Court File and Parties
COURT FILE NO.: CRIMJ(P) 1044/21 DATE: 2023 04 13 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING Carson Coughlin and Peter Maund for the Crown
- and –
Brandon Drakes-Simon JUSTIN MALCOLM Gabriel Gross-Stein and James Mencel for Drakes-Simon David Heath for Malcolm
HEARD: February 13, 2023
Discreditable Conduct Ruling
D.E HARRIS J.
1The two accused are charged, along with Melnee Christian and Jason Williams, with the first degree murder of Mario Ibrahim committed October 22, 2019. The same accused, save and except Malcolm, are charged with the attempted murder of Ibrahim two days before, on October 20, 2019. On that date, he survived a gun attack upon the vehicle he was travelling in on Highway 401, only to be shot and killed two days later.
2The Crown applies to admit discreditable conduct evidence against Drakes-Simon and Malcolm. The subject matter of the application is a WhatsApp voice audio memo conversation between Drakes-Simon and Malcolm on October 29, 2019 in which various subjects were discussed.
3I made a bottom line ruling in the interests of trial economy soon after the application was heard. These are the underlying reasons. There are three categories the Crown has advanced: (i) Drakes-Simons’ acquisition of a FN 40 firearm and the “Lock”, argued to be a Glock handgun, (ii) Drakes-Simons’ expressed intention to deal with significant legal bills; and (iv) Evidence that Drakes-Simon was seeking additional “contract killing” work.
Drakes-Simon’s Previous Acquisition of a Firearm
4The live issue in this case must be isolated in order to determine the probative value of the evidence tendered by the Crown: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at paras. 69-75.
5In this instance, the Crown alleges that Mr. Ibrahim was shot multiple times while he sat in the driver’s seat of his car outside 350 Webb Drive in Mississauga at 11:52 p.m. on October 22, 2019. The shooter is said to be Mr. Drakes-Simon and it is alleged by the Crown that Mr. Ibrahim was lured to the location where he was killed by Melnee Christian, Drakes-Simon’s girlfriend. It is alleged that Williams was the driver of the car from which, on October 20, 2019, Ibrahim’s car was shot at on the 401. He is also alleged to be the getaway driver from the homicide two days later. Malcolm is alleged to be the middleman, the man who received the contract and the money to pay the perpetrators from the unknown person who wanted Mr. Ibrahim dead.
6In the subject conversation, there are several references to buying a “stick”, likely a handgun, and a reference to buying brand new in the box a FN 40. A FN 40 is a handgun that shoots 40 calibre bullets. The Crown originally believed that it could also shoot 9 mm ammunition. However, new information has clarified that it cannot, at least without modification. At both the scene of the 401 shooting and at the scene of the murder, 9 mm shell casings were found. In other words, this gun could not have been the murder or the attempted murder weapon. In light of this, the evidentiary question remaining is whether Drakes-Simon’s association with handguns in general is admissible on this prosecution. This association would presumably make it more likely that he was the man who, using a handgun, shot Ibrahim to death.
7The reasoning would go like this presumably: It is alleged that Drakes-Simon shot the deceased to death; he carried this out with a handgun; he talked about being in possession of a handgun, albeit a different one, in the WhatsApp discussions’, this makes it more likely that he possessed a handgun at the time of the murder and was the person who shot the deceased to death.
8The probative value of this line of reasoning is largely dependant on the unique nature of the object possessed. If, hypothetically, it was a one-of-a-kind firearm possessed and used in the killing, that would alter the probative value of the evidence the Crown seeks to admit.
9However, the gun referred to was not used in the homicide. The value of the mention by Drakes-Simon of a FN 40 or a Glock is negligible. Sad to say, handguns are not a rare commodity in the Greater Toronto Area, including Mississauga. Expert evidence routinely tendered on bail hearings in Brampton where handguns are involved leave no doubt on the question. That Mr. Drakes-Simon bought or possessed a handgun is of no real utility in proving that the man who shot the bullets from a handgun and murdered Mr. Ibrahim was Drakes-Simon. It is evidence of the most general nature.
10The prejudice, even with a careful instruction, is of major proportions. This evidence was clearly inadmissible.
Mr. Drakes-Simon’s Legal Bills
11The Crown puts the argument this way in their factum:
… Drakes-Simon tells Malcolm he has an ongoing court case. While he has been granted legal aid, he is not thrilled that one of his lawyer’s associates would handle the trial in the event that it remained a legal aid retainer – the principal lawyer would require $25k to do the trial. Given the timing of the discussions, it is reasonable to infer the existence of this financial need (or motive) at the time of the shootings in this case.
12I am far from convinced that this exchange demonstrates financial need or motive. That a person was struggling to decide whether to retain a lawyer privately or to seek Legal Aid funding could be indicative of an unremarkable inclination towards financial prudence. In any case, if it does show need, it does not appear to be pressing or urgent.
