COURT FILE NO.: CR-22-30000046-0000 DATE: 20230425

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – SHAMAR BAILEY, KWAMI GARWOOD Defendants

COUNSEL: Jonathan Smith, Leslie Zamojc, for the Crown Maurice Mattis, Monte MacGregor, for Shamar Bailey Jessica Zita, Victoria Strugurescu, for Kwami Garwood

HEARD: February 21 - March 3, 2023

JUSTICE S. NAKATSURU

A. Introduction

[1] Shamar Bailey and Kwami Garwood are charged with the first-degree murder of Andre Charles. The Crown brings an application to have extrinsic discreditable conduct admitted at trial.

[2] The Crown seeks admission of the following:

a. The “Tragunna Lane Incident” on July 4, 2020.

b. Evidence of Kwami Garwood and Shamar Bailey’s means to commit the offence, specifically:

i. Kwami Garwood’s access to and possession of firearms - Images from D.M.’s [1] cell phone, dated shortly after July 4 and seized July 14, 2020.

ii. Shamar Bailey’s access to and possession of handgun ammunition, located July 29, 2020, at the execution of a search warrant by officers from 145 Marlee Avenue, Unit 415.

c. Identification evidence relevant to Kwami Garwood, regarding a booking/release video from a May 21, 2019, arrest of Mr. Garwood.

B. Overview of the Allegations

[3] The Crown theory is that on Saturday July 4, 2020, Shamar Bailey, Kwami Garwood, and D.M. travelled to a Toronto community housing complex at 51 Morecambe Gate in Scarborough. Mr. Bailey drove a blue Hyundai Elantra into a parking lot with D.M. and Mr. Garwood as passengers. D.M. and Mr. Garwood got out of the car, each armed with a firearm. They approached Andre Charles and, within moments, began shooting him. They continued to shoot him while he was on the ground. The shooters ran back to the blue Elantra and Mr. Bailey drove all three away. Mr. Charles died of multiple gunshot wounds.

[4] Mr. Charles’ common law partner, Christina Pinel, had been waiting for him from across the street in the school parking lot to accompany her and their two sons to basketball practice. Ms. Pinel described seeing the shooters enter a blue sedan and watching the vehicle speed away.

[5] The Crown’s case is built largely around video surveillance gathered by the Toronto Police Service. Initially, the police investigators obtained video surveillance from Toronto Community Housing for the 51 Morecambe Gate complex and from unit 49-51 Morecambe Gate. This surveillance shows the blue four-door sedan pulling into the parking lot on July 4, 2020, at 1:34 p.m. A man emerges from the front passenger seat and another man exits the rear driver’s side. The front passenger is a Black man wearing a black hooded sweatshirt with “PUMA” written across the chest. He has his hood up. The man is wearing black pants with white stripes down the sides, red and black shoes, and a blue medical face mask. The Crown alleges this man to be Mr. Garwood. The rear driver’s side passenger is a tall, thin Black man wearing a grey, hooded long sleeve shirt with his hood also up. He is wearing jeans, black and gold running shoes, and a black face mask. The Crown alleges this man to be D.M. The Crown alleges that other video surveillance shows the driver of the blue car to be Mr. Bailey.

[6] Video surveillance obtained a licence plate for the blue car. The licence plate turned out to be stolen from another vehicle of the registered owner, who lived at 55 Falby Court. Through further video surveillance, the police determined the original licence plate of the blue Elantra. From that the police learned that the Elantra was a rental car that had been rented to Shamar’s Bailey’s half-brother.

[7] Video surveillance, cell-phone data, and Air IQ tracked the movements of the Elantra before and after the shooting. One video shows Mr. Garwood disposing of the stolen licence plate into a sewer grate just after the shooting. The plate was later recovered by the police. Mr. Garwood and D.M. walk away from the Elantra at that point. The Elantra leaves and parks near 145 Marlee Ave., where Mr. Bailey exits and enters the address. The Crown position is that Mr. Bailey resides there.

[8] Other video surveillance tracks Mr. Garwood and D.M. after the shooting. Police mobile surveillance was also conducted. Search warrants were executed at Mr. Bailey and Mr. Garwood’s homes on July 29, 2020. It is unnecessary for the purpose of this application to outline the results of these further investigations.

[9] Both Crown and defence agree that the identity of the perpetrators of the murder will be a central issue for the jury to resolve. In addition, if it is proven that Mr. Bailey is the driver of the Elantra, the culpability of Mr. Bailey as a party to the murder will be contested.

C. General Legal Principles

[10] The accused answers only to the charge in the indictment. Uncharged acts of discreditable conduct, subject to limited exceptions, are not admissible. More specifically, acts of discreditable conduct relating to an accused which show only that the accused is the type of person likely to have committed the offence in question is inadmissible. As Binnie J. observed in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 72:

Bad character is not an offence known to the law. Discreditable disposition or character evidence, at large, creates nothing but "moral prejudice" and the Crown is not entitled to ease its burden by stigmatizing the accused as a bad person.

However, evidence of discreditable conduct may be exceptionally admissible where it is both relevant to a material issue at trial and its probative value outweighs its prejudicial effect. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case, the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception: see Handy, at para. 55. The prejudice of the disposition evidence must always be kept in the forefront of the analysis.

