplice witnesses”. The trial judge was satisfied, therefore, that the evidence of Jovanovski’s guilty plea and conviction and the sentence he received was highly relevant and material to Jovanovski’s credibility which, in turn, was an important factor for the jury to consider in its determination of the main issues of self-defence, provocation and (if intent to commit murder were established) planning and deliberation.
34 It was open to the trial judge to adopt this approach, in my opinion, because the guilty plea and conviction may well have provided the strongest basis upon which Jovanovski’s credibility -- and therefore his evidence, which was central to the Crown's case -- could be attacked by the defence. In this respect, the decision was favourable to, rather than prejudicial to the appellant.
35 At the same time, however, the trial judge was very much alive to the need to balance the probative value of the contested evidence against its prejudicial effect. He recognized the settled law that the guilty plea of an accomplice or co-accused has no relevance to the ultimate issue of guilt or innocence of the accused: see R. v. Berry, 1957 CanLII 115 (ON CA), [1957] O.R. 249 (C.A.); R. v. Buxbaum (1989), 1989 CanLII 9944 (ON CA), 33 O.A.C. 1 (C.A.), leave to appeal to S.C.C. refused, [1989] S.C.C.A. No. 239; R. v. Lessard (1979), 1979 CanLII 2901 (QC CA), 50 C.C.C. (2d) 175 (Que. C.A.); R. v. Caesar, 2016 ONCA 599, 350 O.A.C. 352. In the course of his thorough probative value/prejudicial effect analysis, the trial judge gave careful consideration to defence counsel's argument about the prejudicial impact of the accomplice’s guilty plea.
36 The trial judge fully understood the danger that jurors might use the guilty plea to draw impermissible inferences. He concluded, nonetheless, that the risk could be effectively managed by clear instructions to the jury about the permissible and impermissible uses to which the evidence relating to the guilty plea could be put. On that basis he was satisfied that the probative value of the evidence outweighed its prejudicial effect and ruled that it was admissible.
37 In keeping with that reasoning, the trial judge did give very clear instructions, both before Jovanovski’s evidence was read to the jury and in his charge to the jury. In his mid-trial instruction, he said:
Mr. Jovanovski's guilty plea, and this is very important, has absolutely no bearing on whether Mr. Berry is guilty of first-degree murder or any included offence. You must not think that because Mr. Jovanovski has pleaded guilty, Mr. Berry must be guilty of something too. Mr. Jovanovski may have any number of reasons for pleading guilty and any number of reasons for testifying at Mr. Berry’s trial through being called by the Crown. The fact Mr. Jovanovski pleaded guilty to manslaughter and received a particular sentence is only relevant in assessing Mr. Jovanovski's credibility. [Emphasis added by Court of Appeal]
38 The trial judge repeated this instruction in essentially the same terms in his charge to the jury. Indeed, he reinforced it by adding the following:
Mr. Jovanovski may have had [a] great number of reasons for pleading guilty and any number of reasons for testifying for the Crown at Mr. Berry’s trial. He may have pleaded guilty so he could get out of jail. He may have pleaded guilty because he took responsibility for his actions. It is for you to decide how much or little weight you put on Mr. Jovanovski’s guilty plea in assessing his credibility. Remember, his guilty plea has zero relevance in your determination of whether Mr. Berry is guilty of any offence. [Emphasis added by Court of Appeal]
39 These sharp and clear-cut directives reminded the jury that Jovanovski may well have had his own motives for the plea and for giving the evidence he gave, while at the same time leaving no doubt that the jury was not to use the evidence of the guilty plea to determine any issues of guilt or innocence, but only for purposes of assessing the credibility of Jovanovski's evidence.
40 In addition, the trial judge provided a strong Vetrovec-like charge that was to the appellant’s advantage in terms of the jury’s assessment of Jovanovski’s credibility and evidence. In this portion of the charge, he directed the jurors to consider whether Jovanovski had a motive to be untruthful or a reason to downplay his involvement and exaggerate the appellant's role. He told them there was good reason to look at Jovanovski’s evidence “with the greatest care and caution” and that it would be dangerous for them to rely on that evidence without confirmation from some other source.
41 In view of the foregoing, the jury could not have been confused or left in any doubt about the two important features of Jovanovski’s guilty plea and sentence from the defence point of view: first, that the evidence could not be used for the purpose of determining the appellant’s guilt or innocence, but only for the purpose of assessing his credibility; and secondly, that Jovanovski may have had a motive to fabricate his evidence because he had received favourable treatment in his own case, in exchange for his testimony against the appellant.
