R. v. Borden, 2017 NSCA 45

Nova Scotia Court of Appeal Citation: R. v. Borden , 2017 NSCA 45 Date: 20170531 Docket: CAC 444208 Registry: Halifax Between: John Arthur Borden Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Duncan R. Beveridge Appeal Heard: November 14 and 15, 2016 and February 22, 2017, in Halifax, Nova Scotia Subject: Criminal law: admission of fresh evidence; scope of cross-examination of a crown witness on prior acts of discreditable conduct; Crown introduction of bad character evidence of an accused; jury charge on self-defence; non-direction on prior inconsistent statements.

Summary: There were two versions of events about a violent encounter outside a house party. The complainant said the appellant stabbed him with a knife. The appellant said that when he was confronted by the complainant, a fight ensued. Only while being pummelled by the complainant did he stab the complainant in self-defence. Appellant’s trial counsel believed that he needed the trial judge’s permission to cross-examine the complainant about his violent character as evidenced by numerous criminal convictions for uttering threats or similar conduct. He called it a “ Scopelleti application”.

The trial judge ruled that the appellant could only cross-examine the key Crown witness, the complainant, on nine of his 41 convictions and the Crown could introduce in its case in chief an exhibit demonstrating the appellant’s convictions for violent offences. The Crown argued to the jury that the appellant had a violent disposition as evidenced by his convictions. The judge gave inconsistent instructions to the jury.

He told them they could use the appellant’s criminal convictions to help them decide who was the aggressor in the altercation, yet also that the convictions could not be used to reason he committed the offences charged or that he is a person of bad character and, thus, likely to have committed the offences charged. The jury had questions about the applicability of self-defence. The trial judge repeated his initial charge. A witness testified about a prior statement.

That statement recounted a version of events told by the complainant inconsistent with his sworn testimony but consistent with what the appellant said had happened. The trial judge gave no instructions on prior statements.

Issues:

(1) Was the fresh evidence admissible?

(2) Did the trial judge err in his jury charge on self-defence?

(3) Did the ruling by the trial judge on the “ Scopelliti application” impact on trial fairness?

(4) Did the trial judge commit reversible error by not charging on the use the jury could make of prior statements? Result: The motion to adduce fresh evidence was dismissed. The trial judge’s answer to the jury question about the law of self-defence could have been clearer, but in the circumstances, did not amount to reversible error. The “ Scopelleti application” was misguided.

The trial judge was wrong to put limits on the right of the appellant to cross-examine the complainant on his prior discreditable conduct, including his numerous prior convictions, and to permit the Crown to introduce as an exhibit a document evidencing the appellant’s criminal record. The error was compounded by his jury instructions that they could, as the Crown urged, use the appellant’s prior convictions for violent offences to determine who had been the aggressor in the altercation. In these circumstances, the trial judge’s failure to charge the jury about how to deal with prior statements was inadequate.

The appeal is allowed, the convictions quashed and a new trial ordered, to be undertaken at the discretion of the Crown. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 49 pages. Nova Scotia Court of Appeal Citation: R. v. Borden , 2017 NSCA 45 Date: 20170531 Docket: CAC 444208 Registry: Halifax Between: John Arthur Borden Appellant v. Her Majesty the Queen Respondent Judges: Fichaud, Beveridge and Scanlan, JJ.A.

Appeal Heard: November 14 and 15, 2016, and February 22, 2017 in Halifax, Nova Scotia Held: Appeal allowed, per reasons for judgment of Beveridge, J.A.; Fichaud and Scanlan, JJ.A. concurring

Counsel: Roger Burrill, for the appellant Timothy O’Leary, for the respondent William Mahody, Q.C. for LIANS, watching brief only Reasons for judgment: INTRODUCTION: [ 1 ] This appeal arises from a house party that did not end well. A violent encounter happened outside, in the dark. The appellant, John Borden, admitted he stabbed the complainant, Richard (Ricky) Borden, but said he had done so in self-defence. [ 2 ] The jury convicted the appellant of aggravated assault and possession of a knife for a purpose dangerous to public peace.

He was acquitted of attempted murder and uttering a threat to kill Ricky Borden. The trial judge sentenced the appellant to five years’ incarceration for the aggravated assault offence and one year concurrent for the possession of a weapon, less remand credit. [ 3 ] Originally, the appellant represented himself on his appeal. He complained that the judge did not allow him to present “all of the evidence” and his trial counsel had been inadequate. Mr. Burrill assumed carriage of the appeal.

An Amended Notice of Appeal followed. [ 4 ] The Amended Notice of Appeal asserted that the trial judge had erred in his jury charge on self-defence, and there had been a miscarriage of justice by the failure of trial counsel to produce relevant evidence. There was no overt suggestion that the appellant’s trial counsel was ineffective. Nonetheless, the appellant moved to adduce fresh evidence to further the claim there had been a miscarriage of justice. I will set out the details of the proposed fresh evidence later.

Eventually, ineffective assistance of counsel became an issue. [ 5 ] We heard the fresh evidence motion and argument on November 14 and 15, 2016. During that hearing, the panel sought submissions on two matters: 1) the “ Scopelliti application” (and the trial judge’s charge that flowed from that); and 2) the adequacy of the trial judge’s charge with respect to prior statements. [ 6 ] The parties filed further materials to address these issues. We heard further evidence and submissions on February 22, 2017. [ 7 ] There are many aspects about this trial that were unsatisfactory.

The errors and missteps by counsel and the trial judge led to an unfair trial. [ 8 ] For the reasons that follow, I would allow the appeal, quash the convictions and order a new trial. [ 9 ] I will provide an overview of the pre-trial proceedings and the trial, then the appellant’s motion to adduce fresh evidence and the ensuing appeal proceedings. OVERVIEW [ 10 ] The appellant had counsel. He elected trial by judge and jury. Committal for trial followed a preliminary inquiry. Eventually, June 8 to the 18 of 2015 became the set trial dates. [ 11 ] Mr. Eugene Tan became the appellant’s lawyer in February 2015. Mr.

Tan arranged to bring an application labelled “Application for Admission of Character Evidence”. He filed a detailed brief. The Crown replied. The application was heard on June 1, 2015 by the trial judge, the Honourable Justice Glen G. McDougall. [ 12 ] I will provide more details about this application later. It suffices for now to observe that trial counsel believed that he needed judicial fiat to introduce character evidence of the complainant via cross-examination on his criminal record.

The Crown countered that it should be allowed to introduce the criminal record of the appellant as part of its case. [ 13 ] The trial judge agreed. He set parameters. The appellant could not cross-examine on the whole of the complainant’s criminal record, and the Crown could introduce details of the appellant’s convictions for violent offences from 2000 forward. Included in that record were convictions for assault with a weapon and aggravated assault, and three for assault simpliciter . [ 14 ] At trial, the Crown called 14 witnesses.

Eleven were people that had hosted or attended the birthday party at Lillian Clyke’s house in Sunnyvale, Guysborough County on June 28, 2013. The cast was rounded out by the emergency room physician who treated the complainant, Ricky Borden, and two police officers.

[ 15 ] It is unnecessary to sort out all of the familial and social relationships of the people that were at the party. The key figures in the lead up to, and during the fracas, were Ricky Borden, his brother Norman Borden, Juanita Byard, Walter Mansfield, Marcus Timmons, and the appellant. [ 16 ] The theory of the Crown was that the appellant, with a history of jealousy and violence, became upset by the attention the complainant was paying to his former girlfriend, Juanita Byard. It was the appellant who caused the incident inside the house.

After Ricky Borden went outside, the appellant followed, uttered death threats and carried out an unprovoked knife attack on the complainant. [ 17 ] All of the witnesses agreed that Ricky Borden and a number of his brothers arrived at the party before the appellant. The mood was good. Music was on. Some people were dancing. There was food and alcohol. [ 18 ] The appellant, John Borden, is related to Ricky Borden, but not closely. The appellant arrived at Lillian Clyke’s home around 10:00 p.m. It was dark out. [ 19 ] Tensions developed inside between Ricky Borden and the appellant.

There were various accounts about who said what to whom. All were in agreement that loud and angry words were exchanged between Ricky Borden and the appellant. Due to the commotion, Lillian Clyke ordered Ricky Borden to leave. He, Norman Borden, and Walter Mansfield went outside. [ 20 ] Time estimates varied, but not long afterwards, the appellant also left. The accounts of what happened when he went outside differ sharply. Ricky Borden said he was just getting some beer out of Norman Borden’s trunk when the appellant ran towards him, yelling death threats. Ricky threw beer cans at the appellant.

