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EVIDENCE - Admissibility - Prejudicial evidence - Methods of proof 

Thursday, December 17, 2020 @ 6:18 AM  

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Appeal by the accused from conviction for possession of anabolic steroids and cocaine for the purpose of trafficking and possession of the proceeds of crime. This case emerged from a large organized crime investigation but resulted in a straightforward possession and proceeds of crime trial against the appellant. Police discovered large quantities of steroids in the appellant’s home and a canister containing cocaine buried 100 metres behind the home. Throughout the trial, the Crown repeatedly tendered evidence suggesting that the appellant was associated with the Hells Angels. Two officers provided detailed testimony about the surveillance of the appellant at a meeting with a known member of the Hells Angels. Throughout the trial, it was insinuated the appellant was a target of a broad police investigation into bikers and organized crime. The appellant argued that the cumulative effect of the Hells Angels evidence rendered his trial unfair and that the trial judge erred in admitting and then failing to contain prejudicial bad character evidence related to his apparent association with the Hells Angels motorcycle club. He also argued that certain intercepted communications relied upon by the Crown constituted bad character evidence that portrayed him as someone who was well-versed in the intricacies of the drug world and the criminal justice system.

HELD: Appeal allowed. New trial ordered. The Hells Angels evidence should never have been admitted as it was irrelevant to any material issue and was highly prejudicial. The appellant’s possession of biker clothing did not advance the trial in any way other than stirring the prohibited inference that the appellant was a bad person and therefore more likely to have committed the offences. Although it emerged as a seemingly minor distraction at the beginning of the Crown’s case, it cascaded into a theme that pervaded the trial. In his final instructions, the trial judge gave the jury a very brief instruction not to use this bad character evidence to infer that the appellant had a propensity to commit the offences that he was charged with. However, this warning did not remedy the unfairness that suffused this trial. The trial judge should have directed the Crown to tell its police witnesses to make no reference to the Hells Angels when testifying. The inference flowing from the fact that the appellant was a target in the investigation was that he was a player in a network of organized crime that was the subject of a province-wide investigation. This was highly prejudicial bad character evidence. The Crown should have been prohibited from eliciting testimony from officers about the scope and nature of the broader investigation. The intercepted conversation suggested that the appellant was knowledgeable of fentanyl, a notoriously dangerous drug that had nothing to do with the charges he faced. It painted the appellant as someone with broad knowledge of the criminal justice system. As with the Hells Angels evidence, the conversation portrayed the appellant as a person of bad character who associated with other criminals. The trial judge did not caution the jury not to draw impermissible inferences from this intercepted conversation. The anecdotal testimony of a police officer regarding the likelihood of possession of the steroids for personal use exceeded the proper bounds of opinion evidence and culminated in a subtle reversal of the burden of proof on the steroids charge. The officer’s evidence invited the appellant to prove that his case was different from all the others investigated by the officer and that he was stockpiling the steroids for personal use. This testimony compromised the appellant’s right to a fair trial on the steroids count by requiring him to prove that, regardless of a particular expert’s experience, his situation was different. The trial judge did not instruct the jury to disregard this evidence.

R. v. Cook, [2020] O.J. No. 4938, Ontario Court of Appeal, D.M. Brown, G.T. Trotter and D. Paciocco JJ.A., November 17, 2020. Digest No. TLD-December142020007