ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
[ Note: This proceeding is governed by publication restrictions under section 110 of the Youth Criminal Justice Act . ]
B E T W E E N:
HER MAJESTY THE QUEEN
M. Humphrey and K. Simone, for the applicant
Applicant
- and -
S.M. (a young person pursuant to the Youth Criminal Justice Act , S.C. 2002, c. 1)
S. Stauffer & M. Webster, for the respondent
Respondent
HEARD: April 23, 2012
Nordheimer J.:
[ 1 ] In this trial on a charge of first degree murder, the prosecution seeks to introduce into evidence certain text messages that were sent either by or to S.M. that would, because of their contents, constitute prior discreditable conduct. The morning after the argument on this application finished, I advised counsel of my conclusion that the text messages were admissible. I said I would provide my reasons for that conclusion in due course. I now provide those reasons.
[ 2 ] Some background is necessary to understand how this issue arises. On December 29, 2009, Kenneth Mark was shot and killed while walking home from a neighbourhood pizza store. A lone male ran up behind Mr. Mark and fired a single shot into the back of Mr. Mark’s head. It is not suggested that S.M. was that male. It is, however, alleged that S.M. participated in the killing by, at least, acting as a lookout for the shooter and as the “getaway” driver.
[ 3 ] Earlier this year, Lamar Skeete was convicted by a jury of first degree murder in this matter. It was alleged that Mr. Skeete shot and killed Kenneth Mark, or arranged for someone to do so, and that this killing occurred as retaliation for Mr. Mark having given evidence against Mr. Skeete and his younger brother, J.B., on an earlier charge of attempted murder. I was the presiding judge in that trial and I made certain rulings regarding evidence that the prosecution could lead including evidence of motive, of ante mortem statements made by Mr. Mark and of discreditable conduct involving Mr. Skeete. The defence here accepts that my rulings regarding motive and the ante mortem statements resolve those issues for the purposes of this case. The discreditable conduct issue is different, however.
[ 4 ] There is no dispute that S.M. knew Lamar Skeete. While there may be some issue over the proper term to be applied to their relationship (whether friends, associates or some other term), it is admitted that the two had contact with each other and did so in the relevant time frame. There are some text messages directly between Lamar Skeete and S.M. both on days prior to the murder and on the day of the murder itself. I will deal with the Skeete text messages later.
[ 5 ] The text messages that the prosecution wishes to place into evidence (other than the Skeete text messages) appear to show that S.M. was involved in criminal activity with others in the same relevant time frame. This criminal activity principally involved S.M. and an unknown individual planning the robberies of drug dealers or drug purchasers, which robberies included the use of firearms. The text messages reveal discussions about robberies that were to occur and the need to have one or more firearms to use in the commission of the robberies. The text messages also show that the main role for S.M. was to obtain vehicles to facilitate these robberies. This, of course, is at least one of the roles that the prosecution asserts S.M. played in the murder of Kenneth Mark.
[ 6 ] I begin from the basic principle that evidence of prior discreditable conduct of an accused person is generally inadmissible – see R. v. Handy , 2002 SCC 56 () , [2002] 2 S.C.R. 908 at para. 31 . However, that exclusionary rule does allow for exceptions. As Binnie J. said in Handy , at para. 41 :
While emphasizing the general rule of exclusion, courts have recognized that an issue may arise in the trial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse [citation omitted]
[ 7 ] A similar exception was earlier outlined in R. v. S.G.G., 1997 311 (SCC) , [1997] 2 S.C.R. 716 where Cory J. said, at para. 65:
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: [citation omitted]
[ 8 ] In my view, the text messages are admissible evidence, albeit for a narrow and limited purpose. The contents of the text messages provide probative evidence on two issues. One is that they may establish that S.M. was often engaged in providing vehicles to assist others to commit criminal offences. In that regard, it should be noted that S.M. was sixteen years old at the time of these events and did not have a driver’s licence. Nonetheless the text messages would suggest that he was the “go to” person for vehicles for such purposes and that he was often able to provide those vehicles, perhaps through the use of a master key that he appears to have had possession of. Those facts might then shed light on the reason why Mr. Skeete was requiring the services of S.M. to provide a vehicle on the evening of the murder and the knowledge of S.M. regarding that reason.
[ 9 ] The text messages could also provide evidence to assist in refuting any suggestion of an innocent association between S.M. and Mr. Skeete on December 29, 2009 if the prosecution is otherwise able to establish that the two were together at that time. More specifically, if the prosecution can establish that S.M. was with Mr. Skeete on that evening, the evidence of the text messages might negative an argument by S.M. that he would have no reason to know that Mr. Skeete was going to engage in activity in which a firearm would be used. This is especially so given that there is an exchange of text messages on December 28, the day before the murder, where Mr. Skeete and S.M. appear to be planning a robbery.
[ 10 ] In both of these instances, I would note that the probative value of this evidence lies less in positively establishing certain facts as opposed to negating other possible explanations for the actions of S.M. on the day of the murder along with the state of his knowledge regarding the events that unfolded.
[ 11 ] I acknowledge that the contents of the text messages carry with them some prejudicial effect. Indeed, the degree of prejudicial effect in this evidence could be significant but for one salient fact and that is that this is a judge alone trial. It is therefore not a situation where the court need be concerned about jurors misusing the evidence, that is, using it for an improper purpose. The prejudicial effect of this evidence is therefore very much reduced. In those circumstances, I am of the view that the probative value of this evidence outweighs the prejudicial effect.
[ 12 ] Dealing more briefly then with the Skeete text messages, there cannot be any issue regarding the admissibility of the text messages that passed between Mr. Skeete, S.M. and others on the day of the murder as they establish contact between S.M. and Mr. Skeete and are fundamental to a proper understanding of their interactions on that day. As I earlier mentioned, there are other text messages from the day before where it appears that Mr. Skeete is in contact with S.M. about a robbery that he is planning. While I accept that there is no reference to a gun in those text messages, that does not detract from their value as evidence of S.M. being aware of, and willing to be involved in, assisting Mr. Skeete in criminal activity which, in turn, has direct relevance to the knowledge S.M. may have had regarding the nature of the activities that Mr. Skeete had planned for December 29.
[ 13 ] For these reasons, I concluded that the text messages were admissible within the confines that I have indicated.
NORDHEIMER J.
Released: April 26, 2012
Court File No.: YC-11-10000002
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
S.M.
(a young person pursuant to the Youth Criminal Justice Act , S.C. 2002, c. 1)
Respondent
REASONS FOR DECISION
NORDHEIMER J .
RELEASED: