



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ahmed, 2015 ONCA 751

DATE: 20151106

DOCKET: C57601

Feldman, MacPherson and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ahmed Ahmed

Appellant

Russell Silverstein and A. Cooper, for the appellant

John Patton, for the respondent

Heard: September 9, 2015

On appeal from the conviction entered on January 29, 2013
    by Justice Maureen D. Forestell of the Superior Court of Justice, sitting with
    a jury.

MacPherson J.A.:

A.

Introduction

[1]

The appellant Ahmed Ahmed was convicted of attempted murder and
    possession of a loaded restricted firearm following a jury trial.

[2]

The appellant testified at the trial. His testimony in chief was quite
    brief. Crown counsel conducted a lengthy cross-examination. The appellant
    contends that, in one major respect, the cross-examination was completely
    unfair and amounted to trial by innuendo. His principal ground of appeal is
    that the trial judge erred by permitting the challenged line of questions.

B.

Facts

(1)

General

[3]

The appellant and the victim, Donovan Brooks (widely known in the
    community by his nickname Debo), had been acquaintances for several years. They
    were both long-term residents of Lawrence Heights, a neighbourhood located in
    North York.

[4]

The appellant and Brooks attended a bar the night before the shooting.
    The next day, September 25, 2011, Brooks learned that he was accused of taking
    something from the appellant. He decided to go to the Juice Bar, a local
    meeting place, with his younger brother Ryan Malcolm to try to clear his name.

[5]

At approximately 6:00 p.m., someone shot Brooks several times at close
    range, hitting his arm, chest, back and pelvis.

[6]

Brooks survived and identified the appellant as the shooter. He
    testified to this effect at the trial.

[7]

Malcolm made a video statement to police shortly after the shooting,
    saying that he had never seen the shooter before. At trial, Malcolm changed his
    story and identified the appellant as the shooter. He testified that he did not
    tell the truth until the trial because of the dangers of being a snitch in
    the Lawrence Heights neighbourhood plus a threat he received to discourage him
    from testifying.

[8]

Brooks girlfriend, Sophia Lindsay, was not present at the shooting.
    However, she testified that she was approached by the appellant at a mall about
    six weeks later. She testified that the appellant apologized for shooting
    Brooks and said that he was mistaken in thinking that Brooks had stolen his
    gun.

[9]

The appellant testified that he was not at the Juice Bar on September
    25, 2011 and he did not shoot Brooks.

(2)

The cross-examination of the appellant

[10]

During
    his examination in chief, the appellant was asked how he became aware that
    Brooks had been shot:

Q.      Do you know how  describe for us the circumstances, if
    you know, of how you became aware that Donovan Brooks or Debo had been shot?

A.      Um, Im guessing somewhere around that time, early
    October, whatnot, I received, like a text message. I dont know. But I guess a
    couple of days after it might have happened, I guess it happened whatever, I
    received a text message, a BBM broadcast, a Blackberry broadcast message. Its
    just broadcasted by all your friend list or whatnot, right? And said, um, a
    shooting had happened in Lawrence Heights.

Q.      Did it tell you who was involved in the shooting?

A.      No. Well, let me get to it first.

Q.      Sorry, I interrupted you.

A.      I cant remember who exactly I texted back, but
    basically the  I dont know if everybodys familiar with a BBM.

Q.      Why dont you tell us.

A.      Okay. Its a broadcast message. Basically, everybody on
    your friend list, you just send it, like, you write a message and you send it
    to your friend list. So it was  I was getting them from random people. So I
    text back one of the people, Im like, What happened? And they said shooting
    happened. I said, What happened? Um, Debo had gotten shot. I said, Oh, okay.
    Thats crazy.

[11]

The
    Crown engaged in a lengthy cross-examination of the appellant. He singled out
    this portion of the appellants testimony for special and protracted attention.
    His goal was to challenge the appellants credibility by establishing that it
    was unlikely that the appellant only heard about the shooting a couple of days
    after it might have happened. His route to reach this goal was to ask the
    appellant about several other shootings in the Lawrence Heights neighbourhood
    and how he had come to know about them.

[12]

The
    Crown started this line of questioning almost immediately. His sixteenth question
    to the appellant was: Do you know someone named Trooper? The appellant
    answered No. The cross-examination continued:

Q.      You know youre under oath, right?

A.      Yes, I do.

Q.      Do you know someone named Trooper?

A.      As of right now?

Q.      No, did you ever know someone named Trooper?

A.      Did I know him or did I hear of him?

Q.      Did you know him. Or know of him.

A.      Yes, I did. Theres different Troopers. The name
    Troopers used, like, a lot of different people have the same nicknames.

