R. v. Sheriffe (C.) et al., 2015 ONCA 880

• Judge: Strathy, C.J.O., MacPherson and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 14, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 880;(2015), 342 O.A.C. 347 (CA)

R. v. Sheriffe (C.) (2015), 342 O.A.C. 347 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. DE.029

Her Majesty the Queen (respondent) v. Christopher Sheriffe (appellant) and Awet Asfaha (appellant)

(C56713; C57008; 2015 ONCA 880)

Indexed As: R. v. Sheriffe (C.) et al.

Ontario Court of Appeal

Strathy, C.J.O., MacPherson and Watt, JJ.A.

December 14, 2015.

Summary:

Asfaha and Sheriffe were convicted of first degree murder. At their joint trial, each claimed that he played no role in the shooting. Both presented "cut-throat defences". The strongest evidence that Asfaha was the shooter came from Sheriffe. The strongest evidence that Sheriffe was the knowing driver of the getaway car came from Asfaha. Each appealed their convictions. The core of both appeals was that the trial judge made errors in the way he conducted the trial and in his jury charge.

The Ontario Court of Appeal dismissed the appeals on all grounds.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Criminal Law - Topic 129 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - Confidential informant police files - Asfaha and Sheriffe were convicted of first degree murder - At their joint trial, each claimed that he played no role in the shooting - Both presented "cut-throat defences" - The Crown's theory was that the killing was gang related - Asfaha claimed Sheriffe was a gang member - The trial judge permitted the Crown to adduce hearsay evidence from a police officer of what confidential informants told him about gangs in the area - Sheriffe applied mid-trial for disclosure of portions of the police files on the confidential informers (excluding identity) - The trial judge ruled that the information was encompassed by confidential informer privilege and not subject to disclosure - The Ontario Court of Appeal rejected Sheriffe's allegation of error - "First, the procedure invoked by trial counsel sought disclosure on the basis that, even though the only exception to confidential informer privilege - innocence-at-stake - was inapplicable, disclosure should be made nonetheless in order for Sheriffe to make full answer and defence. However, no balancing of interests is countenanced where the informer privilege rule applies and the innocence-at-stake exception is unavailable. Second, the judicial review procedure proposed by trial counsel for Sheriffe would itself have infringed the confidential informer privilege rule. Third, the information sought by Sheriffe was available (and adduced by Sheriffe) through other sources ... Finally, as counsel acknowledged at trial, the single exception to the confidential informer privilege rule - innocence-at-stake - lacked any evidentiary support in this case." - See paragraphs 139 to 143.

Criminal Law - Topic 4365

Procedure - Charge or directions - Jury or judge alone - Directions regarding expert evidence - [See Evidence - Topic 7063.1 ].

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - Asfaha and Sheriffe appealed their convictions of first degree murder - At their joint trial, each claimed that he played no role in the shooting of the victim - The strongest evidence that Asfaha was the shooter came from Sheriffe - The strongest evidence that Sheriffe was the driver of the getaway car came from Asfaha - Crown counsel, during her closing address to the jury, said that Asfaha had a motive to lie - On appeal, Asfaha submitted that the trial judge should have told the jury that arguments concerning Asfaha's interest in the outcome of the case were unhelpful and should not be given any consideration - The Ontario Court of Appeal rejected the submission - "In this case, where each accused testified and contended that the other accused was lying to save himself and did so in a concerted effort to implicate the other, we cannot say that Crown counsel's references to their motives to lie were improper. Crown counsel's comments did not cross the line by suggesting that the jury should presume Asfaha lied because of his status as an accused in the proceedings. Indeed, Crown counsel cited independent reasons to reject specific portions of each accused's evidence and submitted that the motive to lie explained the litany of false assertions. Moreover, and importantly, the trial judge's instruction on credibility conformed with Laboucan [(2010) (S.C.C.)] and removed any risk of impermissible reasoning" - See paragraphs 31 to 35.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - Asfaha and Sheriffe were convicted of first degree murder - At their joint trial, each claimed that he played no role in the shooting of the victim - Both presented "cut-throat defences" - The strongest evidence that Asfaha was the shooter came from Sheriffe - The strongest evidence that Sheriffe was the knowing driver of the getaway car came from Asfaha - Asfaha claimed Sheriffe was a gang member, but denied membership himself - Sheriffe denied being a gang member - A ground of Sheriffe's appeal focused on alleged omissions in the trial judge's final instructions to the jury on their use of evidence of bad character - The Ontario Court of Appeal, in holding that the ground of appeal failed, stated "[i]n this case, at the very least, Asfaha, who was identified by Sheriffe as the shooter, was entitled to have jurors consider Sheriffe's extrinsic misconduct when they came to assess Sheriffe's credibility as a witness at trial. This would not advance the case for the Crown and, accordingly, not run afoul of the principle that the Crown cannot take advantage of this evidence to advance its case." - See paragraphs 78 and 79.

Criminal Law - Topic 4419

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Intemperate or improper statements - Asfaha and Sheriffe appealed their convictions of first degree murder - At their joint trial, each claimed that he played no role in the shooting of the victim - Crown counsel, in her closing address to the jury, stated that "not only is there no honour among thieves, there's no honour among killers"; "Mr. Asfaha may have presented as an articulate and responsive witness in the little preppy-knit sweaters"; and "Mr. Asfaha's text records paint a much different picture of him than he tried to present to you. They reveal him to be a foul-mouthed drug dealer" - The Ontario Court of Appeal rejected Asfaha's submission that Crown counsel resorted to inflammatory rhetoric and sarcasm in her closing address - "The first comment is fair argument in a case where both accused presented vigorous cut-throat defences. The second comment is innocuous. The third comment was immediately tempered by the statement '[h]e is not on trial for being rude or for dealing drugs'. In any event, in his closing address Asfaha's counsel agreed that his client used 'offensive' and 'pretty disgusting' language when the police questioned him and that he was 'a young man who is a pest to society for a lot of years.'" - See paragraphs 41 and 42.

Criminal Law - Topic 5450

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - Jury charge - [See both Criminal Law - Topic 4379 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - [See Evidence - Topic 7063.1 ].

Evidence - Topic 4149

Witnesses - Privilege - Privileged topics - Evidence on police informants - [See Criminal Law - Topic 129 ].

Evidence - Topic 4732

Witnesses - Examination - Impeaching credibility - Motive for untruthfulness - [See first Criminal Law - Topic 4379 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - Acceptance, rejection and weight to be given to expert opinion - [See Evidence - Topic 7063.1 ].

Evidence - Topic 7063.1

Opinion evidence - Expert evidence - Particular matters - Gang membership or culture - Asfaha and Sheriffe were convicted of first degree murder - At their joint trial, each claimed that he played no role in the shooting - Both presented "cut-throat defences" - The Crown's theory was that the killing was gang related - Asfaha claimed Sheriffe was a gang member of the "Hustle Squad" - On appeal, Sheriffe took issue with the admissibility of the opinion evidence of Det. Nasser about street gangs in the area - The controversy focused on the intersection of the opinion rule and the hearsay rule - The Ontario Court of Appeal rejected the ground of appeal - (1) The fact that Det. Nasser's opinion was founded in part on hearsay (information provided by confidential informants) did not, without more, render his opinion inadmissible, although it was a factor the jury could take into account in assessing the weight to assign to that opinion - (2) The trial judge properly required either a listed or principled exception to permit jury consideration of evidence of the truth of what the informants said - (3) The trial judge applied the principled exception, and correctly concluded that the necessity requirement was met (the confidential informant privilege rule rendered the informants' testimony unavailable), and that the informants' history in providing accurate and truthful information to the police was sufficient to satisfy the threshold reliability requirement - (4) The trial judge correctly instructed the jury on the manner in which they were to assess the weight, if any, they would assign to the out-of-court statements of the confidential informants - (5) There was ample evidence identifying Sheriffe as a member of the "Hustle Squad", none of which was dependent on the truth of the confidential informants' say-so - See paragraphs 117 to 122.

Police - Topic 2212

Duties - General duties - Disclosure of information - [See Criminal Law - Topic 129 ].

Cases Noticed:

R. v. Mariani - see R. v. M.M.

R. v. M.M. (2007), 223 O.A.C. 308; 220 C.C.C.(3d) 74; 2007 ONCA 329, refd to. [para. 22].

R. v. Bettencourt (J.), [2008] O.A.C. Uned. 250; 2008 ONCA 337, refd to. [para. 22].

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 397; 400 N.R. 200; 477 A.R. 70; 483 W.A.C. 70; 2010 SCC 12, refd to. [para. 33].

