) ) HER MAJESTY THE QUEEN ) ) ) Rita Zaied v. Elizabeth Moore,, 2010 ONSC 3106

CITATION : HMQ v. OSAE, 2010, ONSC 3106 COURT FILE NO.: 008/09 DATE: 2010/05/05 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) ) ) Rita Zaied and Elizabeth Moore, for the Crown ) ) ) - and - ) ) ) EMMANUEL OSAE ) ) ) Heather Pringle and Cherie Daniel, for the Defendant Ruling No. 16 Crown Application to Adduce Evidence of Discreditable Conduct of the Defendant O’MARRA J.: (Delivered orally) [ 1 ] The Crown seeks to tender evidence of discreditable conduct of the defendant.

It is the Crown’s contention the defendant has put character into issue as a result of the cross-examination of Francis Koroma, a witness the defence has identified as the alternate suspect to the murder of Jeremy Paul, committed April 5, 2007. [ 2 ] The Crown called Francis Koroma as a witness for the prosecution. He is a witness the Crown believes was involved in the murder of Jeremy Paul, based on the anticipated evidence of Richmond Owusu. Mr. Koroma, throughout his testimony, has maintained steadfastly he was not involved in the murder of Jeremy Paul.

He has testified that he was not at the school at the time Jeremy Paul was murdered. He was not in the Mazda motor vehicle, licence no. AVLE 625 that was seen driven away from the scene of the shooting. He was not at Jordan Cromwell’s residence at 20 Bergamot Avenue on April 5, 2007 or its underground parking garage where the Mazda motor vehicle was located. There is evidence that his fingerprints were found on two pieces of plastic used to cover the windows of the Mazda. The plastic came from bags in Cromwell’s residence.

The windows of the vehicle had been covered because one of the windows had been shot out at the time of the murder.

[ 3 ] The central issue on the trial is the identity of the person who shot Jeremy Paul. Rennaa Drake, the girlfriend of Jeremy Paul was nearby him when he was shot. She described the two assailants as masked men dressed in black. The person who had the gun and shot Jeremy Paul she described as about 5’ 6” tall with a slim or skinny build. The other man who was assisting the taller one to push Jeremy Paul into the Mazda motor vehicle and seen to punch him in the face she described as being a little shorter than the other man and he appeared to have a medium build.

The size and build of the person who shot Jeremy Paul is a significant issue with respect to the question of identification in the circumstances of this case. Defence Theory: [ 4 ] In the cross-examination of Francis Koroma, defence counsel put forward the theory of the defence through a number of suggestions involving the participation of Francis Koroma, none of which Koroma adopted. Counsel suggested he had decided to rob Jeremy Paul of a quantity of marijuana he believed Paul had with him that day. Mr. Koroma hatched the plan to rob him of the drugs as a result of a conversation he had with Mr.

Paul earlier that day in which Mr. Paul told him he was coming into possession of a quantity of marijuana and he intended to use it partying on the upcoming weekend with his friends. Mr. Koroma had a “real interest in marijuana” as a consumer and as someone who had dealt drugs in the past. [ 5 ] It was suggested he received a voice mail message from the defendant indicating that he and Richmond Owusu were “blowing off” school that day, and after picking up Owusu’s paycheck, they were going to party. Mr. Koroma called Mr. Osae back and asked them to pick him up at school.

When Owusu and Osae arrived in the Mazda, Mr. Koroma told them about the marijuana he believed was in the possession of Jeremy Paul and his plan to rob him. The three of them, Koroma, Osae and Owusu “hatched a little plan to take it off him”. Mr.

Koroma did not inform either Osae or Owusu that he had a gun with him because he knew they “never would have gotten involved” if they knew he had a gun “because they had been pulled over twice before by the police in Owusu’s Mazda”. (Quoted references were taken from the form of questions asked by counsel.) [ 6 ] It was suggested Koroma needed backup because he was intimidated by the deceased who was bigger than he was and because he had teardrop tattoos on his face. Koroma asked Richmond Owusu to back him up during the robbery because he was bigger than Mr. Koroma and Osae.

It was Koroma and Owusu who exited the Mazda and who pushed Jeremy Paul up against the fence and then tried to force him into the back of the Mazda. Counsel suggested Mr. Osae stayed in the car because he was “too little to really be any good” during the robbery. [ 7 ] Francis Koroma denied all of the suggestions made by defence counsel.