The appellant had a knife, he kept coming and stabbed Ricky twice in the abdomen. Ricky then started running around Norman’s car. [ 21 ] Eventually, the appellant caught up to Ricky Borden and stabbed him in the flank. Ricky cried out, turned and grabbed the appellant and threw him to the ground. Ricky Borden described how he got on top of the appellant and started punching him. He also said he called for Norman’s help to get the knife away from the appellant. [ 22 ] Norman Borden heard no threats being yelled by the appellant. Otherwise, his evidence generally tended to confirm that of the complainant.

Norman said he saw the chase by the appellant around his car, heard the complainant’s utterance of having been stabbed, and took the knife out of the appellant’s hand. [ 23 ] Walter Mansfield’s testimony also confirmed part of the complainant’s evidence. He testified that he went outside at the same time. He saw the appellant running toward the complainant, but heard no threats and saw no knife. Mr. Mansfield said he heard the complainant say that he had been stabbed, but he did not see it. He did not want to get involved and went inside a nearby home.

Before leaving the scene, he heard the complainant hollering for Norman to come and get the knife. [ 24 ] A few minutes later, the complainant went into that home and asked Mr. Mansfield to drive him to the hospital. [ 25 ] John Clyke was also outside. He realized there was a fight. Ricky Borden was on top of someone and asking for somebody to get the knife. He saw and heard nothing before that happened. [ 26 ] The appellant denied any animosity on account of jealousy. Juanita Byard’s testimony did not support the Crown theory.

Whatever caused tensions inside the house, the appellant testified that he had thought Ricky Borden would have left the yard by the time he went out. [ 27 ] The appellant said he simply wanted to walk home after leaving Lillian Clyke’s house. As he started to do so, Ricky Borden threw beer cans at him, striking him at least twice. He said Ricky then took up a fighting stance. They wrestled each other to the ground. Ricky Borden was on top of him, punching him, and, at one point, hit him in the head with what he thought was a beer bottle.

Fearing for his life, the appellant said he managed to get his pocket knife out, open it and stab the complainant twice in the left side. The appellant said that after this, the complainant called for Norman’s help. Before Norman could take the knife from him, he tossed it out of his reach. [ 28 ] The appellant testified that he was able to wriggle out from under the complainant. Once on their feet, the fight continued. At one point, the appellant said he pushed the complainant backwards onto Norman.

The appellant believed that Norman had the appellant’s knife at this point, and that the complainant’s contact with Norman is what caused the stab wound to the complainant’s left flank. [ 29 ] The appellant founded his belief on the fact that after that contact, Norman and he fought briefly. Norman had his knife, and when the appellant tried to kick him, Norman stabbed him in the upper left leg. Norman denied he had used a knife. He testified that the appellant had a second knife.

It was after the appellant produced the second knife, that he fought briefly with the appellant. [ 30 ] The putative stab wound to the appellant’s leg, and the availability of evidence tending to confirm its existence, was one of the central themes of the original fresh evidence motion. I will describe the trial evidence and the proffered fresh evidence in more detail later. [ 31 ] Walter Mansfield drove the complainant to the hospital. Marcus Timmons, who had come to the party with the complainant, accompanied them to the hospital. Norman Borden followed shortly afterwards in a separate car.

He got into somewhat of a confrontation with the investigating officers outside the hospital. Eventually, the police retrieved the appellant’s knife from Norman Borden. [ 32 ] The appellant ended up in Juanita Byard’s car. Much was made by the Crown of the different places they visited, and that they spent the night together in the car in a secluded area. It was the Crown’s position that the appellant’s activities amounted to “after the

fact conduct”, permitting the jury to draw an inference of guilt against the appellant. No objection was taken at trial nor on appeal to this nebulous proposition. [ 33 ] Ms. Byard said that the appellant complained of a bump on his head and a broken nose. She said he was able to walk. She did not actually see any injury. Ms. Byard described seeing him bleeding from his nose and the presence of blood on his shirt. She was with him when he was arrested without incident later that day. [ 34 ] The police searched the area where Ricky Borden and the appellant were fighting.

They found a broken watch, tentatively identified as belonging to Ricky Borden, the appellant’s hat, and a broken bottle. [ 35 ] Cst. Len MacDonald and Sgt. Terry Miller were present when the appellant was arrested on June 29, 2013. Sgt. Miller described the appellant as cooperative and compliant. Sgt. Miller believed the appellant was wearing blue jeans. He noticed the appellant had a superficial injury to the left side of his head, but had no difficulty walking or moving. [ 36 ] Cst.

MacDonald testified that the appellant did not appear to be injured, except for an abrasion on the top of his head, which did not require medical attention. He observed no difficulty in how the appellant walked or moved. Photographs were taken that day of the appellant’s injuries to his head and face. [ 37 ] Marcus Timmons had gone to the party with Ricky Borden. They were friends. The appellant did not know Marcus Timmons. He was on the Crown witness list, and was announced as being a Crown witness at the opening of the trial before the jury.

Nevertheless, without explanation, the Crown elected not to call him as a witness. [ 38 ] Mr. Tan’s attempts to compel Mr. Timmons’ appearance at trial were frustrated. Mr. Timmons ripped up his subpoena. The trial judge issued a warrant. The police arrested Mr. Timmons on the warrant in Dartmouth. Rather than appear personally, a decision was made for Mr. Timmons to testify by video-link from the Halifax Law Courts. [ 39 ] Mr. Timmons was a decidedly uncooperative witness with Mr. Tan. [ 40 ] Mr. Timmons had given an audio-taped statement to the police on July 3, 2013.

In this statement, he said that as Ricky Borden was going out the door he told Marcus to stay inside. Marcus heard yelling and screaming. When he went outside, Ricky’s shirt was full of blood. Marcus and Walter Mansfield took Ricky to the hospital. [ 41 ] On the way, Ricky told them that the appellant had said something to him, and he, Ricky, told the appellant to go outside and “settle it like real men”. Ricky was getting the better of the appellant. In particular, he was on top of the appellant.

That is when the appellant stabbed Ricky. [ 42 ] When Marcus Timmons testified, he professed to have no recall of who was in the vehicle when Ricky went to the hospital or what was said. He even swore that he had no recall of talking to the police or of the events of June 28. Mr. Tan brought an application under s. 9 of the Canada Evidence Act , R.S.C. 1985, c. C-5 to cross-examine Mr. Timmons as an adverse witness. The application was successful. [ 43 ] During Mr. Tan’s cross-examination in front of the jury, Mr. Timmons maintained that he had no recollection of giving an audio-taped statement to the police.

He did acknowledge that Ricky told him he had challenged the appellant to go outside and settle their dispute like men. He would not say for certain that Ricky told him that he was getting the better of the appellant when he got stabbed. [ 44 ] Mr. Timmons acknowledged it was his voice on the audio-tape describing those very details. He maintained that he had no recollection of it “but if I said it, it happened”. [ 45 ] As mentioned earlier, the appellant acknowledged an exchange of words with Norman and Ricky Borden at the party. The appellant described the challenge by Ricky Borden to “come the fuck outside”.

Both sides had raised voices. Some of the guests held the appellant back as Ricky and Norman Borden went outside. I have already set out the gist of the appellant’s account of the outside events. [ 46 ] I will add a few details about the appellant’s account that help inform the claimed for relevance of some of the fresh evidence. First, the appellant testified that the complainant broke his nose and jaw. Second, in response to Mr. Tan’s invitation, the appellant showed the jury the scar on his left leg from the stab wound inflicted by Norman Borden.

The appellant explained that it did not cause him much pain at the time. He cleaned it up that night with a towel and put a band-aid on it. It was later “looked at” when he was in jail in Burnside. [ 47 ] At the end of the appellant’s evidence, the Crown elected not to call rebuttal evidence. Counsels’ addresses to the jury followed immediately. [ 48 ] Defence counsel stressed to the jury that self-defence can be a complete defence to the charges of attempted murder and aggravated assault.

There was no suggestion self-defence was relevant to the charge of possession of a weapon for a purpose dangerous to the public peace. Counsel appropriately stressed the evidence of Marcus Timmons, a friend of Ricky Borden. According to Timmons, Ricky Borden told him a version of events that was similar in some important details to that of the appellant. [ 49 ] That is, the complainant was on top of the appellant and was “getting the better” of him when the appellant stabbed the complainant. Defence counsel suggested that Mr.

Timmons was not an ideal defence witness, but that he had adopted the content of his police statement.

