In R. v. Gagnon, a man, André Gagnon, appealed his conviction for conspiracy to commit robbery, for which he had been sentenced to 8 years in prison. The Ontario Court of Appeal allowed the man’s appeal on the basis that the trial judge erred when he failed to carefully instruct the jury that they should avoid finding the accused guilty simply because of his relationship to other members of the conspiracy (which included his brothers) as well as his membership in a motorcycle gang.

The case arose after two bank robberies in Toronto and an aborted robbery in Kingston, none of which led to an arrest. A few months later, however, two men who were associated with André Gagnon (the appellant) were captured by police at the scene, just before committing a planned robbery in Ottawa. Both men, Michel Gagnon and Robert Elder were convicted for conspiracy to commit robbery. One of the men was the appellant’s brother and another was an associate/friend of the appellant. In their initial statements to police, the two captured men named other individuals allegedly involved in the robberies. Also, when one of the men, Mr. Elder, was sentenced, he gave a statement to police in which he named the appellant and his (other) brother, Yvon, regarding their alleged roles in the robberies. The statement alleged that Yvon Gagnon was the leader and planned the robberies and André Gagnon arranged for certain persons, including Mr. Elder, to steal cars, and also participated in planning the robberies and in the aborted Kingston robbery attempt.

At André’s trial, several individuals involved with the robberies gave testimony as to his role in these incidents, including Mr. Elder, Brian Anderson (another member of the group), and Yvon Gagnon (the appellant’s brother) who testified in his own defence. The men who testified all had lengthy criminal records were known to have previously given inconsistent statements and had reason to lie.

The Crown’s case against André Gagnon largely rested on the evidence of Mr. Elder and Mr. Anderson, and if their evidence was not believed, the jury could not have convicted Mr. Gagnon. At trial, defence counsel argued that their testimony should not be relied upon because of the shady character of the witnesses and the fact that they were accomplices. The trial judge did, in fact, give instructions to the jury that the individual’s testifying as to Mr. Gagnon’s role in the robberies had given prior inconsistent statements which may reflect on their truthfulness and credibility. The judge also told the jury that they should rely on this testimony evidence only if they found other evidence corroborating the witness’ statements, in accordance with R. v. Vetrovec. In Vetrovec, the court noted that corroboration is required when it is believed that a witness has good reason to lie; and if corroborating evidence restores the court’s trust in a witness, then one should be able to wholly trust his/her account.

The appellant’s brother, Yvon, had prior convictions for possession of stolen property and manslaughter (which was placed in evidence). His other brother, Michel Gagnon, was caught in the act of an attempted robbery in Kingston and was also implicated in other robberies. In his defence, André argued that these circumstances may have caused the jury to find him guilty by association. On appeal, the appellant suggested that the trial judge should have instructed the jury that they could not infer he was a person of bad character and likely to be a member of the conspiracy simply due to the fact that Michel was his brother. Unfortunately, there was other damaging testimony regarding André’s character, given by his brother, Yvon, during cross-examination by Yvon’s defence counsel. This evidence included the following: André had encouraged his son to commit robbery and his son was arrested for such; André was connected with the Outlaw motorcycle gang; and also, the gang provided a gun to Mr. Anderson and forced him to commit a robbery. This evidence was of concern because it is propensity evidence that relates to the offence with which André was charged, but an accused person (in this case, Yvon) is allowed to bring propensity evidence against a co-accused.

On appeal, Justice Weiler concluded that the fact that the trial judge had omitted to instruct the jury on how they could use the testimony evidence against André is not of consequence. On the other hand, the trial judge’s failure to instruct the jury on how they could not use this evidence is a serious omission. Specifically, the trial judge did not tell the jury that they must not use the evidence of André’s character to find him guilty. The Crown argued that the jury heard the trial judge warn the jury not to use Yvon Gagnon’s prior convictions as proof that he committed the offence with which he was being charged. However, Justice Weiler did not agree that the jury would be expected to apply this same rationale in the case of André Gagnon. Further, André did not testify and was therefore not able to rebut or explain the statements of bad character against him. Justice Weiler found that this constituted a serious concern because the source of the bad character evidence was Mr. Anderson, who was himself viewed as a ‘suspect witness’, and also, there was a scarcity of evidence confirming André’s participation in the conspiracy. The jury should have been instructed that, even if they accepted the evidence of bad character, they could not use this evidence to infer that André was the type of person who would participate in a conspiracy to commit robbery, and they could not use this evidence at all in determining whether the case against him was proven beyond a reasonable doubt by the Crown.

Due to the trial judge’s failure to instruct the jury on how they could not use the propensity evidence, Justice Weiler expressed concern that the jury may have thought they could use this evidence in determining the accused’s guilt. And, if this is true, then André Gagnon did not receive a fair trial. Citing R. v. Batte, the Court noted that propensity reasoning can imperil the overriding fairness of a criminal proceeding. “If an accused is to be convicted, it must be because the Crown has proved that allegation beyond a reasonable doubt and not because of the way the accused has lived the rest of his or her life. An accused must be tried for what he or she did and not for who he or she is.” Agreeing with Justice Weiler’s conclusions, Justice Laskin stated that he doubted whether there was any other evidence referred to by the trial judge that was capable of supporting the testimony evidence of Elder and Anderson that implicated André in the robberies. The Court’s concern that the appellant may not have received a fair trial resulted in a decision to allow an appeal of his conviction and the ordering of a new trial.

Propensity evidence is evidence that an accused person was involved in previous bad acts or bad behaviour and is therefore likely to commit bad acts in the future. In Canadian Courts, this type of evidence must be treated with great caution as it risks violating a person’s Charter right to a presumption of innocence. This type of evidence can also unfairly lead to a conviction based on preconceptions and prejudice, rather than on the facts of the case. For these reasons, there is an obligation for a judge to provide limiting instructions to a jury on how such evidence can be used. The absence of such instructions in the Gagnon case provided defence counsel with grounds to have Mr. Gagnon’s conviction overturned.

If you have been charged with a criminal offence, call Kruse Law today and take advantage of our highly experienced and skilled criminal law team. We will place our considerable resources and full efforts towards having your charges dropped and building the most effective defence, to ensure the best possible outcome for your case.

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