ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-40000751-0000

DATE: 20120504

BETWEEN :

HER MAJESTY THE QUEEN
Applicant

– and –

JERMAINE GAGER and COREY SMELIE
Respondents

Mr. R. Nathanson and Ms. M. Misener, for the Crown
Mr. S. Fishbayn and Mr. C. Gill, for Jermaine Gager

Mr. D. Heath and Mr. J. Giuliana, for Corey Smelie

HEARD: March 6, 2012

APPLICATION RE ADMISSIBILITY OF EVIDENCE OF BAD CHARACTER

APPLICATION TO RECONSIDER REDACTION OF “GAGER LETTERS”

REASONS FOR DECISION

Clark J.:

INTRODUCTION

[ 1 ] The accused are jointly charged that on September 22, 2008, they shot to death one Darnell Grant and did thereby commit First Degree Murder.

[ 2 ] The accused are alleged to be members of a street gang, the Jamestown Cripz, also known as the Doomztown Cripz, (“Doomztown”). Doomztown is said to be closely affiliated with another gang, the Stovetop Cripz (“Stovetop”). The motive for the murder is alleged to be animosity between Doomztown and Stovetop, on the one hand, and a rival gang known as the Driftwood Cripz (“Driftwood”).

[ 3 ] On March 6, 2012, at a time when the accused, Mr. Gager, was testifying in examination-in-chief, the question arose whether Mr. Gager would put his character in issue if he were permitted to give certain evidence that Mr. Fishbayn sought to have him give. The issue as to whether, by his testimony up to that point, he had already put his character in issue was also discussed. I heard argument on these issues and, further, on what areas of cross-examination might have been, or would be, opened up if I were to rule that Mr. Gager’s character had or would be put in issue. I reserved on the matter until the following day.

[ 4 ] On March 7, 2012, I ruled (i) that the accused had put his character in issue by his evidence to that point and (ii) irrespective of whether he had already done so, he would certainly do so if Mr. Fishbayn were to pursue the particular line of questioning upon which he had indicated that he wished to embark. I also endeavoured to give counsel some outline of the areas in which Mr. Gager could be cross-examined by opposing counsel. I indicated at the time I gave the ruling that I would give reasons for that ruling as soon as time permitted. These are those reasons.

[ 5 ] Also raised at the same time as the abovementioned matters was the issue of whether Mr. Gager had given his evidence in such a way that the court should revisit its pre-trial ruling concerning two letters Mr. Gager authored while awaiting trial in the Maplehurst Correctional Centre (“Maplehurst”), previously entered into evidence by the Crown. On December 5 and 6, 2011, I heard an application by Mr. Gager to preclude the Crown from adducing those letters. In reasons delivered January 10, 2012, [1] I allowed the application, in part, ordering that the letters be significantly redacted. After reconsidering the matter in the light of Mr. Gager’s testimony, I decided to permit the jury to consider certain additional portions of the letters, which I had earlier ordered redacted. Again, I indicated that I would give reasons as time permitted; those reasons also follow.

EVIDENTIARY BACKDROP

[ 6 ] Prior to my being called upon to rule on these issues, Mr. Fishbayn had already led the following evidence from his client in examination-in-chief.

Mr. Gager’s Professed Lack of Gang Affiliation

[ 7 ] Mr. Gager testified that he was not a member of either Doomztown or Stovetop as of September 22, 2008.

[ 8 ] Mr. Gager testified that he grew up in the Jamestown area of northwest Toronto. According to Detective Douglas Backus of the Toronto Police Service, a street gang expert called by the Crown, this area is considered to be the core territory of Doomztown.

[ 9 ] According to Mr. Gager, he was raised by his mother. His father never lived in the family home, but did visit on occasion. In the absence of his father, Mr. Gager said his older brother, Jamal, was, in his words, a “father figure” to him.

[ 10 ] In terms of his awareness of the presence of a street gang in his neighbourhood, Mr. Gager said that he was aware of gang graffiti, persistent drug dealing and, occasionally, a fatal shooting. According to Mr. Gager, there were “groups of people” who hung out on various corners in the neighbourhood, but he did not know what they were doing. His ignorance of what these groups of young men were doing came about, he said, as a result of his brother not wanting him “to get caught up in the things people were doing out there.” He said that his brother did not say a great deal about the gang, but that his brother “knew stuff” because he had at one time been involved in the gang.

[ 11 ] In examination-in-chief, Mr. Gager acknowledged knowing various persons alleged by the Crown to be members of Doomztown, but indicated that he only knew them, not through any direct association with Doomztown on his part, but, rather, by virtue of having lived in Jamestown for many years.

