Court File and Parties

Court File No.: 21-885 Date: 2023-09-25 Ontario Superior Court of Justice

Between: His Majesty the King, Applicant And: Brandon Lamoureux, Respondent

Before: Anne London-Weinstein J.

Counsel: Julien Lalande & Goher Irfan, for the Crown Mark Huckabone and Forest Poff-Smith, for the Respondent

Heard: August 14, 2023, Oral ruling given August 15, 2023 (Pembroke)

Ruling on Discreditable Conduct Application

[1] The Respondent is charged with second-degree murder. The Applicant seeks to admit the following evidence of discreditable conduct:

• Evidence of two threats involving a knife uttered by the Respondent to the deceased in the hours before the killing. One of these threats was in the form of a hearsay statement of the deceased to Nicole Vivian shortly after the Respondent is alleged to have threatened to stab the deceased that night. The Applicant withdrew the application to adduce the hearsay statement of the deceased, leaving just one knife threat to be adduced. The remaining threat to the deceased by the Respondent was witnessed by Ms. Lacy Vanderzwaag. She witnessed the confrontation between the Respondent and the deceased on the day of the killing. She will testify that she heard the Respondent say to the deceased that he would “slit his throat”.
• Evidence that the Respondent brandish a knife towards the victim in March of 2021 will be provided by Alissa Batson, who witnessed the incident. Ms. Batson will testify that the Respondent came toward the victim and stabbed the motel room wall. Taylor Morden also witnessed this incident.

[2] I admitted the evidence of Ms. Vanderzwaag and the evidence of Ms. Batson and Ms. Morden. I declined to admit evidence that the Respondent was convicted of possession of a weapon for a dangerous purpose on October 15, 2015 contrary to s.88 of the Criminal Code relating to an offence of June 15, 2013. I declined to admit evidence that the Respondent plead guilty to three counts of robbery that occurred between July 5, 2013 in the City of Ottawa. The Respondent brandished a knife to intimidate the victims during the commission of all three offences. I also declined to admit evidence relating to a plea of guilt where the Respondent admitted to assaulting Nathan Lindsay with a weapon on August 8, 2018. A knife was used in that instance.

Facts

[3] The Respondent is alleged to have stabbed the deceased, Gilbert Rumleskie in the abdomen during a fight outside the Pine Tree Motel. The fight is captured on video. The stabbing also occurs on video, but the quality of the video and the location of the Respondent and the deceased make it difficult to ascertain what happened. The actual stabbing is not visible on the video. Seconds after being stabbed, Mr. Rumleskie took a few steps away from the Respondent and Mr. Jordan Plumb and collapsed.

[4] The Respondent and the deceased both resided at the motel in the months prior to the killing. At times they appeared to get along well, but by late July of 2021, the relationship had become strained. Mr. Rumleskie believed that the Respondent had been sexually involved with Mr. Rumleskie’s former girlfriend, Dawn Coulas.

[5] Several hours before the killing, the deceased and the Respondent had an argument. Both men were aggressive with one another. At one point, the Respondent made a threat to harm the deceased with a knife. In addition, about four months earlier, the Respondent brandished a knife during an argument with the deceased and stabbed the walls in one of the motel rooms.

[6] I agree with the Applicant that the evidence that the Respondent threatened the deceased on the date of the killing is relevant to demonstrate animus toward the deceased. The evidence also suggests that the Respondent threatened to slit the throat of the deceased. This suggests a willingness to use a knife.

[7] The evidence of threatening behaviour by stabbing the wall with a knife in March also display animus, and a willingness to use a knife to threaten the deceased.

[8] The Applicant sought to admit the prior convictions for robbery to establish that the Respondent had the murder weapon, a knife, and not Mr. Plumb. The Crown sought to admit the Respondent’s history of violence with knives to establish that it was the Respondent who had the knife.

[9] The Respondent also advised that the deceased was armed with a knife and had injured himself on the knife in the struggle with Mr. Plumb near the car. The knife was then said to be thrown in the nearby grass.

[10] A knife was recovered in the grass, which the Crown theorizes is a plant. The weapon which the Crown purports to be the murder weapon was recovered in a bag which had been in Mr. Plumb’s room, and which belonged to his girlfriend. It had the deceased’s DNA on the blade. It had Mr. Plumb’s DNA on the handle of the knife.