Accordingly, Koroma did not adopt any of the suggestions through which defence counsel put forth the defence theory. [ 8 ] The basis of the Crown’s claim that the defendant has put character/propensity into issue during the cross-examination of Francis Koroma by the defence is threefold: 1. Defence counsel put Osae’s character, that is, his disposition or non-disposition for participating in a violent offence such as robbery, in issue through the suggestion the defendant was “too little to really be any good” in the commission of the violent offence of robbery.

The Crown submits the suggestion can only be interpreted as an assertion by the defendant that he, by virtue of his disposition or small stature is not the type of person to participate in violent criminal activity. The Crown in its factum at paragraph 53 states asserts the following: It is clear from a reading of the conduct of the cross-examination of Francis Koroma as a whole that the suggestion that Mr. Osae was too small to be an active participant in the confrontation and shooting of the deceased was not an inadvertent slip of the tongue.

The cross- examination of Francis Koroma began with extensive questioning aimed at suggesting that the defendant was small and, therefore, not frightening or intimidating. The reference, within Mr. Koroma’s cross-examination on the defence theory of the shooting to the defendant remaining in the Mazda and not participating in the confrontation/shooting because he was too little to be of any good, must be read in the culmination of this entire line of questioning, which has assumed a central position in the defence position that has been put before the jury. 2.

Defence counsel has put before the jury the suggestion that the alternate suspect, Francis Koroma is the person more likely to have committed the murder because he is a person with an interest in consuming marijuana and a past of dealing drugs. The Crown suggests that the defence has cast Mr. Koroma in the role of a “gun-toting drug dealer, and as such more likely to have committed the murder”. Further, the Crown contends that the defence has added another alternate suspect, Richmond Owusu without notice. 3.

The Crown submits that the defendant has elicited evidence of bad character of the deceased by suggesting that his “teardrop tattoos on his face” made him intimidating to Koroma requiring him to enlist the help of a larger accomplice, Richmond Owusu, to rob him because the defendant was “too little to really be any good”. [ 9 ] The Crown submits that “on the current state of the evidence, the jury has been left with a highly distorted impression” with respect to:

i) the relative roles of the defendant and Francis Koroma in committing robberies, which they have committed in the past together; ii) whether Koroma in planning a robbery with Osae was likely to keep from him that he had a loaded firearm, having been involved with alleged prior firearm activity before; iii) who, as between Osae and Owusu Koroma was likely to be involved in criminal activity; and iv) whether Osae as a result of his small size was less likely to become involved in a violent robbery with Francis Koroma. [ 10 ] The evidence of the discreditable conduct of the defendant that the Crown seeks to tender to correct the distorted view it claims has been created includes the following:

i) Evidence of the defendant’s criminal record and the facts underlying the criminal convictions of assault with a weapon andmischief, July 12, 2004; robbery, assault and possession of stolen property, August 31, 2004; fail to comply with probation order,October 19, 2005; and possession of drugs for purpose of trafficking and possession of stolen property, September 7, 2006. ii) Further questioning of Francis Koroma regarding past criminal and/or violent activity that he and Osae were engaged in togetherincluding but not limited to the 2004 conviction for robbery, and the role each played in past joint criminal activity. [11] The Crown also seeks to adduce evidence with respect to firearm related offences the defendant and Koroma were alleged to havebeen involved in, but were withdrawn. [12] Further, the Crown requests the Court re-visit earlier rulings denying the admission of the evidence of Armani Tavakoliregarding utterances made by the defendant approximately one week before the shooting he was afraid of Jeremy Paul because he hadbeen beaten up by people from Paul’s neighbourhood.

The Crown also seeks admission of photographs of the defendant obtained fromhis cell phone and a memory card located in the Mazda showing him wearing hooded clothing and/or with his face covered, which waspreviously ruled inadmissible. Putting Character/Propensity into Issue [13] I start the analysis from the premise that evidence of prior discreditable conduct of a defendant is presumptively inadmissible. As noted by Justice Binnie in R. v. Handy, 2002 SCC 56 , [2002] 2 SCR 908 at para. 72: Bad character is not an offence known to law.

