R. v. Ghorvei

R. v. Ghorvei Collection Decisions of the Court of Appeal Date 1999-09-09 Docket numbers C27529 Judges Weiler, Karen Merle Magnuson; Charron, Louise Vivianne; Goudge, Stephen Thomas Subject Criminal Decision Content DATE: 19990909 DOCKET: C27529 COURT OF APPEAL FOR ONTARIO WEILER, CHARRON and GOUDGE JJ.A. BETWEEN: ) ) Alan D. Gold HER MAJESTY THE QUEEN ) and Karen Unger ) for the appellant Respondent ) ) - and - ) Beverly Wilton ) for the respondent MOHAMMED GHORVEI ) ) Heard: May 3, 1999 Appellant ) ) On appeal from his conviction by Madam Justice S. Chapnik, sitting with a jury, on October 26, 1994 CHARRON J.A.: [1] Following a trial by judge and jury, the appellant was convicted of trafficking in heroin, possession of heroin and breach of recognizance and was sentenced to a total term of imprisonment of four and a half years. He appeals his conviction and seeks leave to appeal his sentence. [2] The offence of trafficking relates to the appellant’s participation in a street sale of a quantity of heroin on May 5, 1994. An exchange of drugs and money between Nemat Abdi, a friend of the appellant's, and Charles Parker was observed by Constable Torben Nielsen, a member of the Metropolitan Toronto Police Force. Constable Nielsen also saw the appellant drive Mr. Abdi to the scene and wait for him in the car while Mr. Abdi walked a short distance away to meet with Mr. Parker and effect the transaction. [3] The offence of possession of heroin relates to drugs found in the appellant’s possession when he was arrested by Constable Nielsen at Mr. Abdi’s apartment on May 11, 1994. At the time of his arrest, the appellant was also found in possession of a pager in contravention of one of the terms of a recognizance that the appellant had entered into in relation to another charge. [4] The appellant raises three grounds in support of his conviction appeal. [5] First, the appellant submits that Constable Nielsen did not have reasonable and probable grounds to arrest him without a warrant on May 11, 1994. Consequently, he argues that the drugs and the pager were found as a result of an illegal search in contravention of his s.8 Charter rights and that this evidence should be excluded pursuant to s.24(2) of the Charter. [6] Second, the appellant submits that Crown counsel's cross- examination of him was improper and resulted in an unfair trial. [7] Third, the appellant seeks leave to introduce fresh evidence relating to Constable Nielsen’s credibility. He submits that, if this evidence had been available at trial, it would have been admissible for the purpose of cross-examining Constable Nielsen. He argues further that, because the verdicts in this case are dependent upon Constable Nielsen’s credibility, this evidence would likely have affected the result of the trial. [8] I would dismiss the appeal for the following reasons. (1) The arrest without a warrant [9] The appellant submits that Constable Nielsen did not have sufficient reasonable and probable grounds to arrest him without a warrant at Mr. Abdi’s apartment on May 11, 1994. The relevant authority to arrest without a warrant is found in s.495(1)(a) of the Criminal Code: s. 495 (1) A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed … an indictable offence; [10] Constable Nielsen relies on the events of May 5, 1994 in support of his belief that the appellant committed an indictable offence. The appellant submits that these events amounted to no more than suspicion and were insufficient to empower the police officer to make the subsequent arrest on May 11, 1994. [11] At trial, the appellant brought an application to exclude the evidence seized as a result of the search incidental to his arrest on May 11, 1994 on the basis that the arrest was illegal. The trial judge dismissed the application. She accepted Constable Nielsen’s testimony that he relied on the following circumstances to arrest the appellant: (a) he recognized the appellant as the driver of the grey Honda on May 5, 1994; (b) he had information from a confidential source that led him to suspect that the occupants of the vehicle might have been engaged in drug trafficking; (c) he had come into contact with the appellant previously, as recently as two months prior to this event; (d) he observed the passenger of the appellant’s vehicle engage in a drug transaction; (e) the purchaser of the heroin told him that he had dealt with the driver, known as “Mike” once before; (f) he saw the grey Honda parked behind Mr. Abdi’s residence at 1252 Davenport where Mr. Abdi resided; and (g) between May 5 and 11, he had passed by 1252 Davenport and had seen the appellant get out of a red Jimmy which was registered to Mr. Abdi. [12] In my view, it was open to the trial judge to accept Constable Nielsen’s testimony and to conclude on the basis of that evidence that the requirements of s.495(1)(a) were met. The trial judge further concluded that Constable Nielsen had reasonable grounds to believe that the appellant was on the premises at the time of the arrest, that Constable Nielsen made a proper announcement of his intention to enter the apartment, and that the entry into Mr. Abdi’s apartment was not a forcible one. These findings were also supported by the evidence. [13] In these circumstances, I see no reason to interfere with the trial judge’s finding that the arrest of the appellant without a warrant in Mr. Abdi’s residence was legal and that the incidental search did not contravene s.8 of the Charter. Consequently, the evidence obtained as a result of the search was properly admitted at trial. Hence, I would not give effect to this ground of appeal. (2) Cross-examination of the appellant [14] It is submitted that Crown counsel at trial engaged in a cross-examination of the appellant that was improper and prejudicial in three respects: (a) Crown counsel questioned the appellant as to any possible motive on the part of Constable Nielsen to make a false accusation against him; (b) Crown counsel questioned the appellant about the fact that he had accused the officer of “stealing” money from him and suggested that the appellant had withheld that information from the jury; and, (c) Crown counsel questioned