[11] Before going further, a brief comment on the use of the term “similar fact”. During submissions, it appeared to me that there was some confusion as to its use. The exclusionary rule referred to above includes similar fact evidence. This happens where the Crown seeks to advance evidence that the accused committed discreditable acts similar to the offence with which they are charged. In the case at bar though, the Crown does not rely on similarities between the discreditable conduct evidence and the offence charged in order advance the case for admission. Rather, viewed more accurately, the Crown relies upon the circumstantial inferences from prior possession or access to firearms for the evidence’s relevance and probative value. Not any similarities between the discreditable conduct and the offence charged. Put another way, no reliance is placed upon the improbability of coincidence between allegedly similar acts to prove the question in issue. Regardless though, the underlying principle governing admissibility remains the same. As Paciocco J.A. explained in R. v. M.R.S., 2020 ONCA 667, 396 C.C.C. (3d) 172, at para. 62:

Despite the common practice of referring to "similar fact evidence" and the "similar fact evidence rule", the rules just described are not confined to situations where the bad character evidence reveals conduct that is similar with conduct alleged in the charged event: R. v. B.(L.) (1997), 116 C.C.C. (3d) 481 (Ont. C.A.), at paras. 6, 17, 31-39, leave to appeal refused, [1997] S.C.C.A. No. 524. Both the rule against general bad character and the rule requiring probative value to outweigh prejudice operate in any case where the evidence is of the conduct of the accused that is "sufficiently discreditable that it may prejudice the trier of fact against the accused": B.(L.), at para 20. This broad application is supported by the purpose underlying the similar fact evidence rule. Bad character evidence that is of a "highly prejudicial nature" has the capacity to attract the prohibited inference that the accused is the type of person likely to commit the charged offence: B.(F.F.), at p.735.

See also R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at para. 160.

[12] In the case referred to by Paciocco J.A., Charron J.A. (as she was then) explained in R. v. B.(L.) (1997), 116 C.C.C. (3d) 481 (Ont. C.A.), at paras. 31-32, on facts very analogous to that which are presented in this case, a search for similarities is unnecessary:

The extent to which the proposed evidence supports the intended inference will often depend on the degree of similarity between the prior discreditable conduct and the fact sought to be proved at trial. But that is not always the case. Sometimes the degree of similarity will have no bearing on this issue. Consider the following situation:

[A]ssume that it can be shown that the deceased was killed by a bullet from a particular gun. The Crown wishes to introduce evidence that the day before, the accused broke into a gun store and stole that particular gun. The fact that the accused committed the disreputable act of break, enter and theft is really incidental to the case. What the Crown needs that evidence for is to show that the accused had possession of the murder weapon at a time proximate to the killing. From this the jury will be asked to infer that he had the gun at the time of the killing and therefore that he is the killer.

In this example, any similarity between the break and enter and theft of the gun and the murder is beside the point. Yet, the proposed evidence of the prior conduct of the accused is discreditable and the same evidentiary rule applies. This fact situation exemplifies why, as stated above, the label "similar fact evidence" is a misnomer.

[13] With these principles in mind, I will undertake the analysis of each item of extrinsic misconduct evidence that that Crown seeks admission of.

1. The Tragunna Lane Incident

[14] As an initial matter, I observe the following about the evidentiary record on this application that the Crown relies upon for admission of the evidence regarding the Tragunna Lane Incident. It consists mainly of the preliminary inquiry testimony of Tenille Patrick, who was the complainant in the incident. When I raised the issue of whether Ms. Patrick should be called on a voir dire, the parties agreed to proceed on the written record. It was only in her final submissions that Ms. Zita, on behalf of Mr. Garwood, suggested that viva voce testimony could be called if I thought it to be appropriate. I have seriously considered it. However, I have concluded that the issue of admissibility can be resolved without resort to such viva voce testimony.

[15] Clearly, the written statement given by Ms. Patrick to the police on July 5, 2020, can only be considered on this application where it was adopted by Ms. Patrick at the preliminary inquiry. Otherwise, the written statement cannot be used for the truth of its contents because it is hearsay. While I appreciate that the preliminary inquiry judge admitted the written police statement under s. 540(7) of the Criminal Code, the standard for admission is different under that subsection than it would be under the principled approach to hearsay. The Crown has not sought the admission of the written statement as an exception to the hearsay rule. Thus, it remains inadmissible hearsay.

Ms. Patrick’s preliminary inquiry evidence

[16] The following is a summary of Ms. Patrick’s evidence based upon the totality of the evidence she gave at the preliminary inquiry. [2]

[17] On July 4, 2020, at around 1:15 or 1:30 p.m. (Ms. Patrick was not certain), Ms. Patrick was outside her home with her young niece in Ajax, Ontario, when she saw a blue vehicle drive by. It was going a little slow. She saw three, perhaps four, people in medical masks in the car. It attracted her attention. The car turned the corner and she lost sight of it. Soon thereafter, three young Black males approached her. She did not know them. They wore medical masks. They wore track suits, dark blue or black. One asked her where Tyrique, Ms. Patrick’s son, was. They said they had just seen him, and she was to tell him to come out. She saw one of the men wearing a chain, possibly the chain that had been stolen from her son the day before. The chain had belonged to her son’s close cousin. The chain worn by the male had the same brand, “In Your City” or “In My City” prominently displayed, as the chain that was stolen from Tyrique. She accused the male of taking her son’s chain. The person had his hand on the chain, said he had it, and laughed.

[18] Ms. Patrick took out her phone to call 911. They said told her that she better not record or call the cops. One male wearing a grey or dark tracksuit pointed a shiny silver gun at her and said, “You want to see crazy?” At other points in her preliminary inquiry evidence, Ms. Patrick testified that she was only told by others what this male said. Although she gave inconsistent statements about his description, she did agree at one point that the male with the gun was the skinniest and the tallest of the three males. The other two just stood there without saying anything. She described one male as having cornrows or something of that nature in his hair, since, though he wore a hoodie, she could see his hair stick out from the side.

[19] She saw no other weapons. The three turned and left on foot. Ms. Patrick feared for her safety and left her home to stay elsewhere.

