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Decision information:

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






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         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






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         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






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         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






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         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






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         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






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         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.
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        12                             Annette Wright, RPR, CSR(A)
                                       Court Reporter
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