Court File and Parties

COURT FILE NO.: CR-17-70000526-0000 DATE: 20180711 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – BRADLEY CHEVELDAYOFF

Counsel: B. Richards and E. Weis, for the Crown M. Murphy and J. Collins, for Mr. Cheveldayoff

HEARD: 17-18 May 2018

S.A.Q. Akhtar J.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] Bradley Cheveldayoff stands charged with the offence of second degree murder.

[2] On 13 April 2016, three men, Malique Kamara, Matthew Desir, and Gabriel Nikov stood outside the Tim Hortons coffee shop on Yonge Street just north of the intersection with Bloor Street. Mr. Kamara and Mr. Nikov had known each other for a few weeks and were “hanging out” together. That evening, they met Mr. Desir. At approximately 8 p.m. all three were engaged in conversation in front of the entrance to Tim Hortons.

[3] At some point, Mr. Kamara noticed Rhyza Monroe, a young woman from his neighbourhood, making her way down Yonge Street with an unknown male. That male was the accused, Bradley Cheveldayoff.

[4] Mr. Kamara greeted Ms. Monroe, and began chatting with her. During the course of their conversation, Mr. Kamara asked who Mr. Cheveldayoff was and why he was with Ms. Monroe. The mood darkened as Mr. Kamara and Mr. Cheveldayoff exchanged words about the neighbourhood that Mr. Cheveldayoff lived in. Mr. Cheveldayoff broke off the conversation and ushered Ms. Monroe into Tim Hortons, telling Mr. Kamara that he would “be back”. Whilst he and Ms. Monroe entered the coffee shop, Mr. Kamara, Mr. Desir and Mr. Nikov remained outside the Tim Hortons.

[5] The three men turned their attention to Mr. Cheveldayoff. According to Mr. Kamara, Mr. Nikov made comments indicating that he intended to rob Mr. Cheveldayoff when he returned.

[6] As Mr. Cheveldayoff and Ms. Monroe returned to exit Tim Hortons, they found their way obstructed by the three men outside. After Mr. Cheveldayoff had stepped outside, Mr. Desir reached out to take his arm as if to lead him into a nearby corner. Almost immediately, Mr. Nikov put his arms around Mr. Cheveldayoff from behind him and a struggle ensued.

[7] Mr. Nikov pushed and shoved Mr. Cheveldayoff in and around an alcove adjacent to Tim Hortons and threw two to three accompanying punches. Eventually, Mr. Cheveldayoff managed to push him away and the fight ended. A video surveillance camera situated outside Tim Hortons recorded the entire conflict lasting 20 seconds.

[8] The two men separated with Mr. Nikov walking south on Yonge Street. Mr. Cheveldayoff initially ran in the opposite direction but, within a few seconds, turned around, produced a gun and shot Mr. Nikov six times in the back. Mr. Cheveldayoff then fled the scene with Ms. Monroe.

RULING #1 – DEFENCE APPLICATION TO ADDUCE EVIDENCE OF THE DECEASED’S PRIOR DISPOSITION FOR VIOLENCE

Position of the Parties

[9] Ms. Murphy, on behalf of Mr. Cheveldayoff, sought to lead evidence of Mr. Nikov’s prior unrelated acts of violence pursuant to the principles in R. v. Scopelliti (1981), 34 O.R. (2d) 524 (C.A.). Ms. Murphy argues that the evidence is highly relevant and demonstrates that Mr. Nikov was the aggressor in a highly volatile situation. She submits that Mr. Cheveldayoff would seek to advance self-defence and provocation before the jury. In order to properly evaluate those defences, the jury has to be aware of Mr. Nikov’s previous disposition for violence.

[10] Ms. Weis, on behalf of the Crown, resists the admission of the evidence. She argues that the evidence is irrelevant to this offence, and that there is no air of reality to self-defence or provocation. Without the necessary foundation for those defences, the evidence of Mr. Nikov’s prior violent acts could have no bearing on the verdict. On the other hand, if admitted, the evidence would become a distraction as well as a means to simply denigrate Mr. Nikov in the eyes of the jury.