the appellant about Mr. Abdi’s receipt of welfare benefits and about the origins of Mr. Abdi’s income. [15] The respondent concedes that Crown counsel’s questions in cross-examination regarding Constable Nielsen’s motive to lie were improper. The respondent also concedes that the questions put to the appellant about his accusation that the officer had stolen his money should not have been asked because they were not relevant. The respondent submits, however, that in the context of the entire cross-examination in this case, the impugned questions constituted minor transgressions and would not have affected the verdict. [16] Finally, the respondent submits that the questions put to the appellant with respect to Mr. Abdi’s receipt of welfare benefits and the origins of Mr. Abdi’s income were relevant and proper. [17] I agree with the respondent’s position on this ground of appeal. [18] The respondent correctly concedes that the cross-examination of the appellant on the officer’s possible motive to lie was improper. This kind of cross-examination can potentially leave the jury with the impression that an onus lies on the accused to disprove the allegations. Whether or not the impugned questions and answers may have had such an effect is a question, however, that must be considered in the context of the full cross- examination and the whole proceedings. In the context of this case, I am satisfied that no substantial wrong or miscarriage of justice has occurred. Crown counsel did not press the issue beyond asking a few questions, the jury would already have understood from the evidence that it was the defence’s position at trial that Constable Nielsen was lying and the trial judge properly instructed the jury on the burden of proof. [19] The questions with respect to the appellant’s complaint against the officer over some missing money were also improper. This evidence was irrelevant to any issues in the case. However, it is my view that the brief reference to this complaint was, when considered in context, inconsequential. [20] Finally, the questions with respect to the appellant’s knowledge of Mr. Abdi’s source of income were relevant to his knowledge of Mr. Abdi’s involvement in trafficking activities. The appellant was charged with trafficking in heroin on May 5, 1994 as a party to Mr. Abdi’s sale to Charles Parker. In order to prove this charge, the Crown was required to prove that the appellant knew that Mr. Abdi trafficked in heroin on that date. [21] I would therefore not give effect to this ground of appeal. (3) Application to introduce fresh evidence [22] In his application to introduce fresh evidence, the appellant sought to introduce the transcripts of three unrelated trials involving other accused persons in which Constable Nielsen had testified and which resulted in acquittals. Two of these trials, R. v. Downey and R. v. Willis, were held prior to the appellant's trial and the third, R. v. Pappageorge, was held some eight months after. The application is based on the contention that the fresh evidence, if received, could have a significant impact on Constable Nielsen’s credibility since the evidence would show, first, that Constable Nielsen gave contradictory evidence in the Downey and Willis trials, and second, that his credibility was called into question by the presiding judge in R. v. Pappageorge. [23] Crown counsel on appeal disputed the contention that Constable Nielsen had given contradictory evidence in the Downey and Willis cases and took the position that neither transcript of those proceedings could have any impeachment potential. Counsel for the appellant conceded at the hearing of this appeal that the Crown’s position with respect to the transcript in Downey and Willis was correct and, therefore, confined his argument to the transcript in Pappageorge. [24] In Pappageorge, Constable Nielsen testified for the Crown on the accused’s application to exclude evidence under s.24(2) of the Charter. At the conclusion of the hearing, the trial judge granted the accused’s application and excluded the evidence. In his reasons, the trial judge indicated that he was not impressed with Constable Nielsen. He rejected his testimony as being “false” and concluded: “I find that this officer is a compulsive liar. I do not believe his evidence at all." [25] Counsel for the appellant submits that the trial judge in Pappageorge made a clear finding that Constable Nielsen had lied under oath and that, if that finding had been available at the appellant’s trial for the purpose of cross-examining Constable Nielsen, it could reasonably be expected to have affected the result. Consequently, the appellant seeks to admit this fresh evidence on his appeal and seeks an order directing a new trial on the basis of that evidence. [26] The authority to admit fresh evidence on appeal is found in s.683(1) of the Criminal Code. This court can admit fresh evidence “where it considers it in the interests of justice” to do so. The criteria for the admission of fresh evidence are set out in the often cited case of Palmer v. The Queen, [1980] 1 S.C.R. 759 at 775: (i) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, [1965] 1 C.C.C. 142, 46 D.L.R. (2d) 372, [1964] S.C.R. 484; (ii) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (iii) the evidence must be credible in the sense that it is reasonably capable of belief; and (iv) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [27] No question of due diligence arises in this case since the evidence was not available until several months after the appellant’s trial was completed. The evidence is also relevant within the meaning of the second Palmer criterion. The evidence is about the credibility of a key Crown witness. Constable Nielsen is the only witness who gave evidence implicating the appellant. The evidence is also credible. There is no doubt that the trial judge in Pappageorge made the findings sought to be relied upon. [28] The determining issue, therefore, is whether the evidence could reasonably be expected to have affected the result at trial. Of course, it could only have had any effect on the result if it could have been used at trial to impeach Constable Nielsen’s credibility. The question then becomes whether a witness can be cross-examined on a prior judicial finding that he has lied under oath. [29] If the prior judicial finding that Constable Nielsen lied under oath had formed the basis of a conviction of perjury or of giving contradictory evidence, it is clear that he could have been subjected to cross-examination on that conviction and on its underlying facts. See s. 12 of the Canada Evidence Act, R.S.C. 1985, c. C.