





CITATION: R. v. Borde, 2011
          ONCA 534



DATE: 20110728



DOCKET: C49685



COURT OF APPEAL FOR ONTARIO



Goudge, Juriansz and MacFarland JJ.A.



BETWEEN



Her Majesty The Queen



Respondent



and



Quinn Borde



Appellant



Clayton C. Ruby and Gerald J. Chan, for the appellant



James Stewart, for the respondent



Heard: June 21 & 22, 2011



On
    appeal from the conviction entered on June 22, 2007 and the sentence imposed on
    May 9, 2008 by Justice Bonnie L. Croll of the Superior Court of Justice,
    sitting with a jury.

Juriansz J.A.
:

OVERVIEW

[1]

The appellant appeals
    against his convictions for robbery, attempted murder while using a firearm,
    aggravated assault by discharging a firearm, using a firearm in the commission
    of an indictable offence, and discharging a firearm with intent to prevent his
    arrest or detention.

[2]

At trial, his position
    was that he was not properly identified as the perpetrator and that he was at
    his mothers home when the crimes were committed. On appeal, he alleges
    ineffective assistance of counsel and that the trial judge made several errors
    in her instructions to the jury.

[3]

For the reasons that
    follow, I would dismiss the appeal.

FACTS

[4]

On June 29, 2006, two
    young women  Natasha Kulgawetz and Tenicka Webster  were at a party drinking
    and decided to go find marijuana from a girl that Ms. Webster knew in Regent
    Park. On their way, they encountered a black male wearing a plain black
    pullover hood jacket, a bandana and a baseball cap. According to Ms. Webster
    and Ms. Kulgawetz, the man forced Ms. Webster to take her chain off and hand it
    to him and he forced Ms. Kulgawetz to give him the money in her pocket. The man
    then told the two women that they would be staying with him for the rest of the
    night.

[5]

The three of them
    headed to an apartment to find marijuana and when they arrived, Cedric Wade
    answered the door. According to the testimony of Cedric and the two women, the
    man pulled out a gun. As Cedric slammed the door shut, he was shot in the
    elbow. The shooter then pulled the two women away and they walked towards Queen
    St. and Parliament St.

[6]

At about 4:30 a.m.,
    several police accosted them. The two women dove to the right into a staircase
    and the man drew a gun and began shooting at the police. The police and the
    shooter then exchanged shots. The shooter ran down a laneway, climbed over a
    high fence and slipped through the perimeter the police had set up. As he made
    good his escape, the shooter fired two shots at the ambulance arriving at Mr.
    Wades apartment.

[7]

The police arrested the
    two women and took them to the police station. Ms. Kulgawetz did not identify
    anyone when shown a photo lineup containing the appellants photo. However,
    when shown the photo lineup, Ms. Webster identified the appellant as the
    shooter. One of the police officers, Constable Austin, also picked the
    appellant out of the photo lineup.

[8]

The appellant was
    arraigned on a 19-count indictment. He entered a plea of not guilty to all
    counts:  counts 1 and 2 concerned the
    robbery of Ms. Webster and Ms. Kulgawetz; counts 3 to 5 concerned the shooting
    of Cedric Wade; counts 6 to 15 concerned the shootout between the police and
    the shooter; and counts 16 to 19 concerned the attempted shooting of the
    ambulance driver, Mr. Toshoff.

[9]

Ms. Webster went
    missing. The police found and brought her back from Jamaica just as the
    appellants trial began. At trial, she identified the appellant as the shooter.
    She testified she had been acquainted with the shooter previously. His street
    name was
Body. She had met him a few days earlier in Moss Park. Ms. Kulgawetz was also
    there and Ms. Webster saw her kiss the shooter. She testified that two
    assailants had approached the shooter in the park and shot him twice. He went
    to the hospital, but Ms. Webster saw him later that night at a party in
    undershorts.

[10]

Constable Austin
    identified the appellant as the shooter. The Crown led evidence that on June
    24, five days before the offences, the appellant had been treated for gunshot
    wounds at St. Michaels Hospital and had left the hospital in undershorts
    before he was released.

[11]

The Crown also led
    circumstantial evidence of identity. In the vicinity of shell casings ejected
    from the shooters gun and on the route used by the shooter to escape, the
    police also found a baseball hat and black jacket. The black jacket had gunshot
    residue on it and the hat contained the appellants DNA.

[12]

The defence originally
    planned that the appellant would not testify and defence counsel did not serve
    a notice of alibi on the Crown. After Ms. Webster proved to be a formidable
    witness, the appellant decided to testify. In cross-examination he said that at
    the time of the shootings he was at his mothers home where he had gone to
    recover from the gunshot wounds suffered on June 24. He admitted that the hat
    and jacket recovered by the police at the scene were his, but he claimed that
    the assailants who shot him on June 24 had stolen them.