[11] In the alternative, Ms. Weis requests that if the defence application is granted, the Crown should be allowed to lead evidence of Mr. Cheveldayoff’s violent antecedents by way of reply evidence.

Legal Principles

[12] As a general rule, the character or violent disposition of an alleged victim is inadmissible on the grounds that it has no relevance to the guilt or innocence of an accuse person: see R. v. Richer (1993), 82 C.C.C. (3d) 385 (C.A.), at p. 405, affirmed, , [1994] 2 S.C.R. 486; R. v. Diu (2000), 49 O.R. (3d) 40 (C.A.), at para. 39; R. v. Hamilton, 2003 BCCA 490, 180 C.C.C. (3d) 80, at para. 34; R. v. Vant, 2015 ONCA 481, 324 C.C.C. (3d) 109, at para. 66.

[13] As Ms. Weis pointed out, the defence is not entitled to lead evidence to simply “blacken the character” of a victim in order to cast the accused “in a more favourable light”: R. v. Cameron (1995), 22 O.R. (3d) 65 (C.A.), at p. 75.

[14] However, where the violent disposition of a victim relates to a material issue in the case, the evidence may become relevant, and its probative value may outweigh its prejudicial effect: Vant, at para. 66.

[15] In Scopelliti, the court identified admissible purposes of such evidence. For example, the evidence may be relevant in demonstrating that the victim was the aggressor or support an accused’s account that he was attacked by the victim.

[16] In such cases, the defence may lead evidence of previous violent acts or reputation for violence. It should be noted that the admissibility of this evidence is not contingent upon an accused knowing the victim’s violent past at the time of the alleged offence: Scopelliti, at pp. 534-539; R. v. Delong (1989), 47 C.C.C. (3d) 402 (Ont. C.A.), at pp. 422-423; R. v. Ryan (1989), 49 C.C.C. (3d) 490 (Nfld. C.A.); Hamilton, at paras. 35-40; R. v. Patterson (2006), 79 O.R. (3d) 257 (C.A.), at para. 19.

[17] The discretion to exclude such evidence focuses on whether its probative value is substantially outweighed by its prejudicial effect. When the victim’s prior disposition is not known by the accused, there must be some other “appreciable evidence” of the victim’s aggression at the time of the offence. If that were not the case, the evidence itself would become irrelevant and become a mechanism for providing an excuse to kill using the victim’s character as a pretext: Scopelliti, at pp. 535-536; R. v. Watson (1996), 30 O.R. (3d) 161, at p. 177; Hamilton, at para. 41.

[18] Where the accused is granted leave to adduce prior disposition evidence, the court may also permit the Crown to lead, by way of reply, evidence demonstrating that the accused also had a disposition for violent behaviour. This rule operates as a method for ensuring trial fairness and ensure that a balanced picture is presented before the trier of fact: Scopelliti, at p. 540; R. v. Yaeck, [1989] O.J. No. 3002 (S.C.), at para. 21; R. v. Robertshaw, [1996] O.J. No. 1542 (Gen.Div.), at paras. 19-21; R. v. Ferguson, [1996] O.J. No. 3847 (Gen.Div.); R. v. Hines, [2001] O.J. No. 1112 (S.C.), at para. 59, affirmed, 2007 ONCA 103; R. v. Soikie, [2004] O.J. No. 2901 (S.C.), at para. 13; R. v. Sparkes, [2005] O.J. No. 1883 (C.A.), at para. 7, leave refused, [2005] S.C.C.A. No. 408; R. v. Williams, 2008 ONCA 413, 233 C.C.C. (3d) 40, at paras. 58-60, 70; R. v. Kelly, 2011 ONCA 549, at para. 31; R. v. Forde, 2012 ONSC 6655, 294 C.C.C. (3d) 149, at para. 21; R. v. Jackson, 2013 ONCA 632, 301 C.C.C. (3d) 358, at paras. 45-48, affirmed, 2014 SCC 30, [2014] 1 S.C.R. 672.