[20] On July 5, 2020, she went to the Durham Police Station with two friends. She gave a written statement to the police that she signed. In that statement, she gave descriptions of the three males. She did not recall another contact with the police on July 14, 2020. However, she recalled going to the police station on August 10, 2020, where two photo lineups were conducted with her. These photo lineups were video recorded.

Identification of the issues in question

[21] I must identify the “issue in question” for which the admission of the evidence is targeted in order to properly assess its probative value. The issue must be beyond mere predisposition or character and the probative value in relation to that issue must outweigh the prejudice. Probative value cannot be assessed in the abstract.

[22] There are several issues in question for which the Crown seeks admission of this evidence:

a. Whether the Crown has established the identity of the participants of the homicide, including whether Mr. Garwood and Mr. Bailey had access to firearms and ammunition;

b. As it relates to the Tragunna Lane Incident, assisting to identify the participants and putting them together prior to the homicide; and

c. As it further relates to the Tragunna Lane Incident, whether Mr. Bailey had knowledge that the other individuals had firearms and were prepared to brandish/threaten people with them.

[23] Before commencing the analysis, it is worthwhile to note the caution in B.(L.), at para. 11, about the difficulty of assessing probative value in this context:

Although the rule can be stated with relative ease, the cases reveal that it can be difficult to apply to specific situations. One difficulty undoubtedly arises from the fact that people have different subjective interpretations of the probative value of evidence. Trial judges must usually draw from their own knowledge and experience when assessing the various factors affecting the probative value of the proposed evidence. It is therefore inevitable that there will often be differences of opinion on any given set of facts.

[24] In this case, the probative value of the evidence depends in part on the assessment of Ms. Patrick’s testimony itself.

The assessment of Ms. Patrick’s evidence.

[25] The strength of the proof of the discreditable evidence is a consideration in determining the probative value of the proposed evidence: see Handy at paras. 82, 132-136; R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, at para. 64. The more compelling the proof, the greater its probative value: see B.(L.), at paras. 25-26. Credibility and reliability are therefore issues that I must consider in my gatekeeping function. I must assess whether the subject evidence is reasonably capable of belief, especially where the prejudicial impact of admitting the evidence is high: see R. v. King, 2022 ONCA 665, 163 O.R. (3d) 179, at para. 118.

[26] Ms. Patrick’s testimony is arguably inconsistent with material parts of the written statement provided to D.C. Campbell at the Durham Police Station on July 5, 2020. Important though is that she does not fully recant it. As a matter of fact, she adopted significant portions of it. Regarding the essentials of the Tragunna Lane Incident described above, she did not waiver in her testimony. Moreover, there were no real inconsistencies in this core portion of her evidence. To this extent, the discreditable evidence has significant probative value.

[27] Ms. Patrick’s position about some of the inconsistencies in her statement is that she was told these things, but she did not observe or hear them herself. In short, she was relaying hearsay to D.C. Campbell without specifying its hearsay nature. For example, she testified that she did not see a second man display a second handgun in his waistband despite mentioning this in her written police statement. Rather, she testified that someone at the scene of the incident saw this and told it to her. She did not see it. Her explanation regarding the inconsistencies and her refusal to adopt portions of her written statement, even after the Crown cross-examined her on it, undeniably detracts from Ms. Patrick’s overall credibility. On the other hand, her explanation that she was told certain details by others that she carelessly relayed to the police in her written statement is not entirely implausible.

[28] Overall, Ms. Patrick’s evidence is reasonably credible and reliable. The ultimate determination will be for the jury. On this application, I find that the evidence is sufficiently credible and reliable that it does not detract from the probative value of her testimony.

The evidence as circumstantial evidence of the possession of the murder weapon

[29] I find there to be significant probative value to the evidence in relation to the issues identified.

[30] There is a considerable body of jurisprudence that supports the admission of this extrinsic discreditable conduct. The pathway to admission is either as proof of the possession of the firearm that is alleged to have been used in the offence or as proof that the accused more generally has access to firearms and therefore has the opportunity or means to commit the offence. This rationale for admission was explained succinctly by Rosenberg J.A. in R. v. Backhouse (2005), 194 C.C.C. (3d) 1 (Ont. C.A.), at paras. 156-172, where the accused's possession of the murder weapon some nine or ten months after the murder was admissible to prove identity:

This line of reasoning, which flows simply from the fact that the appellant was in possession of the murder weapon at some time after the killings, does not depend on similar fact reasoning from disposition. The appellant's possession of the murder weapon is nothing more than circumstantial evidence of his involvement in the killings.

