ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
COURT FILE NO.: 11-10000133
DATE: 20120329
B E T W E E N:
HER MAJESTY THE QUEEN
M. Humphrey and K. Simone , for the applicant
Applicant
- and -
LAMAR SKEETE
R. Richardson & F. Javed, for the respondent
Respondent
HEARD: March 20, 2012
Nordheimer J.:
[ 1 ] At the conclusion of the evidence in this case, I raised an issue regarding the intention of the prosecution to advance two different theories of culpability before the jury. I questioned whether there was an “air of reality” to the second of the two theories that would justify the prosecution being able to advance it.
[ 2 ] Mr. Skeete is charged with first degree murder. It is alleged that Kenneth Mark was killed in retaliation for Mr. Mark having given evidence against Mr. Skeete and his younger brother on an earlier charge of attempted murder. The prosecution’s principal theory is that Mr. Skeete shot Kenneth Mark. As part of that theory, the prosecution asserts that Mr. Skeete arranged for an friend of his to act as both a lookout and as the getaway driver and to provide the getaway vehicle. It is also asserted the Mr. Skeete arranged for another friend of his to hide the murder weapon – a .22 calibre handgun.
[ 3 ] The second and alternative theory that the prosecution wished to advance has Mr. Skeete not as the actual shooter but as the “mastermind” who recruited yet another friend of his to actually commit the murder. This second theory arises out of one critical piece of evidence. Two days after the murder, the police executed a search warrant at Mr. Skeete’s home. In the basement, the police found a white Averix jacket. A subsequent testing of the jacket found gunshot residue in both front pockets.
[ 4 ] There are two security videos that were seized from businesses near the scene of the murder. Both of these security videos show the person that the prosecution alleges is the shooter. This person is wearing a light coloured jacket. An eyewitness to the murder has given evidence that the shooter was wearing a white jacket. It is the position of the prosecution that the shooter was, in fact, wearing the white Averix jacket.
[ 5 ] The wrinkle in the evidence that the second theory is intended to address is that there is another security video from a Tim Horton’s doughnut shop, five days before the murder, that shows Mr. Skeete, his brother and a third male. The video shows that this third male is wearing a white Averix jacket. The identity of this third male remained unknown until Mr. Skeete gave evidence at the trial. During his evidence, Mr. Skeete said that this third male is a good friend of his by the name of G.O. and that the white Averix jacket belonged to G.O. Mr. Skeete could not explain how G.O.’s jacket got into his basement other than to say that G.O. visited his home on occasion. Mr. Skeete also speculated that his younger brother and G.O. might have traded jackets but there is no evidence that that occured.
[ 6 ] Although it has always been the prosecution’s position that Mr. Skeete was the mastermind behind the killing of Kenneth Mark, it is a consequence of this recent revelation that the second theory of someone else being the actual shooter has crystallized in terms of the prosecution’s approach to the case.
[ 7 ] As I have already mentioned, I raised a concern whether there was an air of reality to this second theory. My concern arose from the following observation made by Martin J.A. in R. v. Sparrow (1979), 51 C.C.C. (2d) 443 (Ont. C.A.) where he said, at p. 459:
In those circumstances, a charge which may relieve the jury from having to be concerned about their doubt as to whether the appellant was the perpetrator, by providing them with an alternative theory on which he may still be found guilty but for which there is no foundation in the evidence, is gravely prejudicial to the accused. Leaving the jury with the issue of whether the accused is liable as an aider or abettor, in the absence of evidence to justify such a direction, may deprive the accused of the benefit of the doubt on the only issue properly before the jury, namely, whether the accused was the actual perpetrator.
[ 8 ] I asked for submissions on this point so that I could determine whether the prosecution should be permitted to advance this second theory and, consequently, whether I would have to include it in my jury charge. Submissions were made on the issue. I then considered the matter and advised counsel at the end of that day that I was satisfied that there was an air of reality to the second theory and, as a result, I would permit the prosecution to advance it and I would include it in my draft jury charge for counsel’s review. Given that I raised the concern, I consider it prudent to provide my reasons for that conclusion, which I now do.
[ 9 ] I have been referred to a few cases on this issue, notably, R. v. Thatcher, [1987] 1 S.C.R. 652 and R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198. In Thatcher, Dickson C.J.C. said, at p. 687:
In short, there is very strong evidence, particularly in relation to the murder weapon and the appellant’s desire to kill his ex-wife, connecting Thatcher with the crime. There is some evidence which, if believed, points to his not having committed the crime personally. The facts are for the jury, and the trial judge was correct not to preclude the jury from considering all the alternatives. There is, of course, no burden on the Crown to point to a specific, identified person as the personal assailant of the victim.