[ 50 ] As to the criminal record of the complainant, defence counsel said this: Does he have a history? Yes, he does. He has a history. He was cross-examined on his criminal record. He has a number of convictions for uttering threats. You heard some of the details. And bear in mind that he was cross-examined on the terms of his sentence, as well. And they were not insignificant. In fact, some sentences exceed anything that John Borden received.

He discusses his history, that he has been in fights, that he was recently involved in a scuffle, although he says that it was collateral damage, for lack of a better term. But he’s not going to back down from anybody. [ 51 ] Defence counsel made no mention of the appellant’s criminal record. [ 52 ] The Crown’s summation stressed the evidence that tended to corroborate the complainant’s testimony about how the incident started inside the house and the events outside.

Counsel pointed out the problems with the appellant’s testimony, in particular: his claim of being able to open a knife with one hand and stab the complainant; his evidence that tried to account for the stab wound to the complainant’s flank; and, the absence of evidence that he had suffered a broken nose or serious injury to his leg. [ 53 ] With respect to the evidence about the criminal antecedents of the complainant and the appellant, the Crown argued that the jury was entitled to consider their prior convictions.

He pointed out to the jury that the complainant had only been convicted of uttering threats, a fact that he had acknowledged, yet the appellant had been convicted of a number of assaults. Counsel’s argument to the jury was as follows: John Borden did admit that he was angry inside only for a minute, but he was angry. And I would submit to you that, in reality, John Borden's evidence that he was not the aggressor outside is just not supported and it’s not believable. And, indeed, you can consider in determining who the aggressor in this fight was.

And they can put before you evidence of prior convictions of both Ricky Borden and John Borden. My friend put to Ricky Borden the fact that he had been previously convicted of uttering threats and he acknowledged that. You did not hear of Ricky Borden being convicted of an assault ever. You did hear of John Borden being convicted of a number of assaults and this is from a man who has, by his own admission, a temper. [ 54 ] I will only refer to those parts of the trial judge’s charge that are relevant to understanding the issues.

The judge attempted to explain to the jury the different uses they could make of prior criminal convictions as between the complainant, Ricky Borden and the appellant. [ 55 ] For Ricky Borden, the trial judge told the jury that they could use the fact, number and nature of the convictions to help them decide how much or little they believe or rely on his evidence.

They could also use this evidence in helping them to decide who was the aggressor. [ 56 ] With respect to the appellant’s criminal record, the trial judge cautioned the jury that they must not use the fact he has committed offences in the past or the number or nature of the offences as evidence he has committed the charged offences or is the sort of person who would do so.

The jury could only use the fact, number and nature of the convictions to help them decide how much or little they will believe or rely on his testimony. [ 57 ] However, he also told the jury that they may also use the appellant’s criminal convictions in helping them decide who the aggressor was in the altercation between the complainant and the appellant. [ 58 ] The jury were told nothing about how to deal with prior consistent or inconsistent statements. [ 59 ] Neither counsel voiced any objections to the jury charge. An hour and a half into deliberations, the jury had a written question.

It was not made an exhibit. The trial judge said he had written it down. He said the question was: “Can the aggressor use self-defence when he starts losing a fight and believes he is in danger?” [ 60 ] After discussing the question with counsel, the trial judge, with the concurrence of counsel, repeated his initial charge to the jury on self-defence. The jury deliberated the rest of the day, and, at the end of the following morning, returned their verdict. THE FRESH EVIDENCE MOTION [ 61 ] There are two aspects to the appellant’s fresh evidence motion.

The first comes from an affidavit of Murray Timmons sworn April 22, 2016. Murray Timmons swore that Ricky Borden drove his brother, Marcus Timmons to Dartmouth sometime around June 10- 12, 2015. He saw Ricky Borden hand $400.00 cash to Marcus and say he was “not to go to court”. Affidavits from Ricky Borden and Marcus Timmons denied any such arrangement. [ 62 ] When Murray Timmons was produced for cross-examination on his affidavit, he recanted the relevant paragraphs.

The appellant did not press for relief based on this prong of the motion to adduce fresh evidence. [ 63 ] The second aspect of the proposed fresh evidence is based on affidavits from the appellant and a Correctional Officer at the Central Nova Scotia Correctional Facility in Burnside (Central Nova). [ 64 ] The appellant says he instructed trial counsel to call medical and other evidence to confirm that the appellant had been stabbed by Norman Borden.

Attached to his affidavit were copies of notes made by a nurse from the Health Care Unit of Central Nova on July 5, 2013 that the appellant presented to her unit with a “week old stab wound” to his upper left thigh. She cleaned the wound, applied ointment and a Band-Aid.

[ 65 ] The Correctional Officer confirmed his contact with the appellant in the summer of 2013, when the appellant had complained of an injury to his leg. At the officer’s request, the appellant showed him the injury. The Officer said he saw a puncture hole of some significance which led him to escort the appellant to the Health Care Unit. [ 66 ] The appellant’s affidavit referred to his brown pants that he wore the night of June 28, 2013. They were produced and marked as an exhibit before us. They have a hole in them.

The appellant said the hole was caused by what he said had happened—Norman Borden stabbed him. [ 67 ] The appellant described how he signed the pants out of his personal effects and had the Sheriffs transport them to the Courthouse in Guysborough. He showed them to trial counsel and asked that they be introduced. Trial counsel ultimately decided not to do so. [ 68 ] Trial counsel filed an affidavit sworn July 22, 2016 that explained trial preparation, strategy, and why he did not introduce the pants. I will refer to this affidavit later when I discuss the “ Scopelliti application”. Mr.

Tan acknowledged, in his affidavit, that he was aware the appellant had testified at his bail hearing on July 2, 2013 that he had suffered a stab wound to his leg, along with a fractured jaw and broken nose. [ 69 ] Trial counsel explained that he was concerned about producing the pants because: from what he said he observed, the injury did not appear to line up with the hole in the pants; the pants had been washed since June 28, 2013; there was no apparent blood stain; he could not establish continuity or “chain of custody” of the pants; no witnesses could confirm any type of injury to the appellant’s leg. [ 70 ] It was trial counsel’s view that the pants would be “ultimately damaging” to his credibility. [ 71 ] The Crown tendered affidavits from S/Sgt.

Steven Halliday and Cst. Reid. [ 72 ] Cst. Reid was one of the officers that interacted with the appellant when he was in custody. He said the only injury the appellant complained about on June 30, 2013 was to his nose, and that the appellant had declined medical treatment. [ 73 ] The appellant had formally complained to the RCMP about the lack of medical treatment he had received while in police custody. S/Sgt. Halliday investigated the complaint. He obtained the appellant’s medical records, documents and digital copies of CCTV footage from the relevant RCMP detachments.

There was no smoking gun. [ 74 ] The video footage confirmed that the appellant wore brown pants while in RCMP custody (not the blue jeans that Sgt. Miller described). No damage or staining to the pants could be observed.

The appellant appeared to have no problem walking, although at one point he could be seen hopping to the police van on his right leg. [ 75 ] Medical records did not substantiate a broken nose or jaw, but did show his request on July 2, 2013 to have his nose, jaw and left leg “looked after”. [ 76 ] There is no need to make findings or comment about the merits of the rationale behind trial counsel’s decision not to introduce the brown pants as an exhibit. [ 77 ] Whatever view is taken of the decision about not introducing the pants (with or without medical records), which arguably could bolster the appellant’s version of how the violent encounter with Ricky Borden ended, I am not satisfied it can reasonably be viewed as causative of a miscarriage of justice.

THE APPEAL PROCEEDINGS [ 78 ] The appeal proceedings on November 14, 2016 commenced with cross-examination on the fresh evidence affidavits. [ 79 ] Trial counsel’s affidavit of July 22, 2016 had referred to his strategy to seek admission of character evidence with respect to Ricky Borden—specifically, his criminal record.

He called it a “ Scopelliti application” and said that it had been “successful”. [ 80 ] Trial counsel’s affidavit recounted that the complainant’s criminal record had been admitted as a trial exhibit, except for certain convictions found by the trial judge to be irrelevant, or unduly prejudicial. He described the application in the following way: 24. Ricky Borden’s character was, in fact, placed in issue during the conduct of the defence. Upon my first meeting with John Borden, I identified the character of Ricky Borden to be a ground for exploration.