[31] While the probative value clearly increases where there is proof of the possession of the actual murder weapon itself, it also can come from evidence that the accused had the opportunity to access a firearm or had the means to commit the offence, whether it is the actual firearm used or not. The following caselaw supports this proposition. In R. v. Abbey, [2007] O.J. No. 855 (S.C.), at paras. 13, 17, evidence from a witness who saw the accused sometime prior to the homicide at a house where guns were present was admitted to prove that the accused had access to guns. In R. v. Riley, [2009] O.J. No. 1374 (S.C.), at paras. 100-110, 166-198, evidence of the accused possessing and using firearms on a variety of occasions was admitted as relevant to narrative, motive, and means to commit the offence. One of the trial judge’s evidentiary rulings was affirmed on appeal on the basis that the prior incident involving guns was properly admitted as circumstantial evidence that the accused had access to the tool to commit the offence, thus supporting proof of his identity as the shooter: see R. v. Riley, 2017 ONCA 650, 351 C.C.C. (3d) 223, at paras. 156, 235. In R. v. Cain, 2015 ONCA 815, 330 C.C.C. (3d) 478, at para. 67, in an incident a few months prior to the homicide, the accused pressed a gun into the stomach of the deceased. This was admitted as being probative to animus, motive, and means to commit the offence. In R. v. Asante, 2022 ONCA 657, at paras. 28-31, Mr. Asante was alleged to be the driver of the car that transported the shooter to and from the scene. There was a photograph on his phone, taken four months prior to the homicide, of a gun on a bedspread similar in pattern to that which was later seized by the police from an apartment linked to Mr. Asante. The Crown had only argued that it was possible that the gun could have been the murder weapon but did not assert that it was. The Court upheld the trial ruling to admit the evidence on the basis that it was circumstantial evidence that Mr. Asante had access to and possession of a handgun similar to the type used in the shootings. See also R. v. Fengstad, [1998] B.C.J. No. 2931 (C.A), at para. 11; R. v. Jacobsen, [2009] O.J. No. 522 (C.A.); R. v. Moore, 2015 ONSC 728, at paras. 47-49, aff’d 2020 ONCA 827, 153 O.R. (3d) 698, at para. 30; R. v. Obregon-Casstro, 2020 ONSC 6595, at paras. 27-28; and R. v. Johnson, 2018 ONSC 1552, at paras. 18-26.

[32] I find that the Tragunna Lane Incident has significant probative value for the following reasons.

[33] First, it is fair to characterize what happened at Tragunna Lane as inextricably intertwined with the narrative of the murder. There is evidence of the travels and activities of the persons the Crown alleges to be the perpetrators of the homicide throughout the day of July 4, 2020. It begins in the morning, including a stop at the Home Depot in Pickering, where the Crown theory is that D.M. and Mr. Garwood buy tape to be used in the shooting. The blue Elantra then stops at an underground parking lot at 55 Falby Court, where it is alleged they stole a licence plate to replace the true plate of the Elantra. From there, it travels to the area of Tragunna Lane, where the incident takes place. They then drive to the scene of the shooting.

[34] Second, the possession of the firearm by the person the Crown alleges to be D.M. is very close in time to the alleged murder. About half an hour. Given that close temporal proximity, the probative value of the evidence is very high: R. v. Campbell, 2015 ONSC 6199, at paras. 65-66, partially rev’d on other grounds, 2020 ONCA 221, 149 O.R. (3d) 675. Moreover, the description of the gun as a shiny silver revolver is consistent with the circumstances of the shooting and other evidence showing D.M. in possession of such a gun. Although two firearms were used to shoot the victim, casings from only one were found on the scene, consistent with a revolver being used. Plus, the photographs retrieved from D.M.’s cellphone (as explained below) are circumstantial evidence supporting the inference that the gun seen by Ms. Patrick is the same gun used in the shooting of Mr. Charles. All of this enhances its probative value: R. v. B.T.J. (2006), 84 O.R. (3d) 227 (C.A.), at para. 51.

[35] Third, the circumstances of the Tragunna Lane Incident support the proof of identity in other ways. Ms. Patrick puts three men together very close in time to the shooting. It is not an association at some distant time in the past. As well, while she did not directly see where the three men came from when they approached her, the overall circumstances link these three men to a blue car. This connects to the blue Elantra seen at the shooting. As I will expand on below, there is circumstantial evidence supporting the conclusion that these men are the accused and D.M. The association of the three individuals together in a blue car so close in time, acting together in approaching Ms. Patrick, also contributes to the probative value of this evidence in proving their identity: R. v. Stanley, 2020 ONSC 6673, at para. 33; R. v. White (1996), 108 C.C.C. (3d) 1 (Ont. C.A.), aff’d , [1998] 2 S.C.R. 72.

[36] Fourth, the second Crown purpose in seeking the admission of this evidence is to prove Mr. Bailey’s knowledge of his co-accused having weapons as relevant to the proof of his party liability for the murder. It also rebuts any defence allegation that Mr. Bailey’s presence at the scene of the shooting was for an innocent purpose. This purpose shares similarities to the case of R. v. Kinkead (2003), 67 O.R. (3d) 57 (C.A.), at paras. 76, 79. In that case, prior incidents of Mr. Kinkead possessing and using a knife were held to be admissible not only for the purpose of showing Mr. Kinkead possessed or supplied the murder weapon to his co-accused, Mr. Ranger, but also to support the Crown theory that Mr. Ranger recruited Mr. Kinkead to commit the murder and to rebut the suggestion that his presence at the murder scene was for an innocent purpose. One of the incidents involved Mr. Kinkead wielding the knife in the presence of Mr. Ranger.

[37] In sum, for all these reasons, the Tragunna Lane Incident has substantial probative value.

The authorship requirement

[38] For this evidence to be admissible, there must be some evidence upon which a trier of fact can find that the acts during the Tragunna Lane Incident were the acts of the accused. Mere opportunity or possibility is not sufficient. Absent a nexus between the Tragunna Lane Incident and the accused, the evidence is irrelevant and inadmissible: see R. v. Sweitzer, [1982] 1 S.C.R. 949; R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228; and R. v. Shepherd (2001), 54 O.R. (3d) 199 (C.A.).

[39] I am satisfied that even though Ms. Patrick does not directly identify two of the perpetrators as being Mr. Garwood and Mr. Bailey, the circumstantial evidence provides the nexus.

[40] It is true that Ms. Patrick’s identification of the men suffers from weaknesses. When it comes to the description of the men, Ms. Patrick testified that it was based not only upon her own observations, but also upon what others present at the scene had told her. She testified that what she personally saw and what she was told were all mixed up in her mind so that she is really unable to separate the two. She described the first male with the chain as wearing a black track suit with a hood. She thought he had hair but, due to his mask, she was not sure if he had facial hair. The second male was described as wearing a black or blueish-grey tracksuit, baseball cap, blue medical mask, and maybe had “cane rolls” to his neck and not to his shoulder. At the preliminary inquiry, she did not recall him wearing a hat. The third was the tallest of all, very skinny, had an almost shaved head, and wore a grey hoodie sweater, blue baggy jeans, and a mask. He pointed the silver gun at her. At the preliminary inquiry, she testified that she was not sure about his height and did not recall the shaved head.

[41] Her testimony that her descriptions of the three men are partly based on hearsay and might be merely a guess is problematic. That is self-evident.

[42] In addition to her testimony and descriptions, there are also the lineups conducted by the police. On August 10, 2020, Ms. Patrick was shown two photo line-ups. One contained a picture of Mr. Garwood. The other contained a picture of D.M. Ms. Patrick said “no” to all the images except to the photographs of Mr. Garwood and D.M. She was unsure of these two pictures, but she felt that they looked like the two males with the guns. D.M. looked like the slim male with the revolver and Mr. Garwood was the male that revealed the black gun in his waistband.

[43] At the preliminary inquiry, Ms. Patrick was shown the video of the photo lineup conducted on August 10. However, she was never specifically asked by the Crown to adopt the identifications, such as they were, that she did during the photo lineups. This state of her evidence did not change in cross-examination. If anything, the cross-examination highlighted more weaknesses in her identification process, including the fact she had seen photographs on social media and in a police press release. On the other hand, at the preliminary inquiry, Ms. Patrick did not recant the lineup identifications and she clearly recalled doing them.

[44] Before me, the Crown has made no application for the photo lineups to be admitted on a the basis of the principled approach to hearsay: see R. v. Tat (1997), 35 O.R. (3d) 641 (C.A.), at paras. 65-66. Moreover, the evidentiary foundation was not firmly laid to find the lineup admissible based on the hearsay exception for past identification: see David M. Paciocco, Lee Stuesser, and Palma Paciocco, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 183.

[45] However, although there is no direct identification by Ms. Patrick, this is compensated for by the circumstantial evidence. The circumstances are consistent with Mr. Garwood, Mr. Bailey, and D.M. being the three men involved in the Tragunna Lane Incident. I will not spell out all of the evidence, much of which has already been set out in my reasons, but it includes the evidence the Crown relies upon that the shooters of Mr. Charles were Mr. Garwood and D.M. and the driver was Mr. Bailey. In summary, the evidence is that three men at a time very close to the shooting, dressed relatively consistently with the other evidence about how the accused were dressed on that day, who were in the vicinity of the shooting, driving a similar colored car, with one carrying a firearm that was consistent with the silver revolver said to be in possession of D.M., arrived and threaten Ms. Patrick. It would be an unlikely coincidence that it was three different men, driving in a blue car, wielding a similar silver revolver that committed this offence against Ms. Patrick.

[46] Then there is Ms. Patrick’s evidence that one of the men was wearing the chain with the distinctive brand visible on the medallion of the chain. This detail significantly adds to the evidence connecting the men to the Tragunna Lane Incident. The Crown has other photographic and surveillance evidence of Mr. Bailey in possession of this chain. Of course, I appreciate that Ms. Patrick’s description of the person who the Crown alleges to be Mr. Bailey as wearing a dark or black tracksuit is not captured by the surveillance video of the man alleged to be Mr. Bailey on July 4. He is seen throughout the day wearing a grey tank top and black trackpants. Also, Mr. Bailey is not seen in the surveillance video of July 4 wearing a chain. However, all of this can be explained by Mr. Bailey removing the chain and the top part of the track suit sometime during the day.

[47] I therefore conclude that there is some evidence connecting the accused to the Tragunna Lane Incident.

The assessment of prejudice

[48] In assessing the possible prejudice of the admission of bad character evidence, Charron J.A., in B.(L.), at para. 24, held that consideration should be given to such matters as: (i) how discreditable it is; (ii) the extent to which it may support an inference of guilt based solely on bad character; (iii) the extent to which it may confuse issues; and (iv) the accused's ability to respond to it.

[49] In assessing the prejudice of the Tragunna Lane Incident, both moral prejudice and reasoning prejudice should be considered.

[50] There is obvious moral prejudice to the admission of this evidence. It shows a violent disposition by D.M. in pointing a gun and threatening a vulnerable unarmed woman. In addition, while the threatening action and words were directed at Ms. Patrick, it is aggravating that her young three-year-old niece was nearby. Moreover, it was brazen as this was done in broad daylight with other witnesses present. Finally, though much less character-blackening, a suggestion arises from the circumstances that Mr. Bailey had stolen the chain from Ms. Patrick’s son the day previous. [3]

[51] Additional prejudice exists in that the jury may view the men as a lawless and violent group who, from their predispositions, are the type of persons more likely to commit the first-degree murder of Mr. Charles.

[52] On the other hand, the prejudice is mitigated by the fact that according to Ms. Patrick, neither Mr. Bailey nor Mr. Garwood did much more than stand present when D.M. pulled out the gun and threatened Ms. Patrick with it. I am mindful that their association with D.M. and their leaving with him taints them with D.M.’s violent conduct. Nonetheless, the prejudice is attenuated by the fact that they are not themselves alleged to have threatened Ms. Patrick or to have used a weapon against her. In this way, it lessens the impact of the bad acts committed against Ms. Patrick.

