Court of Appeal for Ontario

Date: 2025-03-21
Docket: C69403 & C69705
Panel: Fairburn A.C.J.O., Dawe J.A., and Code J. (ad hoc)

Parties and Counsel

• His Majesty the King (Respondent)
• Corey Murray (Appellant)
• Curtis Murray (Appellant)

For the appellant Corey Murray: Marianne Salih and Alexander Ostroff
For the appellant Curtis Murray: Ian B. Kasper
For the respondent: Catherine Weiler and Jacob Millns

Heard: January 8, 2025

On appeal from the convictions entered by Justice Anne M. Molloy of the Superior Court of Justice, sitting with a jury, on December 7, 2019, and from the sentence imposed on January 29, 2021, with reasons for sentence reported at 2021 ONSC 597.

Reasons for Judgment

Dawe J.A.:

Introduction

[1] The appellants Curtis and Corey Murray, who are brothers, were jointly charged with first degree murder in the death of Trevor Seraphine. The jury found them guilty of second degree murder, and they were both sentenced to life imprisonment with twenty years’ parole ineligibility. Each appeals against his conviction and sentence.

[2] The appellants’ conviction appeals focus on the police failure to preserve surveillance video recordings from the building where Curtis Murray lived, and on the Crown’s late disclosure to the defence of the circumstances in which this evidence was lost.

[3] The trial judge found that the loss of this evidence violated the appellants’ rights under s. 7 of the Canadian Charter of Rights and Freedoms, but concluded that the breaches could be adequately remedied by a jury instruction along the lines proposed by Doherty J.A. in R. v. Bero, para 67 (a “Bero instruction”). On appeal, the appellants argue that the trial judge erred by not staying the proceedings. In the alternative, they argue that the Bero instruction she gave the jury was inadequate.

[4] On their sentence appeals, the appellants take issue with the factual basis on which the trial judge sentenced them, and argue that their parole ineligibility periods should be reduced.

[5] For the following reasons, I would not give effect to any of these arguments, and would dismiss the appeals.

A. Factual Background

(1) The Murder of Trevor Seraphine

[6] During the early morning hours of March 21, 2015, two masked men attacked and killed 17-year-old Trevor Seraphine in the entryway of an apartment building located at 44 Willowridge Road. The attack was captured on building security video. The first assailant was armed with a gun, and fired several shots from close range, one of which hit Mr. Seraphine in the chest. The second attacker then stabbed Mr. Seraphine twice with a knife, inflicting the fatal injury.

[7] The Crown maintained that Curtis Murray was the shooter, and that his older brother Corey Murray was the stabber. The prosecution’s theory was that the Murray brothers’ killing of Mr. Seraphine was connected to an escalating feud they were having with a group of men associated with the 44 Willowridge building, referred to at trial as “the Champagnie group”. A day earlier, members of the group had broken into Curtis’s apartment in a nearby apartment complex, 7 Richgrove Drive, stolen his possessions, and put them up for sale in the lobby of 44 Willowridge. Mr. Seraphine was not part of the Champagnie group and did not live at 44 Willowridge, but was at the building that night to visit a friend. The Crown’s theory was that the Murray brothers had gone to 44 Willowridge with a plan to kill someone associated with the building as an act of revenge against the Champagnie group, and had attacked and killed Mr. Seraphine because he happened to be there.

[8] The main contested factual issue at trial was the identity of the men who killed Mr. Seraphine. The Crown’s case was built largely on (i) similarities between the two killers’ clothing and the clothes the Murray brothers could be seen wearing on security video footage in the days preceding the killing; (ii) evidence of various hostile interactions between the brothers and members of the Champagnie group during this same time period; and (iii) evidence of after-the-fact conduct by Curtis.

[9] The appellants disputed that they were the men who killed Mr. Seraphine, but did not dispute that whoever killed him had committed murder. However, it was a disputed issue at trial whether Mr. Seraphine’s murder was planned and deliberate, making it first degree murder.

(2) Events Leading Up to the Murder

[10] Curtis Murray lived in an apartment building at 7 Richgrove Drive, a short distance away from the Willowridge building complex. His girlfriend at the time, Samelia Wiltshire, had moved out of the apartment in January but was a frequent visitor, as was Curtis’s brother Corey.