42 The exercise of weighing the probative value of proffered evidence against its potential prejudicial effect in the course of the dynamics of a trial is a discretionary task for which trial judges are particularly well-suited. Their decisions in that regard are entitled to deference. See, for example, R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 110. Absent an error of law or principle, a material misapprehension of the evidence, or a palpable and overriding error of fact in the exercise of that discretion, there is no basis for an appellate court to interfere.
[27] In Barreira, I concluded, at para. 23, that when weighing the probative value against the prejudicial effect, “it is my opinion that the jury must be able to assess the credibility of Ashley and Jennifer and their criminal records assist in this assessment – see section 12 of the Canada Evidence Act; Berry, at para. 41; and P.C., at paras 40-46. Their convictions do not list any accused as being responsible for the murder of Mr. Johnson and this lowers any prejudicial effect”. An essential fact underlying my reasoning was that the convictions themselves do not indicate or name which accused was responsible for the murder.
[28] The defence argues that the court should prevent cross-examination on convictions which the court determines are without a legal basis. The defence relies on R. v. Stratton, 1978 CanLII 1644 (ON CA), 21 O.R. (2d) 258; 90 D.L.R. (3d) 420 (C.A.). Stratton is a case dealing with convictions from foreign proceedings. In that case, the court held that the accused is entitled to explain the circumstances surrounding the conviction.
[29] Prior convictions and the circumstances leading to those convictions are relevant to the credibility of the witness – see Canada Evidence Act, s. 12; R. v. Cullen (1989), 1989 CanLII 7241 (ON CA), 52 C.C.C. (3d) 459 (Ont. C.A.); R. v. Burgar, 2010 ABCA 318. A non-accused witness may generally be cross-examined on the conduct leading to a conviction – see R. v. Miller (1998), 1998 CanLII 5115 (ON CA), 131 C.C.C. (3d) 141, 21 C.R. (5th) 178 (Ont. C.A.). However, the witness may not be cross-examined on whether her evidence was accepted in prior proceedings, because that is irrelevant – see R. v. Ghorvei (1999), 1999 CanLII 19941 (ON CA), 46 O.R. (3d) 63, 138 C.C.C. (3d) 340 (C.A.).
[30] In R. v. Rowbotham (No. 5) (1977), 1977 CanLII 3351 (ON CJ), 2 C.R. (3d) 293 (Ont. Gen. Sess. Peace), Borins Co. Ct. J. held that a witness may, upon cross-examination, be asked any questions concerning his antecedents, associations or mode of life, which, although irrelevant to the testimony given in chief or to any issue in the case, would be likely to discredit his testimony or degrade his character. The relevancy principle applies to cross-examination. The trial judge may disallow questions that are clearly vexatious, irrelevant, remote, or of such a nature as to not seriously affect present credibility.
[31] Therefore, it must be asked: Are the facts, as found by Parayeski J. and underlying Jennifer’s conviction, relevant to a material issue at trial?
[32] In R. v. Truscott (2006), 2006 CanLII 60337 (ON CA), 213 C.C.C. (3d) 183, at para. 22 (Ont. C.A.), the Court stated, “Evidence will be irrelevant either if it does not make the fact to which it is directed more or less likely, or if the fact to which the evidence is directed is not material to the proceedings.” Put differently, evidence is relevant where it has some tendency, as a matter of logic and human experience, to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence – see R. v. Arp (1998), 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, 129 C.C.C. (3d) 321, at p. 338. The threshold for relevance is not high – see R. v. Candir, 2009 ONCA 915, at para. 48.
[33] Even so, in R. v. Seaboyer (1991), 1991 CanLII 76 (SCC), 7 C.R. (4th) 117 (SCC), at pp. 137-140, the Supreme Court has emphasized that defence evidence should not be excluded simply because its probative value is outweighed by the prejudice it could cause; it can be excluded only where its probative value is substantially outweighed by the prejudice it could cause. This more exacting standard accords with the longstanding belief that it is better to obtain a wrongful acquittal than a wrongful conviction, so the accused should receive the benefit of every doubt, including in the application of rules of evidence. The accused must be able to make full answer and defence.