[53] The prejudice is also lessened by the fact that this incident is a much less serious allegation than the first-degree murder they are charged with. Ms. Patrick, though frightened, was unhurt. Her niece was not directly threatened, nor do I have any evidence as to what she may have seen of the incident or understood it to involve. She was only three. Said differently, in terms of the gravity of conduct, it is one thing to threaten someone with a gun who appears to be calling the police on you and something very different to plan and deliberate the murder of a defenceless man.

[54] In terms of the accused’s ability to respond to the incident, I am confident they can. There are frailties in Ms. Patrick’s evidence. In reviewing her cross-examination conducted at the preliminary inquiry, I am of the view that the defence will be able respond to her evidence and make full answer and defence if this evidence is admitted.

[55] Finally, the prejudice will be even further mitigated by a strong caution and limiting instruction to the jury regarding this evidence: see Asante, at para. 29.

[56] Regarding reasoning prejudice, there is very little in my view. First, it fits within the narrative of the murder. It is not confusing or distracting. Indeed, it will be helpful for the jury in its assessment of the timeline of the events of that day to hear this evidence. Second, while it is hard to predict how long her testimony will be, the Tragunna Lane Incident involves only one or two witnesses: Ms. Patrick and perhaps her son Tyrique. Saying that, I am mindful that other legal issues might arise during Ms. Patrick’s testimony, including a potential application to have her written police statement admitted pursuant to a hearsay exception. Nonetheless, I find that this evidence will not unduly complicate or prolong the trial.

Does the probative value outweigh the prejudice?

[57] I find that the Tragunna Lane Incident has significant probative value and it outweighs the prejudicial effect of its admission. The latter is moderated in the ways I have explained and can be dealt with a jury instruction. As a result, this evidence is admissible.

[58] Prior to coming to this conclusion, I have given serious consideration to whether the prejudice can be even further contained by limiting the extent of the evidence: see Handy, at para. 142. In Backhouse, Rosenberg J.A. admitted the possession of a firearm but not the surrounding prejudicial use of it. In Stanley, Code J. did something similar.

[59] After careful reflection, I decline to edit or limit the evidence of Ms. Patrick.

[60] I find that the Tragunna Lane Incident must be admitted without any editing. In keeping with Backhouse and Stanley, I considered whether Ms. Patrick should testify only about the possession of the gun by D.M. without going into the other more threatening conduct like pointing the gun or the threat he made to Ms. Patrick. However, to advance proof of Mr. Bailey’s liability, evidence that he knew D.M. not only had a gun but was willing to use it in the fashion that he did against Ms. Patrick is very probative of the issue of whether he was a knowing party to the offence. Excising it or limiting Ms. Patrick’s testimony would significantly diminish its probative value on this issue. Simply saying D.M. had a gun is not the same. In my opinion, the prejudice can still be contained by a proper jury instruction even if the entirety of the incident is admitted.

[61] Having explained the law and my reasons for the admission of the Tragunna Lane Incident, the remaining evidence that the Crown seeks admission of can be dealt with more expeditiously.

2. The Firearm Photographs Found in D.M.’s Cellphone

[62] When D.M. was arrested by the police on an unrelated matter by the Kingston Police Service, a cell phone was seized from D.M. The Toronto Police Homicide Squad obtained a search warrant to search the contents of the phone. Amongst other things, they retrieved some relevant photographs from the phone.

[63] There are two categories of photographs in issue here: (1) there are photographs alleged to be of D.M. holding a revolver; (2) there is a photograph of a man alleged to be Mr. Garwood holding a semi-automatic pistol. Another photograph shows a similar looking gun nestled in between white sneakers that the Crown alleges belong to Mr. Garwood.

[64] The issue in question that the Crown seeks to lead this evidence on is to prove the identity of the participants of the shooting by showing that two of the perpetrators had access to firearms. While there is some relevance in that the photographs also show Mr. Garwood and D.M. having some familiarity with each other, there are other photographs of Mr. Garwood in the cellphone that do not involve any discreditable conduct that accomplishes the same purpose. Thus, the true weight of the impugned evidence relates to the access to the firearms or possession of the firearms used in the offence.

[65] With respect to the photographs of D.M. holding the gun, the Crown initially submits that no issue of admissibility arises since this is not discreditable conduct of either accused. This position has some support in the authorities. For example, in B.(L.), at para. 10, Charron J.A., when discussing the balancing process for the admission of similar fact evidence, set out some questions a trial judge could ask in determining this:

Because of the inherently prejudicial nature of evidence of discreditable conduct, it is subject to a general exclusionary rule unless the "scales tip in favour of probative value." The trial judge who is charged with the delicate process of balancing the probative value of the proposed evidence against its prejudicial effect should inquire into the following matters.

1. Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?

2. If so, is the proposed evidence relevant and material?

3. If relevant and material, is the proposed evidence discreditable to the accused?

4. If discreditable, does its probative value outweigh its prejudicial effect? [Emphasis added]

[66] In my opinion, in this discussion, Charron J.A. was not setting out a threshold requirement that the subject-matter of the evidence had to be that of the accused before the balancing process is engaged. Rather, she was merely setting out some helpful questions that can guide a trial judge in coming to the appropriate conclusion. Whether the conduct was that of the accused or someone else may assist in that. Indeed, it can be determinative on the issue of relevance. If the conduct is of someone other than the accused and has no connection or impact on the character of the accused, it would irrelevant and inadmissible. This is consistent with the requirement that there be some evidence of authorship to establish relevance. Moreover, even if it passes the relevance requirement, whether the conduct in question is that of the accused or someone else may be a significant question to address in determining probative value and prejudice.