Discreditable disposition or character evidence, at large, creates nothing but “moralprejudice” and the Crown is not entitled to ease its burden by stigmatizing the accused as a bad person. [14] Justice Binnie described the risk of moral prejudice at para. 139: It is frequently mentioned that ‘prejudice’ in this context is not the risk of conviction. It is, more properly, the risk of an unfocused trialand a wrongful conviction. The forbidden chain of reasoning is to infer guilt from general disposition or propensity. The evidence, ifbelieved, shows an accused has discreditable tendencies.

In the end, the verdict may be based on prejudice rather than proof, therebyundermining the presumption of innocence enshrined in sections 7 and 11 (

d) of the Charter of Rights and Freedoms. [15] The concern is that jurors may be deflected from the rational dispassionate analysis they should perform and engage in theforbidden chain of reasoning that would infer guilt from general disposition, or convict from sentiments of revulsion and/orcondemnation of the defendant’s bad behaviour. [16] Character/propensity evidence is inadmissible when adduced to show that the accused is the type of person to have committedthe offences. There are, however, generally three exceptions to the rule:

i) Where the evidence is relevant to an issue in the case, ii) Where the accused has put his or her character in issue, and iii) Where the evidence is adduced incidentally to proper cross-examination of the accused on his/her credibility; see R. v. G. (SG), (SCC), [1997] SCJ No. 70 at para. 63. [17] Where character or propensity evidence is found to have been put in issue it shall only be exceptionally admitted, “if it survivesthe rigors of balancing probative value against prejudice”: (see Handy at para. 64). [18] In R. v.

Pollock and Morrison, (ON CA), [2004] OJ No. 2652 at para. 106 the Ontario Court of Appealobserved that since evidence of propensity or bad character can carry a very grave risk of prejudice to the fair trial of the accused againstwhom the evidence is led it is incumbent on the trial judge to examine closely the probative value of the evidence and the purposes forwhich it is tendered. 1. Character: [19] Character is generally described as a person’s disposition, personality, behaviour, pattern of conduct or psychological makeup.

In McWilliams’ Canadian Criminal Evidence, 4th Edition, Vol. 1, at p. 9-9 it states: In a criminal trial, character refers to a person’s disposition. It is the sum total of a person’s traits as a human being arising from their lifeexperiences and psychological makeup. It is neither a static concept nor one definable with scientific precision.

It may be a barometer ofa person’s conduct and their credibility. [20] The other authorities on evidence referred to in McWilliams’ indicate that the definition of character involve disposition, aperson’s moral qualities and traits or attributes for honesty, temperance or peacefulness. [21] In the Oxford English Dictionary, 11th edition, revised, character is defined as the mental and moral qualities distinctive to anindividual. [22] The courts have recognized a person’s tendencies for violence, peacefulness, passiveness, veracity, and modesty as examples ofcharacter evidence.

No authority has been provided to suggest that size or physical stature constitutes character evidence. [23] The defence has submitted that the question of the defendant’s size had nothing to do with propensity. The reference to size wasno more than a response to the allegations and the issue of identification. It was noted in R. v. McNamara (No. 1) (1981) (ON CA), 56 C.C.C. (2d) 193 at p. 346 that an accused does not put his character in issue by denying his guilt and repudiating the

allegations made against him, nor by giving an explanation of matters which are essential to his defence. Similarly, Doherty J.A. in R. v. P. (N.A.) (2002), (ON CA), 171 C.C.C. (3rd) 70 (OCA) at para. 34 stated, “that an accused must be able to repudiatethe charges by presenting his or her version of that context without suffering the disadvantage of putting character in issue”. [24] Defence counsel pointed out that the Crown in the examination-in-chief of Mr. Koroma suggested that he was protective of Mr.Osae because of his size.

Further, the Crown has emphasized continuously in the questioning of other witnesses that Osae is known bythe nickname “Littles”. Further, the Crown’s position, based on the anticipated evidence of Owusu is that Koroma left the car to protectand assist Osae because he could not handle Mr. Paul due to his larger size. [25] Propensity evidence does not include an explanation of matters essential to the defence or the defence theory. Propensityevidence suggests that the defendant is not the type of person to engage in the impugned behavior.

In other words, he does not have thedisposition or the necessary character traits of the person who committed the offence. The defendant’s size or height is neither acharacter trait nor a descriptor of disposition. There is nothing in the

definitions referred to above or any jurisprudence to suggest thatthe size or physical stature is a characteristic of character or predisposition. Certainly, size in the context of this case is a feature ofidentification, not character. [26] In my view, there is nothing to suggest in the questioning of Koroma to suggest that size of Osae relates to character orpropensity. [27] The Crown relies on R. v. Minhas (1986), (ON CA), O.J. No. 745 (C.A.) to suggest that a person’s physicalcapabilities can amount to propensity.