Based on this, I notified the Court on February 25, 2015 that I would be seeking admission of character evidence (Ricky Borden’s criminal record) through a Scopelliti application. This motion was scheduled by the Trial Judge for written submissions on May 1, 2015, and an oral hearing on June 1, 2015. I filed my submissions on April 30, 2015. 25. This motion was successful, and Ricky Borden’s criminal record, less certain convictions that were determined by the Learned Trial Judge to be irrelevant, or unduly prejudicial, was admitted as an Exhibit at trial. 26.

Ricky Borden’s record was put to Ricky Borden in cross examination for the purposes of suggesting that Ricky Borden, and not John Borden, had initiated the assault that formed the subject matter of the trial. Ricky Borden’s history of assaults was admitted into evidence, and, further, he admitted in cross examination that some of his assaults were committed against his spouse. [ 81 ] Some details set out above are not quite correct. As will be described later, Ricky Borden’s criminal record was not introduced as a trial exhibit.

The trial judge did rule that defence counsel was precluded from cross-examining Ricky Borden on all of his convictions. His reasons will be discussed later. [ 82 ] An edited version of the appellant’s criminal record was tendered by the Crown as part of its case as an exhibit. Convictions prior to 2000 were omitted as being too remote.

[ 83 ] During cross-examination of Mr. Tan by the appellant on November 14, 2016, the Crown objected to questions about the so- called “ Scopelliti application” described in trial counsel’s affidavit, because this aspect of the trial proceedings had not been specifically raised as a topic of complaint concerning trial counsel’s conduct.

We permitted the questions to be asked. [ 84 ] Later on November 14, 2016, a further potential issue was identified—the apparent lack of instruction to the jury on the permissible and impermissible uses they could make of the contents of prior witness statements. [ 85 ] After discussion with the parties on November 15, 2016, the panel decided to follow the protocol set out in R. v. Mian , 2014 SCC 54 . It was our unanimous view that, based on a preliminary review, there was “good reason to believe” that failure to address these issues would risk an injustice. The record was complete.

No prejudice was identified. [ 86 ] The Crown, appropriately, requested that the issues be reduced to writing. The parties were afforded an opportunity to make further submissions. Filing dates were set for written argument or further materials. The Court wrote to the parties specifying the issues. [ 87 ] Extensive supplementary facta were filed by the parties. Trial counsel, with the assistance of his lawyer, filed an affidavit sworn January 17, 2017 that elaborated on the rationale behind the “ Scopelliti application”. Attached to the affidavit were the written briefs filed by the parties on the application.

On February 22, 2017, both parties cross-examined trial counsel on his affidavit. I will refer to this evidence later. ISSUES [ 88 ] There are three issues left to address: 1. Did the trial judge err in his jury charge on self-defence? 2. What was the impact on trial fairness from trial counsel’s Scopelliti application? 3. What was the impact on trial fairness from the trial judge’s omission to instruct the jury on how to assess prior inconsistent statements? SELF-DEFENCE [ 89 ] The appellant asserts two problems about the jury instructions on self-defence.

One centers on what the judge did and did not tell the jury about the law of self-defence.

The other is that he told the jury that self-defence had no application to the charge of possession of a weapon for a purpose dangerous to the public peace. [ 90 ] The appellant claims that the trial judge failed to explain the law of self-defence in the context of an accused who wishes to rely on self-defence where he or she has initially assaulted the complainant. [ 91 ] The “new” self-defence regime came into force as s. 34, just three months prior to June 28, 2013 (the Citizen’s Arrest and Self- Defence Act , S.C. 2012, c. 9, in force on March 11, 2013, S/I2013-5).

Once there is an air of reality to the defence, the Crown must disprove, beyond a reasonable doubt, at least one of the following: 1) that the accused believed on reasonable grounds that force or a threat of force was being used or made against them or another person; 2) the accused's acts were done for the purpose of defending or protecting themselves or another; 3) the act was reasonable in the circumstances. See: s. 34(1) of the Criminal Code ; R. v.

Levy , 2016 NSCA 45 . [ 92 ] To determine if the act in question was reasonable in the circumstances, s. 34(2) sets out a non-exhaustive list of nine factors a court must consider. It provides:

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident;

(

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [93] The statutory simplification, while laudable, does not relieve the trial judge from explaining the law of self-defence in the actualcontext revealed by the evidence.

The appellant says the trial judge failed to do so. [94] The appellant’s argument is that the trial judge told the jury that self-defence is not a “loose term”—quite the opposite, the lawdefines the circumstances in which it can apply, and prescribes the nature and extent of what a person is lawfully entitled to do for thepurpose of defending or protecting themselves. [95] He explained to the jury: In some circumstances, a person who believes on reasonable grounds that force is being used or threatened against him may dosomething that would otherwise be an offence but be acting lawfully.

An accused who believes on reasonable grounds that force isbeing used or threatened against him may do something that otherwise would be an offence but be acting lawfully, provided that what hedoes is for the purpose of defending or protecting himself from that use or threat of force and is reasonable in the circumstances as theaccused knew or honestly believed them to be.

This is so even if the accused provoked the use or threat of force or intentionallykilled or seriously injured the person who used or threatened to use the force. [Emphasis added] [96] The appellant complains that trial judge said nothing about self-defence in the context of initial aggression or assault by theappellant—more was needed. [97] Further, the appellant says the significance of the omission is amplified by the jury question: “Can the aggressor use self-defence when he starts losing a fight and believes he is in danger?” [98] Rather than clearly answer this question, the trial judge simply repeated the entirety of his charge on self-defence.

There is noshortage of authority that a trial judge’s answers to jury questions are extremely important. They must be clear, correct andcomprehensive (see: R. v. Naglik, (SCC), [1993] 3 S.C.R. 122 at para. 27; R. v. Layton, 2009 SCC 36; R. v. D.M.S., 2004NSCA 65 at para. 23; R. v. Levy, supra at para. 53). [99] As the appellant points out, it is somewhat ironic that under the previous legislative regime with four distinct, complex andsometimes irreconcilable provisions, the answer to the jury’s question was readily available.

The former s. 35 defined the limits on self-defence when it was the accused who had assaulted another, but later sought to justify the use of force in self-defence. [100] I agree with the appellant.

The judge should have directly answered the jury’s question with a simple “yes”—qualified only bythe need for them to have a reasonable doubt on the requirements for self-defence found in s. 34(1). [101] If the jury took the view that the appellant had been the aggressor in the incident or had initially assaulted the complainant, theycould consider that as a factor as to whether the appellant’s actions were reasonable under s. 34(2)(c)—the appellant’s role in the incident(see: R. v. Levy, supra at paras. 107-113; R. v. Bengy, 2015 ONCA 397 at paras. 45-48).

In this way, a protection is hopefully present toprevent self-defence from becoming too ready a refuge for people who instigate violent encounters, but then seek to escape criminalliability when the encounter does not go as they hoped and they resort to use of a weapon. [102] Despite the appellant’s criticism of what the judge told the jury, I am not convinced that the lack of a clearer or morecomprehensive answer amounts to legal error. The trial judge properly sought input from the parties.

They agreed with the trial judge’sproposed solution of simply re-charging them and invitation for further questions if they were still unclear. [103] Before embarking on that re-charge, the trial judge prefaced his remarks with this qualifier: And there is one thing I will say, that when I read the question “Can the aggressor,” rightly or wrongly I said I think that could beinterchanged with “Can the person who provoked an altercation.” I hope I’m right when I look at it from that perspective, as well, andI’m not missing the boat entirely here, missing the mark. [104] The jury did not seek any further clarification. [105] In addition, the appellant can point to no error in the judge’s instructions on the law of self-defence, only that it could have beenbetter.

After suggesting to the jury that “aggressor” can be interchanged with “the person who provoked”, the trial judge instructed themthat even if the appellant provoked the use of force he could still be found not guilty based on self-defence. [106] Lastly, an appellate court is entitled to consider the fact that neither the Crown nor defence counsel objected; and the trial judgemade it abundantly clear the jury should ask further questions if they were not satisfied with his answer (see: R. v. T.(M.), 2012 ONCA511; R. v.

Pintar (1996), (ON CA), 93 O.A.C. 172 at para. 76). [107] The jury was not left with an erroneous view of the law. An accused is entitled to a properly, not perfectly instructed jury (R. v.Jacquard, (SCC), [1997] 1 S.C.R. 314, at para. 2). I would not give effect to this ground of appeal. [108] As to the second aspect of the charge on self-defence, the Crown essentially concedes that the trial judge was wrong to direct thejury that self-defence did not apply to the charge of possession of a weapon for a purpose dangerous to the public peace.

