RULING ON DISCREDITABLE CONDUCT APPLICATION

Court File No.: 23-Y1140207-A
Date: 2025-04-28
Ontario Superior Court of Justice
Between:
His Majesty the King, Applicant
– and –
O.W., Defendant/Respondent

Malcolm Savage and Victoria Di Iorio, for the Crown
Richard Addelman and Samantha Robinson, for the Defendant/Respondent
Heard: April 24, 2025

Publication Ban

These reasons are subject to a publication ban pursuant to sections 110 and 111 of the Youth Criminal Justice Act, S.C. 2002, c. 1.

McVey J.

Introduction

[1] O.W. is charged with first-degree murder and attempt murder, contrary to sections 235(1) and 239(1) of the Criminal Code. At the time of the alleged offences, O.W. was a young person within the meaning of the Youth Criminal Justice Act, S.C. 2002, c. 1. The Crown alleges that O.W., along with another youth, J.A., followed through on a premeditated plan to shoot and kill the deceased in the early morning hours of December 6, 2021. Another young person, X.R., was shot multiple times as well but fortunately survived. J.A. has already pleaded guilty to first-degree murder and attempt murder for his role in the shooting. The identity of the second perpetrator is the primary issue in this trial.

[2] The Crown seeks to tender two pieces of evidence that amount to discreditable conduct. The first emanates from the testimony of Rebecca Guindon, an adult friend of the deceased at the relevant time. Ms. Guindon testified that approximately four and a half hours before the homicide, while on Instagram Live, she observed O.W. threaten the deceased while holding a firearm. She testified that the firearm “looked like a police officer’s gun.” The second piece of evidence is a video extracted from a phone seized at O.W.’s residence from his front pocket the day after the homicide. The video depicts J.A. and the person handling the phone engaged in conversation. J.A. brandishes what appears to be a handgun from his pant leg during the conversation. Detective David Fong, a police officer qualified as an expert in cellphone data extraction and analysis, testified that the video was made using the Snapchat application on the same phone from which it was extracted. Det. Fong testified that the video was created at 2:19pm EST on December 5, 2021, the afternoon before the homicide.

[3] The Crown argues that the above evidence is highly probative on the issues of animus and motive, intent, association between O.W. and J.A. proximate to the shooting, and O.W.’s access to firearms. Given that this is a judge alone trial, the Crown maintains that the prejudice associated with the evidence is minimal, at best, and comes nowhere close to outweighing the substantial probative force of the evidence.

[4] The defence opposes the admissibility of the evidence. It argues that evidence linking O.W. to others who possess firearms is highly prejudicial; that Ms. Guindon’s evidence relating to Instagram Live is neither credible nor reliable and is so contradicted by other witnesses that it lacks any probative value; that there is no evidence linking the gun supposedly seen by Ms. Guindon to the actual homicide; and, finally, given that J.A. has already pleaded guilty to first-degree murder for his role in the shooting, the probative value of the video is diminished because a second firearm must have been involved, and the video of J.A. producing a single firearm cannot support an inference that O.W. had access to a cache of firearms.

[5] For the following reasons, the Crown’s application is granted.

Analysis

[6] The parties agree on the applicable legal principles. Discreditable conduct evidence is presumptively inadmissible because the improper reasoning it invites may easily overwhelm its probative value. The danger associated with bad character evidence is the risk of “moral” or “reasoning” prejudice. “Moral prejudice” relates to the risk that the trier of fact will find the accused guilty because they are the type of bad person likely to have committed the crime alleged, rather than on the specific proof of the crime: R. v. T.B., 2009 ONCA 177, para 26. Such reasoning undermines the presumption of innocence. “Reasoning prejudice” relates to concerns that proof of prior bad acts will add to the complexity and length of a trial and may unduly distract the trier of fact from its proper mandate.