Q.      Whos the Trooper you were aware of?

A.      Um, Trooper, he passed away.

Q.      Hes dead.

A.      Yes.

Q.      When did you last see him?

A.      I dont know. Like 2006 maybe?

Q.      2007?

A.      Maybe 2007. Yes.

Q.      How did Trooper die as far as you know?

A.      He was shot, is what I heard. Yeah.



Q.      And where were you when Trooper was shot?

A.      I dont know.

Q.      You dont remember?

A.      That is  no. I dont.

Q.      You said you heard he got shot.

A.      Yes.

Q.      Where were you when you heard that? Or how did you hear
    about it?

A.      I heard about it through the community. Through the
    Yelp Program. I came to work the next day and I heard a shooting had happened
    in the neighbourhood and he was shot.

Q.      And you knew of Trooper?

A.      Knew of him? Like, yeah. I used to see him around.

Q.      Did you hang out with him?

A.      No.

Q.      Did you chill with him?

A.      No.

Q.      Did you see him at the Juice Bar ever?

A.      No.

Q.      But youve been to the Juice Bar many, many times.

A.      Correct.

Q.      Never saw Trooper there?

A.      No.

[13]

The
    Crown moved off to other topics, but then returned to Trooper:

Q.      Do you remember when Trooper was shot? Im just asking
    you if you remember when Trooper was shot.

A.      No, not exactly. Exact date, no.

Q.      How long did you know Trooper?

A.      Not for long.

Q.      Approximately.

[14]

Defence
    counsel interceded to challenge the relevance of this line of questioning. The
    trial judge asked the jury to retire and she and both counsel discussed the
    issue:

THE COURT:        [Crown], what relevance are these questions
    about Trooper being shot?

[CROWN]:             Im trying to assist him in recalling the
    time-frame of when he left the country, when he came back, what employment he
    was doing at the time.

THE COURT:        What does the shooting of Trooper have to do
    with any of that?

[CROWN]:             Well, its obviously an event that he
    remembers. Hes already told us that.

THE COURT:        It appears to me to be coming dangerously
    close to insinuating that he was involved in the shooting of Trooper in light
    of the number of times youve gone back to it.



[CROWN]:             He clearly has a recollection of that
    incident. I expect he is going to have a recollection of some other significant
    incidents in the community, and then Im going to follow up with his
    recollection of this incident.

THE COURT:        Why?

[CROWN]:             Sorry? Why what?

THE COURT:        Why? Why is this incident important? I dont
    understand the relevance.



[CROWN]:             Im testing his recall of a particular
    time-frame and pivotal events that would assist him in recalling that
    particular time-frame, and then Im going to move on to do the same with
    respect to our case.

[15]

At
    this point, defence counsel joined the exchange:

[DEFENCE]: I always endeavour to give opposing counsel the
    benefit of the doubt if I hear a cross-examination in an area Im assuming that
    there may be some means by which it could be tied together, made relevant to
    this case. I say with the greatest of respect to my friend, this
    cross-examination has nothing to do with anything in this case. It is character
    assassination. It is insinuation. That is all it is. It is very regrettable my
    friend is going down this road and I am respectfully asking Your Honour to put
    a stop to it. Lets get on with the issues that are relevant to this case, not
    the shooting of someone he knows. The very fact that he knows people who get
    shot is arguably prejudicial. Its got nothing to do with this case. Its
    extremely unfair.

[16]

At
    this juncture, the trial judge ruled that the Crown could not ask the appellant
    any more questions about Trooper:

THE COURT:        All right. I see no reason that the shooting
    of someone named Trooper is relevant to any issue in this trial. There is
    clearly a danger that it will be used by the jury to draw some sort of adverse
    inference from Mr. Ahmeds association with this person who was shot. If you
    wish to assist him in recalling a time-frame, I am confident that there are
    many other events that you can refer to other than the shooting of Trooper, so
    I am ruling that you cannot return to this area.

[17]

Before
    the jury returned, counsel and the trial judge continued to discuss the
    parameters of the Crowns cross-examination of the appellant. The Crown stated
    that areas he proposed to cover included the appellants employment history,
    his criminal record, and his recollection of events in the community. Defence
    counsel objected, saying asking about other people and if he knows what other
    people are doing or other events that have occurred, it is completely
    irrelevant, completely inappropriate and I urge Your Honour to  stop it in its
    tracks before any harm is done.

[18]

The
    trial judge reminded counsel of her ruling just minutes before:

THE COURT:        All right. So that its clear, Ive already
    ruled about the shooting of Trooper. Absent a ruling from me, I would expect
    that you would not be asking Mr. Ahmed about other people he knows who have
    been shot.