[67] In my view, on the facts of this case, although the conduct is not that of the accused, the photographs of D.M. with a gun remains discreditable to Mr. Garwood and should be subjected to the balancing exercise. The Crown theory is that D.M., Mr. Garwood, and Mr. Bailey acted together in concert in the shooting of Mr. Charles. In light of this, Mr. Garwood’s association with D.M. means that D.M.’s discreditable conduct reflects back on Mr. Garwood.

[68] This conclusion is supported by the case of Riley (C.A.), at para. 221. On appeal, one appellant, Mr. Wisdom, argued that discreditable conduct by joint perpetrators in an uncharged robbery, committed by them and Mr. Wisdom, besmirched Mr. Wisdom’s character by his association with them. The Court agreed. The conduct of the other parties aggravated the prejudice to Mr. Wisdom in addition to his own participation in the robbery and was properly considered in weighing the probative value and prejudice.

[69] That said, I do acknowledge that the moral prejudice of these photographs is significantly lessened by the fact that they do not involve the discreditable conduct of Mr. Garwood. The prejudice comes from his association with D.M., who is wielding a gun. Not directly from Mr. Garwood having a gun in his possession.

[70] In terms of reasoning prejudice, there is little. There are not a great number of photographs. The evidence is easy to understand, causes no distraction, and will not involve a great deal of court time to introduce.

[71] On the other hand, the probative value of these photographs is high in relation to proving D.M.’s identity as a shooter for the same reasoning noted above in analyzing the admissibility of the Tragunna Lane Incident. The fact D.M. is holding a revolver increases its probative value given that scene evidence is consistent with one of the men using a revolver. While it cannot be determined whether the revolver held by D.M. is the gun used in the murder, this does not substantially lessen its probative value: see Assante, at paras. 27-29.

[72] Given the alleged joint nature of the murder, if the Crown proves that D.M. is one of the shooters, in the context of the whole of the evidence, this assists in proving that Mr. Garwood was the other shooter.

[73] In conclusion, I find that the probative value of this evidence outweighs the prejudice of its admission. These photographs are admissible.

[74] The second category deals with two photographs that the Crown says more directly implicate Mr. Garwood. There is one photograph of a man alleged to be Mr. Garwood holding what looks like a semi-automatic pistol. However, his face is mainly covered by his hand. The other photograph that the Crown seeks to introduce and submits is connected to Mr. Garwood is a photograph of what appears to be the same firearm nestled between a pair of white shoes. Mr. Garwood is not seen in this photograph. The Crown submits that the shoes are similar to shoes allegedly worn by Mr. Garwood after the shooting as captured by surveillance stills.

[75] Mr. Garwood submits that any evidence linking these photographs to him is tenuous and speculative. As I discussed above regarding authorship, there must be some link to the accused or else the evidence is not relevant or of no probative value. However, the threshold is not particularly high. What is required is "some evidence" linking the accused to the discreditable conduct, though mere opportunity or possibility is not enough: see Perrier, at paras. 23-24.

[76] Though it is not overwhelmingly clear, it is reasonably open for the jury to draw the inference that the photograph of the man holding a gun is Mr. Garwood. Other photographs of Mr. Garwood are contained in D.M.’s cellphone. [4] Thus, D.M. did take photographs of Mr. Garwood on his phone. The Crown argues that on the left hand of the man holding the gun is a tattoo which is consistent with Mr. Garwood’s left hand’s appearance. This will be for the jury to decide. For the moment, I find this is a finding that is reasonably open to the jury to make. Also, the photograph of the man’s face is not fully obscured. There is a small outline visible. In addition, the jury will be able to compare the build of the man’s torso with other photographs allegedly of Mr. Garwood. Finally, the same gun is alleged to be in another photo nestled between white shoes that the Crown submits is consistent with other photographs of Mr. Garwood wearing similar shoes. This is further circumstantial evidence supporting the inference that the man holding the gun is Mr. Garwood. Taken in its totality, there is some evidence linking the accused to the photographs.

[77] Like the photographs of D.M. holding a gun, the probative value of Mr. Garwood holding a gun relates to his means to commit the murder. It is evidence of access to guns. This is relevant to proof of identity. In Stanley, photographs in the cellphone of the accused taken two weeks before the offence were admissible as being probative to the central issue of identity. As well, the fact that a photograph of Mr. Garwood holding a gun was found on D.M.’s phone assists in tying him to D.M. by way of association. That acknowledged, the evidence would not be admissible on that basis alone, as there are numerous other photographs of Mr. Garwood in the cellphone that does the same without any suggestion of bad character.

[78] At the end of the day, there is significant probative value to the photographs of D.M. and Mr. Garwood both holding firearms in proving that these two men shot Mr. Charles. The probative value is enhanced by the fact that D.M. is holding a revolver and Mr. Garwood is holding a semi-automatic pistol, which is consistent with the shell casings found on the scene, the caliber of bullets retrieved from the body, and the forensic expert opinion evidence.

[79] Of course, there is moral prejudice to the admission of this evidence. However, it is limited to a certain extent by the fact that the photographs merely show Mr. Garwood holding the gun. There is no overt violence involved in the photographs. No other crime is depicted. The prejudice can be adequately dealt with by a jury instruction.

[80] In terms of reasoning prejudice, there are few photographs. The Crown intends to lead other photographs from the phone that do not depict any bad character or discreditable conduct that show Mr. Garwood as well as clothing worn by D.M. as a part of its case. Thus, the extra time required to introduce these additional photographs is minimal. It will not cause any distraction or confusion.

[81] This evidence is admissible.

3. The Booking/Release Video

[82] The question in issue here is again the identity of Mr. Garwood as one of the shooters. There are two parts to this. First, just generally, the Crown seeks to introduce this evidence as some evidence of the appearance of Mr. Garwood so that the jury can use it to compare it to some of the visual evidence to be presented at trial, including surveillance videos. Second, more particularly, the Crown seeks the introduction of the evidence to show that the shoes worn by Mr. Garwood on his booking, red and black sneakers, are similar to the shoes worn by one of the persons the Crown alleges to be a shooter.