[7] The general exclusionary rule, however, is not absolute. Bad character evidence may be admitted where the Crown establishes on a balance of probabilities that the probative value of the evidence outweighs its prejudicial effect on the trial: R. v. Handy, 2002 SCC 56. Depending on the purposes for which the evidence is proffered and the strength of the inferences that can be drawn from it, the evidence may be relevant to a live issue in the trial and go beyond merely showing bad character. In those circumstances, the probative value of the evidence may exceed its prejudicial impact: R. v. Chizanga, 2024 ONCA 545, para 19. Put another way, evidence that incidentally discloses the bad character of the accused yet is relevant to a live issue in the case may be admitted depending on the probity versus prejudice weighing exercise.

Probative Value

[8] To be probative, evidence must be relevant to an issue in the case and the inferences that the evidence invites must be compelling enough to have some degree of influence in the case. I am satisfied that both the video evidence and the evidence regarding O.W.’s alleged conduct on Instagram Live are highly probative. This evidence is relevant to numerous live issues in the case and does far more than simply depict O.W. as a “bad person.”

[9] I will deal first with the video extracted from the phone seized from O.W.’s front pocket on December 7, 2021. As a preliminary issue, the relevance of this video depends upon O.W. having been the individual who took the video. O.W. has not admitted this fact. Nor has O.W. admitted ownership of the phone. Nonetheless, the following admitted facts in these proceedings could reasonably support an inference that the phone belonged to O.W. and a related, secondary inference that he was the individual making the recording of J.A.:

• one of the videos on the phone depicts J.A., a known associate of O.W.’s, on December 5, 2021;
• O.W. is seen on other video footage with J.A. in the early morning hours of December 6, 2021;
• the police seized the phone at O.W.’s residence; and
• the police seized the phone from O.W.’s front pocket.

[10] When considered cumulatively, the above admitted facts clearly amount to “some evidence” connecting O.W. to the discreditable conduct alleged by the Crown, i.e., associating with J.A. while he was in possession of what appears to be a handgun. This satisfies the linkage test for admissibility.

[11] With respect to relevance, the video footage arguably establishes that O.W. had access to firearms and was associating with people who evidently had access to firearms, and, given that the video was taken on the afternoon of December 5, 2021, all at a time proximate to the homicide. An accused’s access to a necessary tool to commit the crime alleged is always relevant: see R. v. Cain, 2015 ONCA 815, para 67; R. v. Obregon-Castro, 2020 ONSC 6595, para 27. O.W.’s access to firearms renders it more probable that he possessed a firearm on December 6, 2021, and more probable by extension that he was the second shooter. The relevance of the evidence is not contingent on the Crown establishing that the handgun seen in the video footage was the one allegedly used by O.W. during the shooting or was even one of the potentially two murder weapons. The lack of evidence in this regard only slightly diminishes the probative force of the evidence: see Obregon-Castro. The relevance flows from O.W. having access to a weapon similar to that used in the homicide as it supports the inference that O.W. had the means to commit the shooting.

[12] With respect to Ms. Guindon’s evidence regarding O.W. allegedly threatening the deceased with a handgun on Instagram Live just a matter of hours before the homicide, it has considerable probative value. It is trite to say that evidence of animus and motive is highly probative: R. v. Johnson, 2010 ONCA 646, para 101. Ms. Guindon’s narrative regarding O.W.’s conduct on Instagram Live, if accepted, establishes the nature of the deceased’s relationship with O.W. in the hours leading up the shooting; specifically, it shows a deadly animus on the part of O.W. towards the deceased proximate to the shooting, which establishes motive. The evidence also demonstrates that O.W. had the means to carry out the shooting. Both means and motive are relevant to identification, the main issue in this trial.