[19]

The
    Crowns immediate response was: Well, then we might as well deal with that
    now. He expanded on his reasons for wanting to ask the appellant questions
    about previous shootings in the community:

[CROWN]:             And likewise, when other people are shot,
    everybody knows about it and its also a marker for someones memory in terms
    of comparing and contrasting what they were doing in terms of assisting them in
    recalling events from several years ago. So if I asked him specifically about
    certain individuals being shot, hes going to remember it. Everybody would
    remember it who knew of the person, and that recollection, in my respectful
    submission, is something that can be compared and contrasted with certain
    components of his evidence here in which he claims to recall and not recall.
    And in my submission, thats a fair comparison and an area that I must explore
    in terms of this set of facts.

[20]

Defence
    counsel countered:

[DEFENCE]: Your Honour, if I may? Cross-examine him all  my
    friend can cross-examine the witness all he wants about his recollection of
    these events and how he came to become aware of people having been shot and
    what efforts he made to recollect what he may have been doing earlier on, but
    whatever probative value it may have asking him about other events in the past
    where other people have been shot, and Im not sure it has much probative value
    at all on that issue, surely, Your Honour, the prejudicial effect of doing that
    far outweighs. And to engage in that character assassination, asking about all
    the people he knows who have been shot is, in my submission, Your Honour,
    nothing other than a way to insinuate to the jury that Mr. Ahmed is involved in
    a violent subculture and criminal underworld. That is the only impression that
    could be left.

It is completely an improper thing to do, in my submission,
    when asked about the reality of how the jury is going to perceive this. In my
    submission, thats exactly why its being done. Not to test his recollection at
    all.

[21]

The
    trial judge then made her ruling:

THE COURT:        [S]o Ill deal with the issue thats before
    me now which, as I understand it, is whether or not the Crown can ask Mr. Ahmed
    about his knowledge of other shootings in the community with a view to testing
    his recollection of how he heard about them and where he was when he heard
    about them in order to contrast that to his recollection of how he heard about
    this shooting, where he was when he heard about the shooting. Within that very
    limited area, Im going to permit the question. However, if it is repetitive or
    goes into detail about his relationship with the person who was shot, I will
    not permit it and I will stop the questioning before the jury.

So the context, the relevance as I see it, is only to test his
    recollection of where he was and how he heard about other shootings within the
    community of people he knew of. In other words, people he was familiar with.



I want to be clear that the nature of his relationship and the
    familiarity with the people is not a relationship you are entitled to explore
    in any way. Just that he knew of the person that was shot and how and when he
    heard of the shooting so as to make the comparison with when and how he heard
    about this shooting. But the nature of the relationship is not permissible.

[22]

Following
    this ruling, after testing the appellant on his recall of other events, the
    Crown briefly returned to Trooper.

[23]

The
    Crown then cross-examined the appellant at length about how he had heard about
    the shooting of Brooks.

[24]

The
    Crown turned to the appellants memory of other shootings in the neighbourhood.
    In quick succession, the Crown questioned the appellant about his knowledge of the
    shootings of three other people familiar to him.

[25]

The
    first set of questions related to a young man named Raucous:

Q.      Someone named Raucous. You know Raucous? Or know of
    Raucous?

A.      Yeah, um, yes, I do. He was my next door neighbour. I
    lived in 82 Pengarth, he lived in I think next door, so it would be 78 or 80.
    Yeah.

Q.      And did you know his name? His real name?

A.      Dale.

Q.      Last name?

A.      No. I dont know his last name. I know him, his first
    name, because I somewhat grew up with him. Like, my mother knows his mother,
    his mother lived right next door. Theres not even a fence separating us,
    right? I could hear when his parents are arguing, he could hear when mine are
    arguing. Yeah.

Q.      And he got shot. I take it you remember when that
    happened.

A.      Im guessing 2010 if youre bringing it up like that.

Q.      Do you remember where you were when you heard that he
    got shot?

A.      No. The reason I remember he got shot is because I know
    it was a little bit after I have returned back from Dubai in 2010, then a few
    weeks later, or a month later, somewhere around those lines, he got shot.

Q.      You remember hearing about it?

A.      Yeah. I remember being in the  it happened in Baget
    Court (ph) I think. I remember being in the court the next day and some mother
    telling me, Oh, somebody got shot here yesterday. I said, Okay.

Q.      Do you remember clearly that day? How you found out?
    That person telling you?

A.      The next day?

Q.      Because thats one that stood out because you knew who
    that person was, right? I mean, thats not one of the 

A.      Its different. Its not because  I dont know him
    like that but hes my neighbour, so even though we had age difference, I think
    he is at least four years older than me, right? So hes still my neighbour.
    Hes my next door neighbour for ten years. I would remember if my next door
    neighbour for ten years something happened. Even if me and him werent that
    close. Im actually more closer to his sister than I was to him because his
    sisters around my age group.

Q.      Was he killed or just shot?

A.      From what I think he was just shot.



Q.      Raucous wasnt a close friend, correct?

A.      Raucous was my next door neighbour. I used to see him
    frequently and maybe if I hadnt been there the same location that his shooting
    happened, the next day, I may not have known the next day. I may 

Q.      But whenever you found out youre going to remember,
    man, Im going to remember my neighbour got shot.

A.      My ex-neighbour, yeah.

Q.      But youre going to remember?

A.      I found out the next day because the lady was in the
    location it happened.

[26]

The
    second set of questions related to a young man named Ibrahim James:

Q.      Mr. James, Ibrahim James, you know him, right?

A.      Yeah, I do.

Q.      Friend of yours?

A.      Im a  his brothers a close friend of mine. He has a
    big family.

Q.      Cosmo James is his brother?

A.      Yeah, Cosmo James. He has a couple of brothers. A bunch
    of brothers. I know the whole James -

Q.      And 

A.      Sorry. I know the whole James family.

Q.      How long have you known Ibrahim?

A.      Well, I knew him since Lawrence Heights. Hes two years
    younger than me but I started seeing him around more and more since our age
    group  our age difference came closer, so Im 22, hes 20 now, were both of
    the same mental state, so I start seeing him more around, say about 2009.

Q.      Do you recall Ibrahim getting shot?

A.      Ah, yeah.

Q.      How did you hear that Ibrahim had been shot?

A.      I was, um, in custody for an unrelated matter than this
    and I was  I heard through either phone call, I called somebody and they said
    that Ibrahim got shot. I seen it on the news. I seen him on the stretcher. And
    it looked just like him and I heard after I was talking on the phone, and said,
    Oh, Ibrahim got shot.

[27]

The
    third set of questions related to a young man named Jessie Israzella:

Q.      Jessie Israzella (ph)?

A.      Yes.
He I believe got shot the
    same day as Ibrahim. It was Jessie Israzella, Ibrahim and another fellow.

Q.      How long have you known Jessie?

A.      Same amount of time from school days. From middle
    school.

Q.      And I take it you heard about his shooting at the same
    time?

A.      The same exact time.

Q.      And thats something pretty memorable to you, isnt it.

A.      Yeah. Well, those guys are, me and him are cool, you
    know? Were the same age group, we went to the same schools, we were in the
    same classes in high school, you know?

[28]

Following
    these questions about how the appellant heard about four previous shootings in
    the neighbourhood, the Crown returned to how the appellant heard about the
    Brooks shooting:

Q.      Where were you when you received the text message or
    BBM that you say you received advising you that Debo had been shot?

A.      I honestly cannot remember exactly. Ah, I believe I was
    on the road somewhere. I know I was in a vehicle. I just cant remember
    exactly, like, I cant remember. No.



Q.      The only thing you can tell us about that - receiving
    that information is that you were somewhere in a car?

A.      Yes.

Q.      Anybody in the car with you?

A.      No.

Q.      Where were you?

A.      I cant remember exactly. It was just a given day to
    me. Like, yeah. It was just a random, given day to me. Thats like me asking
    you where were you March 1, 2003 at 1:00 p.m.? Like, what do you want me to
    tell you?

[29]

During
    a break with the jury out of the courtroom, defence counsel objected again to
    the line of questioning about how the appellant heard about other shootings in
    the neighbourhood:

Your Honour, most of us managed to go through our whole lives
    without getting shot. People that get shot are involved in criminal activity
    and illicit activities and if you keep allowing this to happen, its nothing
    other than a character assassination. My concern is that its already happened.
    This is not right. This is trial by innuendo.

[30]

The
    trial judge asked the Crown if he intended to ask more questions about other
    shootings. The Crown said: There might be one or two more. He then reduced it
    to one because the one that remains is one that I think in terms of the
    recollection is probably the most distinct.

[31]

The
    trial judge ruled against the Crown and closed off this line of questioning:

I have permitted this line of cross-examination in order for
    you to be permitted to test the recollection of Mr. Ahmed as to where he was
    when he heard of shootings of people he knew or knew of to draw the comparison
    to where he was and his lack of recollection with respect to this shooting.
    That has been done at length now and I did permit you to do it. I am concerned
    that to go further would amount to trial by innuendo as a result of this
    knowledge of various people who were shot. In my view, theres more than enough
    in terms of the testing of his recollection of knowledge of  recollection of
    shootings at this point without any further reference to shootings.

