ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-50000087-0000
DATE: 20120411
BETWEEN:
HER MAJESTY THE QUEEN – and – Omar Grizzle Respondent
Michael Wilson, for the Crown
David Bayliss, for the Respondent
HEARD: April 3 and 4, 2012
Benotto, j.
REASONS FOR DECISION ON VOIR DIRE
[ 1 ] Mr. Grizzle is charges with weapons offences, robbery and extortion. He is alleged to have pointed a firearm at the complainant in August, 2009. Two witnesses said there was a firearm. Mr. Grizzle was not arrested until May 2010. During the execution of a search warrant a gun was found. The Crown seeks to introduce this gun into evidence.
The Allegations
[ 2 ] J.B. owns a service station called P[…]. R.M. is a mechanic there. Mr. Grizzle’s sister took her car there to be serviced. On August 10, 2009 Mr. Grizzle went with her to pick it up. Unfortunately an argument arose about the fees charged.
[ 3 ] Mr. Grizzle is alleged to have removed a firearm from his waistband, pointed it at Mr. J.B., demanded return of money already paid and threatened to “shoot” him. Mr. J.B. described the gun as black, a hole in the front, a handle and a trigger, about 4-5 ½ inches long. Mr. R.M. saw the gun as well and testified that it was a short, small gun approximately the length of his finger, or 3 -4 inches in length.
[ 4 ] Mr. Grizzle was given the money he asked for and fled. He was not immediately located.
The Search
[ 5 ] Some nine months later, on May 4, 2010, the police executed a search warrant at a residence. Mr. Grizzle was the target of the search. Detective Warren Young searched one of the bedrooms, which clearly belonged to a child. He located a suitcase which contained a fully loaded Sig Sauer 9 mm semi-automatic pistol. Mr. Grizzle was charged in connection with possession of this firearm.
[ 6 ] The firearm (one of two located) was black. Special Officer Michael Press described it as being in the mid-range of sizes of firearms. He also testified that it is like thousands of other firearms in the city of Toronto.
Crown’s Position
[ 7 ] The Crown alleges that the firearm is clearly relevant and should be admitted into evidence. Although the application was framed in the language of similar fact/disreputable conduct analysis, in argument, the Crown submitted that the purpose of admitting the firearm into evidence was as circumstantial evidence from which the jury could infer that this was THE firearm used on August 10, 2009.
Defence Position
[ 8 ] The defence argued that there is no relevance to the evidence because it does not match the description of the firearm allegedly used. Furthermore, if it is admitted, the prejudice to the accused would be insurmountable. Mr. Grizzle would be forced to testify to address the actus reus of the offence. The defence of “colour of right” would be lost. Also, the jury would undoubtedly embark upon propensity reasoning.
Analysis
[ 9 ] The cases discussed in detail during argument included:
R. v. Chenier, 2006 3560 (ON CA) , [2006] O.J. No. 489 (C.A.)
R. v. Rowbotham, [1984] O.J. No. 2283 (H.C.J.)
R. v. Rowbotham, 1988 147 (ON CA) , [1988] O.J. No. 271 (C.A.)
R. v. B.(L.); R. v. G. (M.A.) 1997 3187 (ON CA) , [1997] O.J. No. 3042 (C.A.)
R. v. Backhouse, 2005 4937 (ON CA) , [2005] O.J. No. 754 (C.A.)
R. v. Handy 2002 SCC 56 , [2002], 164 C.C.C. (3d) 481 (S.C.C.)
R. v. R.B. 2003 13682 (ON CA) , [2003], 181 C.C.C. (3d) 169 (Ont. C.A.)
R. v. R.B. 2004 SCC 69 , [2004], 188 C.C.C. (3d) 428 (S.C.C.)
R. v. O.C. [2006] O.J. No. 434, (O.N.C.A.)
R. v. Harrer 1995 70 (SCC) , [1995] S.C.J. No. 81
[ 10 ] While all of these cases are instructive, the decision rests upon the classic balancing of probative value versus prejudicial effect.
[ 11 ] The gun does have probative value in light of the witness statements. However, that value is diminished by two factors: the passage of time and the generic description of the gun.
[ 12 ] The gun was located 9 months after the event. Although the Crown led evidence that guns of high quality (such as this one) do not regularly change hands, the passage of time is still significant.
[ 13 ] The gun was described in the most generic of terms. Most guns are black. I venture to say they probably all have a trigger and a hole at the end. The description does very little to heighten the probative value of the gun.
[ 14 ] Against the frailties of the probative value, is the significant prejudice. I find the prejudice would lie in the inevitability of the jury embarking upon propensity reasoning, even if instructed otherwise. They would be asked to consider if this was THE gun used 9 months earlier. It would be difficult if not impossible for the jury to consider this task without embarking upon prohibited reasoning. Namely that, if he had a gun in May 2010, he also had a gun in August 2009 because he was in fact the type of person to have a gun.
[ 15 ] In addition, there is the highly prejudicial aspect of the location of the gun. It was found in a room clearly belonging to children. There was a child’s bed on one side of it and a baby crib on the other. When the police entered the apartment, the baby was asleep in the crib. Even if this evidence was not allowed to be part of the Crown’s case, there is a real possibility that it would come out if the accused chose to testify.
[ 16 ] In summary, the prejudicial effect outweighs the probative value. The evidence of the gun located on May 4, 2010 is excluded.
Madam Justice M.L. Benotto
Released: April 12, 2012
COURT FILE NO.: 11-0000087-0000
DATE: 20120411
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – Omar Grizzle Respondent
Michael Wilson, for the Crown
David Bayliss, for the Respondent
HEARD: April 3 and 4, 2012
REASONS FOR DECISION ON VOIR DIRE Madam Justice M.L. Benotto
Released: April 12, 2012