R. v. Laboucan (J.W.) - see R. v. Briscoe (M.E.) et al.

R. v. Diu (A.B.) et al. (2000), 133 O.A.C. 201; 144 C.C.C.(3d) 481 (C.A.), dist. [paras. 57, 77].

R. v. Akins (J.A.) (2002), 159 O.A.C. 166; 164 C.C.C.(3d) 289 (C.A.), dist. [paras. 57, 77].

R. v. Suzack (C.V.) et al. (2000), 128 O.A.C. 140; 144 C.C.C.(3d) 481 (C.A.), leave to appeal refused (2001), 270 N.R. 193; 150 O.A.C. 197 (S.C.C.), refd to. [para. 59].

R. v. Pollock (R.) et al. (2004), 188 O.A.C. 37; 187 C.C.C.(3d) 213 (C.A.), leave to appeal refused (2005), 337 N.R. 191 (S.C.C.), refd to. [para. 65].

R. v. Earhart (D.) (2010), 270 O.A.C. 250; 272 C.C.C.(3d) 475; 2010 ONCA 874, leave to appeal refused (2011), 430 N.R. 393 (S.C.C.), refd to. [para. 65].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81, refd to. [para. 70].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 70].

R. v. Cameron (H.) (1995), 80 O.A.C. 58; 96 C.C.C.(3d) 346 (C.A.), refd to. [para. 70].

R. v. Teresinski (1992), 51 O.A.C. 53; 70 C.C.C.(3d) 268 (C.A.), leave to appeal refused (1992), 141 N.R. 392 (S.C.C.), refd to. [para. 70].

R. v. Hogan (1982), 2 C.C.C.(3d) 557 (Ont. C.A.), leave to appeal refused (1983), 51 N.R. 154 (S.C.C.), refd to. [para. 70].

Abbott and Haliburton Co. Ltd. et al. v. WBLI Chartered Accountants, [2015] 2 S.C.R. 182; 470 N.R. 324; 360 N.S.R.(2d) 1; 1135 A.P.R. 1; 2015 SCC 23, refd to. [para. 101].

R. v. Sekhon (A.S.), [2014] 1 S.C.R. 272; 454 N.R. 41; 351 B.C.A.C. 1; 599 W.A.C. 1; 2014 SCC 15, refd to. [para. 101].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 102].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 103].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 104].

R. v. Boucher (E.), [2005] 3 S.C.R. 499; 342 N.R. 42; 2005 SCC 72, refd to. [para. 104].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 104].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 105].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 97 O.R.(3d) 330; 2009 ONCA 624, leave to appeal refused, [2010] 2 S.C.R. v; 409 N.R. 397, consd. [para. 108].

R. v. Cluse, [2014] SASCFC 97; 120 S.A.S.R. 268 (South Australia Court of Criminal Appeal), consd. [para. 112].

R. v. Myers, [2015] N.R. Uned. 142; [2015] 3 W.L.R. 1145; [2015] UKPC 40, consd. [para. 114].

Vancouver Sun et al. v. Canada (Attorney General) et al., [2007] 3 S.C.R. 253; 368 N.R. 112; 247 B.C.A.C. 1; 409 W.A.C. 1; 2007 SCC 43, refd to. [para. 134].

R. v. Leipert (R.D.), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162, refd to. [para. 136].

R. v. Barros (R.), [2011] 3 S.C.R. 368; 421 N.R. 270; 513 A.R. 1; 530 W.A.C. 1; 2011 SCC 51, refd to. [para. 136].

R. v. Brown (J.D.), [2002] 2 S.C.R. 185; 285 N.R. 201; 157 O.A.C. 1; 2002 SCC 32, refd to. [para. 137].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 138, footnote 1].

R. v. J.S. (2012), 296 O.A.C. 184; 292 C.C.C.(3d) 202; 2012 ONCA 684, refd to. [para. 155].

R. v. Rodgerson (J.) (2015), 473 N.R. 1; 334 O.A.C. 1; 21 C.R.(7th) 1; 2015 SCC 38, refd to. [para. 159].

Counsel:

Richard Litkowski, for the appellant, Christopher Sheriffe;

Nathan Gorham and Breana Vandebeek, for the appellant, Awet Asfaha;

Susan Reid and Michael Perlin, for the respondent.

These appeals were heard on September 29 and 30, 2015, before Strathy, C.J.O., MacPherson and Watt, JJ.A., of the Ontario Court of Appeal. The Court delivered the following judgment and reasons, released on December 14, 2015.