In that case, there was a question raised as to whether the accused had the physical capacity tohave strangled the victim. She claimed that she was unable to use one of her hands and she was not physically capable of committing thephysical act of strangulation. However, the police during surveillance of the accused observed her commit an assault of her uncle. Theevidence of the altercation was relevant to the issue of her physical capacity. It was allowed at trial to overcome her contention she had adisability in her left hand, which rendered it impossible to kill the deceased.

The Court of Appeal only noted that the trial judge shouldhave instructed the jury that the evidence could not be used to show that she had a disposition for violence or that she was likely from herdisposition to have committed the crime. Although, in the circumstances of the case, it was obvious the evidence was tendered only torefute her claim of incapacity. [28] Minhas is distinguishable from the circumstances of this case. The one instance of assaultive behavior constituted the propensityevidence to which the caution should have been directed. The use of her hand was not an aspect of character or propensity.

Thedefendant’s assaultive violent behaviour carried the potential for moral prejudice, not her capacity to use her hand. [29] Certainly, the size and/or height of a person has no bearing on the capacity of a person to commit murder with a firearm.

In myview, there is no merit in the submission that the defendant put his character and/or propensity into issue through an unadoptedsuggestion to the witness that the defendant was “too little to really be any good”. [30] Even if the one unadopted suggestion put by counsel could connote some feature of character or propensity, looking at theevidence as a whole, it does not constitute “the entire nature of the defence”: (see R. v. McMillan (1975), (ON CA), 23C.C.C. (2d) 160 (OCA) at paras. 10-11). [31] The defence has not suggested that Mr. Osae was too small to be capable of committing murder.

Size, however, does relate to theissue of identification. The issue of size does not constitute character evidence, or propensity in the context of this case. However, Ishall remind the jury that questions are not evidence. If a suggestion has not been adopted it is not evidence for them to consider unless itis found elsewhere in the evidence. It is only the answers, which they may consider. 2.

i) A New Alternate Suspect: [32] The Crown contends that the defendant added another “alternate suspect”, Richmond Owusu by advancing the theory thatKoroma enlisted him to assist him. [33] The theory advanced by defence counsel did not suggest Owusu committed the murder. The alternate suspect is FrancisKoroma. Indeed, based on the evidence led by the Crown, Owusu was involved in the circumstances of a homicide. On the evidence, todate, Owusu drove the car seen to flee the scene of the shooting. It was the same car Ms.

Drake saw two men trying to force Jeremy Paulinto its back seat before being shot and the rear window shattered. Jordan Cromwell has identified Richmond Owusu as the driver of theMazda motor vehicle driven into the underground parking garage with Emmanuel Osae as his passenger. There is nothing in thesuggestions put to Koroma by defence counsel that Owusu was the person who shot Jeremy Paul. Further, Mr. Koroma did not agreewith counsel’s suggestions.

The suggestions have no evidentiary value unless adopted by the witness or evidence supporting thesuggestion is found elsewhere in the evidence. ii) Bad Character of the Third Party Suspect: [34] Where the defence has put the propensity of an alternate suspect for violence into play, the Crown would be entitled to rebut the proposition by calling propensity evidence against the defendant. In R. v.

Rogers (2000), (ON CA), 144 C.C.C. (3rd)568 at p. 576 the Ontario Court of Appeal stated: Once the accused introduced evidence relating to the propensity of a third party, usually to establish that third party as an alternatesuspect, the Crown may in reply offer propensity evidence relating to the accused. Otherwise, the trier of fact would be left with adistorted view of the facts. [35] The Crown did not assert that the defence had opened up the issue of Koroma’s bad character/propensity in its factum.

However,in submissions, Crown counsel stated that the defence characterized Koroma as a “gun-toting drug dealer, thereby putting his character inissue”.

[36] The position taken by the Crown is somewhat perplexing given that the Crown led evidence during Koroma’s examination thathe used and dealt drugs in the past, he has an outstanding charge for drug possession and he has a conviction for the possession of afirearm, a semi-automatic handgun. In any event, I accept the submission of defence counsel that she does not intend to advance thecharacterization of Koroma as portrayed by Crown counsel in her submissions. I find no merit in the Crown’s submission. 3.

