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Abstract: Transcript of Ruling (re Scopelliti application)
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R. v. Ovayuak, 2009 NWTSC 24 S-1-CR-2008-000058 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - KELLY OVAYUAK Transcript of Ruling (re Scopelliti application) delivered by The Honourable Justice J.E. Richard, in Tuktoyaktuk, in the Northwest Territories, on the 20th day of April, 2009. APPEARANCES: Ms. S. Tkatch: Counsel on behalf of the Crown Ms. M. Nassar: Ms. C. Wawzonek: Counsel on behalf of the Accused ------------------------------------- Charge under s. 268 C.C. 1 THE COURT: I will now give the Court's 2 ruling on the Scopelliti application. 3 In this jury trial the accused is charged 4 with the crime of aggravated assault. There was 5 a fight between the accused and Andrew Gruben 6 after a drinking party. Andrew Gruben suffered a 7 serious spinal cord injury. He is rendered a 8 quadriplegic, is confined permanently to a long 9 term care facility, and is not a witness at this 10 trial. 11 Crown witnesses testified that the accused 12 was the aggressor in the fight. The accused has 13 testified that Andrew Gruben was the aggressor 14 and that he, the accused, only acted in 15 self-defence. 16 Assessing the credibility of the witnesses 17 will be an important function for this community 18 jury, in particular the lay Crown witnesses Jed 19 Stefure and Warren Steen and of course the 20 accused. 21 In the course of his testimony, the accused 22 stated that he was scared of Andrew Gruben, and, 23 when asked why, he stated that it was because 24 Andrew Gruben had assaulted him on two previous 25 occasions and he related particulars of those two 26 previous assaults. 27 On the present application, the accused Official Court Reporters 1 1 seeks to adduce evidence of Andrew Gruben's 2 criminal record, Exhibit A on this voir dire. 3 Defence counsel relies on the Scopelliti 4 line of cases. These cases, which are generally 5 homicide cases, hold that where self-defence is 6 raised, evidence of the deceased person's 7 propensity or disposition for violence may be 8 admissible for the purpose of showing the 9 probability of the deceased person having been 10 the aggressor and to support the accused's 11 testimony that he was attacked by the deceased. 12 It is for the trial judge to exercise 13 discretion in determining whether the proposed 14 evidence has sufficient probative value for the 15 purpose for which it is tendered, balanced 16 against the risk of prejudice in the sense that 17 such evidence could cause within some jurors, 18 feelings of hostility towards the deceased and/or 19 cause jurors to go down a path towards a "just 20 deserts" kind of reasoning. 21 The Crown opposes the admissibility of 22 Andrew Gruben's criminal record, submitting that 23 that record does not have sufficient probative 24 value to justify its admission. In addition, the 25 Crown submits that if Andrew Gruben's criminal 26 record is admitted, then in order that the jury 27 not have a distorted picture of the propensity Official Court Reporters 2 1 for violence of each of the fight participants 2 and the probability of each version of 3 aggression, that the court will have to also 4 admit as evidence the accused's criminal record, 5 which is marked as Exhibit B on this voir dire. 6 In the present case, there is eye witness 7 evidence of the fight between the accused and 8 Andrew Gruben. Crown witnesses Jed Stefure and 9 Warren Steen stated that the accused was the 10 aggressor. The accused testified that Andrew 11 Gruben was the aggressor. Each of these three 12 witnesses was examined and cross-examined at 13 length in the presence of the jury. The focus 14 for the jury will be their assessment of the 15 credibility of those three witnesses. 16 In exercising my discretion on the present 17 application, I ask myself: Is there something in 18 the proposed evidence Exhibit A which may 19 reasonably assist the jury in arriving at a just 20 determination with respect to the accused's claim 21 of self-defence? Although Exhibit A discloses 22 ten convictions for assaultive behaviour, there 23 are no details for any of those, for example, 24 whether any of those assaults were provoked, were 25 unprovoked, were acts of aggression, were acts of 26 excessive force in self-defence, et cetera. 