[32]

In
    his closing address to the jury, defence counsel addressed the other
    shootings issue twice:

I was a little bit concerned during the course of [Crown
    counsels] cross-examination that there was too much of an emphasis on
    unrelated incidents in Mr. Ahmeds past, particularly his knowledge of
    individuals who may have been involved in shootings, whether he knew of them or
    knew them at all, and I was concerned that Your Honour  that you may get
    caught up in this whole notion that I was trying to urge you to avoid when I
    delivered my opening remarks. This is not trial by innuendo, insinuation or
    suspicion, and its certainly not trial on the basis of what kind of life-style
    Mr. Ahmed leads or who his friends may be. Im sure a lot of people growing up
    in the Lawrence Heights area are exposed to people that people growing up in
    other neighbourhoods are not exposed to. It doesnt mean anything in your
    deliberations here.



As I already mention I had dont mean to be unduly critical of
    [Crown counsel]. There were areas of his cross-examination, perfectly
    legitimate areas to explore with Mr. Ahmed, but in my submission dealt too much
    with people he knows in the community and people who may have been shot and it
    was  came across as an effort to try and leave innuendo, suggestions,
    insinuation, that this is a bad guy and you shouldnt believe anything he says.
    The evidence doesnt bear that out.

[33]

In
    his closing address, the Crown challenged the appellants testimony that he
    could not remember where he was the day Brooks was shot because it was just
    like any other day. However, the Crown did not refer to his cross-examination
    of the appellant about how he heard about the other four neighbourhood
    shootings. He did not use this line of questioning to challenge the appellants
    credibility about when he heard about the shooting of Brooks in his closing.

[34]

The
    trial judge said nothing specific in her jury charge about the questions and answers
    relating to the other four neighbourhood shootings. She did provide the
    standard caution:

You should not speculate about whether Mr. Ahmed is or is not
    the sort of person who would commit this type of offence. You have no evidence
    on this point either way. There is good reason for this. This type of
    consideration should play no part in your decision-making process.

(3)

The verdict

[35]

The
    jury found the appellant guilty of attempted murder and possession of a loaded restricted
    firearm. The trial judge entered the convictions and imposed a global sentence
    of 13 years imprisonment.

[36]

The
    appellant appeals his convictions.

C.

Issues

[37]

The
    appellant raises four issues on the appeal:

(1)

Did the trial judge
    err by permitting the Crown to cross-examine the appellant about his
    recollections of four other shootings in the Lawrence Heights neighbourhood?

(2)

Did the trial judge
    err in permitting Ryan Malcolm to testify about the threat he received not to
    testify?

(3)

Did the trial judge
    err in her response to a jury question requesting Ryan Malcolms video
    statement to police?

(4)

Did the trial judge
    err in her response to a jury question about the meaning of the phrase lack of
    evidence?

D.

Analysis

(1)

The cross-examination of the appellant

[38]

Obviously,
    if the accused in a criminal trial takes the stand and testifies in his or her
    own defence, the cross-examination by the Crown can potentially be a pivotal
    moment.

[39]

In
    approaching and conducting the cross-examination of an accused, the Crown must
    be particularly vigilant about balancing the dual roles of the Crown  strong
    advocate and quasi-judicial role as minister of justice. In a well-known and
    often quoted passage in
Boucher v. The Queen
, [1955] S.C.R. 16 at
    23-24, Rand J. described this dual role:

It cannot be over-emphasized that the purpose of a criminal
    prosecution is not to obtain a conviction, it is to lay before a jury what the
    Crown considers to be credible evidence relevant to what is alleged to be a
    crime. Counsel have a duty to see that all available legal proof of facts is
    presented: it should be done firmly and pressed to its legitimate strength but
    it must also be done fairly. The role of prosecutor excludes any notion of
    winning or losing; his function is a matter of public duty than which in civil
    life there can be none charged with greater personal responsibility. It is to
    be efficiently performed with an ingrained sense of the dignity, the
    seriousness and the justness of judicial proceedings.

[40]

Broadly
    speaking, there are two categories of potentially improper cross-examination of
    an accused.

[41]

The
    first category involves the way the Crown treats the accused during a
    cross-examination. The Crown cannot harass the accused, engage in sarcasm, seek
    to demean the accused, or punish the accused for invoking his or her
    constitutional rights: see
R. v. R. (A.J.)
(1994), 20 O.R. (3d) 405
    (C.A.), at 412-13. This category of prosecutorial misconduct is not in play in
    this appeal. The appellant does not, and could not, suggest that the Crown
    mistreated the appellant during the cross-examination.