[13] In my view, given its proximity to the shooting, O.W.’s alleged conduct on Instagram Live forms an integral part of the narrative and forms part of the factual transaction alleged by the Crown. Further, the probative force of this evidence does not rely on inferences that I must assess for strength when considering the probative force of the impugned evidence. Rather, the evidence on this point is direct. Ms. Guindon testified that she both observed and heard O.W. threaten the deceased while holding a firearm “that looked like a police officer’s gun” just hours before the deadly shooting. Whether Ms. Guindon’s evidence is believed on this point is a separate issue to ultimately be resolved on the totality of the evidence. But one cannot overstate the probative force of the evidence given the timing of the prior bad act proximate to the shooting and the fact that the threat was allegedly levied against the deceased. If accepted, the evidence easily establishes a lethal animus on the part of O.W. towards the deceased, which in turn supports an inference that O.W. was motivated to harm the deceased, rendering it more likely that he was the second shooter. Indeed, the conclusion that O.W. was motivated to harm the deceased is not even inferentially driven. The discreditable conduct alleged is that O.W. explicitly threatened to kill the deceased, while holding a firearm.

[14] O.W.’s purported desire to harm the deceased is relevant to both intent and identification: R. v. Chapman (2006), 204 C.C.C. (3d) 449, at para. 27. As stated in R. v. Lewis (1979), 47 C.C.C. (3d), at para. 76, a “proven presence of motive may be an important factual ingredient in the Crown’s case, notably on the issues of identity and intention, when the evidence is purely circumstantial.”

[15] In summary, I find that both pieces of evidence are relevant to live issues in the case and bear significant probative force.

Prejudice

[16] The moral prejudice asserted in this case is that O.W.’s association with J.A. while he was in possession of what appears to be a handgun, and the evidence that O.W. threatened the deceased with a firearm just hours before the shooting, may cast O.W. in such a poor light that it prompts me to convict him on that basis alone, rather than on the strength of the evidence.

[17] The risk of this type of improper reasoning is not a significant concern in this case. First, the risk of moral prejudice is significantly diminished given that the matter is being tried without a jury. Though one cannot entirely disregard the risk of moral prejudice even in a judge alone trial, the risk is considerably reduced in those circumstances as trial judges are trained to avoid convicting accused persons based solely on their bad character: T.B., at para. 33. Second, given that I have already heard the evidence, excluding it from consideration does nothing to address the probability of moral prejudice: T.B., at para. 33. Finally, the discreditable conduct evidence in this case pales in comparison to the gravity of the offences alleged.

[18] As noted, similar fact evidence also presents the risk of “reasoning prejudice” at various levels of intensity.

[19] Similarly, the risk of reasoning prejudice does not arise in these circumstances. Indeed, the defence did not submit that reasoning prejudice was a concern. As stated by the Court of Appeal in T.B., at para. 27: “As trial judges are presumed to know the law and the proper and improper uses of evidence, it seems counterintuitive that similar fact evidence could be excluded in a non-jury trial based on the trial judge’s determination that the evidence would confuse him or induce him to put more weight on it than is logically justified.” Here, I have already heard the evidence; it was relatively brief in nature and straightforward. Neither Ms. Guindon’s evidence about what she purportedly observed on Instagram Live, nor the brief video extracted from the phone seized from O.W.’s front pocket, will distract me from my main task of evaluating the evidence as a whole to determine if the Crown has proven the elements of both offences beyond a reasonable doubt.

[20] I find that the discreditable conduct evidence raises little, if any, risk of prejudice in this case.

Conclusion

[21] The evidence of discreditable conduct sought to be introduced by the Crown is relevant to live issues in the case beyond bad character, and the high probative value of the evidence well exceeds its prejudicial impact. Evidence which “is directly relevant to the Crown’s theory of the case is admissible even though it may also demonstrate the bad character of the accused, as long as its probative value outweighs its prejudicial effect”: R. v. B.F.F., paras 64-65. The Crown must be permitted to tell the story of a crime in a manner that makes it possible for the trier of fact to properly carry out its truth-seeking function: see R. v. Skeete, 2017 ONCA 926, para 82.

[22] Both pieces of evidence are plainly admissible, in my view.

Kelly McVey

Released: April 28, 2025