[13]

The appellants mother
    was not called to testify. The trial judge denied the appellants attempt to
    testify in re-examination that the reason his mother was not called to testify
    was because she suffers from panic attacks.

[14]

The jury acquitted the
    appellant of all counts in relation to the ambulance driver and convicted him
    of the offences listed above. The trial judge sentenced him to an aggregate
    sentence of 25 years with no eligibility for parole for 10 years.

ISSUES

[15]

The appellant submits that
    he is entitled to a new trial because:

i.

the
    trial judge should not have instructed the jury that it could draw an adverse
    inference from the failure to make timely disclosure of the alibi defence, in
    the absence of evidence that more effective police investigation would have
    been possible had the alibi been disclosed earlier;

ii.

the
    failure of defence counsel to serve a notice of alibi on the Crown constituted
    ineffective assistance of counsel;

iii.

the
    trial judge erred in failing to instruct the jury that the defence did not need
    to prove the alibi but only raise a reasonable doubt;

iv.

the
    trial judge erred in telling the jury that it could draw an adverse inference
    from the appellants failure to call his mother as an alibi witness;

v.

the
    trial judge erred in refusing to allow the appellant to explain why he did not
    call his mother as a witness; and

vi.

the
    trial judge failed to give an unsavory witness instruction in regard to Ms.
    Webster.

Discussion

Need for evidence that an earlier investigation would
    have been more meaningful

[16]

The appellant submits that a trial
    judge should instruct a jury that it may draw an adverse inference from failure
    of the accused to make timely disclosure of an alibi defence only where the Crown
    establishes by evidence that the police could have conducted a more meaningful
    investigation had the alibi been disclosed earlier. To advance this proposition,
    the appellant relies on the comments of Doherty J.A. in
R. v. Wright
(2009), 247 C.C.C. (3d) 1 (Ont. C.A.), at paras. 18-20,
    that the adverse inference instruction is a qualification on constitutionally
    enshrined principles, which can be justified only where the rationale for that
    qualification actually operates. Doherty J.A. said, Thus, if the alibi defence
    is disclosed in time to permit meaningful investigation of the defence, there
    can be no justification for the instruction.

[17]

In my view, the appellant takes these
    comments out of context. In
Wright
,
    Doherty J.A. found that the trial judge was wrong to characterize the appellants
    position as an alibi defence. Rather, it should have been characterized as an
    admission of some involvement in the events coupled with a denial of any
    involvement in the crimes. In
Wright
the
    Crown did not require any disclosure in order to effectively investigate and
    respond to the defence actually advanced by the appellant.

[18]

The rule is one of expediency intended to guard against
    surprise alibis fabricated in the witness box that the prosecution is almost
    powerless to challenge:
R. v. Cleghorn
,
    [1995] 3 S.C.R. 175 per Iacobucci J., at para. 4. Requiring the Crown to
    request an adjournment to attempt to investigate a late claim of alibi or requiring
    it to prove that meaningful investigation would have been fruitful but is no
    longer possible before an adverse inference instruction is appropriate, would
    undermine the rationale of the rule. It would also create logistical problem
    for the trial and place an impossible burden on the Crown to show what the
    investigation it was unable to do would have yielded. In the circumstances of
    this case, the late disclosure of the alibi defence fell squarely within the
    rule; it could not be expected that the police could effectively investigate
    the appellants claim when the alibi was disclosed.

[19]

I would not give effect to this ground of appeal.

Failure to serve a notice of alibi constituting
    ineffective assistance of counsel?

[20]

Defence counsel examined both the appellants mother and
    brother regarding his claim of alibi and concluded that the jury was unlikely
    to believe them. Counsel for the appellant accepts that it was reasonable for
    defence counsel to make this judgment initially and to advise the appellant not
    to testify. Counsel for the appellant points out that circumstances change, as
    they did in this case, and because the accused always has the right to decide
    to testify, defence counsel must serve a notice of alibi in all cases. The only
    exception this rule that counsel for the appellant would recognize is where
    defence counsel knows the claim of alibi is fabricated.

[21]

I find the proposition too unequivocal. Certainly, having the
    case go to the jury with an adverse inference instruction is always undesirable
    for the defence. Every effort should be made to avoid that happening. However,
    sometimes the defence must choose between the devil and the deep blue sea, as
    counsel for the Crown put it. Here, defence counsel considered that the
    appellants alibi defence would be disbelieved, and that having the police
    investigate the claimed alibi would harm the defence by exposing its weakness
    or possibly establishing it was concocted. The appellant was prepared to accept
    that advice. In the unlikely event that the appellant changed his mind, going
    to the jury with a failed or concocted alibi would have been worse for the
    defence in defence counsels judgment. This was a competent, professional
    tactical decision that I would not second guess.

[22]

I would not give effect to this ground of appeal.

The trial judges
    failure to instruct the jury that the defence did not need to prove the alibi
    but only raise a reasonable doubt

[23]

The appellant complains that the
    trial judge did not explicitly link her instructions about reasonable doubt to
    the appellants alibi defence. The complaint has no merit.