There were alsoproblems with directions about the elements of this offence. The concession is appropriate in light of R. v. Proverbs (1983), (ON CA), 2 O.A.C. 98; R. v. Kerr, 2004 SCC 44; R. v. Budhoo, 2015 ONCA 912 at paras. 72-73.

[109] However, the Crown suggests that any errors with respect to the s. 88 offence should be viewed as harmless and the convictionupheld by application of the proviso set out s. 686(3)(b)(iii). I need not decide if I would apply the proviso in light of my conclusion thatthe convictions are otherwise tainted and a new trial is appropriate. THE “SCOPELLITI” APPLICATION [110] With respect, the decision to bring the application was, at best, misguided. It was based on a flawed view of the law.

I need notaddress the argument that launching the application and then not withdrawing it, once the Crown secured the permission of the trialjudge to introduce the appellant’s criminal record as an exhibit, amounted to ineffective assistance of counsel. [111] Not all the blame can be fixed on trial counsel. The trial judge is the ultimate gatekeeper on what evidence the jury hears andwhat instructions are needed on how to carry out their adjudicative task. [112] With respect, the trial judge erred in law in a number of respects.

First, in granting the application which led him to imposeunwarranted limits on the cross-examination of the complainant, and permitting the Crown to introduce the appellant’s criminal record asan exhibit. Second, in his jury instructions about the use the jury could make of that record. [113] To understand why the application was misguided, I will first set out the law about the purpose and consequent boundaries ofcross-examination and the unique circumstances that underpin a “Scopelliti” application. I will then turn to the details of the defenceapplication and the trial judge’s rulings.

Lastly, what the trial judge told the jury. Cross-examination [114] Cross-examination is of fundamental importance. It is recognized as a component of the right to make full answer and defence,protected by ss. 7 and 11(

d) of the Charter. (See R. v. Osolin, (SCC), [1993] 4 S.C.R. 595; R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193). [115] The purpose of cross-examination is not just to ask random questions or have a witness repeat what they said in directexamination. Rather, it is to weaken the evidence given on direct, support the cross-examiner’s case or to discredit a witness.

Sopinka[1] describes these principles and the breadth accorded a cross-examiner: §16.127 The oft-quoted words of Wigmore that cross-examination is “beyond any doubt the greatest legal engine ever invented for thediscovery of truth” indicate its great value in the conduct of litigation. Three purposes are generally attributed to cross-examination: (1) to weaken, qualify or destroy the opponent’s case; (2) to support the party’s own case through the testimony of the opponent’s witnesses; (3) to discredit the witness.

To accomplish these ends, counsel is given wide latitude and there are, accordingly, very few restrictions placed on the questions thatmay be asked or the manner in which they may be put. Any question which is relevant to the substantive issues or to the witness’credibility is allowed. It appears that the scope of cross-examination is wide enough to permit questions which suggest facts whichcannot be proved by other evidence. [116] There are important differences between the permitted scope for ordinary witnesses and an accused.

Ordinary witnesses can becross-examined as of right, not just on all relevant matters, but also generally on prior disreputable conduct. [117] That conduct, if not relevant to some matter in issue at trial, only goes to credibility.

Subject to one important exception, thecross-examiner may be stuck with the answer he or she gets—as contradictory evidence may be precluded by the collateral fact rule. [118] That important exception is the ability to prove a prior conviction, should the witness deny its existence or refuses to answer (s.12(1.1) CEA). [119] However, when an accused testifies, cross-examination on prior discreditable conduct is limited to instances that have resulted inconvictions. This distinction was clearly explained by Martin J.A. in R. v. Davison, DeRosie and MacArthur (1974), (ON CA), 20 C.C.C. (2d) 424 (Ont.

C.A.): [63] An accused who gives evidence has a dual character. As an accused he is protected by an underlying policy rule against theintroduction of evidence by the prosecution tending to show that he is a person of bad character, subject, of course, to the recognizedexceptions to that rule. As a witness, however, his credibility is subject to attack.

If the position of an accused who gives evidence isassimilated in every respect to that of an ordinary witness he is not protected against cross- examination with respect to discreditableconduct and associations. [64] 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 anattack upon his credibility as a witness it would be virtually impossible for him to receive a fair trial on the specific charge upon whichhe 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 theissue of credibility in arriving at a verdict. . . . [71] It seems reasonable to assume that Kerwin, J., in the passage quoted above, did not intend to cast doubt on the well-establishedprinciple that an ordinary witness may be cross-examined with respect to discreditable conduct and associations, unrelated to the subject-matter of his testimony, as a ground for disbelieving his evidence (Phipson on Evidence, 11th ed. (1970), at p. 654), but was ratherenunciating a principle peculiarly applicable to an accused.

. . . [73] I conclude that, save for cross-examination as to previous convictions permitted by s. 12 of the Canada Evidence Act, an accusedmay not be cross-examined with respect to misconduct or discreditable associations unrelated to the charge on which he is being tried forthe 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.

See also: R. v. Burgar, 2010 ABCA 318. [120] To ensure trial fairness, s. 12 of the CEA has been interpreted by the Supreme Court of Canada to give to a trial judge thediscretion to prohibit or limit the cross-examination of an accused on his/her criminal record (R. v. Corbett, (SCC),[1988] 1 S.C.R. 670). [121] There are other distinctions regarding the ability to cross-examine an ordinary witness as opposed to an accused. Absent anaccused putting his or her character in issue, an accused cannot be cross-examined on having received a conditional or absolute discharge(R. v.

Danson (1982), (ON CA), 66 C.C.C. (2d) 369 (Ont. C.A.) and R. v. Sark (2004), 2004 NBCA 2 , 182C.C.C. (3d) 530 (N.B. C.A.)). [122] But there is no such restriction for a non-accused witness. R. v. Cullen (1989), (ON CA), 52 C.C.C. (3d) 459illustrates. The main Crown witness had received a conditional discharge on a charge of possession of burglar’s tools. The trial judgerestricted the defence in its cross-examination because he had been granted a conditional discharge for the offence. A new trial wasordered by the Ontario Court of Appeal.

Galligan J.A. explained (p. 463): In my opinion those authorities show that, for the purpose of challenging a witness’ credibility, cross-examination is permissible todemonstrate that a witness has been involved in discreditable conduct. Possession of burglar’s tools is an offence that could contain anelement of dishonesty. A person involved in such an offence is a person who could be considered to have been involved in discreditableconduct.

In my opinion, therefore, the trial judge’s restriction of defence counsel’s cross-examination within the parameters of s. 12(1) ofthe Canada Evidence Act deprived the defence of the opportunity to bring to the attention of the jury circumstances which may very wellhave assisted the jury in deciding what weight it would place upon the complainant’s evidence. [123] Furthermore, while an accused can only be cross-examined on the bare bones of his or her criminal record, the charge, the dateand the punishment imposed, an ordinary witness can be cross-examined on the underlying facts of the conviction (R. v.

Miller (1998), (ON CA), 131 C.C.C. (3d) 141 (Ont. C.A.)). Indeed, an ordinary witness can even be cross-examined on theunderlying facts behind outstanding charges (R. v. Gonzague (1983), (ON CA), 4 C.C.C. (3d) 505 (Ont. C.A.)). [124] What flows from this state of the law is that counsel for the appellant needed no judicial fiat to cross-examine Ricky Borden, orany crown witness, on prior discreditable conduct or associations, and if conduct resulted in a criminal conviction, the date, punishmentimposed and the underlying facts.

On the other hand, the appellant could have sought a ruling (prior to testifying) from the trial judge torestrict the Crown from cross-examining him on his criminal record, including recent offences for the very conduct that he was on trialfor. [125] Instead, trial counsel brought what is referred to as a Scopelliti application. I turn to that issue and why such an application wasmisguided. A Scopelliti application [126] The application is named after a case, R. v. Scopelliti (1981), (ON CA), 63 C.C.C. (2d) 481 (Ont. C.A.).

Itestablished an important principle: an accused advancing self-defence can lead evidence that a victim has committed specific acts ofviolence, even if those acts were unknown to the accused at the time of the alleged offence. [127] There is no controversy, where there is an air of reality to self-defence, an accused can lead evidence about the reputation of thevictim for violence and even specific violent acts, if known to the accused. But in Scopelliti, the defence applied to call evidence that thevictims had exhibited violent unprovoked behaviour against others.

Those incidents were completely unknown to the accused. [128] The trial judge ruled the defence could do so. The jury acquitted. The Ontario Court of Appeal dismissed the Crown appeal. Martin J.A. wrote the unanimous reasons for judgment.