[42]

The
    second category of potentially improper cross-examination of an accused can be
    approached as an admissibility of evidence issue. It involves questions that
    have the potential to elicit answers that are improperly prejudicial to the
    accused. This is the category in play in this appeal. The Crown sought to introduce
    evidence of the appellants recollection of when he heard about previous
    shootings of people known to him.

[43]

In
    this second category, there are important boundaries to the right to
    cross-examine. The most relevant boundaries were succinctly summarized by Cory
    J. in
R. v. Osolin
, [1993] 4 S.C.R. 595 at 665:

Despite its importance the right to cross-examine has never
    been unlimited. It must conform to the basic principle that all evidence must
    be relevant in order to be admissible. In addition the probative value of
    evidence must be weighed against its prejudicial effect.

See also
R. v. Lyttle
, 2004 SCC 5, [2004] 1
    S.C.R. 193, at para. 44.

[44]

I
    turn to the relevance/probative value/prejudice analysis.

[45]

The
    threshold for relevance is not a high one. For the evidence to be relevant, it
    must increase or diminish the probability of the existence of a fact in issue
    there is no minimum probative value for evidence to be relevant:
R. v. Arp
,
    [1998] 3 S.C.R. 339, at para. 38.

[46]

When
    the Crown first started to cross-examine the appellant about his knowledge of
    other shootings (through Trooper), the trial judges immediate reaction was
    what relevance are these questions about Trooper being shot? After hearing brief
    submissions from counsel, she ruled against the Crown, saying I see no reason
    that the shooting of someone named Trooper is relevant to any issue in this
    trial.

[47]

After
    hearing further submissions, the trial judge changed her mind and permitted
    this line of questions, albeit with constraints. On the issue of relevance, she
    said:

So the context, the relevance as I see it, is only to test his
    recollection of where he was and how he heard about other shootings within the
    community of people he knew of. In other words, people he was familiar with.

[48]

Although
    I incline to the view that the trial judges initial instinct that the proposed
    line of questions was irrelevant was correct, in light of the low bar set in
Arp
I am not prepared to say that the trial judge erred in reaching a different
    conclusion in her second ruling. There was a remote (I put it no higher)
    potential connection between the appellants memory about how he heard about
    the shooting of Brooks (an acquaintance in the neighbourhood) and his memory
    about how he heard about the shooting of other people he knew in the
    neighbourhood.

[49]

Turning
    to probative value, the Crowns position was that it sought to elicit the
    evidence about the appellants memory of other neighbourhood shootings in order
    to impugn his credibility with respect to his recall of events relating to the
    Brooks shooting.

[50]

It
    appears that the Crowns argument on the probative value of the evidence was
    based on two assumptions: (1) events of similar significance will create
    memories of similar detail; and (2) if similarly significant events are not
    recalled with similar levels of detail, the witness testimony is not credible.

[51]

I
    have difficulty with these assumptions. The process by which people remember
    events is largely unknown. It varies from person to person. Indeed, it probably
    varies within a single persons experience. I do not think it can be said that,
    as a matter of course, just because an event is significant, a person will
    remember that significant event in the same way or detail as other similar
    significant events.

[52]

In
    addition, it is also difficult to determine what makes an event significant in
    a persons mind, thereby theoretically causing him to remember the event more
    clearly. Thus, although a person might remember different shootings, it is not
    necessarily true that each would hold equal significance in his mind.

[53]

In
    the end, against the backdrop of evidence that Brooks was an acquaintance of
    the appellant and the appellants testimony about how and when he heard about
    the shooting of Brooks, there was potentially some probative value in
    comparison with the appellants memory of other shootings in the neighbourhood.
    However, in light of the factors discussed above, I would describe the
    potential probative value as very low.

[54]

I
    turn to the question of prejudice. There are two types of potential prejudice,
    reasoning prejudice and moral prejudice: see
R. v. Handy
, 2002 SCC 56,
    [2002] 2 S.C.R. 908.

[55]

Prejudice
    can arise where evidence creates a distracting side issue. This can create a
    risk of reasoning prejudice.  In
R. v. D. (L.E.)
, [1989] 2 S.C.R. 111
    at 128, Sopinka J. noted that where [t]he jury members attention is deflected
    form the main purpose of their deliberations, which is the transaction
    charged, there is a danger that they will render a verdict that is based on
    prejudice. In
D. (L.E.)
, similar fact evidence was in issue; however,
    the concern applies in the context of bad character evidence as well. When a
    jurys attention is on the bad character evidence, it is deflected away from
    its main purpose, the transaction charged.