[11] The Crown’s theory is that no detectable deposit was left on the knife handle in the brief time that the Respondent handled the knife, or that the Respondent wiped the handle of the murder weapon and planted another knife in the grass to avoid detection.

[12] Mr. Lamoureux told police that they would not find his DNA on the knife, but there would be DNA from Mr. Plumb and the deceased.

The Law

[13] Evidence of discreditable conduct is presumptively inadmissible. However, where the evidence establishes on the balance of probabilities that the probative value in relation to a particular issue outweighs the prejudicial effect, the evidence may be received. See R. v. Handy, 2002 SCC 56, R. v. Moo, 2009 ONCA 645.

[14] The test for admissibility of discreditable conduct evidence is as follows:

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 to an issue at trial?
3. If relevant and material to an issue at trial, is the proposed evidence discreditable to the accused?
4. If discreditable, does its probative value outweigh its prejudicial effect? See R. v. L.B., (1997), also cited in Handy.

[15] The relevance of the evidence to an issue at trial must be clearly identified. The probative value of the evidence is evaluated considering a number of factors, including the strength of the evidence, the inferences available from it and the extent to which the matters that it seeks to prove are at issue in the trial. See: L.B., supra and Handy.

[16] Prior discreditable conduct is considered probative when the conduct on the prior occasion permits the inference that the accused has a certain disposition, and the conduct on the other occasion allows the inference that the accused acted in accordance with that disposition on the occasion constituting the offence. See: R. v. Batte.

[17] The prejudice is evaluated in a similar context. Prejudicial effect is linked to the probative value of the evidence. Prejudice means that the evidence raises the risk that the trier of fact will use the evidence to draw an improper inference.

[18] Threats by the accused which precede a violent offence serve as evidence of an intention to do the act and is relevant evidence to establish that the violent act was carried out by the accused. See: R. v. Roberson (1975), 21 CCC (2d) 386 (ONCA); leave to appeal refused (1975), 21 CCC (2d) 385n (SCC).

[19] Evidence of prior threats by an accused toward the deceased in a homicide is relevant and admissible to establish animus by the accused toward the deceased. See: R. v. Cooper (2004), 2004 BCCA 540; R v. Jackson, (1980).

[20] Prior threats and violent behaviour by an accused person toward the deceased are also admissible as evidence of an intention to kill. See: R. v. Cormier (1993); leave to appeal refused (1994), 86 CCC (3d) vii (SCC).

[21] The evidence that the Respondent threatened the deceased with a knife in March and stabbed the motel wall in his anger, is admissible to show the Respondent’s animus toward the deceased, and also demonstrates his propensity to possess and use a knife against the deceased. The March incident also gives rise to an inference that the Respondent was the one most likely to have the knife and stabbed the deceased. The probative value of this evidence outweighs its prejudicial effect. The index offence is much more serious than this incident and it’s prejudicial impact in a judge alone trial is reduced.

[22] The fact that the Respondent was involved in a number of robberies where he brandished a knife without making an overt threat, or of using the knife against the deceased, is evidence of general propensity to use knives. However, the issue in this trial is who had the knife which was used to stab the deceased. The evidence of the threats on the day of the killing, and the evidence that the accused threatened the accused and stabbed the wall in March is strong evidence that the Respondent was the one who had the knife and used it to stab the deceased, which is the issue at trial.

[23] I found the evidence that the Respondent had brandished a knife on other occasions which did not involve the deceased to be not strongly probative of the issue at trial, which was who stabbed the deceased. Relatedly, given that I found that the probative value of the evidence was not that probative of the issue for the court to decide; I also found the evidence to be highly prejudicial. The Respondent engaged in a series of knife point robberies of vulnerable individuals who were either working in retail stores, or in one instance driving a cab. Although the prejudicial impact of discreditable conduct evidence is reduced in a judge-alone trial, it is not reduced to zero. Having found that the prejudicial effect of the evidence outweighed the probative value of the evidence, I declined to admit it to the trial.

[24] The Applicant also suggested that the Respondent became aware after his robbery conviction, that DNA evidence on a discarded knife resulted in his arrest. According to the Crown’s theory, this incident may explain why the Respondent’s DNA was not on the murder weapon.