[19] However, the court must place a check on the Crown’s reply evidence. The only evidence that the Crown can adduce is that suggesting that the accused has a violent disposition: R. v. Borden, 2017 NSCA 45, 349 C.C.C. (3d) 162, at paras. 130, 152, 161; R. v. Rossignol, 2005 NBCA 11, 280 N.B.R. (2d) 312, at para. 21; R. v. Head, at para. 15.

[20] Moreover, the evidence of the accused’s violent disposition must not be too remote in time to the offence for which he is being tried for: R. v. Close (1983), 38 O.R. (2d) 453 (C.A.) at pp. 462-463; R. v. Chartrand (2002), 62 O.R. (3d) 514 (C.A.), at paras. 10-11.

The Evidence Sought to be Adduced

[21] The defence sought to lead the following evidence of Mr. Nikov’s prior violent acts:

[22] January 2014: When Mr. Nikov was residing at the Centre for Addiction and Mental Health, he became involved in a physical altercation with another resident and headbutted him causing a fracture to his nose.

[23] September 2015: Mr. Nikov was charged with the offences of assault bodily harm and threatening death arising out of an incident with another youth after being involved in a dispute over a cell phone. The victim was struck with a baseball bat by the coaccused and punched and kicked by Mr. Nikov, who told the victim that if he called the police he and his family would suffer harm.

[24] September 2015: Mr. Nikov was charged with assaulting his mother and breaking a glass door in their apartment.

[25] September 27, 2015: Mr. Nikov was charged with robbery from an incident where he and two others lured a 16-year-old into some words to have a cigarette. When the 16-year-old tried to leave, Mr. Nikov and his two accomplices struck him about the head causing bruising and swelling, after which they stole his backpack.

[26] May 2015: Mr. Nikov was investigated for robbery and home invasion at the home of his girlfriend’s father. Even though he was not charged, police found DNA linking him to the incident.

[27] May 31, 2015: Mr. Nikov was involved in an incident where he assaulted and threatened a taxi driver who had asked him to leave his cab.

Analysis

Evidence of Mr. Nikov’s Prior Disposition

[28] As noted, Ms. Murphy indicated that Mr. Cheveldayoff’s position is that he acted in self-defence and under provocation. However, this is not a case where the defence relied upon Mr. Cheveldayoff’s prior knowledge of Mr. Nikov’s violent disposition.

[29] I agree that the jury could only properly assess those defences – if ultimately put – by knowing of Mr. Nikov’s past.

[30] In my view, the defence needs the evidence: (1) To show that Mr. Nikov began the fight (2) To prove Mr. Nikov continued the aggression during the fight and (3) To support Mr. Cheveldayoff’s position that the actions that he took in response fell into the reasonableness range when acting in self-defence or (4) In the alternative, to prove that Mr. Nikov’s actions were such that Mr. Cheveldayoff can rely on the legal defence of provocation.

[31] I agree with the Crown that, on the evidence of the video recordings, the “air of reality” at this stage appeared flimsy. However, under R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, there is a low threshold to be met.

[32] Ms. Weis also advances the position that evidence of Mr. Nikov’s past was unnecessary as the video recording accurately captured the fight outside Tim Hortons. As has been noted, the admission of evidence of prior violent disposition evidence is contingent upon some other “appreciable evidence” of Mr. Nikov’s aggression towards Mr. Cheveldayoff during the events. I would add that whilst I acknowledge the fact that the value of the evidence may be diminished because of the video recordings, it is not reduced to the level of immateriality.

[33] On the other hand, there is potential prejudice to the Crown in admitting the evidence because it may be used to cast Mr. Nikov in a bad light and distract the jury from its duties in deciding guilt or innocence. However, that prejudice does not substantially outweigh the evidence’s probative value. Once the evidence has been heard, I will be in a position to correctly gauge its impact on the jury and charge them accordingly, limiting any potential prejudice that might flow from the admission.

