R. v. Johnson, 2017 ONSC 7687

CITATION : R. v. Johnson, 2017 ONSC 7687 COURT FILE NO.: 03-308757 DATE: 2017/12/21 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Her Majesty the Queen -and- Nolan Johnson BEFORE: Mr. Justice Pierre E. Roger COUNSEL: Suzanne Schriek, Counsel for the Crown Oliver N. Abergel, Counsel for the Defendant HEARD: 2017/12/05 and 06 REASONS FOR DECISION [ 1 ] In this sexual assault case that dates back to 2003, the Crown is seeking to admit evidence of the accused’s absence from Canada between December 2006 and August 2016. According to the Crown, the evidence is admissible as: (

a) post-offence conduct evidence showing consciousness of guilt in wishing to avoid returning to Canada to face trial; and (

b) narrative evidence to explain the passage of time to the jury. Introduction [ 2 ] On December 12, 2003, the accused was arrested and charged with sexual assault and uttering a threat to cause bodily harm to the complainant with regards to events that allegedly occurred on November 28, 2003. He was committed to stand trial following a preliminary hearing. [ 3 ] On January 11, 2006, the proceedings against the accused were stayed by the trial judge as he found that there had been delayed disclosure of relevant information in the hands of the Crown.

The Crown filed an appeal in March 2006. [ 4 ] It appears, from the evidence presented on this application, that the accused left Canada before the appeal was heard. He apparently purchased an airline ticket to Jamaica, leaving on December 7, 2006. [ 5 ] A lawyer on behalf of the accused argued the appeal and on June 7, 2007, the Ontario Court of Appeal reversed the stay of proceedings, finding that the evidence of prejudice was speculative as the trial judge made his decision prior to trial rather than at its conclusion.

The stay was set aside on a without prejudice basis and the accused was ordered to stand trial again. However, he could not be located and was likely out of the country. [ 6 ] The accused did not return to Canada until August 22, 2016. The police executed a warrant for the accused’s arrest at the airport upon his return. [ 7 ] It is not disputed by the Crown that the accused was not under any condition and that he did not breach any condition when he left Canada.

Although in June 2007 a warrant was issued for his arrest by the Court of Appeal, it is not clear what other steps were taken by the Crown to attempt to return the accused to Canada. [ 8 ] The Crown argues that the accused chose to absent himself from Canada with full knowledge that the Crown had successfully appealed the staying of these charges, and that this is relevant to establishing the accused’s criminal intent.

In addition, or in the alternative, the Crown argues that the accused’s absence is required narrative as the jury might otherwise draw a negative inference against the Crown for the passage of time. [ 9 ] The accused argues essentially that the admission of this evidence would invariably lead the jury to draw inappropriate inferences, and that the jury would be required to speculate as to why the accused left Canada.

The accused points out that he acted lawfully when he left Canada to return to his native Jamaica, that he lived openly in Jamaica, that he was not charged for breaching a condition or for failing to appear, and that he had no legal obligation to assist the Crown, which should have started some legal process if it wished for his earlier return to Canada. The accused also argues that this evidence would force him to testify and explain why he left Canada and that these explanations, which he says are unrelated to these charges, would greatly prejudice him in the eyes of the jury. He also argues

that it is not clear how exactly the Crown would prove, before a jury, what it alleges on this application (how evidence that he leftCanada would, in these circumstances, prove his criminal intent on these charges).

Issues [10] This application raises the following core issues with respect to post-offence conduct: (1) is the post-offence conduct of the accused (that he resided in Jamaica from December 2006 until his return in August 2016) relevantto a live material issue in this case; (2) if it is relevant to a live material issue and therefore presumptively admissible, is it otherwise subject to some evidentiary exclusion;and (3) if it is relevant and otherwise admissible should it nonetheless be excluded as a matter of judicial discretion on the basis that itsprobative value is outweighed by its prejudicial effect. [11] Regarding the admissibility of this evidence on the basis of narrative, the core issue centres around identifying what relevantand material evidence this narrative information would help the jury understand.

