R. v. Evan, 2019 ONCA 715
CROSS-EXAMINATION - ADMISSIBILITY - EXPERT EVIDENCE
Background
Wiretap evidence uncovered that the 4 Appellants, Shane Evans, Sheldon Evans, Rashard Green and Orrett Francis, were drug traffickers. What drug the Appellants were dealing, and for whose benefit were in dispute. The Appellants alleged they were independent contractors. Crown alleged they were members of and dealers for a criminal organization. Appellants convicted by jury of a total of 21 offences, including offences committed for the benefit of, or in association with a criminal organization. All four Appellants appeals their conviction and sentence.
Issues on Appeal
1. Jury Selection
Note: The Appellants challenged the constitution of the jury on the ground that the challenges for cause were determined by static triers contrary to their request for rotating triers. The ONCA provides a comprehensive summary on the law concerning rotating and static triers of fact. As of September 19, 2019, all challenges for cause will be determined by the trial judge. As such, this ground of appeal will not be summarized.
2. Cross-Examination of Expert Witness
The Appellants submit that the trial judge erroneously intervened during defence counsel’s cross examination of the Crown’s drug expert. The expertise of the witness in the distribution of illicit drugs and interpretation of coded street language about drugs is not in dispute. Rather, the Appellants argue that the frequency of the trial judge’s interventions caused a miscarriage of justice because it created an appearance of unfairness and compromised the Appellants’ right to make full answer and defence.
Governing Principles: Scope of Cross-Examination
An accused’s right to cross-examine Crown witnesses without unwarranted constraint is an essential element of the right to make full answer and defence (See R v Lyttle 2004 SCC 5). Cross-examination is an important mechanism to assess a witness’ credibility, and the reliability of their evidence. While the right to cross-examination should not be unduly limited, it is constrained by the rules of relevance. Questions in cross-examination must (1) have a good faith basis, and (2) must elicit evidence that is relevant, material and admissible under evidence law.
A trial judge has broad discretion to relax the rules of admissibility to ensure fairness. Trial judges have the authority to control the conduct of cross-examination; interventions, however, must be exercised with caution. Ultimately, the question is “whether, as a result of the number and nature of interventions, the accused might reasonably consider that he had not had a fair trial, or whether a reasonably-minded person, who had been present throughout the trial, would consider the accused had not had a fair trial” (See R v Hungwe, 2018 ONCA 456). Trial judge has inherent jurisdiction to manage the trial process as it unfolds including the admissibility of evidence.
When counsel cross-examines a witness on authoritative works, they must first ask the witness whether they are familiar with the work and/or acknowledges the work’s authority. If the answer is “no”, the questioning must end here. Counsel is barred from reading the work to the witness as this contravenes rules of hearsay. If the answer is “yes”, counsel is permitted to read parts of the work to the witness.
The ONCA concludes that the trial judge did not err in his interventions as trial counsel consistently tried to adduce evidence that was either irrelevant or contravened rules of admissibility (i.e. how to adduce evidence on authoritative works).
3. Proposed Expert Evidence
At the closing of the Crown’s case, defence counsel for one of the Appellants advised the trial judge he wanted to call two experts, a journalist, and a police officer; failing to comply with the notice provisions in s. 657.3 of the Criminal Code. An admissibility inquiry was held to determine the relevance of the proposed evidence, and the qualifications of the proposed experts. The trial judge ruled the evidence of both proposed witnesses were inadmissible. The Appellants appeal this finding.
Governing Principles: Expert Witness Evidence
Admissibility of expert opinion evidence is determined by two-step analysis:
(1) Proponent of evidence must establish, on balance of probabilities, the threshold requirements of admissibility: relevance and properly qualified expert.
Evidence is relevant if it renders the fact it seeks to establish slightly more or less probable through the application of everyday experience and common sense (logical relevance). Whether proposed expert evidence is logically relevant is contingent on:
(a) Whether the proposed expert opinion relates to a fact in issue at the trial?
(b) Whether the expert opinion evidence is so related to a fact in issue that it tends to prove it?
This determination is a matter of law, decided by the trial judge.
(2) Gatekeeper stage: judge balances potential risks and benefits of admitting the proposed expert evidence.
The relevance, reliability and necessity of the evidence is weighed against the consumption of time, prejudice and confusion. This analysis is case-specific and therefore, attracts deference from appellate courts barring any error of law or principle, misapprehension of the evidence or unreasonable conclusion.
While counsel’s failure to comply with s. 657.3(4) (re: notice requirements) is not fatal, this deficiency is relevant in the gatekeeper admissibility analysis, as lack of notice and disclosure may result in unnecessary adjournments or consumption of court time. The trial judge was entitled to conduct the admissibility inquiry through written submissions; there is no requirements that the inquiry be presented by viva voce testimony. The ONCA finds that the trial judge did not err in his application of the 2-step admissibility test, and did not err in excluding the two experts.
4. Evidence of Uncharged Misconduct
The Appellants submit that the trial judge erred in allowing evidence that disclosed uncharged misconduct, including two homicides and possession of firearms. At trial, the Appellants did not dispute that they trafficked drugs. Rather, they contested that they were member of a criminal organization (“5PG”) or that this organization fell within the meaning of criminal organization under s. 467.1(1) of the Criminal Code. While the Crown was entitled to lead some evidence of extrinsic misconduct to prove that 5PG was a criminal organization, the Appellants submit the evidence went beyond this threshold.
Governing Principles: Extrinsic Misconduct Evidence
Relevance: a piece of evidence does not become irrelevant because it supports more than one inference. To be relevant, a piece of evidence, does not need to conclusively prove the proposition for which it is tendered. Nor does the evidence need to make the proposition for which it is offered more probable than not. Evidence is relevant, if, by the application of everyday experience and common sense, it can render the fact it is tendered to establish more or less probable than without the evidence.
Materiality: Evidence is material when it is tendered to prove or disprove a fact is issue. The boundaries of what is “material” in a trial are confined by the essential elements of the charged offences. Evidence offered to prove the fact or nature of a group as a criminal organization would therefore be material in this case.
Generally, evidence of an accused’s bad character or extrinsic misconduct is inadmissible as circumstantial evidence to establish an accused’s guilt as it may lead to moral and reasoning prejudice. This evidence, however, is admissible where its probative value exceeds its prejudicial effect. A trial judge’s assessment of the evidence is entitled to deference on appeal.
The ONCA does not give effect to this ground of appeal. The evidence in dispute was clearly relevant to establishing whether or not 5PG was an organization within the definition of s. 467.1 of the Criminal Code. The trial judge did not err in concluding that the probative value outweighed the prejudicial effect. Beyond this, the trial judge safeguarded against the misuse of this evidence of extrinsic conduct by providing a limiting instruction.
1. Unbalanced Charge
The Appellant submits that the trial judge’s focus on the Crown’s expert evidence resulted in an unbalanced and unfair jury charge.
Governing Principles: Jury Charges
A trial judge’s jury charge must leave the jury with a clear understanding of (i) the factual issues to be resolved; (ii) the legal principles governing the factual issues and the evidence adduced at trial; (iii) the positions of the parties; and (iv) the evidence relevant to the positions of the parties.
The strength of a jury charge lies in its objectivity. A jury charge’s purpose is to educate not indoctrinate the jury. The charge must be balanced on both sides so as to not compromise the fairness of the trial.
A trial judge is entitled to express their own view of factual issues and the credibility of witness. A trial judge, however, is not entitled to use language that leads the jury to think they must follow the judge’s opinion.
An appellate court is entitled to intervene where the trial judge’s opinion, expressed in the charge, is (i) far stronger than the facts of the case warrant; or (ii) expressed in such a way that the jury is likely to be persuaded by the expression of the opinion, even if the trial judge makes it clear to the jury that they are not bound by their view of the evidence.
While lack of objection by defence counsel is not fatal, it is a relevant factor for the appellate court to consider in assessing the alleged deficiency in the charge.
The ONCA does not give effect to this ground of appeal, finding that the jury charge did not result in a miscarriage of justice.
WATT JA, writing for the court, dismisses the appeal from conviction.
Read the full decision here.