Evidence of Mr. Cheveldayoff’s Past Violent Acts

[34] I now turn to deal with the Crown’s alternative submission that, if the defence application is successful, the Crown ought to be able to lead evidence of Mr. Cheveldayoff’s own prior disposition for violence.

[35] Mr. Cheveldayoff’s prior antecedents consist of the following:

30 May 2013: Uttering Threats - Mr. Cheveldayoff threatened to shoot a TTC bus driver, implying that he had a gun, and subsequently assaulted the driver by punching him saying “come and get off the bus. I’ll kill you.” After his arrest, no gun was recovered

27 June 2013: Uttering Threats - Mr. Cheveldayoff tried to sell marihuana to the victim who refused to purchase it. Mr. Cheveldayoff produced a knife, threatened to cut up the victim and robbed him.

25 August 2013: Aggravated Assault/Robbery - Mr. Cheveldayoff cut a youth in the face with a knife during a robbery that occurred on the Toronto Transit Commission.

[36] In my view, if the defence chooses to call evidence of Mr. Nikov’s prior disposition for violence, it would only be fair to allow the Crown to present a balanced picture by adducing evidence of Mr. Cheveldayoff’s own violent past.

[37] By leading evidence of Mr. Nikov’s disposition, Mr. Cheveldayoff places his own character in issue. Once Mr. Cheveldayoff argues that Mr. Nikov’s disposition for violence is relevant, then it hardly lies in his mouth to prevent the Crown from leading evidence to suggest that he had the same tendencies. To hold otherwise would lead to a skewed and unfair view of the events that unfolded on the evening of 13 April 2016. As was said in Williams, at para. 58:

When an accused relies on self-defence and leads evidence that the deceased was a violent person, the question of whether the Crown may lead reply evidence of the accused's propensity for violence arises. The Crown will be permitted to do so where it is necessary to enhance fairness and ensure that the trier of fact has a balanced, not a distorted, picture of what occurred between the deceased and the accused and of their respective dispositions for aggression. See R. v. Sparkes, [2005] O.J. No. 1883 (C.A.), leave to appeal to SCC refused, [2005] S.C.C.A. No. 408; R. v. Yaeck, [1989] O.J. No. 3002 (Sup. Ct.); R. v. Robertshaw, [1996] O.J. No. 1524 (Ont. Ct. J. (Gen. Div.)); R. v. Hines, [2001] O.J. No. 1112 (Sup. Ct.); R. v. Soikie, [2004] O.J. No. 2901 (Sup. Ct.).

[38] In my view, the probative value of this evidence more than outweighs its prejudicial effect, which, as with the evidence of Mr. Nikov’s past actions, can be dealt with by jury instruction.

Conclusion

[39] The defence is entitled to lead evidence of Mr. Nikov’s prior disposition for violence. If it chooses to do so, the Crown may adduce, in reply, evidence of Mr. Cheveldayoff’s prior disposition for violence to ensure that the jury has a complete, balanced and fair picture.

RULING #2 - DEFENCE APPLICATION TO ADDUCE HEARSAY

Background

[40] Ms. Murphy also seeks to lead the utterances allegedly made by Mr. Nikov to Mr. Kamara that he intended to rob Mr. Cheveldayoff when he eventually exited Tim Hortons (“the robbery utterance”).

[41] Ms. Murphy argues this utterance is admissible under both the principled exception to the hearsay rule and the traditional hearsay exception of “statement of present intention.”

[42] The Crown opposes the application. Ms. Weis submits that Mr. Kamara’s evidence is riddled with inconsistencies casting doubt on the reliability of the statement and whether it was actually made. Moreover, says Ms. Weis, the utterances fail admission under the “statement of present intention” because the circumstances surrounding the making of the utterance render it “suspect.”

Legal Principles

[43] Out of court statements are presumptively inadmissible due to the inability to test their reliability: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para 2; R. v. Bradshaw, 2017 SCC 35, [2017] 2 S.C.R. 865, at paras. 20-21.