Stated differently, how does this narrative complete thestory? [12] In outlining the issues, I have drawn from a recent

article on this topic (see David M. Paciocco, “Simply Complex: Applyingthe Law of ‘Post-Offence Conduct’ Evidence” (2016) 63 Crim. L.Q. 276). The approach outlined above also follows the analysisconducted in the leading cases on this issue (see e.g. R. v. White, 2011 SCC 13 at paras. 19, 22, 36, 47, 50, and 60, [2011] 1 S.C.R. 433). Post-Offence Conduct Evidence [13] Paciocco J. has distilled the law regarding the admissibility of post-offence conduct evidence into three main propositions:

(1) As a general rule, conduct by the accused person, occurring after the alleged crime has happened, is admissible if it isrelevant to a live material issue in the case.

(2) As an exception to the general rule, relevant post-offence conduct evidence will not be admissible where its reception wouldcontravene other rules of exclusion.

(3) As a further exception to the general rule, even relevant and otherwise material admissible post-offence conduct evidencemay be excluded as a matter of judicial discretion. A trial judge has the discretion to exclude relevant, incriminatory post-offenceconduct evidence where its probative value is outweighed by its prejudicial effect and exculpatory post-offence conduct where itsprobative value is substantially outweighed by its prejudicial effect. Relevant to a live material issue [14] In this case, the Crown submits that the accused’s absence from Canada demonstrates “consciousness of guilt”.

According toPaciocco J., this is merely one link in the chain of reasoning: “[t]o say that someone has acted as if they are guilty or with consciousnessof their guilt begs the question, ‘guilty of what,’ and it fails to reveal precisely what use is to be made of the evidence”. [15] In addition, when pressed, the Crown argues that it intends to rely on this evidence to prove the accused’s criminal intent.However, considering the factual circumstances of this case, I find that the Crown has not established that the post-offence conduct ofthe accused (living in Jamaica) informs the issue of the accused’s criminal intention.

This is subject to too much speculation. [16] Moreover, when assessing relevance, the Crown has not established how, directly or indirectly, the post-offence conduct ofthe accused makes the existence of criminal intent more probable. [17] The Crown has therefore not established that the evidence is relevant to a live material issue in the case; it has not establishedthat the evidence has some tendency, as a matter of logic, common sense, and human experience, to prove or disprove the accused’scriminal intent.

Here the evidence presented does not go beyond generic inferences of guilt and it is not at all apparent precisely why theevidence logically advances the live material issue submitted by the Crown (the accused’s criminal intent). [18] Indeed, the facts in this case are quite different from the facts in the cases relied upon by the Crown (see R. v. White, 2011SCC 13, [2011] 1 S.C.R. 433; R. v. Figueroa, 2008 ONCA 106, 233 O.A.C. 176; R. v. White, (SCC), [1998] 2 S.C.R.72, 16 C.R. (5th) 199; and R. v. Vant, 2015 ONCA 481, 324 C.C.C. (3d) 109).

The accused left Canada legally only after the stay andapparently returned to Canada voluntarily, which does not logically tend to prove or disprove his criminal intent. Moreover, the accusedleft Canada three years after the alleged events, which is not temporally connected with the relevant events. [19] With the exception of deciding whether this evidence should be admitted for narrative purposes, the above is determinative ofthis application. Nonetheless, I will briefly address the rest of the analysis as it also raises issues that support the exclusion of thisevidence. Not otherwise excluded

[ 20 ] The post-offence conduct evidence must not contravene an exclusionary rule of the law of evidence. The evidence will satisfy this requirement when it is not captured by an exclusionary rule, or if it falls within an exception to it. In this case, I find that this would not be a problem and that the Crown could prove some of what it advances in support of this application without offending an exclusionary rule. However, I note that it is not entirely clear how the Crown would prove all of what it alleges.

Prejudicial effect versus probative value [ 21 ] The prejudicial effect of the incriminatory evidence must not outweigh its probative value. For example, when the evidence is likely to distort the jury’s fact-finding process by distracting it from the proper focus of its deliberations, or simply blackens the character of the accused, the trial judge should exclude the evidence (see R. v. White (2011) at para. 173). [ 22 ] In this case, the accused was present for the preliminary hearing and was present in Canada up until after the stay of proceedings.

He left Canada legally in December 2006, not breaching any condition, while his lawyer was unsuccessfully engaged in the process of defending the appeal of the stay and prior to the decision of the Court of Appeal setting aside the stay of proceedings on June 7, 2007. [ 23 ] Consequently, when I consider all of the circumstances, I find that the probative value of the post-offence conduct is minimal at best.