Bad Character of the Deceased [37] The Crown argued that the defence introduced bad character evidence of the deceased in two respects. Firstly, defence counselsuggested to Koroma that he found the teardrop tattoos on the face of the deceased intimidating. They suggest a gang-affiliation and/orcriminal activity/violence on the part of the deceased. Secondly, counsel suggested that Mr. Paul told Koroma on the day of the shootingthat he was coming into possession of a sizeable quantity of marijuana. [38] It is the Crown’s position that the prejudicial effect of the bad character evidence is two-fold.

It is evidence that amounts to acharacter attack on someone who is not able to defend himself or his reputation. There is the possibility of the jury misusing theevidence to conclude his death resulted because of his bad behavior and is less worthy of the protection of the law: (see R. v. Watson, (ON CA), [1996] O.J. No. 2695 para. 47 (OCA); R. v. Tuck, [2007] O.J. No. 2988 at para. 12 (OCA); R. v. Varga (2001), (ON CA), 159 C.C.C. (3rd) 502 at p. 522). [39] In my view, the Crown has again mis-characterized the evidence adduced by the defence during cross-examination of FrancisKoroma.

Koroma did not say the deceased’s facial tattoos intimidated him. He stated that “tattoos on his face and stuff” could makeJeremy Paul intimidating to some, but not to him. Further, there was a no suggestion put to Koroma by defence, as submitted by theCrown, that Koroma armed himself because he felt intimidated. [40] There is no evidence as to the meaning teardrops tattoos on a person’s face may convey. The Crown suggests that it has a gangconnotation and it may be interpreted by the jury, as an indication Mr. Paul was associated with a violent/criminal organization.

There isnothing in the evidence to suggest that such tattoos have gang connotations. The Crown has examined a number of witnesses, Travis andJordan Cromwell and Francis Koroma extensively about their own tattoos. The concern appears to be with the reference to facial tattoosand the question as to whether the witness was intimidated or not. In my view, the unadopted suggestion standing alone does not lead tothe bad character

interpretation suggested by the Crown. [41] Even if there is a possibility of the jury misusing the evidence of the presence of teardrop tattoos on the face of Jeremy Paul, theremedy is not to permit the Crown to lead extensive evidence of the defendant’s past behaviour to show he is the kind of person to beintimidated or not intimidated by them. It would not remedy the perceived problem. The appropriate remedy would be to simply directthe jury to disregard the evidence.

However, in our discussion during submissions, the Crown specifically requested it not be addressedin that manner out of a concern that to do so may only heighten its potential prejudicial effect. [42] Finally, it does not lie in the mouth of the Crown to castigate the defence for attacking the character of the deceased through thesuggestion he was a consumer of drugs, when the Crown suggested to an earlier witness there would be evidence from the witnessOwusu that the reason the defendant shot Paul was because Paul had a gun and pulled it on him earlier. [43] In the context of this case, where all of the young witnesses from the deceased’s milieu have readily admitted the use ofmarijuana, it can hardly be considered the kind of character evidence that would induce the prejudice suggested by the Crown. [44] In the result, the Crown has failed to establish that the defendant has put the character or propensity of the third party suspect, thedeceased or himself in issue.

The application by the Crown to adduce discreditable conduct evidence of the defendant is denied. [45] In accordance with the instructions approved in R. v. Smith (2007), 2007 NSCA 19 , 216 C.C.C. (3rd) 490 (NSCA) atpara. 126 as provided by Ms Pringle the jury shall be reminded of the following: A factual suggestion put to a witness in cross-examination is not evidence unless the suggestion is accepted by the witness or is foundelsewhere in the evidence. Counsel’s question is not proof of the truth of the suggestion, which is not accepted. The suggestion in thequestion standing alone is not evidence.

You should completely ignore suggestions made in cross-examination, which were denied by the witness and not found elsewhere in theevidence.

Remember, a question is not evidence; it is the answer that is the evidence for you to consider. [46] In addition, I shall include the following in the instruction at the request of defence counsel: You should consider all of the witness’ testimony in your assessment as to how much or little you will believe of and rely upon awitness’ evidence. [47] At the request of Crown counsel, I do not intend to instruct the jury to ignore or disregard the presence of facial tattoos or theevidence that some persons might find such tattoos intimidating because of the Crown’s concern that to do so may unnecessarilyemphasize that evidence.