He summarized the law about the evidence of reputation or acts of violence by adeceased as follows: [29] It is well established that where self-defence is raised, evidence not only of previous assaults by the deceased on the accused, butalso of previous acts of violence by the deceased, known to the accused, towards third persons, is admissible to show the accused'sreasonable apprehension of violence from the deceased. Evidence of the deceased's reputation for violence, known to the accused, isadmissible on the same principle: see R. v. Drouin (1909), (QC CQ), 15 C.C.C. 205 and commentary at 207; R. v.

Scott(1910), (ON SC), 15 C.C.C. 442; Wigmore on Evidence, 3rd ed., vol. II (1940), at pp. 44-52; Phipson on Evidence,12th ed. (1976), at pp. 188, 228. [30] Obviously, evidence of previous acts of violence by the deceased, not known to the accused, is not relevant to show thereasonableness of the accused's apprehension of an impending attack.

However, there is impressive support for the proposition that,where self-defence is raised, evidence of the deceased’s character (i.e. disposition) for violence is admissible to show the probability ofthe deceased having been the aggressor and to support the accused's evidence that he was attacked by the deceased.

[129] Justice Martin then turned to general principles to guide the outcome; while policy precludes the introduction of evidence of thecriminal character of an accused, no such policy precludes admissibility of a deceased’s character. He reasoned: [33] We were not referred by counsel to any Canadian or Commonwealth decision on the question of the admissibility of evidence of thedeceased’s character (disposition) for violence, not known to the accused, as evidence of the probability of the deceased's aggressionwhere self-defence is raised as an issue.

However the admission of such evidence accords in principle with the view expressed bythis Court that the disposition of a person to do a certain act is relevant to indicate the probability of his having done or nothaving done the act. The law prohibits the prosecution from introducing evidence for the purpose of showing that the accused isa person who by reason of his criminal character (disposition) is likely to have committed the crime charged, on policy grounds,not because of lack of relevance.

There is however, no rule of policy which excludes evidence of the disposition of a third person forviolence where that disposition has probative value on some issue before the jury: see R. v. McMillan (1975), (ON CA),7 O.R. (2d) 750, 23 C.C.C. (2d) 160 at 167, 29 C.R.N.S. 191; affirmed (SCC), [1977] 2 S.C.R. 824, 33 C.C.C. (2d) 360,73 D.L.R. (3d) 759; R. v. Schell and Paquette (1977), (ON CA), 33 C.C.C. (2d) 422 at 426. [Emphasis added] [130] In this case, there was no deceased. The complainant was alive and well.

There was no principle in play that could legitimatelyrestrict the appellant’s right to cross-examine the complainant on his character, including of course each and every one of his priorconvictions.

Further, the complainant’s reputation for violent behaviour, as exhibited by his record for such offences and otherwise, waswell-known to the appellant. [131] There was no need to bring any application to seek permission to cross-examine the complainant on his record or other acts ofdiscreditable conduct and associations. [132] With these principles in mind, we can turn to the details of the application trial counsel advanced at trial.

The Defence Application [133] The circumstances of the Scopelliti application are revealed by the briefs filed by the respective trial counsel and by their oralsubmissions to the trial judge. [134] The application was not an off-the-cuff affair. Trial counsel deposed that he notified the Court on February 25, 2015, almost fourmonths in advance of trial, he would be seeking admission of “character evidence (Ricky Borden’s criminal record) through a Scopellitiapplication”. Briefs were filed on April 30 and May 1, 2015.

Submissions were heard by the trial judge on June 1, 2015. [135] The thrust of the defence submissions to the trial judge was that admission of the complainant’s propensity to engage inaggressive and violent behaviour was necessary for the appellant to make full answer and defence; while not a true Scopelliti application,the same principles applied. Counsel suggested that evidence of the bad character of a Crown witness was generally not admissible, butexceptions exist.

In this case, counsel submitted that the complainant’s propensity for violence was relevant, and its probative value wasnot outweighed by prejudicial effect on trial fairness. [136] Originally, counsel sought admission of some of the complainant’s criminal record and general reputation evidence (to betendered through the appellant). This latter aspect was abandoned. [137] The criminal record of the complainant was extensive. From most recent to oldest:

Section and Descriptionof Offences Offence Date Sentencing Sentence or Custodialperiod CC. 86(1) Careless Use of a Firearm December 27, 2013 August 12, 2014 $500.00 Fine 2 years’ Probation CC. 86(1) Careless Use of a Firearm December 27, 2013 August 12, 2014 $500.00 Fine 2 years’ Probation CC. 86(1) Careless Use of a Firearm December 27, 2013 August 12, 2014 $500.00 Fine 2 years’ Probation CC. 92(1) Possession of a FirearmKnowing Possession isUnauthorized December 27, 2013 August 12, 2014 $250.00 Fine 2 years’ Probation

CC. 92(1) Possession of a Firearm Knowing Possession is Unauthorized December 27, 2013 August 12, 2014 $250.00 Fine 2 years’ Probation CC. 92(1) Possession of a Firearm Knowing Possession is Unauthorized December 27, 2013 August 12, 2014 $250.00 Fine 2 years’ Probation CC. 129(

a) Resists/Obstructs Peace Officer April 30, 2009 April 1, 2010 60 days Intermittent Sentence 12 months’ Probation CC. 129(

a) Resists/Obstructs Peace Officer April 5, 2006 January 9, 2007 8 months’ Sentence 18 months’ Probation CC. 264.1(1) Uttering Threats April 5, 2006 January 9, 2007 8 months’ Concurrent Sentence 18 months’ Probation CC. 264.1(1) Uttering Threats December 21, 2003 February 1, 2005 12 months’ Sentence 18 months’ Probation CC. 145(3) Breach of Undertaking January 5, 2004 February 1, 2005 1 month Consecutive Sentence 18 months’ Probation CC. 145(3) Breach of Undertaking January 22, 2004 February 1, 2005 2 months’ Consecutive Sentence 18 months’ Probation CC. 254(5) Fail-Refuse Breathalizer November 11, 2000 December 19, 2001 15 days’ Sentence CC. 733(1) Breach November 11, 2000 December 19, 2001 30 days’ Consecutive Sentence

CC. 264.1(1)(

a) Uttering Threats CC. 264.1(1)(

a) Uttering Threats CC. 264.1(1)(

a) Uttering Threats CC. 264(2)(

d) Engaging in Threatening Conduct CC. 733.1 Breach March 16, 2001 March 16, 2001 March 16, 2001 March 16, 2001 March 16, 2001 June 19, 2001 June 19, 2001 June 19, 2001 June 19, 2001 June 19, 2001 16 months’ Sentence 16 months’ Concurrent Sentence 16 months’ Concurrent Sentence 3 months’ Consecutive Sentence 1 month Concurrent Sentence CC. 733.1 Breach CC. 733.1 Breach CC. 733.1 Breach CC. 733.1 Breach CC. 139(2) Obstructing Justice March 16, 2001 March 16, 2001 March 16, 2001 April 4, 2001 April 4, 2001 June 19, 2001 June 19, 2001 June 19, 2001 June 19, 2001 June 19, 2001 1 month Concurrent Sentence 1 month Concurrent Sentence 4 months’ Consecutive Sentence 1 month Concurrent Sentence 4 months’ Consecutive Sentence CC. 264.1(1)(

a) Uttering Threats December 1–15, 2000 January 2, 2001 90 days’ Intermittent Sentence 2 years’ Probation CC. 733.1 Breach December 1, 2000 January 2, 2001 90 days’ Intermittent Concurrent Sentence 2 years’ Probation CC. 117.