-5; R. v. Miller (1998), 131 C.C.C. (3d) 141 (Ont. C.A.). Constable Nielsen, as an ordinary witness and unlike an accused person, would also be subject to cross-examination on relevant discreditable conduct even if the conduct has not resulted in a charge being laid or in a conviction. See R. v. Gonzague (1983), 4 C.C.C. (3d) 505 (Ont. C.A.). [30] In this case, the judicial finding in Pappageorge that Constable Nielsen’s testimony was “false” and that he was “a compulsive liar” was not made in the context of proceedings concerning the truth or falsity of the testimony in question. Had the finding been made in the context of a prosecution for perjury or for the giving of contradictory testimony, Constable Nielsen would have been given an opportunity to respond to the accusation that he had lied under oath and the trial judge’s finding would have been subject to the criminal standard of proof beyond a reasonable doubt. As the matter stands, the judicial finding in question is nothing more than a rejection of Constable Nielsen’s testimony, albeit in very strong terms. [31] In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case. That fact, in and of itself, does not constitute discreditable conduct. I do not think it would be useful to allow cross-examination of a witness on what is, in essence, no more than an opinion on the credibility of unrelated testimony given by this witness in the context of another case. The triers of fact who would witness this cross-examination would not be able to assess the value of that opinion and the effect, if any, on the witness’s credibility without also being provided with the factual foundation for the opinion. This case, in fact, provides a good example of the difficulties that would arise if such cross-examination were permitted because, in my view, once the finding is examined in the context of the whole record in Pappageorge, it becomes apparent that it is essentially unfounded and hence can provide no assistance in determining Constable Nielsen’s credibility. [32] Upon considering the full transcript in Pappageorge, I am unable to find support for the trial judge’s finding that Constable Nielsen is “a compulsive liar”. I can only surmise that this statement is either the unfortunate result of judicial intemperance or that the trial judge’s conclusion is based on extraneous considerations not properly before the court. I make the first supposition on the basis that the transcript reveals that the trial judge made a number of premature expressions of incredulity with respect to Constable Nielsen’s testimony while he was testifying and before hearing the whole evidence. I make the latter supposition based on the fact that the trial judge stated in his reasons that he has “known [the officer] for years”. It may well be that the trial judge was not impressed with this witness but his finding must nonetheless be based on evidence properly before him. [33] Further, the trial judge’s finding that the officer’s testimony was “false” does not appear to be reasonable on the basis of the record before him. I note in this regard that the trial judge also disbelieved most of Mr. Pappageorge’s testimony, yet, in the end analysis, it is on the basis of that testimony that he finds Constable Nielsen’s evidence to be “false.” While it was certainly open to the trial judge on the evidence to reject the officer’s evidence, I find little support for any clear and express finding that the officer’s testimony was “false”, or, in other words, that he has lied under oath. [34] Counsel for the appellant relies on this court’s decision in R. v. Malabre, [1997] O.J. No. 1109 in support of his contention that the finding in Pappageorge would have had impeachment potential at his trial had it been known. In Malabre, the appellant argued that the trial judge had erred in refusing to allow the cross-examination of a police officer on adverse findings of credibility in a prior case. This court did not give effect to this ground of appeal. However, the appellant relies on the following statement by the court: The appellant also contended that the trial judge in the earlier case had made findings of credibility with respect to Pearson that were tantamount to a determination that he had lied under oath. We would find merit in the appellant’s argument if there had been a clear and express finding to that effect. However, the findings of the trial judge in the earlier proceeding on Pearson’s credibility are subject to interpretation. In the circumstances, we are not persuaded that the trial judge in this case erred by refusing to allow cross- examination on those findings. [Emphasis added.] [35] It is clear that it was not necessary to decide the issue in Malabre, and, in my view, the obiter comments of the court should not be taken to mean any more than the court would have considered counsel’s argument to be tenable had the facts supported the contention that there had been a finding that the witness had lied under oath. However, given the record in Malabre, the court did not see any merit in the argument. [36] I would therefore conclude that the proposed fresh evidence could not have been used at trial to impeach Constable Nielsen's credibility. It therefore fails to meet the fourth Palmer criterion. [37] For these reasons, I would dismiss the application to introduce fresh evidence and would dismiss the appeal against conviction. [38] I would grant leave to appeal the sentence but dismiss the appeal against sentence. In my view, there is no basis upon which this court could interfere with the sentence imposed upon the appellant. The trial judge made no error in principle and the sentence imposed is not excessive. RELEASED: September 9, 1999