



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Graham, 2020 ONCA 692

DATE: 20201030

DOCKET: C66731

Pepall, van Rensburg and Brown
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jahmal Graham

Appellant

Jeffery Couse, for the appellant

Alexander Hrybinsky, for the respondent

Heard: October 23, 2020 by
    video conference

On appeal from the convictions entered
    on October 5, 2018 by Justice Michael Code of the Superior Court of Justice,
    sitting with a jury, and the sentence imposed on November 9, 2018, with reasons
    reported at 2018 ONSC 6817.

REASONS FOR DECISION

[1]

The appellant appealed his convictions for
    various offences after trial by judge and jury. He also sought to appeal his
    sentence of ten years imprisonment (after one year of credit for pre-trial
    custody). After hearing oral argument, we dismissed the appeal with reasons to
    follow. These are our reasons.

(1)

The Conviction Appeal

[2]

At around 10:00 p.m. on January 23, 2016, patrol
    officers in Scarborough stopped a vehicle they observed driving aggressively.
    After observing open alcohol on the floor behind the drivers seat and marijuana
    on the ground nearby, the officers arrested the occupants, including the
    appellant, and searched the vehicle. In the trunk they found a satchel
    containing nearly three oz. of cocaine, $14,880 in cash, a revolver, two
    digital scales, and around 40 bullets.

[3]

The police seized surveillance video from the
    night in question from the Markham Bar and Grill that showed the appellant
    walking in with a satchel over his shoulder at 9:00 p.m., walking around and
    socializing while wearing the satchel on his shoulder, and then leaving the
    premises with the driver of the vehicle 21 minutes later, which was about 40
    minutes before the traffic stop.

[4]

The appellant was charged with
possession of a prohibited firearm with readily accessible
    ammunition, possession of cocaine for the purpose of trafficking, possession of
    property obtained by crime over $5,000, two counts of breach of a weapons
    prohibition, and failure to comply with probation. (The latter three charges
    were tried by the trial judge alone after the jury trial.)

[5]

Following the dismissal of a pre-trial
Charter
motion, the trial itself was brief and focused solely on whether the appellant
    knew what was in the satchel. The appellant testified that the satchel was not
    his and he denied knowing what was inside. He said his brother, Julian Graham,
    had given it to him to hold while Julian shot a rap music video scene at the
    Markham Bar and Grill. The appellant then put the satchel in the trunk of his
    friends car. Later, the friend agreed to drive the appellant to pick up the
    appellants girlfriend at her house. Shortly after leaving the bar, the police
    pulled over the vehicle.

[6]

The appellant was cross-examined on his version
    of the events. The issues in the conviction appeal relate to the following
    question that Crown counsel put to the appellant near the end of his
    cross-examination:

And, you both understood that if [Julian] was
    to come and testify that, that gun, the ammo, the drugs, the money, were all
    his; you both understood that what he said in this courtroom cannot be used as
    a basis to charge him?

[7]

The trial judge immediately interjected, and the
    appellants trial counsel objected. The trial judge instructed the appellant
    not to answer the question and sent the jury out of the courtroom. After
    submissions on the objection, Crown counsel withdrew the question. The trial
    judge indicated that the best course in terms of remedying the problem was to
    leave the subject, get the jury back in, and to not attach any further
    attention to the question, leaving the appellants counsel to make any further
    arguments about remedy later in the trial. The trial continued.

[8]

Julian Graham testified next. His evidence was
    consistent with the appellants: he stated that the satchel and all of its
    contents belonged to him, and he confirmed the appellants account of how he
    came to possess the satchel.

[9]

After the close of evidence, the appellant moved
    for a stay of proceedings. His trial counsel relied on the Supreme Courts
    decision in
R. v. Jabarianha
, 2001 SCC 75, [2001] 3 S.C.R. 430, as
    authority that any probative value of a witnesss knowledge of s. 13 of the
Charter
[1]

will generally be overborne by its prejudicial effect and that Crown
    counsel should rarely be permitted to cross-examine on this issue: at para. 18.
    The appellants trial counsel asserted that the Crown had improperly embarked
    on a line of questioning that might be used by the jury to wrongly assess the credibility
    of the appellant and his brother. He argued that a mistrial was not appropriate
    and that a limiting instruction would only highlight the issue.

[10]

The trial judge dismissed the stay motion. He
    concluded that this very, very brief incident caused little or no prejudice
    because of the immediate reaction of the court and counsel to the question so
    that the appellant could not answer the question, the unlikelihood that the
    jury would have understood the basis for the objection, the fact that the jury
    was removed from the courtroom only briefly, and the question having not been
    obviously improper (relying on
Jabarianha
, at para. 27, where the
    Supreme Court recognized that there is a narrow range of cases where such
    questioning might be permissible).

[11]

Shortly after the jury began their
    deliberations, they asked the following question, among others:

The Crown stated that Julian could not be
    charged for admitting the drugs, gun, and money were his. Does Julian get
    immunity or could his testimony be used against him?