[56]

In
    the case of a cross-examination of an accused, as here, the risk of prejudice
    is heightened. It is for this reason that the Crown is not permitted to attack
    the character of the accused. There is a danger that if the jury hears about
    the bad character of the accused, they will not only use that evidence to
    assess the accuseds credibility, but will go further and find that the accused
    is a bad person who is more likely to have done the bad thing he is accused of
    doing. Allowing the jury to draw that impermissible inference would constitute
    moral prejudice.

[57]

Both
    types of prejudice are potentially engaged here.

[58]

In
R. v. Ejiofor
(2002), 5 C.R. (6th) 197 (Ont. C.A.), this court
    considered a situation similar to the one in this appeal. The accused was
    convicted of importing cocaine and possession for the purpose of trafficking.
    During the trial, the Crown cross-examined the accused about two of his friends
    who were drug importers and dealers. The appeal was allowed. Doherty J.A. said,
    at para. 11:

There was a real risk of significant prejudice to the appellant
    flowing from the improper questions put by Crown counsel.  A firm
    instruction from the trial judge was required.  He should have told the
    jury that it should never have heard the evidence concerning the convictions of
    Mr. Okeke and Mr. Azukakwu, and he should have specifically told them that they
    must guard against drawing any adverse inference against the appellant because
    of his association with these two persons.

[59]

The
    evidence in this appeal may not be as directly prejudicial as in
Ejiofor
where the accuseds associates were criminals. Here, the appellants friends
    and acquaintances were shooting victims in the appellants neighbourhood.
    However, in my view there is a common sense reality here, a reality well-stated
    in defence counsels argument against permitting the impugned line of
    cross-examination:

And to engage in that character assassination, asking about the
    people he knows who have been shot is nothing other than a way to insinuate to
    the jury that Mr. Ahmed is involved in a violent subculture and criminal
    underworld. That is the only impression that could be left.

[60]

In
    my view, the prejudice caused to the appellant by the cross-examination related
    to his familiarity with neighbourhood shootings was very high. I say this for
    four reasons.

[61]

First,
    I agree with defence counsel, with the trial judges initial ruling, and with
    her final ruling. There was a real risk that the Crowns proposed line of
    questioning would cause the trial to unravel into one of innuendo and
    insinuation.

[62]

Second,
    Crown counsel overcooked his cross-examination in this domain. The appellant
    testified. His examination-in-chief lasted 24 minutes (17 pages of transcript).
    It was very simple. He denied being at the Juice Bar the evening Brooks was
    shot.

[63]

The
    cross-examination of the appellant was conducted over two days and lasted more
    than two and a half hours (103 pages of transcript). A substantial amount of
    this cross-examination dealt with the four neighbourhood shootings and the
    appellants knowledge of them. These four shootings were a pervasive black
    cloud that stalled over the trial for a long period of time.

[64]

Third,
    compliance with the trial judges admonition in her second ruling that Crown
    counsel could not explore the appellants relationship with the shooting
    victims proved impossible. In order for the appellant to answer questions about
    his knowledge of the shootings, it was only natural that he would explain, sometimes
    in detail, his relationship to the four shooting victims. Indeed, Crown counsel
    asked about the appellants relationship to the shooting victims more than
    once. It was not long into the cross-examination before the jury learned that
    the appellant was, in order, an acquaintance, a next door neighbour, a
    long-time friend, and another long-time friend of the four victims.

[65]

Fourth,
    the prejudicial effect of the Crowns questions increased with each additional
    neighbourhood shooting raised. The appellant was asked about where he was and
    how he learned about the shootings of four different people with whom he was acquainted.
    The subject matter and duration of these questions increased the risk that the
    jurys attention would be deflected from the principal issue at hand  whether
    the accuseds testimony was credible in the face of the Brooks/Malcolm/Lindsay
    testimony. The appellants close (three people) or occasional (one person)
    association with people who had been shot in his neighbourhood invited the impermissible
    inference that the appellant was associated with people engaged in crime. And
    that had the potential to lead to the impermissible inference that the
    appellant was also engaged in crime and was, therefore, more likely to commit
    the crime with which he had been charged.

[66]

I
    make a final point. The cross-examination of the appellant about his knowledge
    of four previous neighbourhood shootings was unnecessary, in three respects.

[67]

First,
    as the trial judge stated in her initial ruling prohibiting this line of
    questioning:

If you wish to assist him in recalling a time-frame, I am
    confident that there are many other events that you can refer to other than the
    shooting of Trooper.

[68]

In
    fact, Crown counsel cross-examined the appellant, albeit briefly, about his recollection
    of his first job after finishing high school. He even asked the appellant, is
    that a distinct event in your memory? You recall it clearly? Crown counsel
    also asked the appellant questions about his memory of events at a bar the
    night before the shooting when a police raid shut the place down. In short,
    there were many other significant events, besides four neighbourhood shootings,
    available to test the appellants memory.