[34] Evidence is prejudicial where it operates improperly – see R. v. S. (D.G.), 2013 MBCA 69, at para. 25. One way in which evidence may be prejudicial is the tendency of jurors to assign it more weight than it deserves. As Watt J.A. has stated, “Prejudice is a surrogate for proof”: R. v. Luciano, 2011 ONCA 89, at para. 232.
[35] In R. v. Clarke (1998), 1998 CanLII 14604 (ON CA), 129 C.C.C. (3d) 1, 18 C.R. (5th) 219, at paras. 34-35 (Ont. C.A.), Rosenberg J.A., on behalf of the Court of Appeal, was concerned with the admissibility of reputation evidence. He suggested that a court should be wary of five potential prejudice pitfalls (adapted largely from Seaboyer, at para. 45, which in turn borrowed from McCormick’s Handbook of the Law of Evidence, 2d ed. (St. Paul, Minn.: West, 1972) at pp. 438-440):
1. The danger that the evidence will arouse the jury’s emotion of prejudice, hostility or sympathy;
2. The danger that the proposed evidence and any evidence in response will create a side issue that will unduly distract the jury from the main issue in the case;
3. The danger that the evidence will consume an undue amount of time;
4. The danger of unfair surprise to the opponent who has no reasonable grounds to anticipate the issue and was unprepared to meet it; and
5. The danger that the evidence will be presented in such a form as to usurp the function of the jury.
[36] Also relevant is the fact that this is a joint trial. Evidence that may assist one accused may prejudice another. In R. v. Pollock (2004), 2004 CanLII 16082 (ON CA), 187 C.C.C. (3d) 213, 23 C.R. (6th) 98 (Ont. C.A.), at paras. 106-107, Rosenberg J.A. outlined the balancing process that is involved:
106 … [S]ince evidence of propensity or bad character can carry a very grave risk of prejudice to the fair trial of the accused against whom the evidence is led, it is incumbent on the trial judge to examine closely the probative value of the evidence and the purposes for which the evidence is tendered. In my view, in a joint trial, counsel’s mere assertion that the evidence is necessary for the accused to make full answer and defence is not sufficient given the grave potential for prejudice to the fair trial of a co-accused. There must be some evidentiary foundation to support this assertion. That foundation may come during the Crown’s case through evidence of Crown witnesses in chief or through cross-examination. In some cases, the evidentiary foundation may not be laid until the defence case. If so, the prejudicial character evidence would only be admissible, if at all, at that time. The need for this evidentiary foundation is not simply to avoid irrelevant evidence entering the record. An evidentiary foundation is essential to ensure fair management of the trial. The need for the highly prejudicial evidence can be properly assessed only when the accused demonstrates through evidence the contours of the defence. Until then, the trial judge is left to speculate on the importance and necessity of this evidence.
107 In deciding whether to admit evidence on behalf of one accused of the co-accused’s disposition, the trial judge is required to balance the fair trial-rights of the two accused. In some cases, the trial judge will conclude that a fair balance cannot be struck within the confines of a single trial and the judge will grant severance. In most cases, however, it should be possible to balance the fair trial rights of both accused.
[37] In R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449, 30 C.R. (5th) 346 (Ont. C.A.), Doherty J.A. discussed the duty to balance the rights of a co-accused in a joint trial, at para. 111:
Where accused are tried jointly, each is entitled to the constitutional protections inherent in the right to a fair trial. Those protections include the right to make full answer and defence and the right to be shielded from evidence which unfairly prejudices an accused. An accused’s right to a fair trial does not, however, entitle that accused to exactly the same trial when tried jointly as the accused would have had had he been tried alone: R. v. Crawford, supra, at p. 497-98; R. v. Pelletier (1986), 1986 CanLII 1179 (BC CA), 29 C.C.C. (3d) 533 (B.C.C.A.). In joint trials, one accused may elicit evidence or make submissions in support of his defence that are prejudicial to the other accused and could not have been elicited or made by the Crown. In those cases, the respective rights of each accused must be balanced by the trial judge so as to preserve the overall fairness of the trial. In Crawford, supra, Sopinka J. said, at p. 498:
I have gone to some length to stress that Charter rights are not absolute in the sense that they cannot be applied to their full extent regardless of the context. Application of Charter values must take into account other interests and, in particular, other Charter values which may conflict with their unrestricted and literal enforcement. This approach to Charter values is especially apt in this case, in that the conflicting rights are protected under the same section of the Charter.