[44] However, when hearsay statements fall within the category of “traditional exceptions”, they are deemed presumptively admissible with the onus of rebutting the presumption falling to the party seeking their exclusion: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 212; Khelawon, at para. 42; Bradshaw, at para. 22.

[45] The exception relied upon in this case, the “present intentions” or “state of mind” exception was described in R. v. Smith, [1992] 2 S.C.R. 915, at p. 925, as being “when the declarant's statement is adduced in order to demonstrate the intentions, or state of mind, of the declarant at the time when the statement was made.”

[46] In Starr, an important limitation was placed on the exception. The basis for admission of the evidence is to show the intention or mental state of the declarant and to support an inference that the declarant carried out their intent so long as the evidence provides a reasonable basis for inferring that to be the case: Starr, at para. 169. However, utterances admitted under this exception cannot be used to prove the state of mind of anyone other than the declarant unless another hearsay exception, for example the co-conspirator’s hearsay rule, permits it: Starr, at para. 174.

[47] Moreover, there is a residual category of cases in which even a traditional exception may fail the test of admissibility. In R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15, the court explained the doctrine in the following manner:

The principled approach to the admission of hearsay evidence which has emerged in this Court over the past two decades attempts to introduce a measure of flexibility into the hearsay rule to avoid these negative outcomes. Based on the Starr decision, the following framework emerges for considering the admissibility of hearsay evidence:

(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

[48] See also: Khelawon, at para. 42.

Application of the Principles

[49] There is no dispute that, ostensibly, the robbery utterance falls within the “statement of present intention” or “state of mind” exception. It is tendered for the purpose of showing that Mr. Nikov intended to rob Mr. Cheveldayoff and acted on that intention when Mr. Cheveldayoff emerged from Tim Hortons.

[50] Ms. Weis, for the Crown opposes the application arguing that this is one of the “rare” cases that has neither of the attributes of necessity and reliablility.

Necessity

[51] First, she argues that the utterance is not necessary: this exception is normally used to fill a gap that exists when there is no other evidence to illustrate what the utterance demonstrates. Here, Ms. Weis argues that the video that captures Mr. Nikov’s actions permits the defence to advance its argument that a robbery was taking place. This, she says, distinguishes the case at bar from that of Starr, where the victim’s stated intentions were required to explain a vacuum in the evidence.

[52] I agree with Ms. Weis that necessity is not simply met because a witness - in this case Mr. Nikov - is unavailable. In Khelawon, at para. 78, Charron J. writing for a unanimous court observed,

As we know, the Court ultimately ruled in B. (K.G.), and the principle is now well established, that necessity is not to be equated with the unavailability of the witness. The necessity criterion is given a flexible definition. In some cases, such as in B. (K.G.) where a witness recants an earlier statement, necessity is based on the unavailability of the testimony, not the witness. Notwithstanding the fact that the necessity criterion can be met on varied bases, the context giving rise to the need for the evidence in its hearsay form may well impact on the degree of reliability required to justify its admission.

[Emphasis in original.]

[53] However, I think that Ms. Weis’s argument draws too narrow a line on the requirement of necessity in this case. The defence position is that Mr. Nikov’s actions were a robbery and that, as a result, Mr. Cheveldayoff was either provoked or acted in self-defence when he shot Mr. Nikov. The Crown rejects that position, and will argue that what took place outside Tim Hortons was simply a brief skirmish and that Mr. Cheveldayoff’s actions were borne out of a desire for revenge.

[54] Faced with this scenario, the defence requires Mr. Nikov’s alleged utterance to demonstrate that he intended to rob Mr. Cheveldayoff when he exited Tim Hortons and followed through with his intentions. The utterance - if believed - adds factual muscle to the argument that the defence will ultimately put before the jury.

[55] In my view, the necessity criterion is met.

Reliability

[56] In Starr, at para. 168, Iacobucci J., writing for the majority of the court, indicated that the present intentions exception included the requirements that the statement be of an existing state of mind and “made in a natural manner and not under circumstances of suspicion.”