[ 10 ] In this case there is also evidence connecting Mr. Skeete to the crime. I note in particular:
(i) the motive evidence;
(ii) Mr. Skeete acknowledges he was in the area of the murder at the time that it occurred;
(iii) two friends of his are connected to the murder – one as the lookout (who is caught on security video) and one who was found with the murder weapon hidden in his apartment;
(iv) the white Averix jacket was found in Mr. Skeete’s basement.
[ 11 ] At the same time, there is some evidence that might suggest that Mr. Skeete did not personally shoot Mr. Mark that arises from the issue over the ownership of the white Averix jacket coupled with the earlier security video showing someone else wearing that jacket. The possibility exists that the jury may not accept Mr. Skeete’s evidence that the white Averix jacket belongs to G.O. At the same time, however, they may be troubled by the evidence that someone else was wearing that jacket five days before the murder. It remains a possibility, because of this evidence, that the jury, or some subset of the jury, might not be satisfied that Mr. Skeete was wearing the jacket when Mr. Mark was shot and thus that someone else must have been.
[ 12 ] If some of the jurors were to reach that conclusion, it would still be open to the jury collectively to find Mr. Skeete guilty of the murder of Kenneth Mark, if some jurors were satisfied that Mr. Skeete was the shooter while others were satisfied that he orchestrated the killing. The jury does not have to be unanimous on the route that they take to a conviction or an acquittal. If Mr. Skeete recruited a friend of his to commit the killing then they would, in the circumstances of this case, be joint principals in the act and would be equally liable for it. Given that Mr. Skeete says that the jacket belonged to a friend of his, and the Tim Horton’s security video shows Mr. Skeete in the company of the male wearing the white Averix jacket, a conclusion that the shooter was recruited by Mr. Skeete is one that is available on the evidence.
[ 13 ] In addition to these considerations, it was pointed out to me that, while Mr. Skeete denies that this was the case, there is other evidence that could place G.O. in the company of Mr. Skeete and S.M., who was the lookout and the getaway driver, in the afternoon and evening of December 29, 2009. The murder occurred at approximately 9:45 p.m. on December 29. There are text messages between G.O., S.M. and Mr. Skeete that could be interpreted as asking S.M. to pick up Mr. Skeete and G.O. in the afternoon to early evening timeframe. Both Mr. Skeete and S.M. admit that S.M. picked up Mr. Skeete at around 7:30 p.m. but they differ on whether anyone else was with Mr. Skeete at the time. There are other text messages from S.M. suggesting that G.O. was with him later in the evening after the murder.
[ 14 ] These latter pieces of evidence are of some importance because, while Thatcher establishes that there is no burden on the prosecution to point to a specific person as the shooter, the prosecution in this case fairly acknowledges that there is some practical requirement to establish who the shooter likely was both because the jury will need to conclude that that person would have been prepared to commit the act at the behest of Mr. Skeete and also because the person would have had to have been with Mr. Skeete at the time of the murder. This latter reality arises from the fact that only Mr. Skeete knew Mr. Mark. Mr. Skeete’s presence at the scene with the shooter was therefore necessary, under this second theory, so that Mr. Skeete could identify Mr. Mark to the shooter.
[ 15 ] I should also note that there is no suggestion in this case that the defence is caught off guard by this second theory. The defence was always aware of the prosecution’s position that Mr. Skeete was the mastermind behind the murder even if they may not have been aware of every detail of that position. In any event, as observed by Binnie J. in R. v. Rose, [1998] 3 S.C.R. 262 at para. 27
The notion that it is sufficient for the accused to respond to the ‘Crown theory of the case’ also suffers from the practical difficulty that the Crown’s theory of the case is a moving target that has to adjust to meet new or changing circumstances during the trial, including what the Crown hears in the defence closing address.
That would appear to be an apt description of what happened to the prosecution’s theory in this case.
[ 16 ] In the end result, I concluded that there was a sufficient evidentiary foundation that entitled the prosecution to advance the second theory.
NORDHEIMER J.
Released: March 29, 2012
COURT FILE NO.: 11-10000133
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
LAMAR SKEETE
Respondent
REASONS FOR DECISION
NORDHEIMER J .
RELEASED: