R. v. Tash (E.), (2013) 306 O.A.C. 173 (CA)

JudgeJuriansz, Watt and Epstein, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateNovember 21, 2012
JurisdictionOntario
Citations(2013), 306 O.A.C. 173 (CA);2013 ONCA 380

R. v. Tash (E.) (2013), 306 O.A.C. 173 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JN.016

Her Majesty the Queen (respondent) v. Ezekiel Tash (appellant)

(C50566; 2013 ONCA 380)

Indexed As: R. v. Tash (E.)

Ontario Court of Appeal

Juriansz, Watt and Epstein, JJ.A.

June 7, 2013.

Summary:

The Ontario Superior Court convicted Tash of three firearms offences. Tash appealed.

The Ontario Court of Appeal allowed the appeal, ordering a new trial.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - Tash was charged with three firearms offences and two counts of assaulting police officers - At trial, Tash impeached each of the three officers who had pursued and arrested him, asserting that they had fabricated their evidence due to their contempt for him - Tash asserted that Matys, one of the officers, had found a weapon on the ground at the outset of the pursuit and had carried it to where Tash was arrested, placing it near Tash - In re-examination, Matys denied that he had ever been charged with or cited for misconduct, that his disciplinary records would confirm that and that he had been promoted since Tash's arrest - A jury convicted Tash of the firearms offences - On appeal, Tash asserted, inter alia, that Matys' evidence offended the rule against oath-helping and that the jury should have been instructed, as they were in connection with evidence about Matys' promotion, that evidence of an unblemished record was irrelevant to their decision - The Ontario Court of Appeal allowed the appeal, ordering a new trial - A witness had to be afforded an opportunity to meet attacks on credibility by presenting "rehabilitative" evidence, but the evidence had to be responsive to the attack's nature and could not exceed permissible limits - Here, the rehabilitative evidence lacked any probative value on the issue to which it was directed - The evidence was not a response in kind to the particular basis on which Matys was impeached - The impeachment here was not an attack on each witness' character for truthfulness or integrity, but rather a case-specific allegation of fabrication based on a specific motive - See paragraphs 28 to 47.

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admissibility - Evidence of disposition or propensity of accused - Tash was charged with three firearms offences and two counts of assaulting police officers - At trial, in support of his argument that the police had a particular animosity against him,Tash was examined regarding a tattoo on his body that said "Young Thugs" - In cross-examination, the Crown suggested that the words had been used because Tash liked the image that they portrayed - Tash asked the trial judge to instruct the jury immediately that the evidence about the tattoo had no probative value and should not form part of their consideration - The trial judge gave no mid-trial instruction and said nothing about the tattoo in her charge - A jury convicted Tash of the firearms offences - On appeal, Tash asserted, inter alia, that the evidence was improper because it invited propensity reasoning - The Ontario Court of Appeal allowed the appeal, ordering a new trial - Guilt had to be proven by evidence of what an accused did and said, not by the type of person that the accused was or the lifestyle that the accused chose - The Crown was not generally entitled to cross-examine an accused on lifestyle as a basis on which to establish guilt through character reasoning - Here, the Crown was not entitled to cross-examine Tash in order to establish that he had adopted the lifestyle of a "young thug", that he had acted in accordance with that in his confrontation with police and, accordingly, that he was not to be believed - See paragraphs 48 to 62.

Criminal Law - Topic 5419.1

Evidence and witnesses - Witnesses - Character evidence respecting - [See Criminal Law - Topic 4377 ].

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - [See Criminal Law - Topic 5204.3 ].

Evidence - Topic 1026

Relevant facts - Relevance and materiality - Admissibility - Prejudicial evidence - [See Criminal Law - Topic 5204.3 ].

Evidence - Topic 1553

Hearsay rule - Hearsay rule exceptions and exclusions - Statements against interest - What constitutes a statement against interest - The Ontario Court of Appeal reviewed the principles that govern the admissibility of declarations against penal interest - See paragraph 88.

Evidence - Topic 1553

Hearsay rule - Hearsay rule exceptions and exclusions - Statements against interest - What constitutes a statement against interest - Tash and Richardson were pursued by police - Tash was caught and a gun was found near him - He was charged with three firearms offences and two counts of assaulting police officers - Tash asserted that the gun was Richardson's - At trial, Tash sought to testify that Richardson, while they were both inmates, had apologized to Tash for his being charged with possessing Richardson's gun - The Crown did not object as long as Richardson testified - When he testified, Richardson said that he had no memory of the gun or the apology - A jury convicted Tash of the firearms offences - On appeal, Tash asserted that the trial judge had erred in failing to admit his version of Richardson's statement as a declaration against penal interest without requiring the defence to call Richardson as a witness - The Ontario Court of Appeal rejected this ground of appeal - Tendered through Tash as the recipient, Richardson's statement admitting ownership of the gun was not admissible as a declaration by Richardson against his penal interest - The statement was made in circumstances that did not expose Richardson to any realistic risk of penal consequences - Further, there was an association between Richardson and Tash, both at the time of the incident giving rise to the charges and when the statement was made - Nor was there any evidence that Richardson was unavailable to testify - What happened here was that the substance of Richardson's alleged admission was adduced before the jury in the form of hearsay evidence that should not have been admitted - However, its effect was diluted by Richardson's testimony - See paragraphs 75 to 94.