This is also supported by the fact that at this time it is not clear how the Crown will prove why the accused was out of the country (assuming that it will successfully prove that he was out of the country for the entire period of time). [ 24 ] Indeed, the theory of the Crown relating to how it alleges that the post-offence conduct is relevant to a live material issue would likely invite the jury to speculate that the accused must have left Canada to avoid these charges and to conclude that he must be guilty of these offences.

A limiting instruction telling the jury there may be other reasons that they should consider would, in the circumstances of this case, likely not alleviate this impermissible reasoning. One possible explanation, alleged by the accused and which is unconnected to the events of this case, could seriously prejudice the accused before the jury should he choose to testify. As such, this extremely speculative evidence of limited probative value, if admitted, could pressure the accused to testify to explain why he was out of Canada.

The possible explanation could have serious prejudicial effect (it apparently relates to fraud charges involving a paraplegic victim). This could likely not be remedied by appropriate instructions. [ 25 ] In fact, the circumstances of this case are not unlike those in R. v. Dessouza , 2012 ONSC 208 , 99 W.C.B. (2d) 128, where for similar reasons the Court did not allow such evidence. [ 26 ] Quite apart from all of the above, this trial would be unduly complicated and lengthened by this additional evidence of limited probative value and high prejudicial effect.

Narrative Evidence [ 27 ] The Crown submits that evidence of the accused’s absence from Canada will explain the passage of time in the events alleged before the jury, and avoid any negative inference being drawn against the Crown for the passage of time. On the other hand, the accused asserts that he had no legal obligation to return to Canada and that the Crown took no steps to ensure his earlier return to Canada. He therefore argues that this narrative information will not inform the jury as is alleged by the Crown. The accused relies upon R. v.

MacIntosh , 2011 NSCA 111 , 281 C.C.C. (3d) 291. [ 28 ] Narrative is background information that is not relevant to a live material issue in the case but that is nonetheless received because, without it, the evidence that is relevant and material to a live issue cannot easily be understood. Because it is irrelevant, narrative is not, strictly speaking, evidence.

It cannot be relied upon as discrete information to draw substantive inferences; it can only assist the trier of fact in following the relevant and material information (see Paciocco J., above). [ 29 ] Accordingly, information admitted solely for narrative purposes cannot be used to yield post-offence conduct inferences. If the evidence of the accused’s absence from Canada is admissible solely as narrative, the jury must be instructed as to this limited use.

However, in this case the Crown has not convinced me that this narrative is required for the jury to understand the evidence that is relevant to a live material issue. The information with which I have been provided to date is that these events allegedly occurred in 2003.

It has not been explained to me how the jury knowing where the accused was between 2006 and 2016 will help them understand these 2003 events, which is usually the purpose of admitting narrative. [ 30 ] The fact that the credibility of the witnesses is being assessed now, as is alleged by the Crown, is not a reason to admit this information on the basis of narrative.

Irrespective of who between the Crown and the accused is legally responsible for this delay, it would be inappropriate to ask the jury to draw some inference against the accused for the passage of time on the basis of information admitted only for the purpose of narrative. The same reasoning is applicable to the final arguments of the Crown that this narrative would be helpful to the jury to assess the lack of contact post 2006 or to assess the accused’s credibility.

Why the accused is only now being tried for events that allegedly took place fourteen years ago is not required narrative because its reception would not assist the jury to understand the evidence that is relevant to a live material issue in this case without engaging in speculation and impermissible inferences. [ 31 ] Consequently, this information is not admissible as narrative. Conclusion [ 32 ] The Crown’s application seeking to admit post-offence conduct evidence is dismissed.

Mr. Justice Pierre E. Roger Date: 2017/12/21 (This application was dismissed on December 6, 2017, with reasons to follow and these written reasons were released to the parties on December 8, 2017, and published only after the verdict at the date indicated above) CITATION : R. v. Johnson, 2017 ONSC 7687 COURT FILE NO.: 03-308757 DATE: 2017/12/21 ONTARIO SUPERIOR COURT OF JUSTICE RE: Her Majesty the Queen, Applicant -and- Nolan Johnson, Respondent BEFORE: Mr. Justice Pierre E. Roger COUNSEL: Suzanne Schriek, Counsel for the Crown Oliver N. Abergel, Counsel for the Respondent HEARD: 2017/12/05 and 06 REASONS FOR DECISION Roger J. Released: 2017/12/21