[83] The moral prejudice is obvious to me even without the Crown seeking admission of why Mr. Garwood was being arrested or the audio portion of the video. Mr. Garwood is in the custody of the police on an unrelated matter being paraded throughout in handcuffs. This raises potential prejudicial speculation on the part of the jury and the images of him in handcuffs are inflammatory.

[84] I do agree that there is some probative value to the jury seeing the stature and body of Mr. Garwood. However, this is limited by the fact that the booking/release video is a year before the shooting and the clothing worn by Mr. Garwood is different. Put simply, his body and shape could have looked quite different from the date of the shooting. Also, in addition to the jury’s observations of Mr. Garwood in the courtroom, if the Crown wishes to put before the jury a description of Mr. Garwood, they can do so without putting it to them in this prejudicial manner. In terms of being able to assess the gait of Mr. Garwood, there is little value in watching the video, since he is both handcuffed and being escorted by an officer. The limited opportunity to see his movements and it being constrained in this unusual fashion makes this of no weight. However, there is probative value to the fact that Mr. Garwood is wearing similar shoes. There is also some value to the evidence in terms of what his facial features were like at the time.

[85] In balancing probative value and prejudicial effect, I find that prejudice can be ameliorated to a great extent if the video is edited to omit images of Mr. Garwood in handcuffs and the circumstances of the arrest is excluded. What is admissible, should the Crown seek its admission, will be a still image(s) of a close-up view of Mr. Garwood’s face and trunk area without showing the handcuffs and a still image(s) of a close-up view of the shoes Mr. Garwood was wearing at the time. Any images of Mr. Garwood in handcuffs are not admissible. I am confident that the Crown and the defence can come to an agreed statement of fact outlining an admission that this is an image of Mr. Garwood on this specific date.

[86] I note that this commendable editing approach coupled with an admission was utilized by Code J. in Stanley, at paras. 29, 41.

4. The Ammunition Found in Mr. Bailey’s Residence

[87] Again, the specific issue in question is identity. As well, its admission is said to be relevant to Mr. Bailey’s knowledge of the shooting and his knowing participation in its planned and deliberate nature.

[88] A large quantity of ammunition was found in the bedroom alleged to be Mr. Bailey’s. It is of the same caliber and has specific characteristics that match the ammunition used by one of the firearms involved in the shooting. The spent shell casings at the scene of the shooting were all “45 auto Federal” brand ammunition. The bullet fragments located at the scene, in the satchel of Mr. Charles, and in his body, appeared to have a “red tip” and brass body. The ammunition found in the bedroom was “45 auto Federal” brand ammunition with a red tip. Detective Nasser, who is the officer-in-charge of the homicide, testified at the preliminary inquiry that in his years of experience with the Toronto Police Service, including with the Guns and Gangs Taskforce, he has not seen red-tipped ammunition.

[89] I find that there is considerable probative value to this evidence on both issues.

[90] This case is similar to the case of R. v. Aitken, 2012 BCCA 134. Aitken involved the use of a firearm in the commission of a homicide. At trial, the Crown tendered evidence of weapons and ammunition that were discovered in a storage locker leased to an associate of the accused. It was established that while the accused was not named on the lease, he had frequent access to the storage locker and its contents. Accordingly, the Crown sought to adduce evidence of the items found in the storage locker to support the inference that the accused “had easy access to and familiarity with weapons and ammunition”. It is important to note that while the type of ammunition found at the storage facility was the same as the ammunition used to commit the offence, no link could be established between any of the weapons discovered and the alleged homicide. The British Columbia Court of Appeal ultimately upheld the trial judge’s decision to admit both the weapons and ammunition as evidence of opportunity and means to commit the offence.

[91] On the facts of this case, there is even greater probative value due to the unique nature of the ammunition.

[92] The moral prejudice exists but is limited. The possession of the ammunition on a later occasion is discreditable conduct. However, other than the illegal nature of its possession, it does not reflect on any bad character of Mr. Bailey. It does not involve any crime of violence. Beyond showing a means to commit an offence of this nature, it does not involve a significant inference of predisposition to commit the offence of first-degree murder. Simply, it is one thing to possess illegal ammunition; it is quite another to use it in shooting someone. The reasoning prejudice is minimal. It does not raise collateral issues. It is not distracting. Only a few witnesses need to testify about its seizure and, if necessary, its testing.

[93] After balancing probative value and prejudice, I find that evidence of the ammunition is admissible.

Justice S. Nakatsuru

Released: April 25, 2023

COURT FILE NO.: CR-22-30000046-0000 DATE: 20230425

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – SHAMAR BAILEY, KWAMI GARWOOD Defendants

REASONS FOR JUDGMENT NAKATSURU J.

Released: April 25, 2023.

Footnotes

[1] D.M. is a young person and was tried separately by a youth court justice.

[2] Ms. Patrick’s preliminary inquiry testimony was not without its issues. The Crown brought a successful s. 9(2) application under the Canada Evidence Act and was permitted to cross-examine Ms. Patrick on inconsistencies with her police statement.

[3] The Crown does not intend to suggest that it was Mr. Bailey who stole the chain the day before. Regardless of the Crown position, the jury will still be left with the unexplained taking of the chain and the potential inference that Mr. Bailey was somehow involved in it or was a later receiver of stolen property.

[4] At the preliminary inquiry, Prince Oduru, a friend of Mr. Garwood, identified one photo to be Mr. Garwood.