[69]

Second,
    in his closing address the Crown did not refer to his cross-examination of the
    appellant about how he heard about the other four neighbourhood shootings.

[70]

Third,
    and more broadly, the Crown case against the appellant was very strong. The
    shooting victim survived and identified the appellant as the shooter. The
    victims brother, an eyewitness, identified the appellant as the shooter. The
    victims girlfriend testified that the appellant apologized to her for shooting
    the victim. In short, the Crown had put in a good, and fair, case. Against this
    backdrop, a lengthy and unfair cross-examination of the appellant was not only
    wrong; it was unnecessary.

[71]

For
    these reasons, I conclude that the prejudice occasioned by the fact and manner
    of the Crowns cross-examination of the appellant outweighed its probative
    value. I would allow the appeal on this ground.

(2)

The other grounds of appeal

[72]

In
    light of the result reached on the first ground of appeal, it is not, strictly
    speaking, necessary to address the other three grounds of appeal and I do not
    propose to do so in any detail. However, for the sake of completeness, I record
    that I do not agree with the appellants submissions on those three grounds of
    appeal.

[73]

On
    the issue of Ryan Malcolms testimony about receiving a threat about being a
    witness at the trial, the trial charge instructed the jury:

I am now going to move to another area. There was some evidence
    that you heard that can only be used for a limited purpose. The evidence that
    Ryan Malcolm received a message from his friend and that the friend said came
    from Bubbs, and that he perceived as a threat, can only be used to assess the
    state of mind of Mr. Malcolm and to test the credibility of Mr. Malcolms
    testimony. This evidence cannot be used in any way against Mr. Ahmed.

I agree with this instruction.

[74]

I
    make one observation on the jury question issue. The jury asked this question:
    Please provide the Ryan Malcolm police statement video which we watched in
    court. The trial judge declined: I cannot provide to you the video of the
    police statement because it is not an exhibit in the trial. She did offer to
    provide the jury a readback of Malcolms evidence. The jury did not take up
    this offer. In light of this scenario, if at the re-trial Malcolm is again a
    witness and is cross-examined about his police video statement, counsel should
    consider whether to request that it be entered into evidence and marked as an
    exhibit.

(3)

Proviso

[75]

The
    Crown contends in its factum that the proviso in s. 686(1)(b)(iii) of the
Criminal
    Code
should apply: There is no reasonable possibility that the verdict
    would have been different if the alleged errors, or any combination of them,
    have been made out. There has been no substantial wrong or miscarriage of
    justice.

[76]

I
    disagree. In
R. (A.J.)
, Doherty J.A. said, at 417:

The improper and prejudicial cross-examination by Crown
    counsel, however, overtakes the effect of the non-direction. The
    cross-examination destroyed the necessary appearance of fairness in the trial
    and resulted in a miscarriage of justice. The strength of the Crowns case
    becomes irrelevant in determining the appropriate disposition and s. 686(1)(
b
)(iii)
    has no application. The miscarriage of justice lies in the conduct of the
    proceedings and not in the verdict arrived at by the jury. [Citations omitted.]

[77]

Similar
    reasoning and a similar result are required in this appeal. An accused has the
    right to a fair trial. The appellant testified. He denied the offence and that
    he was at the Juice Bar that evening. When a cross-examination of an accused
    creates unfair prejudice, as in this case, the accused is deprived of that
    right. An error that deprives the accused of the right to a fair trial
    constitutes a miscarriage of justice. Having found that the cross-examination
    created unfair prejudice, it would be inconsistent to find that there was no
    miscarriage of justice:
Fanjoy v. The Queen
, [1985] 2 S.C.R. 233 at 240;
R. v. C.(W.)
(1990), 54 C.C.C. (3d) 37 at 39 (Ont. C.A.).

[78]

Applying
    the proviso in this case would undermine the administration of justice by
    suggesting that a conviction should be upheld notwithstanding an error that
    significantly impacted the fairness of the trial. The Crowns submission that
    the verdict would have been the same because of the strength of the case
    against the appellant ignores the possibility that the accuseds evidence, without
    the unfair cross-examination, could have raised a reasonable doubt. It
    therefore misses the point. The strength of the Crowns case is irrelevant when
    a prejudicial cross-examination of the accused undermines the fairness of the
    trial.

E.	DISPOSITION

[79]	I would allow the appeal and order a new trial.

Released: November 6, 2015 (K.F.)

J.C. MacPherson J.A.

I agree K. Feldman J.A.

I agree B.W. Miller J.A.