[57] Ms. Weis argues that the robbery utterance should be considered as being made in suspicious circumstances. The Crown’s position is that Mr. Kamara has fabricated the robbery utterance. However, on the supposition that Mr. Nikov did make the statement, Ms. Weis submits that there is a serious concern that Mr. Nikov was not being sincere when he evinced an intention to rob Mr. Cheveldayoff. Ms. Weis contends that Mr. Nikov was motivated to try and impress his two companions. Thus, the court should treat this utterance as a show of bravado rather than an actual intention to commit robbery.

[58] Ms. Weis buttresses her arguments by drawing the court’s attention to the video, which discredits the idea that a robbery was occurring. As can be seen on the footage, there is no attempt to steal the knapsack Mr. Cheveldayoff is carrying nor is there any attempt to go through his pockets or remove any other possessions.

[59] As well, Mr. Kamara has given different accounts of what Mr. Nikov said about Mr. Cheveldayoff prior to the fight. For example, at the preliminary inquiry, Mr. Kamara initially testified that he had heard the robbery utterance. Later on, however, Mr. Kamara said that he thought Mr. Nikov wanted to talk to Mr. Cheveldayoff about something but could not remember what. In an earlier statement to the police, Mr. Kamara indicated that during the fight he had heard Mr. Nikov say words to the effect of “Why did you touch my sister?” to Mr. Cheveldayoff.

[60] Notwithstanding Ms. Weis’s impressive submissions, I find that the hearsay utterance is admissible.

[61] In Starr, the court found that the deceased’s hearsay utterance to a romantic partner indicating that he was going to be with the accused to commit a “scam” fell under the cloud of suspicion because he had every reason to mislead his partner. This is not a case like Starr where there was an ostensible reason to lie. Although I accept that there might have been an element of bravado in Mr. Nikov’s declaration of intent to rob Mr. Cheveldayoff, that, of itself, does not mean that he did not intend to do so.

[62] Although Ms. Weis points out that the video contradicts the notion of a robbery, I do not find that it eliminates that possibility. To use the video in the manner sought by the Crown would be tantamount to deciding the ultimate reliability of the utterance - something that a trial judge cannot do: Khelawon, at para. 50.

[63] I am also cognisant of the fact that Mr. Kamara is hardly the most reliable of witnesses. He testified as a witness on the admissibility voir dire and was cross-examined by both parties. Mr. Kamara is clearly a witness who has given different accounts on the issue and appeared hostile to both the Crown and the defence. However, his prior statements and ultimate credibility are a matter for the jury and not determining factors in deciding admission of the robbery utterance.

[64] For these reasons, I find the robbery utterance to be admissible.

RULING #3 - DEFENCE APPLICATION FOR LAY OPINION EVIDENCE

Background

[65] The defence seeks the admission of “lay opinion evidence” from two witnesses at the scene: Mr. Desir and Mr. Kamara.

[66] When interviewed by the police, Mr. Kamara told them that Mr. Cheveldayoff looked “scared” when leaving Tim Hortons. He also told the police that in his view, when Mr. Nikov met Mr. Cheveldayoff outside Tim Hortons, he was “going to do something crazy right now”.

[67] Mr. Desir told the police that based on his observations, Mr. Cheveldayoff entered Tim Hortons to “get away” from the situation that had developed in his encounter with Mr. Kamara and Mr. Nikov.

Positions of the Parties

[68] Ms. Murphy argues that Mr. Kamara’s evidence is important because it would assist the jury in understanding the dynamics of what followed Mr. Cheveldayoff’s exit from the coffee shop and before the shooting. She further argues that Mr. Kamara’s assertions are confirmed by the video recordings, which show Mr. Nikov attacking Mr. Cheveldayoff as he came out of Tim Hortons.

[69] With respect to Mr. Desir, Ms. Murphy submits that the evidence would be highly probative in assisting the jury to evaluate Mr. Cheveldayoff’s state of mind prior to the shooting.