[25] I found that the probative value of this evidence was somewhat reduced by the fact that there are many potential reasons as to why the Respondent’s DNA may not have been on the knife. It is also apparent that the Respondent would have been aware that his DNA had been previously collected, as it was in the DNA databank. Presumably, he would have been aware that the state had the ability to link him to crimes he had committed prior to the knife point robberies in Ottawa. For these reasons, I found the probative value of this evidence to be diminished in strength. Again, the evidence is also highly prejudicial, even in the context of a judge-alone trial. For these reasons, I found that the evidence was not admissible.

[26] In relation to the stabbing of Nathan Lindsay, the Applicant argues that the evidence again establishes the Respondent’s propensity for using knives, which relates to an issue at trial which was who possessed the knife. In my view, the fact that the Respondent stabbed Mr. Lindsay makes the evidence more probative to an issue at trial, which is who stabbed the deceased. However, the Applicant argues that the issue of handedness enhances the probative value of the evidence. This argument has some surface appeal, and in another, more clear case, may be persuasive. However, on the record before me, it is not clear that handedness has been established as an actual issue in this trial. In my view, whoever inflicted one stab wound into the abdomen of the deceased could have done so with either a right or left hand on the record before this court. There is no evidence that it would be difficult for a right handed person to inflict one stab wound with the left hand. Given that the probative value of the evidence is reduced by the fact that handedness has not been established as an issue in this trial at this point, and given that the evidence is again highly prejudicial, I declined to admit the evidence of the stabbing of Mr. Lindsay.

[27] The Applicant argued that where the issue is who had the knife, R. v. Kinkead, evidence that the accused carried a knife in the past and made a death threat in another incident demonstrated the likelihood that Kinkead possessed the necessary “tool” for committing the crime. In Kinkead, the evidence was also found to be relevant for establishing Rohan Ranger’s state of mind, namely that he knew the type of person with whom he was associating, and third, to rebut the defence of innocent association.

[28] The evidence was not admitted solely to establish that Kinkead possessed the tool necessary to commit the crime he is charged with. In this regard, it is said it will assist in showing that he either provided the knife to Rhoan Ranger or used it himself in the killings. The evidence was also found by the trial judge to not be highly discreditable.

[29] In the case before me, the evidence is sought to be admitted to establish that the Respondent had the knife and not Mr. Plumb. However, in Kinkead, the evidence that the accused had the type of knife used in the homicide was sought to be lead. Further, the evidence established that he was in the habit of carrying the knife, making it more likely that he had stabbed the deceased.

[30] There is no evidence that the knife used in the prior incidents was the same type of knife used in this killing. See Kinkead para 76 …”in the event that the jury were to find that Kinkead was present in the Ottey home at the time of the murders, Daniel’s evidence that Kinkead had a habit of carrying a knife similar to the murder weapon would have some probative value on the issue of whether Kinkead possessed or supplied the murder weapon.” In fact, the knife in question belonged to Mr. Plumb. The Crown’s theory is that the Respondent ran into Mr. Plumb’s motel room, retrieved Mr. Plumb’s knife, stabbed Mr. Rumleskie and then placed the knife in Mr. Plumb’s pant pocket.

[31] The Applicant’s theory is that the Respondent was in the habit of carrying a knife, as in Kinkead, which makes it more likely that he wielded the knife on the date of the killing. However, on the Applicant’s own theory, the Respondent was not carrying a knife on the date in question but darted into Mr. Plumb’s motel room and retrieved one of Mr. Plumb’s knives and used it against Mr. Rumlieskie.

[32] In addition, there were multiple alternate basis for admission in Kinkead, relating to the type of weapon used, and the state of mind of Rohan Ranger which militated for the admission of the evidence which are absent in this case. The evidence was also deemed to be not highly prejudicial. As indicated, while the risk of moral and reasoning prejudice in a judge-alone trial are greatly reduced, the risk is not reduced to zero. I found Kinkead to be distinguishable on the issue of the admissibility of prior discreditable conduct relating to knife use, both arising from the prior convictions of robbery and in relation to the incident involving Mr. Lindsay.

Anne London-Weinstein J. Released: September 25, 2023