[11] Evidence was adduced about a series of incidents in the days leading up to the killing of Mr. Seraphine that showed increasing animosity between Curtis Murray and a group of men associated with both the Willowridge and Richgrove apartment building complexes, whose apparent leader was a man named Rushaune Champagnie.

[12] On the evening of March 18, 2015, Curtis and Ms. Wiltshire were accosted at a nearby “Hasty Market” store by Mr. Champagnie and a group of other men. One of these men drove a red Mazda, and Ms. Wiltshire recognized him as living in the Richgrove complex.

[13] Ms. Wiltshire testified that after this altercation she and Curtis went to his apartment at 7 Richgrove, and that when they arrived Corey Murray was already there. Later that night, between 10:00 p.m. and midnight, another Richgrove resident saw two men whom he identified as the Murray brothers shouting and banging on the roof of a red Mazda, which drove away.

[14] In the early morning hours of March 19, at 1:24 a.m., security camera video footage from 7 Richgrove showed two men going down a back staircase. One, whose face was visible, was wearing the same clothes Curtis had been wearing earlier that evening. Ms. Wiltshire testified that she recognized him as Curtis. The second man was wearing an inside-out hoodie and had his face obscured, and Ms. Wiltshire could not identify him at trial. The first man went into the parking lot, while the second man remained by the door.

[15] The Crown’s theory was that the second man was Corey, and that he kept watch while Curtis went out and flattened the red Mazda’s tires. This video was significant both because if the men in the video were the Murray brothers it provided additional evidence of their escalating feud with the Champagnie group, and also because the clothing worn by the second man in the stairwell video was similar to that worn by the man who stabbed Mr. Seraphine.

[16] Ms. Wiltshire testified that later that night she and the Murray brothers left 7 Richgrove and went to an after-hours club, and that Curtis then dropped her and Corey back off at the building at around 4:00 a.m. Security video from 7 Richgrove that was obtained and preserved by the police showed Ms. Wiltshire and Corey entering through the building’s “moving room” at 4:01 a.m.

[17] Later that morning (March 19) the owner of the red Mazda found that his tires had been slashed. The same eyewitness who had described seeing both Murray brothers pounding on the Mazda’s roof the previous night testified that he saw one of the Murray brothers in a heated argument with the red Mazda’s owner. Part of this altercation was also captured on security video footage that the police preserved. Later that day, when Ms. Wiltshire was parking her car in the Richgrove complex parking lot, the red Mazda blocked her in, and a man asked her where Curtis was. Ms. Wiltshire was frightened and drove away.

[18] During the night of March 19, Mr. Champagnie and two other men broke into Curtis’s apartment, vandalized it, and stole his clothing and his large collection of expensive sneakers. The next morning, March 20, they put up signs at 44 Willowridge advertising a “Block Friday sale”, and began selling Curtis’s possessions in the lobby. Ms. Wiltshire identified some of the property visible on security video footage as items stolen from Curtis’s apartment.

[19] During the early morning hours of March 21, the Murray brothers were driven to 44 Willowridge by an unknown third person. Security video from 44 Willowridge showed Curtis speaking to some men in the lobby, and tearing down a sign advertising the “Block Friday sale”. The Murray brothers were then driven to 7 Richgrove and went inside. Security video footage then showed them both leaving 7 Richgrove at 1:45 a.m., and returning to the same car in which they had arrived. This was the last time either brother was seen at 7 Richgrove.

[20] Thirteen minutes later, just before 2:00 a.m., the two masked assailants attacked and killed Mr. Seraphine in the entryway of 44 Willowridge. The Crown’s theory was that the killers were the Murray brothers, and that they had made not entirely successful attempts to disguise themselves, and to conceal distinctive elements of their clothes and shoes.

(3) The Arrests of the Murray Brothers

[21] Ms. Wiltshire testified that on March 20, 2015, when Curtis told her about the break-in and theft, they had agreed that neither of them would return to the 7 Richgrove apartment. However, on March 22 Curtis asked her to go there and remove anything that might identify him, which she did. Curtis also changed his phone number, and at some point before he was arrested on March 30, 2015 he cut his hair. The defence disputed that he did this to change his appearance.