[12]

The appellants trial counsel renewed the stay motion,
    on the basis that the jurys question demonstrated that they had indeed heard
    and understood the impugned question, and that it had tainted their assessment
    of the appellants evidence and that of his brother.

[13]

The trial judge again dismissed the motion and
    he provided the following response to the jurys question, which took the form
    of a limiting instruction:

So again a couple of things in answer to that
    question. First of all, I disallowed that question and remember you were sent
    out. And I - I ruled in your absence that it was a - it was a question that
    should never have been asked. As - as a result of which when you came back into
    court the - the Crown just carried on, there was no further mention of it. So,
    thats the first point, I disallowed that question. I said it was an improper
    question and it should never have been asked and it was never answered. You
    remember, I stopped Mr. Graham from answering it as soon as I saw where the
    Crown was going and as soon as Mr. Dimitrijevic objected. So, once again, this
    - this is an area that you should not be venturing into. I stopped the question
    for reasons of law and I am not about to instruct you on some of the very, very
    complex difficult law in this area. It is not an easy area, its a very, very
    complex area of law. So, once again, there is simply nothing before you because
    the question wasnt answered, I disallowed it, Im not going to try to teach
    you what the law is in this area now because in any event there is no evidence
    before you about it from the - and Julian was never questioned about it, as a
    result of my ruling. So once again, this is an area on which you have got no
    evidence and you mustnt try to answer questions that arent before you and go
    down paths that are unnecessary to - to your verdict in - in this case. But
    what I can say to you, and again this is as a matter of law, I am instructing
    you that this whole issue has absolutely no probative value in relation to the
    credibility and reliability of anyones witnesses, on any witness in this
    trial. It simply has no probative value in relation to the credibility and
    reliability of any witness in the trial. And thats why I disallowed it. And it
    would take me a long time to teach you the law in this area but I made a ruling
    that this is not an area that we should be venturing into so please, once again,
    do not concern yourself with matters that are not before you, that you dont
    have a proper factual or a legal basis to consider. It simply has no probative
    value.

[14]

The trial judge explained, in his brief oral
    reasons for dismissing the second stay motion, that although he erred in his
    initial ruling in assuming that the jury had not taken notice of the impugned
    question, the remedy of a forceful instruction to the jury to disregard the
    whole area, with reasons why they should disregard it, was sufficient to remove
    any resulting threat of prejudice.

[15]

The appellant submits that the trial judge erred
    in dismissing his second motion for a stay of proceedings. He renews his
    argument that the Crowns question irreparably tainted the jurys assessment of
    his credibility and that of his brother. In particular, he asserts that there
    was a risk that the jury would have been left with the impression that they
    were not supposed to hear, based on the Crowns question, that Julian Graham
    was immune and was free to claim ownership of the satchel without consequences.
    He asserts that the prejudice identified at paras. 18 and 22 of
Jabarianha
would
    have arisen: that the jury would have shifted their focus from the appellants
    innocence or guilt to the witnesss understanding of the consequences of
    testifying under the limited protection of the
Charter
and they might
    have given improper emphasis to the application of the limited protection of s.
    13.

[16]

The appellant also asserts that the trial
    judges limiting instruction was inadequate to overcome the alleged prejudice:
    instead of instructing the jury that the question was irrelevant, the trial
    judge should have given them the instruction that was considered appropriate in
    this courts decision in
R. v. Swick
(1997), 150 D.L.R. (4th) 566
    (Ont. C.A.), at para. 18.

[17]

We disagree. We see no reversible error in the
    trial judges refusal of a stay of proceedings, in his conclusion that a strong
    instruction was sufficient to alleviate the alleged prejudice, and in the
    content of the instruction that was given.

[18]

A trial judges refusal to grant a stay of
    proceedings is discretionary and entitled to deference unless the trial judge
    misdirects himself or herself or if the decision is so clearly wrong as to
    amount to an injustice: see
R. v. Carosella
, [1997] 1 S.C.R. 80, at
    para. 48. A stay of proceedings is reserved for the clearest of cases when
    other remedies are insufficient to address the prejudice to the accuseds right
    to a fair trial or the integrity of the justice system arising from the
    impugned state conduct: see
R. v. Babos
, 2014 SCC 16, [2014] 1 S.C.R.
    309, at paras. 30-32. A trial judge is well-positioned to assess the impact of
    impugned conduct on a jury and the effectiveness of a remedial instruction: see
R. v. Khan
, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 36.

[19]

In our view, the trial judge was entitled to
    conclude that a strong limiting instruction would cure any potential prejudice
    to the appellant in this case. The trial judge ultimately agreed with the
    appellants submission that the Crowns questioning of the appellant was
    improper and did not fit within the narrow exception for permissible questions
    about a witnesss knowledge of s. 13 of the
Charter
set out in
Jabarianha.
As the appellant was prevented from answering the question, there was no
    inadmissible evidence before the jury. What they required was what they
    received: an instruction in clear terms that the question ought not to have
    been asked, that the whole issue had no probative value in relation to the
    credibility and reliability of any witness in the trial, and that this was not
    an area to be ventured into.