(01) December 1, 2000 January 2, 2001 90 days’ Intermittent Concurrent Sentence 2 years’ Probation

CC. 145(2)(

b) Fails to Attend Court as Directed June 16, 1998 October 21, 1998 1 month Consecutive Sentence 2 years’ Probation CC. 87 Poss. Of Weapon or Imitation December 20, 1997 October 21, 1998 4 months’ Consecutive Sentence 2 years’ Probation CC. 733.1 Breach December 20, 1997 October 21, 1998 1 month Consecutive Sentence 2 years’ Probation CC. 264.1(1) Uttering Threats August 13, 1996 March 4, 1997 4 months Sentence 2 years’ Probation CC. 145(1)(

b) Unlawfully at Large March 24, 1995 April 19, 1995 1 day Concurrent Sentence CC. 271(1)(

b) Sexual Assault March 29, 1994 March 7, 1995 60 days’ Sentence 1 year Probation CC. 145(3) Escape/Being at Large CC. 264.1(1)(

a) Uttering Threats CC. 264.1(1)(

a) Uttering Threats October 28, 1993 October 3, 1993 September 27, 1993 August 31, 1994 August 31, 1994 August 31, 1994 45 days’ Sentence 30 days’ Consecutive $400.00 Fine 2 years’ Probation CC. 380(1)(

a) Fraud Nov 1, 1989 – May 31, 1990 October 16, 1991 Suspended Sentence 18 months’ Probation CC. 249(1)(

a) Operate Motor Vehicle in a Manner Dangerous to the Public April 10, 1991 September 11, 1991 $400.00 Fine CC. 145(4)(

b) Fails to Appear on Summons CC. 259(4)(

b) Operate Motor Vehicle, Vessel or Aircraft or Railway Equipment While Disqualified CC. 145(2)(

b) Fails to Attend Court January 9, 1991 December 29, 1990 December 12, 1990 June 5, 1991 June 5, 1991 June 5, 1991 $100.00 Fine $100.00 Fine $100.00 Fine [ 138 ] During oral submissions at trial, counsel agreed to curtail his cross-examination to two types of charges: uttering threats/conduct and assault. On the other hand, he appropriately resisted the Crown’s counter application to adduce the appellant’s criminal record. [ 139 ] Crown counsel argued against the appellant being able to cross-examine on dated convictions as they were too remote and that

the Crown be permitted to adduce the appellant’s criminal record to permit the jury to have a balanced view. [ 140 ] The trial judge reserved. On June 8, 2015, he gave oral reasons. The trial judge described the defence application as follows: Defence counsel has applied to cross-examine the victim on his prior criminal record which, if allowed, would tend to show evidence of his bad character.

Such evidence is intended for use in not only challenging the victim’s credibility but also to support the Defence’s position that the victim, not the accused, was the aggressor, thus supporting the accused’s contention that he was acting in lawful self- defence. [ 141 ] The judge applied the test for admission of character evidence in a Scopelliti scenario. That is, he ruled he had a discretion to deny the appellant the opportunity to adduce evidence of prior acts of violence by the complainant if probative value were outweighed by prejudicial effect.

He reasoned that the “victim’s” criminal record for non-violent offences was not probative to self-defence and therefore, the appellant could not delve into those offences. [ 142 ] Part of his reasoning reveals a fundamental misapprehension of the right of an accused to cross-examine. He infused his analysis with a requirement to balance probative value and prejudicial effect: . . . The victim’s criminal record for non-violent offences is generally not probative to the issue of self-defence and should therefore not be delved into by Defence counsel during cross-examination.

There is no question that counsel for the accused is permitted to put in evidence the victim's criminal record as long as it is relevant and probative of an issue in dispute . That right, however, is not unfettered. It is not open season on the victim. The same can be said about a Prosecutor’s right to cross-examine an accused, should he take the stand in his own defence, to ask questions of his criminal history. There is support for this in the Criminal Code , the Canada Evidence Act and in the case law.

Section 661 ... pardon me, 666 for instance of the Criminal Code of Canada reads: “Where, at a trial, the accused adduces evidence of his good character, the prosecutor may, in answer thereto, before a verdict is returned, adduce evidence of the previous conviction of the accused for any offences, including any previous conviction by reason of which a greater punishment may be imposed.” [Emphasis added] [ 143 ] At the end, the judge said he took a principled approach.

He granted latitude to the appellant to delve into the criminal record of the complainant and for the Crown to lead evidence of the accused’s criminal history in chief. In this way, he declared he was striking a balance. His said this: I have decided to grant some latitude to both Defence and Crown counsel to delve into the criminal record, first of the alleged victim, Richard (Ricky) Borden and to grant Crown counsel to lead evidence of the accused's criminal history in its case in chief.

By taking a principled approach, I hope to strike a fair balance between the two competing values which again are, and this is the third time I’ve repeated it so I hope you can bear with me, those ... those competing values are: 1) a concern that the accused’s defence not be effectively nullified by the introduction of any sort of bad character evidence in reply and conversely, the concern that the jury does not receive a distorted picture which could deprive the triers of fact of the ability to make a fair and meaningful assessment of the defence raised. [ 144 ] The trial judge then directed defence counsel was only permitted to cross-examine Ricky Borden on convictions post 2000, and “specifically forbid” any reference to his conviction for sexual assault in 1994.

For the post-2000 offences, he hoped counsel would only ask particulars that were relevant and probative. [ 145 ] The convictions that defence counsel could cross-examine the complainant on were reduced to the following:

Section and Description of Offences Offence Date Sentencing Date Sentence or Custodial period CC. 264.1 Uttering Threats December 1 – 15, 2000 January 2, 2001 90 days’ Intermittent Sentence 2 years’ Probation CC. 264.1(1)(

a) Uttering Threats March 16, 2001 June 19, 2001 16 months’ Sentence CC. 264.1(1)(

a) Uttering Threats March 16, 2001 June 19, 2001 16 months’ Concurrent Sentence CC. 264.1(1)(

a) Uttering Threats March 16, 2001 June 19, 2001 16 months’ Concurrent Sentence CC. 264(2)(

d) Engaging in Threatening Conduct March 16, 2001 June 19, 2001 3 months’ Consecutive Sentence CC. 264.1 Uttering Threats December 21, 2003 February 1, 2005 12 months’ Sentence 18 months’ Probation

CC. 129(

a) Resists/Obstructs Peace Officer April 5, 2006 January 9, 2007 8 months’ ConcurrentSentence 18 months’ Probation CC. 264.1 Uttering Threats April 5, 2006 January 9, 2007 8 months’ ConcurrentSentence 18 months’ ProbationCC. 129(

a) Resists/Obstructs Peace Officer April 30, 2009 April 1, 2010 60 days IntermittentSentence 12 months’ Probation [146] With respect to the appellant, the trial judge ruled that the Crown as part of its case in chief could introduce, as an exhibit, asummary of 10 prior convictions. They were:

Section and Description ofOffences Offence Date Sentencing Date Sentence or CustodialPeriodCC. 266 Assault August 17, 2000 November 6, 2000 30 days’ ConsecutiveSentence CC. 264.1 Uttering Threats May 22, 2000 September 11, 2002 8 months’ Sentence CC. 270(

a) Assaulting a Peace Officer May 1, 2003 May 31, 2004 3 months’ ConsecutiveSentence CC. 129(

a) Resists/Obstructs PeaceOfficer February 1, 2004 May 31, 2004 3 months’ ConcurrentSentence CC. 266 Assault February 1, 2004 May 31, 2004 3 months’ ConcurrentSentence CC. 266 Assault February 1, 2004 May 31, 2004 3 months’ ConcurrentSentence CC. 268 Aggravated Assault March 20, 2004 October 12, 2004 12 months’ Sentence CC. 267(

a) Assault with a Weapon August 25, 2006 February 13, 2007 2 months’ Sentence CC. 264.1(1)(

a) Uttering Threats April 24, 2009 August 21, 2009 30 days’ Sentence $50.00 FineCC. 264.1(1)(

a) Uttering Threats August 19, 2011 November 8, 2012 30 days’ Sentence $50.00 FineCC. 264.1(1)(

a) Uttering Threats April 24, 2009 June 14, 2010 Suspended Sentence $30.00 Fine [147] As a consequence, the appellant was precluded from cross-examining the complainant on his criminal record, amounting to some41 prior convictions. Some were dated. Some were recent. Some involved crimes of dishonesty. [148] I do not doubt that a trial judge has some discretion to curtail abusive cross-examination (R. v. Lyttle, supra at para. 44).

But tolimit the ability of the defence to cross-examine on relevant issues, including issues of credibility, requires the probative value to besignificantly outweighed by prejudicial effect (R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577). [149] In this case, there was no request by the Crown or intervention by the trial judge to limit harassing, abusive or improper cross-examination of the complainant. The appellant had the common law right to cross-examine the complainant on his character, includingputting to him the full extent of his criminal record—and to prove those convictions if denied.

There was no need to establish they were“relevant and probative of an issue in dispute”. [150] The trial judge drastically reduced the appellant’s right to cross-examine by applying an erroneous approach and engaging in abalancing exercise that resulted in the appellant being restricted to asking questions about nine criminal convictions as opposed to 41. [151] The application by trial counsel was misguided.