[22] Corey Murray was arrested three days later, on April 3, 2015. The police seized a pair of red Nike Air Max 90s sneakers, which were a rare model. The Crown’s theory was that these were the same type of shoes worn by the stabber, as seen on the security video footage.

(4) The Police Failure to Preserve Video from 7 Richgrove

[23] The appellants’ grounds of appeal against their convictions arise out of the police failure to obtain and preserve some of the security video footage from 7 Richgrove from the days before the murder. The police did obtain and preserve two brief clips from the early morning hours of March 19, and a nearly complete set of recordings from between 7:00 a.m. on March 19 to 7:00 a.m. on March 21. [1] However, although the police seized the hard drive from the building security system’s digital video recorder (“DVR”), the data on this hard drive became corrupted. As a result, the recordings from March 17, March 18, and for most of the early morning hours of March 19 were not preserved in a usable form, nor were any recordings from after 7:00 a.m. on March 21. The circumstances that led to these video recordings being lost are discussed further below.

B. The Conviction Appeals

[24] The appellants’ two grounds on their conviction appeals both arise out of the police failure to preserve all of the security video footage from 7 Richgrove, and the Crown’s late disclosure of this to the defence.

(1) Background Facts Regarding the Lost 7 Richgrove Videos

[25] As already noted, the police did obtain and preserve some security video footage from 7 Richgrove. This video was disclosed in a timely way.

[26] However, the police did not preserve any footage that had been recorded either before March 19, or after 7:00 a.m. on March 21. Although they seized the hard drive from the security system DVR, they later discovered that the data on this hard drive was corrupted. Among other things, the file indexing system had been lost, which made the data that remained on the hard drive – a series of brief video snippets in no particular order – effectively inaccessible and unusable.

[27] Defence counsel were only fully informed about the police failure to preserve this video evidence in 2019, mid-way through the trial. However, several years earlier, in November 2016, the Crown had disclosed that it was in possession of “corrupted” security videos from 7 Richgrove “on days leading up to and after the homicide”, and that “efforts [were] being made to render the surveillance useable.” Defence counsel who were representing the appellants at the time [2] did not make any follow-up inquiries about this corrupted video.

[28] The trial judge’s findings of fact about the circumstances that led to these video recordings not being preserved are set out in detail in her reasons on the defence’s s. 7 Charter application, reported as R. v. Murray #6, 2020 ONSC 1495. I will provide only a brief overview.

(a) The Police Video Seizures from 7 Richgrove

[29] The police quickly identified Curtis Murray as a suspect in the killing of Mr. Seraphine. They knew that he lived at 7 Richgrove, and between March 23 and March 25, DC Williams downloaded selected video footage from the 7 Richgrove building’s video security system onto USB sticks and a hard drive. These were the recordings that were preserved and disclosed to the defence.

[30] On March 26, the police obtained a warrant to seize all of the video from the 7 Richgrove security system recorded between March 17 and March 24, 2015, but they never executed this warrant. Coincidentally, however, a few weeks later other officers investigating an unrelated homicide seized the 7 Richgrove DVR hard drive. In June 2015 they decided that they no longer needed the hard drive, and an officer from the Toronto Police Technical Crimes Unit (“Tech Crimes”) gave it to DC Williams, who put the hard drive in a desk drawer and did nothing further with it for nearly a year. It later emerged that the Tech Crimes officer had made a “mirror” copy of the data on the hard drive before giving the drive to DC Williams, without recording that he had done so or checking to see if the mirror copy had been properly uploaded to the police computer server.

(b) The Discovery that the Hard Drive Data Was Corrupted

[31] In May 2016, prior to the appellants’ preliminary inquiry, the Crown disclosed to the defence DC Williams’s notes about receiving the hard drive from Tech Crimes. However, his notes did not identify this hard drive as coming from the Richgrove building complex security video system. The trial judge attributed “no responsibility to the defence for missing this detail”, describing it as “not obvious”.