Evidence - Topic 1591.2

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Particular records - Medical records - [See Evidence - Topic 1721 ].

Evidence - Topic 1721

Hearsay rule - Hearsay rule exceptions and exclusions - Res gestae - Utterances as part of the issue or event - Accused's statements - Tash was charged with three firearms offences and two counts of assaulting police officers - He asserted that he had been beaten by the police despite his surrender at the end of a foot chase - The Crown asserted that the beating never occurred - Medical records relating to the incident contained Tash's description of the cause of his injuries, which was that he had been punched or kicked by the police - The Crown consented to the admission of the records, but objected to the inclusion of any portions that contained Tash's comments about how the injuries had been sustained - The trial judge redacted those portions - A jury convicted Tash of the firearms offences - On appeal, Tash asserted that the records should have been admitted without redactions and that the jury should have been given a limiting instruction - The Ontario Court of Appeal allowed the appeal, ordering a new trial - The trial judge had redacted Tash's account of the cause of his injuries on the basis of the hearsay rule in consideration that the account was offered to prove the truth of what was said - However, she failed to consider that the account could be admitted as part of the narrative to help the jury understand how Tash's story was initially disclosed - Statements admitted as narrative were not within the exclusionary reach of the hearsay rule - See paragraphs 63 to 74.

Evidence - Topic 4023

Witnesses - Credibility - Oath-helping or oath-attacking - [See Criminal Law - Topic 4377 ].

Cases Noticed:

R. v. Luciano (M.) (2011), 273 O.A.C. 273; 267 C.C.C.(3d) 16; 2011 ONCA 89, refd to. [para. 56].

R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1, refd to. [para. 57].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 246 C.C.C.(3d) 301; 2009 ONCA 624, refd to. [para. 57].

R. v. Rose (E.) (2001), 143 O.A.C. 163; 153 C.C.C.(3d) 225 (C.A.), refd to. [para. 58].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 70].

R. v. Stirling (B.J.), [2008] 1 S.C.R. 272; 371 N.R. 384; 251 B.C.A.C. 62; 420 W.A.C. 62; 2008 SCC 10, refd to. [para. 70].

R. v. Demeter, [1978] 1 S.C.R. 538; 16 N.R. 46, refd to. [para. 88].

R. v. O'Brien, [1978] 1 S.C.R. 591; 16 N.R. 271, refd to. [para. 88].

R. v. Lucier, [1982] 1 S.C.R. 28; 40 N.R. 153; 14 Man.R.(2d) 380, refd to. [para. 88].

R. v. Williams (1985), 7 O.A.C. 201; 18 C.C.C.(3d) 356 (C.A.), refd to. [para. 89].

R. v. Kimberley (C.M.) et al. (2001), 151 O.A.C. 42; 56 O.R.(3d) 18 (C.A.), refd to. [para. 89].

Authors and Works Noticed:

McCormick on Evidence (7th Ed. 2013), § 47, pp. 307, 308 [para. 43].

Counsel:

Ezekiel Tash, acting in person;

Peter Copeland, amicus curiae;

Robert Gattrell, for the respondent.

This appeal was heard on November 21, 2012, by Juriansz, Watt and Epstein, JJ.A., of the Ontario Court of Appeal. On June 7, 2013, Watt, J.A., delivered the following reasons for judgment for the court.