Trial counsel’s submissions and evidence in cross-examination before us reveal:his belief that he needed permission to cross-examine on the character of Ricky Borden; and because the appellant would testify, the

Crown would inevitably apply for “adoption of his [the appellant’s] criminal record for the purposes of propensity”. [152] Whatever the motivation for the application, the trial judge erred in law to restrict the appellant’s right to cross-examine thecomplainant and then to permit the Crown to introduce, as an exhibit, bad character evidence of the appellant—demonstrating 11 priorconvictions, some for the very offences he was on trial for. [153] The common law rules concerning admissibility of evidence proffered by an accused as opposed to evidence the Crown wishes toadvance are not linear.

For example, an accused is always at liberty to call evidence of his good character. The Crown is precluded fromadvancing good character evidence of its witnesses. [154] There are four generally accepted ways that a jury may hear bad character evidence of an accused outside the incident alleged inthe indictment: 1) a successful application by the Crown to adduce similar fact evidence (R. v. Handy, 2002 SCC 56); 2) by the accusedhaving put his character into issue—usually by calling evidence of his or her good character (R. v. McNamara (No. 1) (1981), (ON CA), 56 C.C.C. (2d) 193 (Ont.

C.A.) at p. 352, leave to appeal granted on other grounds, [1981] S.C.C.A. No. 187,(1981) (SCC), 56 C.C.C. (2d) 576 (S.C.C.); 3) if the evidence is relevant to a key element of the Crown's theory ofthe case, such as motive, opportunity or means (see R. v. Davison, DeRosie and MacArthur, supra; R. v. Hinchey, (SCC), [1996] 3 S.C.R. 1128, at para. 135; R. v.

Lewis, (SCC), [1979] 2 S.C.R. 821); or 4) by testifying, therebypermitting cross-examination on prior convictions pursuant to s. 12 of the CEA. [155] In the first three cases, the prejudicial effect of the proffered evidence must be outweighed by its probative value. In the last, atrial judge has a discretion to limit or even preclude Crown cross-examination on the accused’s criminal record to protect his fair trialinterests (R. v. Corbett, (SCC), [1988] 1 S.C.R. 670). [156] The Crown argues that trial fairness was not jeopardized by the Crown introduction of the appellant’s criminal record.

Hence,there was no miscarriage of justice. With respect, I am unable to agree. [157] In support, it advances two propositions. First, the appellant, by suggesting the complainant’s criminal record revealed a violentdisposition, put the appellant’s character in issue—thereby opening the door for the Crown to lead evidence about the appellant’s violentdisposition.

Second, the jury would have inevitably heard about the appellant’s criminal convictions because he had to testify to haveany hope of success in his intended reliance on self-defence. [158] The Crown cites no case law standing for the proposition that outside a true Scopelliti situation, cross-examination of a Crownwitness on prior discreditable conduct, including criminal convictions for violent behaviour, crosses the Rubicon into putting theaccused’s character into issue. There is high authority that says the opposite (see R. v. Butterwasser, [1948] 1 K.B. 4 (C.C.A.) cited withapproval in R. v.

Corbett, supra at p. 696; R. v. A.(W.A.), (MB CA), [1996] M.J. No. 556 at para. 14). [159] In Sopinka, the authors refer to Scopelliti type scenarios merely creating a potential that introduction of a victim’s violentcharacter may impliedly put the accused’s own character in issue, but accept that in a non-homicide case, it does not. They write: §10.102 By introducing evidence of a victim’s character for violence where the defence is self-defence, the accused may be impliedlyadducing evidence of good character and thereby put his or her own character in issue. However, in R. v.

Butterwasser, the EnglishCriminal Court of Appeal considered a case where the accused was charged with wounding with intent to do grievous bodily harm. Theaccused's counsel cross-examined the victims called as Crown witnesses on their previous convictions, including convictions for violentoffences, in order to show that they were more likely to have been the aggressors than the accused. The accused did not testify and theissue was whether the Crown could lead evidence of the accused’s bad character and previous convictions.

The Court held that, merelyby attacking the witnesses for the prosecution and suggesting they were unreliable, the accused did not put his own character in issue.This decision appears to be eminently sound if the right of an accused to make full answer and defence is to be preserved. On the otherhand, a distorted picture of events should not be permitted to go before the jury, as can occur where the accused seeks to leave theerroneous impression that he or she is a peaceful person. The trial judge must weigh the evidence and balance a variety of factors in theparticular circumstances of the case.

The weighing process involves an exercise of judgment or discretion and is not an application of abright line. The trial judge may limit or exclude proffered evidence of the deceased’s bad character if its potential prejudice outweighs itsprobative value. [160] There is certainly authority for the proposition that in true Scopelliti situations the door may be open to lead evidence of theaccused’s violent character (R. v. Jackson, 2013 ONCA 632). But even then, the law is not as clear as the Crown suggests (perRosenberg J.A. in dissent in R. v. Jackson, supra at para. 134; R. v. Wilson, [1999] M.J.

No. 239 at para. 45). [161] The most that can be said is that in true Scopelliti situations, a trial judge may be called upon to determine if the probative valueof an accused’s criminal record exceeds the prejudicial effect. Admission of bad character evidence as part of the Crown’s case or inrebuttal is by no means automatic (R. v. Williams, 2008 ONCA 413). [162] As noted earlier, this case was the farthest thing from being a “Scopelliti” scenario. There was no deceased. The complainantand the appellant had known each other their whole lives.

The appellant was well aware of the reputation of the complainant forviolence. There was no danger that the jury might view the demise of the victim as a civic improvement (R. v. Varga (2001), (ON CA), 150 O.A.C. 358). [163] The complainant was alive and well, fully able to respond to questions about his past discreditable conduct, including those thatdemonstrated his violent disposition. [164] This case, like so many, was all about credibility.

It was not about whether the appellant acted peremptorily in self-defence,being fearful of the complainant’s violent disposition. [165] There were two diametrically opposed versions of what happened outside the house party. The complainant, somewhat supportedby other Crown witnesses, described an unprovoked knife attack by the appellant before throwing him to the ground. The appellant said

he fought the much bigger complainant. He was being pummelled by the complainant when he used his knife to stop the attack. If hisversion were believed, or at least raised a reasonable doubt, self-defence could relieve him of criminal liability. [166] As to the second proposition advanced by the Crown, that the jury would inevitably have learned of the appellant’s criminalrecord, I am inclined to accept that the jury would have likely heard at least some of the appellant’s criminal antecedents.

But I am notpersuaded this excuses the detrimental impact of the trial judge’s ruling on trial fairness. [167] I say this for two reasons. First, the jury hearing of some or even all of the appellant’s criminal convictions only addresses oneside of the problem. It omits the fact that the appellant was precluded from cross-examining the complainant on the full extent of hiscriminal record. [168] Some debate the probative value of criminal convictions for matters outside of perjury or offences of dishonesty, particularlywhere it is the accused who is facing cross-examination. But that is not the traditional view.

Nor does it stand up to the rationale thatpermits wide scope for cross-examination of ordinary witnesses. [169] Evidence of prior criminality is circumstantial evidence about character that bears on credibility. It may lead to inferences thatbecause a witness is not a law-abiding individual, his or her conscience may not be engaged by the oath to tell the truth, or possess fear ofcriminal consequences should they lie under oath.

The fact, number and type of convictions may bear on the willingness of a jury todraw the inference that the witness may not be trustworthy. [170] The reason criminal convictions are relevant is explained in a number of cases. Martin J.A. in R. v. Stratton (ON CA), [1978] O.J.

No. 3536 (a case challenging the ability of the Crown to cross-examine an accused on his criminal record)explained: [41] Unquestionably, the theory upon which prior convictions are admitted in relation to credibility is that the character of thewitness, as evidenced by the prior conviction or convictions, is a relevant fact in assessing the testimonial reliability of thewitness: see R. v. Dorland (1948), (ON CA), 92 C.C.C. 274, [1948] O.R. 913, 6 C.R. 485; R. v. Goldhar (1957), (ON CA), 117 C.C.C. 404, [1957] O.W.N. 138; United States Express Co. v.

Donohoe (1886), 14 O.R. 333 at pp. 347-8;Cross on Evidence, supra, p. 341. [42] In Gertz v. Fitchburg R. Co. (1884), 137 Mass. 77, Holmes, J., said at p. 78: On the other hand, when it is proved that a witness has been convicted of a crime, the only ground for disbelieving him which suchproof affords is the general readiness to do evil which the conviction may be supposed to show. It is from that general disposition alonethat the jury is asked to infer a readiness to lie in the particular case, and thence that he has lied in fact. The evidence has no tendency toprove that he was m

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