[32] While preparing for the preliminary inquiry, Crown counsel realized that there were gaps in the videos from the Richgrove complex that had been provided by the police and disclosed to the defence, and asked DC Williams to try to obtain additional video footage. This led DC Williams to check the 7 Richgrove hard drive he had received from Tech Crimes almost a year earlier. He discovered that the data on the hard drive was corrupted, and that the videos could not be viewed. Although DC Williams was not a trained computer technician, over the next several months he made various unsuccessful attempts to recover usable video from the hard drive, including sending the drive to the DVR’s manufacturer. The trial judge found that some of DC Williams’s efforts probably caused further data loss. The Crown was informed of DC Williams’s ongoing attempts to recover videos from the hard drive, but did not make disclosure of these efforts to the defence at this time.

(c) Disclosure of the Hard Drive Corruption Issues to the Defence in November 2016

[33] In November 2016, a judicial pre-trial (“JPT”) was held in the Superior Court of Justice. On the JPT form, under the heading “Disclosure – Outstanding issues”, the Crown stated that it was “in possession of corrupted video surveillance from 7 Richgrove on days leading up to and after the homicide”, and that “[e]fforts are being made to render the surveillance useable.” However, the Crown did not disclose further details of these recovery efforts at this time, nor did defence counsel make any further inquiries.

(d) Disclosure of the Loss of the Videos During the Trial

[34] The appellants’ trial began in March 2018, but the trial judge declared a mistrial after Corey Murray discharged his counsel.

[35] In June 2019, Corey’s new counsel, who had not participated in the November 2016 JPT, exchanged emails with the Crown about various video disclosure issues. Although this correspondence was mainly focused on security video footage from the Willowridge housing complex, in one response, dated June 21, 2019, Crown counsel stated: “The police also seized the actual DVR containing the surveillance from the Richgrove complex. This footage was disclosed.” These statements were only partially accurate. While it was true that the police had seized the hard drive from the Richgrove security video DVR, and had later seized the DVR itself, [3] DC Williams had discovered in May 2016 that this hard drive no longer contained any usable data. Moreover, while the video footage from 7 Richgrove that had been disclosed to the defence had originally come from the seized hard drive, these videos had been copied by DC Williams several weeks before the drive itself had been seized by the police. To the extent that Crown counsel’s email implied that all of the video from the Richgrove hard drive had been preserved and disclosed, this was incorrect and misleading.

[36] The appellants’ second trial began on September 9, 2019. Confusion then arose between defence and Crown counsel over whether the police had seized security video footage from 7 Richgrove from March 18, 2015. The true state of affairs eventually emerged about the police seizure of the Richgrove hard drive, and the discovery of the data loss almost a year later. The trial was adjourned so the defence could retain its own expert to try to recover video from the hard drive, but these efforts were also unsuccessful. As the trial judge explained:

There was data from before March 17 and after March 24, but it was in the same format as had been found on the video sample provided by D.C. Williams to the Crown in 2016. There were thousands of video clips of a few seconds each from different cameras, interspersed with similar clips from other cameras and other dates and times, all without any kind of organization and no file system. The footage was essentially not searchable and, for practical purposes, not useable.

[37] The Crown later discovered that the Tech Crimes officer had made a mirror image of the hard drive before he gave the drive to DC Williams in June 2015. The mirror image had an intact file organization system and contained some usable video footage from March 18, 2015, but only from before 6:00 p.m. None of this additional footage was relevant.

The remainder of the judgment continues with detailed analysis of the Charter issues, the adequacy of the Bero instruction, and the sentencing issues, as set out in the original document.

Footnotes

[1] Some potentially relevant footage from a camera at the rear of 7 Richgrove during the early morning hours of March 21 was not preserved.

[2] By the time of the trial in the fall of 2019, Corey Murray was represented by different counsel.

[3] The officers investigating the unrelated homicide in 2015 had seized just the hard drive, but in 2016 DC Williams obtained the DVR itself, as part of his unsuccessful efforts to extract usable video from the drive.

[4] “Reasons for Decision #7: (Gardiner Hearing)”, reported at 2020 ONSC 1930.

[5] “Reasons for Decision #8: (Sentencing)”, reported at 2021 ONSC 597.

[6] The appellant in Ching was convicted of first degree murder at trial, but this court substituted a conviction for second degree murder and remitted the case to the trial court for sentencing.

Released: March 21, 2025

“J. Dawe J.A.”
“I agree. Fairburn A.C.J.O.”
“I agree. M.A. Code J. (ad hoc)”