13General financial need evidence of this nature should be approached with skepticism. It can and often does operate unfairly: R. v. Mensah (2003), 170 O.A.C. 244, leave to appeal ref'd, [2003] S.C.C.A. No. 207, at para. 8 and ftnt. 2; R v N'Kansah, 2019 ONCA 290, at para. 17. Virtually everyone is motivated to enhance their financial wherewithal. There is nothing unusual or particularly probative about this.
14Of course, financial need can supply evidence of motive in some individual instances. However, the evidence tendered here is devoid of probative value for this trial. It is far too vague and general to have any weight. Furthermore, it would allow into the record that Drakes-Simon had a court case ongoing. In my view, a jury would most likely assume--quite correctly--that it was a criminal matter. The prejudice stemming from this evidence clearly outweighs its probative value. It is inadmissible.
Evidence of Drakes-Simon Seeking More Contract Killing Work
15The WhatsApp voice memos have Drakes-Simon talking about hoping to get more work from the “plug” or the “white yute”. The plug is mentioned several times in these conversations. I agree with the Crown that the most likely interpretation of this word is that it refers to the person who called and funded the “hit” on Mr. Ibrahim.
16The Crown seeks to admit evidence that Drakes-Simon is a “hit man” and was hoping to kill more people for hire after this murder. According to the Crown, this evidence is important on the issue of planning and deliberation to murder Mr. Ibrahim.
17This evidence too is inadmissible. Evidence to bolster planning and deliberation is unnecessary. Realistically, this is not an open issue on this trial. The external circumstances include evidence from an eyewitness that a man lay in wait in the shadows outside 350 Webb Drive for the deceased to arrive in his car. A minute after he drove up, the waiting man walked methodically to the driver’s window and fired multiple shots into it from a handgun. He then fled across the road to a parking lot where a vehicle whisked him away.
18The evidence of the phones and movement of Mr. Williams’ Infiniti fortify this evidence. There is evidence that Mr. Drakes-Simon and Mr. Williams pursued Mr. Ibrahim on the 401 and shot at him on October 20, 2019, the subject of the attempt murder charge. There is evidence that the two men waited for him outside his home the next day with the purpose of killing him but to no avail. Lastly, there is the evidence that he was lured to where he was finally killed outside the building at 350 Webb Drive.
19There is admissible evidence in the WhatsApp conversation that the killing of Mr. Ibrahim was a hit funded by the “white yute” also known as the “plug”. Both Williams and Drakes-Simon were foolish enough to take photos displaying and bragging about large amounts of cash within a day of the murder.
20In sum, if Drakes-Simon was found to be the shooter, it was clear that the killing was a planned one. Mr. Ibrahim was hunted at three venues over two days--the 401, his home, and 350 Webb Drive. Realistically, the issue in this case was whether Drakes-Simon shot and killed Mr. Ibrahim. If it was found that he did, this carries with it in the circumstances of this case a virtually inescapable inference of planning and deliberation.
21The addition of evidence that Drakes-Simon was a hit man or had aspirations to become one and was looking for more contracts to kill people would not advance the planning and deliberation evidence any further than where it already lies. This hard-hitting evidence impacts on what is virtually a non-issue. Consequently, the probative value is extremely low, close to the vanishing point.
22All three types of evidence that the Crown has applied to admit suffer from the same major flaw, generality. Specific, pointed evidence is the best ticket to admission of similar fact evidence. The same often holds true for discreditable conduct evidence. Justice Binnie said in Handy,
87 Cogency increases as the fact situation moves further to the specific end of the spectrum.
23What is clearly not permitted and is the principal subject of the many years long condemnation in the common law is bad character evidence showing only that the accused is a dastardly person who for that reason is likely guilty of the offence charged. In the circumstances of this case, the evidence tendered is about a clear example of forbidden reasoning.
24The evidence is not probative of any live issue on this trial; its effect is exclusively prejudicial. It is difficult to imagine greater bad character prejudice than would be caused by this evidence. That Drakes-Simon was either a contract serial murder or was hoping to become one would cause staggering prejudice to his fair trial rights. The moral prejudice is profound. The temptation to infer guilt from general disposition or character as a hit man could be almost irresistible in the absence of a legitimate purpose for the evidence. There would be a powerful motivation for the jury to protect the community from Drakes-Simon’s homicidal ambitions, even justifying the abridgment of the presumption of innocence.
25That is why I ruled this evidence inadmissible.
26In my bottom-line ruling at the trial, I ordered that the WhatsApp conversation be edited to remove the three areas identified above and anything else agreed to be inadmissible. Counsel edited both the recording itself and the transcript.
D.E HARRIS J.
Released: April 13, 2023