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25 practice notes
  • R. v. Bradshaw, 2017 SCC 35
    • Canada
    • Supreme Court (Canada)
    • June 29, 2017
    ...67, [2002] 3 S.C.R. 433; R. v. S. (S.), 2008 ONCA 140, 232 C.C.C. (3d) 158; R. v. Post, 2007 BCCA 123, 217 C.C.C. (3d) 225; R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173; R. v. Kimberley (2001), 56 O.R. (3d) Authors Cited Akhtar, Suhail. “Hearsay: The Denial of Confirmation” (2005), 26 C.R. (6t......
  • Court Of Appeal Summaries (November 11 – November 15, 2019)
    • Canada
    • Mondaq Canada
    • November 22, 2019
    ...A.C. 378 (P.C.), R. v. Nicholas (2004), 182 C.C.C. (3d) 393 (Ont. C.A.), leave to appeal refused, [2004] S.C.C.A. No. 225, R. v. Tash, 2013 ONCA 380, R. v. Santhosh, 2016 ONCA 731, R. v. Adan, 2019 ONCA 709, R. v. Hall, 2010 ONCA 724, R. v. White, [1998] 2 S.C.R. 72 R. v. E., 2019 ONCA 891 ......
  • The Prosecutor
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...for example, R v Arcangioli (1994), 87 CCC (3d) 289 at 296 [para 26] (SCC); R v GM , 2011 ONCA 503 at paras 64–65. 278 See R v Tash , 2013 ONCA 380 at paras 48–62. 279 See Bricker , above note 276 at 278 [para 18]; R v WAA (1996), 112 CCC (3d) 83 at 88 [para 18] (Man CA). 280 See White , ab......
  • Table of cases
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...351, 30 CR (3d) 384, [1982] AJ No 1046 (CA) .............................................................................. 635 R v Tash, 2013 ONCA 380 .................................................................................. 632 R v Taylor (1992), 11 OR (3d) 323, 77 CCC (3d) 551, [......
  • Request a trial to view additional results
20 cases
  • R. v. Bradshaw, 2017 SCC 35
    • Canada
    • Supreme Court (Canada)
    • June 29, 2017
    ...67, [2002] 3 S.C.R. 433; R. v. S. (S.), 2008 ONCA 140, 232 C.C.C. (3d) 158; R. v. Post, 2007 BCCA 123, 217 C.C.C. (3d) 225; R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173; R. v. Kimberley (2001), 56 O.R. (3d) Authors Cited Akhtar, Suhail. “Hearsay: The Denial of Confirmation” (2005), 26 C.R. (6t......
  • R v PO,
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • April 21, 2021
    ...· Lay opinion evidence; · Expert evidence; · Prior inconsistent statements; and · Internal consistency/inconsistency. [185] In R v Tash (2013 ONCA 380 at paras 40-43), the Ontario Court of Appeal gave guidance on how to assess witness credibility, emphasizing considerations of bias or corru......
  • R. v. Cook,
    • Canada
    • Court of Appeal (Ontario)
    • November 17, 2020
    ...O.A.C. 147 (C.A.), at para. 8: "People can only be convicted for what they do, not for the company they keep." Similarly, in R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173, Watt J.A. said, at para. 58: “[W]e insist that guilt be proven by evidence of what an accused did and said, not because of ......
  • R. v. Johnson,
    • Canada
    • Court of Appeal (Ontario)
    • July 18, 2022
    ...was admissible as a declaration against penal interest. The application judge found that the factors to be considered, from R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173, at para. 88, were not met. The application judge also considered whether Windebank’s statement was admissible under t......
  • Request a trial to view additional results
1 firm's commentaries
  • Court Of Appeal Summaries (November 11 – November 15, 2019)
    • Canada
    • Mondaq Canada
    • November 22, 2019
    ...A.C. 378 (P.C.), R. v. Nicholas (2004), 182 C.C.C. (3d) 393 (Ont. C.A.), leave to appeal refused, [2004] S.C.C.A. No. 225, R. v. Tash, 2013 ONCA 380, R. v. Santhosh, 2016 ONCA 731, R. v. Adan, 2019 ONCA 709, R. v. Hall, 2010 ONCA 724, R. v. White, [1998] 2 S.C.R. 72 R. v. E., 2019 ONCA 891 ......
4 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...351, 30 CR (3d) 384, [1982] AJ No 1046 (CA) .............................................................................. 635 R v Tash, 2013 ONCA 380 .................................................................................. 632 R v Taylor (1992), 11 OR (3d) 323, 77 CCC (3d) 551, [......
  • The Prosecutor
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...for example, R v Arcangioli (1994), 87 CCC (3d) 289 at 296 [para 26] (SCC); R v GM , 2011 ONCA 503 at paras 64–65. 278 See R v Tash , 2013 ONCA 380 at paras 48–62. 279 See Bricker , above note 276 at 278 [para 18]; R v WAA (1996), 112 CCC (3d) 83 at 88 [para 18] (Man CA). 280 See White , ab......
  • Table of cases
    • Canada
    • Irwin Books The Law of Evidence. Eighth Edition
    • June 25, 2020
    ................ 248 R v Tash, 2008 OJ No 200 (SCJ) ......................................................................... 476 R v Tash, 2013 ONCA 380 ...........................................................................211, 212 R v Tat (1997), 35 OR (3d) 641 (CA) ..........................
  • Hearsay
    • Canada
    • Irwin Books The Law of Evidence. Eighth Edition
    • June 25, 2020
    ...consequences. For a rare example of a declaration against penal interest being admitted, see R v Kociuk , 2009 MBQB 162. 270 In R v Tash, 2013 ONCA 380 at paras 82–94 [ Tash ]. See also R v Johnson , 2015 ONSC 6161 at para 44 (applying Tash and concluding that a declarant “undoubtedly did n......

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