27 I contrast this with the evidence which was Official Court Reporters 3 1 ruled admissible in the Scopelliti case itself. 2 The trial judge allowed the defence to adduce 3 detailed evidence of three previous incidents of 4 violence committed by the deceased, and in 5 upholding that ruling the Ontario Court of Appeal 6 stated at paragraph 48: 7 ...the impugned evidence discloses 8 serious acts of unprovoked violence 9 and intimidation by both the 10 deceased, acting together, on three 11 occasions which were reasonably 12 proximate in time to the occurrence 13 in question, and, in my view, such 14 evidence had significant probative 15 value on the issue whether the 16 deceased attacked the respondent in 17 the manner that he alleged on the 18 occasion in question. 19 I cannot say the same in the present case. 20 We do have the accused's evidence, his version, 21 of the fight incident of December 15th, 2007, in 22 which he says Andrew Gruben initially assaulted 23 him. However, it cannot be said that any one or 24 more of the bare line entries in Exhibit A has 25 any probative value on the issue whether Andrew 26 Gruben assaulted the accused on December 15th, 27 2007, in the manner that the accused alleges in Official Court Reporters 4 1 his testimony. Any theoretical probative value 2 that evidence of Andrew Gruben's history of 3 criminal acts of violence might have, if any, for 4 the purpose intended here, is certainly 5 diminished by the absence of detail of the 6 circumstances of those previous acts. 7 I find that introduction of Andrew Gruben's 8 criminal record will not assist this jury in 9 assessing the accused's claim of self-defence. 10 Indeed, it would be an improper submission, in my 11 view, to the trier of fact that because Andrew 12 Gruben has this criminal record he is more likely 13 to have been the aggressor in the early morning 14 hours of December 15th, 2007, or that the 15 existence of Andrew Gruben's criminal record is 16 supportive of the accused's testimony that he was 17 acting in self-defence. However, there is a 18 clear danger that the introduction of Andrew 19 Gruben's criminal record will distract this jury 20 from their important task of assessing the 21 credibility of the witnesses who testified viva 22 voce before the jury at this trial, eye 23 witnesses, including the accused, who related 24 under oath what they saw, what they heard, what 25 they did, et cetera. 26 There is a general rule that evidence of the 27 bad character of the victim of a crime is Official Court Reporters 5 1 inadmissible and the reason is that such evidence 2 is not relevant to the issue of whether the 3 accused person committed the crime. The 4 Scopelliti line of cases sets out an exception to 5 that general rule. 6 For the reasons I have mentioned, I find 7 that the Scopelliti exception is not applicable 8 in this case. The proposed evidence has little 9 or no probative value for the purpose intended 10 and there is a risk of prejudice, that is, a 11 significant risk that the jurors will make 12 improper use of this evidence. Accordingly, I 13 exercise my discretion to exclude the evidence of 14 Andrew Gruben's criminal record. 15 Given this ruling, it is not necessary to 16 give a decision on the Crown's alternate or 17 reactive application to adduce the accused's 18 criminal record, Exhibit B. I will simply note 19 that had that happened, i.e. that both criminal 20 records were before the jury, the jurors would 21 then be in a very difficult position of 22 considering opposing submissions of whether one 23 person's ten convictions for assault versus the 24 other person's ten convictions for assault was 25 more supportive or persuasive regarding the 26 competing versions of aggression in the early 27 morning hours of December 15th, 2007. Such a Official Court Reporters 6 1 scenario would even more so and without doubt 2 clearly distract the jurors from their main task 3 of assessing the credibility and/or reliability 4 of the eye witness testimony presented to them at 5 this trial. 6 .............................. 7 8 Certified to be a true and accurate transcript pursuant 9 to Rule 723 and 724 of the Supreme Court Rules of Court. 10 11 ______________________________ 12 Annette Wright, RPR, CSR(A) Court Reporter 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 7
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