[ 12 ] Mr. Fishbayn asked Mr. Gager specifically whether he and his brother Jamal had committed crimes together and, when Mr. Gager responded in the affirmative, Mr. Fishbayn went on to ask him to explain how Jamal made it apparent that he did not want the accused to join a gang. Mr. Gager said that his brother and he had gotten into some “stupid stuff”, by which he meant criminal activity, but that it was never in the neighbourhood because “Jamal didn’t want [him] to join the gangs.”

[ 13 ] Concerning September 22, 2008, Mr. Gager acknowledged that he was a passenger in the van carrying the men who shot Darnell Grant, but contended that he was there innocently and he had no idea what was about to happen.

[ 14 ] In terms of how he came to be in the van, Mr. Gager says that in the early evening of September 22, 2008, he went to a Pizza Hut Restaurant nearby his home. While waiting for his pizza, he says that a man he could only identify as “Slick” came into the shop. He knew Slick from school, he said, and they talked while he waited for his order. Mr. Gager said that Slick mentioned that he was going to a party where there would be girls and marijuana and asked him if he wanted to come. Mr. Gager says he accepted the invitation.

[ 15 ] After he got his pizza, Mr. Gager said that he and Slick walked outside the pizza shop and sat on the curb while he ate several slices. Following that, they walked to the stolen white van used in the shooting. The van has two bucket seats in the front with two bench seats behind. Mr. Gager said that he got in the right rear door and took a seat on the rear of the two bench seats, on the driver’s side. Mr. Gager said Slick sat on the same seat, on the passenger’s side. Mr. Gager said he did not notice that the van’s ignition had been punched out.

[ 16 ] Mr. Gager said that there were four men already in the van. One of those men Mr. Gager identified as Mr. Smelie, who, he said, was seated in the front passenger’s seat. The other three were the driver, who Mr. Gager said he could not describe in any detail, a man he described throughout his evidence only as “the next guy”, seated on the middle bench seat, and, seated beside “the next guy”, someone by the name of Tevane. Mr. Gager said he knew Tevane from Jamestown.

[ 17 ] Once he and Slick were aboard, Mr. Gager said, the driver of the van proceeded directly to Driftwood Court.

[ 18 ] Once at Driftwood Court, according to Mr. Gager, he saw two men, Tevane and “the next guy”, get out of the van. When he started to get out of his seat, he said, Slick pulled him back down, telling him that the men were just looking for the house where the party was.

[ 19 ] Moments later, Mr. Gager said, he heard gunfire. He said he thought that people at Driftwood Court were firing at the van and he ducked down. Shortly after that, he said he saw the two men get back into the van. He also said that, although he had not seen him get out of the van, he saw Mr. Smelie getting back into the van. The van then sped away from Driftwood Court.

[ 20 ] At a point shortly after that, Mr. Gager said, he first saw a gun when Tevane, who was once again seated on the middle bench seat, turned around and laid a .45 calibre pistol on the top of the seatback. He claims that “the next guy” also turned around, such that he could see a pistol in his hand, as well.

[ 21 ] As the van was making a left turn from northbound Jane St. to westbound Steeles Ave. West, two police officers, enroute to the scene of the shooting in response to a radio call, spotted the van. They made a u-turn and attempted to pull the van over. When the driver of the van refused to stop, the officers took up pursuit.

[ 22 ] Mr. Gager claims that, at some point shortly after the police began to pursue them, Tevane told him that the driver would slow down momentarily, and instructed him that at that point he, Mr. Gager, was to take Tevane’s gun, exit the van and run. Mr. Gager says he complied because Tevane was pointing his gun at him when he said this, such that he was afraid not to do as he had been told. When the van slowed down on Steeles Ave. West, Mr. Gager and Mr. Smelie both got out of the van and ran.

[ 23 ] Mr. Smelie was caught within scant yards of leaving the van. When later searched at the police station, six spent shell casings were found in his trousers’ pocket. According to the firearms examiner, Judy Chin, those casings were all fired from a .357 calibre revolver found by a citizen, approximately 36 hours after the shooting, on a grass boulevard flanking the north side of Steeles Ave.

[ 24 ] With the aid of a police tracking dog, police officers located Mr. Gager approximately 45 minutes later, a short distance from where he left the van. Mr. Gager was hiding behind a cedar tree in front of an industrial building at 173 Adesso Court in the Town of Vaughn, in York Region. Lying virtually at his feet was a .45 calibre semi-automatic pistol. According to Ms. Chin, one spent projectile retrieved by forensic investigators from a fence at the scene of the shooting and seven spent shell casings recovered from the ground where the shooters are said to have stood were all fired from that pistol.

[ 25 ] A witness, Carol Ferguson, estimated that she heard approximately 25 shots fired. A total of 16 spent shell casings were recovered at the scene. If one adds to those 16 casings the six casings found in Mr. Smelie’s pocket, the total of 22 casings matches very closely Ms. Ferguson’s estimate.

Released: May 4, 2012
Clark J.