[24]

The trial judge instructed the jury
    on the presumption of innocence, the burden of proof on the Crown and the
    concept of reasonable doubt. She charged the jury in relation to
W.D.
on two occasions, once relating
    those instructions to the appellants testimony that he was at his mothers
    home, though she did not use the word alibi. The jury would have understood
    that the Crown has to disprove the appellants claim of alibi in the course of
    establishing his guilt beyond a reasonable doubt.

[25]

I would not give effect to this
    ground of appeal.

Adverse inference from the appellants failure to call
    his mother as an alibi witness

[26]

The appellant submits that an adverse
    inference from the failure to call his mother was not justified in this case
    and that the trial judge should have corrected, rather than endorsed, Crown
    counsels suggestion that the jury should turn a critical eye to the fact that
    the person who could support his alibi was never called by the defence, though
    she sat in the courtroom while he gave that evidence.

[27]

The trial judge gave the jury the
    following instruction:

Ladies and
    gentlemen, in assessing the weight to be given to Mr. Bordes whereabouts on
    June 29, 2006, you are entitled to consider that this information was not
    disclosed at a sufficiently early time to permit its investigation by the
    police. You may also consider that Mr. Bordes mother was not called as a
    witness, but you must understand that there is no obligation on the defence to
    call Mr. Bordes mother, and there may, indeed, be a perfectly good reason why
    she was not called. As well, the only possible inference you may draw from the
    failure to call Mr. Bordes mother is that had she been called as a witness,
    her evidence would have been unfavourable to Mr. Borde. You may or may not draw
    this inference; that is up to you, but you must not use the failure to call his
    mother to draw the inference of guilt of Mr. Borde.

[28]

While the appellant is correct that the Crown could have
    called the appellants mother, it was logical to expect the defence to call her,
    given the appellants relationship with her and his testimony that she could
    confirm he was at home at the time of the crimes. The trial judges instruction
    was both justified and fair. It made clear that the appellant was under no
    obligation to call his mother as a witness, that there might be a perfectly
    good reason why she had not been called, that it was up to the jury to decide
    whether to draw or not to draw an adverse inference, and, importantly, that the
    jury should not draw an inference of guilt from the appellants failure to call
    his mother.

[29]

I would not give effect to this ground of appeal.

Refusal to allow the appellant to explain why he did
    not call his mother as a witness

[30]

The trial judge refused to allow the appellant
    to explain in re-examination that he did not call his mother to testify because
    she suffered from panic attacks. The trial judge ruled this proposed testimony
    inadmissible on the basis that it was hearsay or opinion evidence. She added
    that it was open to the defence to call other more reliable evidence as to any
    problems with having [the mother] testify.

[31]

The appellant submits that his
    observations of his mother were direct and therefore did not constitute
    hearsay, and that his own observation that she experienced panic attacks was
    permissible lay opinion. That may be so, but the trial judge took the view that
    the appellant was not qualified to offer the opinion that the panic attacks
    that his mother suffered prevented her from testifying. While the trial judge,
    perhaps, could have admitted the testimony as lay opinion, the evidentiary
    ruling she made had a basis in reason and does not constitute reversible error.

Failure to give an unsavory witness instruction

[32]

The appellant submits that the trial
    judge erred by failing to caution the jury to be careful in accepting the
    evidence of Ms. Webster, an unsavory witness. Ms. Webster, the appellant points
    out, admitted to selling crack cocaine; she had a motive to lie because of her
    connection to the crime; she was suspected of involvement in the offences at
    the time she first gave her statements to the police; she was subjected to
    intimidating treatment by the police and interrogated in a hard interview room
    until she urinated herself; she had provided different accounts on different occasions;
    she delayed in coming forward with information; and she lied under oath.

[33]

Despite these factors, it was open to
    the trial judge, who had the advantage of seeing Ms. Webster testify and
    assessing her testimony in the context of the whole trial, to find that an
    unsavory witness instruction was not required to ensure a fair trial. The trial
    judges instructions would have alerted the jury to the danger of accepting Ms.
    Websters testimony without careful scrutiny. Had the trial judge given an
    unsavory witness caution, she would have had to review the independent evidence
    supporting Ms. Websters testimony. For example, the appellants street name was
    Body, he had been shot a few days earlier, and he had left the hospital
    wearing nothing but boxer shorts, as Ms. Webster said. The trial judges
    exercise of discretion deserves deference. I would not give effect to this
    ground of appeal.

CONCLUSION

[34]

We did not call upon the Crown to respond to a number of additional
    issues raised by the appellant and I see no need to discuss them. I would
    dismiss the appeal.

R.G. Juriansz J.A.

I agree S.T. Goudge J.A.

I agree J. MacFarland J.A.

RELEASED:  July 28, 2011


