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Propensity Reasoning in R. v. Tuck

By Matthew Shogilev

The SCC recently granted leave to appeal to R. v. Tuck [2007] O.J. 2988, a case which will determine how willing trial judges should be, in criminal proceedings, to stop the use of evidence that is meant to establish a general propensity towards violence.

Facts

On February 3, 2001, Jeffrey Tuck attended a rave at The Docks, a popular Toronto nightclub. Accompanying Tuck were a few friends, including two brothers, David and Charles Coulter. The Coulter brothers were involved in numerous fights, and were eventually removed from the club by the bouncer.

When Mr. Tuck caught up to the Coulters later in the evening, he confided in them that he had been attacked and had stabbed his agressor. Sure enough, Salim Jabaji was found injured, rushed to the hospital, and eventually died. The police also found 39 pills of ecstasy on Mr. Jabaji’s person.

A few days later, David Coulter was arrested for the murder of Mr. Jabaji. Upset that Mr. Tuck did not come forward to exonerate his brother, Charles Coulter secretly recorded four telephone conversations with Mr. Tuck in which he asked him to turn himself in to the police. Tuck refused, telling Coulter that he wanted to wait and see the extent of the case they had against him.

After listening to Coulter’s recorded phone conversations, the police arrested Mr. Tuck, and withdrew their charge against Mr. Coulter.

The Pre-Trial Debate About the Admissability of Evidence

In Pre-Trial submissions, defence counsel sought to introduce evidence relating to the fact that, at the time of death, the deceased was in possession of 39 pills of ecstasy. The defence argued that such evidence was relevant for three reasons, (1) to establish a general “narrative of the night on which the murder took place,” (2) to help explain the animus that existed between Mr. Coulter and Mr. Jabaji, and (3) to substantiate the argument that there is reason to believe that other people, aside from Mr. Tuck, might have had a motive to kill Mr. Jabaji.

The Crown opposed the admission of any such evidence on the basis that it was irrelevant, and moreover that any probative value it might have was easily outweighed by its prejudicial nature.

The trial judge was concerned about the defence counsel’s motive for introducing the evidence in question. In particular, he was concerned that the defence counsel’s legal strategy was to improperly rely on the idea that as a drug dealer, Mr. Jabaji had a propensity towards aggressiveness.

However, defence counsel assuaged the fears of the trial judge by assuring him that he would not use evidence relating to the 39 pills of ecstasy as a means to have the jury draw an inference that Mr. Jabaji “had a violent disposition or was dealing drugs or there was any connection between the two.”

Apprehensively, the trial judge admitted the evidence, primarily out of a concern that a failure to do so might deprive the defendant of the opportunity to argue that it was Mr. Coulter as opposed to Mr. Tuck who was responsible for the death of Mr. Jabaji.

At Trial

The trial itself was punctuated by several arguments between the Crown and defence about the admissibility of evidence that spoke to the aggressiveness (and propensity to “throw the first punch”) of both the deceased and the accused.

For example, defence counsel tried to call a witness to testify that they had known Mr. Jabaji as having a temper, and often instigated fights.

Wary of the possibility that defence counsel, (contary to his assurances to the trial judge) was attempting to rely on Mr. Jabaji’s general propensity to violence to make out a self defence argument, the Crown insisted (with the trial judge’s approval), that Mr. Vandelaar’s testimony only be admitted if Mr. Tuck’s record as a young offender, (which included assault and bodily harm) also be fair game.

Controversial Closing Statements

Notwithstanding the assurances that he would not pursue a propensity-based argument, defence counsel’s closing statement proceeded on the basis that there is an inherent connection between drugs and violence:

Who do we know for sure smuggles something into the Docks? Salim Jabaji. He smuggled thirty-nine tabs of ecstasy into the Docks, and perhaps more.

Thirty-nine tabs of ecstasy is more than one person would need for personal use, no matter how late this party went. Is there a hook-up, a link, between drugs and violence more so than say chess and vilence or reading and violence? [emphasis added by appeals court judge].

In light of defence counsel’s deliberate attempt to sketch out an intimate connection between drugs and violence, the Crown immediately objected, and requested that the trial judge instruct the jury to exclude the 39 pills:

…what’s more ttroublign to me … is this road that Mr. Hicks deliberately went down in his closing saying that drugs and violence are connected. We spent hours of court time dealing with this issue and the issue of whether by making such a suggestion he would bring Mr. Tuck’s character into issue and the Crown would be able to point to the jury that if that is a liegitimate inference to make then really the person that should be hung by it is Mr. Tuck, and not Mr. Jabaji …

Although clearly upset at defence counsel’s tactics, the trial judge decided not to give any additional instructions relating to the 39 pills to the jury. He concluded that instructing the jury in this way would create more problems than it would solve, and added that “throwing mud” at Mr. Hicks might have unfair consequences.

The accused was acquitted and the Crown appealed.

The Ontario Court of Appeal

The Ontario Court of Appeal allowed the appeal on the grounds that the trial judge had failed to correct defence counsel’s impermissible use of the 39 pills in his closing address. “In our view,” the anonymous court explained, “the impugned statements carried the implication that the trial judge took from them. They invited the jury to conclude that the deceased was a drug dealer, and as such, had a propensity for violence and was more likely to be the agressor.”

Like the trial court, the Ontario Court of Appeal chided defence counsel for assuring the trial judge that he would not entreat the jury to engage in propensity reasoning, and then doing precisely that in his closing statement.

Moreover, the Ontario Court of Appeal pointed to the unlikelihood that defence counsel’s motives were (as claimed), to cast a reasonable doubt on the identity of Mr. Jabaji’s assailant, (as opposed to illustrating his general propensity toward violence).

The Ontario Court of Appeal placed particular emphasis on R. v. Rose [1998] 3 S.C.R. 262 and R. v. Finta [1994] 1 S.C.R. 701, which established two duties on the part of a trial judge (respectively), (1) to “undertake to remedy any improper address by counsel,” and (2) to “correct unfair or improper statements made in closing addresses.”

Bearing these in mind, the Ontario Court of Appeal concluded that “the cumulative effect of the admission of the 39 pills evidence, the exclusion of evidence of the respondent’s propensity for violence, the defence counsel’s impermissible use of the evidence and the trial judge’s failure to take corrective action, left the jury with a distorted factural picture on the key issue.” Therefore, the acquittal was quashed and a new trial ordered.

The Supreme Court

Less interesting than the actual verdict the SCC will arrive at in Tuck will be the particular balance it strikes between the Charter right to make full answer and defence, and the need to discourage the use of improper and deceitful propensity reasoning in criminal proceedings.

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Full post as published by The Court on August 18, 2008 (boomark / email).