[20]

The appellant asserts that the trial judges limiting
    instruction was insufficient because it did not contain the three components
    referred to by this court in
Swick
. In that case Rosenberg J.A., after
    concluding that it was prejudicial for the Crown to have cross-examined a
    defence witness and the accused on their knowledge of s. 13 of the
Charter
,
    turned to consider an appropriate instruction on the use of the evidence,
    assuming it was admissible. He stated that the jury should have been directed
    that s. 5 of the
Canada Evidence Act
,
R.S.C., 1985, c. C-5, and s. 13 of the
Charter
do not provide immunity
    from prosecution and if other evidence were available, the witness could indeed
    be prosecuted; that counsels suggestions to the witness and the accused
    concerning the
Charter
and their knowledge of its effect had been
    denied and there was no evidence that this motivated the witnesss testimony;
    and that even if there was some evidence that the witness was aware of the
    constitutional protection provided by s. 13 of the
Charter
, this on
    its own was not proof of a conspiracy between the accused and the witness to
    fabricate evidence.

[21]

The instruction referred to by Rosenberg J.A. in
Swick
was tailored to address the particular circumstances of that
    case, where the trial judge had permitted and referred to the extensive
    cross-examination of a defence witness on his understanding of the protection
    provided by s. 13 of the
Charter.
Here, by contrast, there was no such
    evidence because the question was withdrawn and not answered. It would have
    been inappropriate for the trial judge to provide anything other than the
    strong instruction that he gave to the jury to ignore the issue because it was
    irrelevant. If, as the appellant argues, the jury could have been left with the
    impression that Julian Graham
was

immune and thus was free to
    claim ownership of the satchel without consequences, the trial judges strong
    instruction made it clear that anything the jury might have taken from the
    question having been asked was entirely irrelevant to their deliberations.

[22]

In our view, the trial judges response to the
    jurys question effectively addressed any prejudice that might have arisen when
    the impugned question was originally put to the appellant. The strong limiting instruction
    that was provided by the trial judge was informed by and consistent with the
    approach advocated by the appellants trial counsel, who urged the trial judge to
    emphasize to the jury that they must ignore the fact that the question had been
    asked and that the entire subject was irrelevant to the credibility of either
    the appellant or his brother.

[23]

For these reasons the conviction appeal was
    dismissed.

(2)

The Sentence Appeal

[24]

On the appellants sentence appeal he contends
    that the trial judge erred in failing to find that he had proven a mitigating
    circumstance, namely that he had been the victim of historical sexual abuse,
    and in failing to take into account this mitigating factor.

[25]

The appellants mother testified that the
    appellant had told her that he had been sexually assaulted as a child, and she
    provided details of what the appellant said had happened. The appellant did not
    testify at his sentencing hearing, notwithstanding that Crown counsel had
    objected to the hearsay nature of his mothers testimony. He did however start
    to speak about the sexual assault, when he provided his statement pursuant to s.
    726 of the
Criminal Code
, R.S.C., 1985, c. C-46, saying that he had
    told his mother about the assault in confidence, that he wouldve brought it
    to [his] grave, and that he had been affected emotionally and psychologically
    by the abuse. The trial judge interrupted and told the appellant that he was
    not permitted to use his right to make a statement prior to sentencing to start
    testifying about a potential mitigating circumstance.

[26]

There is no error in principle here. The trial
    judge considered the evidence and found that the appellant had failed to prove
    the mitigating factor of historical sexual abuse on a balance of probabilities.
    Although the trial judge acknowledged that hearsay evidence is admissible in
    sentencing proceedings, he gave the appellants mothers evidence little weight
    because it was based entirely on isolated reports from the appellant, who was
    an unreliable witness with a substantial criminal record. The trial judge
    noted that the appellant was clearly disbelieved by the jury and the trial
    judge would have disbelieved him too had he been the trier of fact. He also
    noted that the appellant was present in court and chose not to testify about
    these matters, even after the Crown disputed and objected to the hearsay
    versions of these events. Although the appellant referred to the abuse in his statement
    pursuant to s. 726 of the
Criminal Code
, the trial judge was entitled
    to give this statement, which was unsworn and not subject to cross-examination,
    little or no weight in determining whether the mitigating circumstance of
    historical sexual abuse had been made out.

[27]

For these reasons, although we granted leave to
    appeal sentence, we dismissed the sentence appeal.

S.E.
    Pepall J.A.

K.
    van Rensburg J.A.

David
    Brown J.A.





[1]
Section
    13 of the
Charter
provides: A
    witness who testifies in any proceedings has the right not to have any
    incriminating evidence so given used to incriminate that witness in any other
    proceedings, except in a prosecution for perjury or for the giving of
    contradictory evidence.