[70] Ms. Murphy relies on R. v. Graat, [1982] 2 S.C.R. 819, and R. v. H.B., 2016 ONCA 953, 345 C.C.C. (3d) 206, as authorities which permit non-expert opinion of demeanour to be admissible in certain circumstances. The Crown concedes that under Graat, Mr. Kamara’s observation that Mr. Cheveldayoff looked scared is admissible. However, Ms. Weis submits that the other opinions should be excluded.

Analysis

[71] Graat was a case of impaired driving where the Supreme Court of Canada held that it was permissible for an officer to give his opinion that the accused was intoxicated. Dickson C.J. remarked, at p. 835, on the admissibility of non-expert witnesses:

The subjects upon which the non-expert witness is allowed to give opinion evidence is a lengthy one. The list mentioned in Sherrard v. Jacob, supra, is by no means exhaustive: (i) the identification of handwriting, persons and things; (ii) apparent age; (iii) the bodily plight or condition of a person, including death and illness; (iv) the emotional state of a person--e.g. whether distressed, angry, aggressive, affectionate or depressed; (v) the condition of things--e.g. worn, shabby, used or new; (vi) certain questions of value; and (vii) estimates of speed and distance.

[72] The court added that it was well established that a “non-expert witness may give evidence that someone was intoxicated, just as he may give evidence of age, speed, identity or emotional state.”

[73] In H.B. a majority of the court held that a police officer’s observation of the complainant’s mother’s reaction (or lack thereof) when told of allegations of sexual abuse against her daughter were admissible.

[74] The Crown properly conceded that Mr. Kamara’s observation that Mr. Cheveldayoff looked scared is admissible pursuant to Graat and H.B.. I agree with that concession.

[75] Apart from that observation, both witnesses’ evidence amounts to no more than mere speculative guesses rather than an opinion of a “condition” or “an emotional state” as permitted in Graat or H.B..

[76] The type of observations set out in Graat is a far cry from admitting opinion of a fact in issue such as whether Mr. Cheveldayoff was trying to “get away” or was going to act in a particular fashion.

[77] Admission of this type of evidence would result in both witnesses being elevated into the minds of Mr. Cheveldayoff and Mr. Nikov, accurately predicting their thoughts and intentions. Graat provided a mechanism by which basic facts could be drawn from observations of a person’s physical condition, not how they would act or what they would do.

[78] For these reasons, the evidence is inadmissible apart from Mr. Kamara’s observation that Mr. Cheveldayoff looked scared.

RULING #4 - APPLICATION TO EXCLUDE THE STAIRWELL VIDEO

[79] The defence seeks to exclude a video recording capturing events that occurred in the stairwell of Mr. Cheveldayoff’s apartment building some three and a half hours after the shooting.

[80] In the video – which has no sound – Mr. Cheveldayoff appears to re-enact the shooting to two unknown acquaintances, raising his arms in an upward motion and simulating the act of firing a gun.

[81] Ms. Murphy opposes the introduction of the video as post-offence conduct evidence claiming that it has no probative value and should be excluded pursuant to the principles set out in R. v. White, [1998] 2 S.C.R. 72.

[82] The Crown, in response, argues the video is essential evidence to establish the identity of the shooter, which at this stage is not conceded, and to rebut the defence of self-defence. Moreover, the video demonstrates that Mr. Cheveldayoff was not in shock and had no injuries.

[83] This application may be dealt with in short order. Post-offence conduct is presumptively admissible circumstantial evidence which may be probative of material issues at trial.

[84] At this juncture, the defence has not yet conceded identity and so it appears that that issue and self-defence are firmly in play. This may change, if the defence makes concessions or clarifies its position.

[85] In my view, the video is admissible for the purposes indicated by the Crown. However, should the issues relied upon by the Crown become the subject of concession or otherwise develop into moot areas, a “no probative value” instruction will be given to the jury in respect of the evidence.

S.A.Q. Akhtar J.

Released: 11 July 2018

REASONS FOR JUDGMENT

COURT FILE NO.: CR-17-70000526-0000 DATE: 20180711 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – BRADLEY CHEVELDAYOFF

S.A.Q. Akhtar J.