R. v. Jahangiri, 2022 ONCA 644

WHAT YOU NEED TO KNOW

·         Discreditable conduct evidence is presumptively inadmissible because its probative value depends on prohibited “propensity reasoning.”

·         “Propensity reasoning” refers to a prohibited form of reasoning, which leads to the conclusion that the accused committed the offence which he is charged with based not on the strength of the evidence, which has a connection to the issues in the case, but rather, on the strength of the evidence that he is “a bad person” who would have a tendency to commit this offence.

·         In this case, evidence of large quantities of cash belonging to an accused did not amount to discreditable conduct evidence because its probative value did not rely on propensity reasoning. Rather, it was relevant circumstantial evidence of the accused’s involvement in the charged offences (trafficking of cocaine).

FACTUAL BACKGROUND

The police obtained information that the appellant’s housemate and friend, Mr. Scollon, would be arriving in Windsor with drugs on May 23, 2017. Mr. Scollon delivered the drugs to a metal hut. A few hours later, the appellant, Mr. Jahangiri, drove to the hut. After about an hour, the appellant exited the hut with a duffel bag. The police arrested him.

The police searched the appellant incident to arrest. They discovered small amounts of crack cocaine, drug paraphernalia, several cell phones, and about $2000 in cash. The police then searched the hut, which revealed, among other things, 2 kgs of powder cocaine apportioned into small baggies.

The police then executed a search of the appellant’s home and a search of the appellant’s parents’ home (the address on his driver’s license). They seized $18,000 in cash from a safe in the appellant’s bedroom. They also found approximately $50,000 in cash in a safe in the attic bedroom of the appellant’s parents’ house.

As a result, the appellant and Mr. Scollon were charged with possession of cocaine for the purpose of trafficking. The appellant was also charged with possession of crack cocaine for the purpose of trafficking. Mr. Scollon pleaded guilty. The appellant pleaded guilty to the lesser offence of possession in relation to the crack cocaine charge but proceeded to a jury trial in respect of the cocaine trafficking charge.

The main issue at trial was whether the appellant had joint possession (with Mr. Scollon) of the 2 kgs of cocaine seized from the storage hut. The jury convicted the appellant. He was sentenced to 8 years’ imprisonment.

RULING BELOW

Throughout the appellant’s trial, defence counsel objected to the admission of evidence relating to the large amounts of cash seized from the appellant’s home and the appellant’s parents’ home. The defence argued this evidence amounted to evidence of discreditable conduct, which was (1) presumptively inadmissible and (2) required the Crown to bring a pretrial application under rule 30 of the Criminal Proceedings Rules. The defence argued that the cash evidence invited the jury to engage in “propensity reasoning”—i.e., to infer that the appellant was the type of person who would deal drugs and therefore was in possession of the cocaine at issue.

The trial judge disagreed and concluded the cash evidence was admissible as it was relevant to the issue of joint possession and did not amount to discreditable conduct. The trial judge went on to note that even though she was wrong in this conclusion, the evidence was nonetheless admissible as the probative value of the evidence outweighed any prejudicial effect.

ISSUE ON APPEAL

The appellant raises a number of issues on appeal. This summary focuses on the main ground of appeal advanced by the appellant:

1.    Did the trial judge err in admitting the evidence of the seized cash because it was discreditable conduct evidence?

In other words, does the cash seizure evidence constitute discreditable conduct evidence?

Disposition – Appeal dismissed.

ANALYSIS

Discreditable Conduct Evidence and Propensity Reasoning – Generally

Evidence that takes its probative effect from propensity reasoning is presumptively inadmissible. This presumption can be rebutted where the Crown, on a balance of probabilities, proves that the probative value of the evidence outweighs its prejudicial effect. See: R. v. Handy, 2022 SCC 56 at para. 55.

“Propensity reasoning” refers to two inferences:

(1)  One infers from conduct on occasions, other than the occasion in issue, that a person has a certain disposition; and

(2)  Second, one infers from the existence of that disposition that a person acted in a certain way on the occasion in issue.

This chain of reasoning is prohibited because there is a great risk it will be misused by the trier of fact, particularly in jury trials. There is a great potential that the evidence will improperly prejudice the jury against the accused: the jury may assume from the evidence of discreditable conduct that the accused is a bad person and convict on that basis.

“Discreditable conduct evidence is presumptively inadmissible because it relied on a forbidden line of reasoning “that which leads to the conclusion that the accused committed the offence with which he is charged based, not on the strength of the evidence which has a connection to the issues in the case, but rather, on the strength of the evidence that he is ‘a bad person’ who would have a tendency to commit this offence”.

To learn more about discreditable conduct evidence and propensity reading, check out Chapter 7 of Emond’s “Modern Criminal Evidence” on Character Evidence and Admissibility.

Application

Whether or not evidence amounts to presumptively inadmissible discreditable conduct evidence depends on the use to which the evidence is put. Not all discreditable conduct evidence is proffered for the purpose of inviting the jury or trier of fact to engage in propensity reasoning.

In this case, the presence of a large quantity of cash was not put to the jury for the purpose of inviting them to reason that because the appellant had trafficked drugs in the past, he was likely to have possessed the drugs at issue. This would amount to prohibited propensity reasoning.

The probative value of the cash evidence in this case, however, did not rely on propensity reasoning. Rather, it was circumstantial evidence consistent with the appellant being a drug trafficker at the time of the offence in question.

Read the full decision here.