Appeal Court decision rests on jury’s view of criminal record

By John L. Hill

Law360 Canada (April 17, 2023, 2:43 PM EDT) --
John L. Hill
John L. Hill
The seminal Russian theatre director Konstantin Stanislavsky said, “Keep in mind a person says only ten per cent of what lies in his head. Ninety per cent remains unspoken.” While theatre audiences may revel in discerning subtext, appellate court judges are less likely to comprehend what takes place in a jurors’ minds by simply reviewing what the trial judge instructed a jury to perform in the charge at the trial’s conclusion.

Consider the arguments put forward in the appeal of Awale Hussein (R. v. Hussein 2023 ONCA 253). Hussein had been at an Ottawa party involving heavy drinking. By 5 in the morning six party-goers remained, all very inebriated. Hussein was spotted leaving at this time. One of the participants, Brian Boucher was discovered dead having been stabbed 10 times with his carotid artery severed. His hands and forearms showed defensive wounds.

When police arrived, none of the people interviewed knew who killed Boucher. Suspicion was raised that Hussein must have been responsible. Police adopted that theory and allowed one of the partiers to wash blood from his hands even though a thorough investigation had not been carried out and the crime scene secured.

Later investigation determined Hussein had left the premises and had a cut on his hand. He engaged in suspicious activity such as giving a false name to a cab driver on leaving, leaving his cell phone turned off for several days. Even though he eventually surrendered to police, he was unable to conceal that he had an extensive criminal record dating back to his youth. The record could be interpreted as showing he angered easily and used a weapon when confronted.

At pretrial, Crown counsel sought to have the previous convictions admitted to show similar fact evidence. The trial judge refused this request observing that they did not bear enough similarity to the offence charged and further that a jury might misinterpret the record to show bad character. However, the Crown would be allowed to introduce the record for the purpose of testing Hussein’s credibility.

Hussein was on the horns of a dilemma. If he chose not to take the stand in his own defence, would a jury not want to hear him deny participation in a murder? If he elected to give evidence, would a jury see his record and conclude Hussein was likely to have killed Boucher?

The Appeal Court cited R. v. King 2022 ONCA 665 in recognizing there is a danger that jurors will consider the criminal record and, consciously or unconsciously, engage in “general propensity reasoning” to find the accused guilty. Of course, we cannot know how a jury reached its conclusion. We cannot know the subtext a jury might use in considering evidence that was inadmissible to determine actions but allowed for the purpose of testing credibility. Except for the finding of guilt, most of what a jury considered was left unspoken. How then should subtext be determined?

The Court of Appeal was satisfied that the trial judge had given a proper jury instruction to avoid any risk that the criminal record would be used for any improper purpose. Furthermore, in allowing the Corbett application to put Hussein’s criminal record before the jury, the trial judge is to be shown deference in concluding that the risk is low that jurors would engage in impermissible reasoning. The Court of Appeal dismissed the conviction appeal.

Even though the trial judge and the Court of Appeal were satisfied that Hussein’s criminal record had been properly considered by a jury, neither the trial judge nor the Court of Appeal were appreciative that the jury had given proper attention to the record in the jury recommendation of the years of parole ineligibility for this crime. The majority of the jury recommended the minimum of no parole until 10 years’ imprisonment had been served. The minority chose not to make a recommendation.

The jury response was not followed by the trial judge. Instead of 10 years of ineligibility, the sentencing judge increased the period to 13 years. His record and character were offered to explain why an additional three years would be required before this accused could be considered “street-ready” should he apply for parole.   

The Court of Appeal upheld the trial judge’s reasoning that Hussein went from quietly sitting and listening to music to becoming so violent he killed his friend. He has a violent character confirmed by his record and lack of success in rehabilitation programs undertaken previously. He presents a significant danger of future violence. The was no error in principle to the trial judge’s finding. The sentence was upheld.

Had this trial been by judge alone without a jury, perhaps the appeal would have been more successful in interpreting the subtexts that a jury left unspoken.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  

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