ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
COURT FILE NO.: 11-10000133
DATE: 20120123
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: January 18, 2012
Nordheimer J.:
[ 1 ] Mr. Skeete is charged with first degree murder. It is alleged that Mr. Skeete shot and killed Kenneth Mark in retaliation for Mr. Mark having given evidence against Mr. Skeete and his younger brother on an earlier charge that they jointly faced of attempted murder. For the purposes of this trial, the prosecution seeks a ruling on the admissibility of two incidents that involved Mr. Skeete while he was in custody on the attempted murder charge. Specifically, the prosecution wishes to place into evidence two fights that Mr. Skeete was involved in while he was in custody.
[ 2 ] The morning following the conclusion of the submissions on this application, I advised counsel of my “bottom line” conclusions. I ruled that the Crown would not be permitted to adduce evidence of either of these fights but would be permitted to adduce evidence at the trial of the following:
(i) that B.I. and D.L.K. were in custody at the Roy McMurtry Youth Center at the same time and in the same unit as Lamar Skeete in the Fall of 2009;
(ii) through an admission to be provided by the defence, that Lamar Skeete was an acquaintance of B.I. and D.L.K. and that he had known both of them for some period of time.
I said that I would provide reasons for my ruling at a later date. I am now providing those reasons.
[ 3 ] In September 2009, while Mr. Skeete was in custody at the Roy McMurtry Youth Centre, Mr. Skeete became involved in a fight with another youth. A third youth, B.I., became involved in the fight, apparently on the side of Mr. Skeete although that is not entirely clear from the record. Correctional staff eventually broke up the fight. In November 2009, Mr. Skeete was involved in another fight while still in custody at RMYC. This time, Mr. Skeete and two other youths, one of whom was D.L.K., assaulted a fourth youth. Again, correction staff eventually broke up that fight.
[ 4 ] In terms of the background facts, it should be added that both B.I. and D.L.K. were subsequently implicated in the murder of Kenneth Mark. D.L.K. was charged with first degree murder in this case but on March 24, 2011 that charge was stayed. B.I. is implicated because the firearm that the police contend is the murder weapon in this case was found in his residence.
[ 5 ] The prosecution has two main reasons for wanting to introduce the evidence of the fights. One is to show that Mr. Skeete knew B.I. and D.L.K. The other is to show what the prosecution says is the “nature and context” of the relationship between these three men and the degree of loyalty among them.
[ 6 ] One additional item that is important to note is that the defence is prepared to admit that Mr. Skeete, B.I. and D.L.K. were “acquaintances” and had been for some period of time, i.e., extending at least as far back as the Fall of 2009 when these two incidents occurred.
[ 7 ] I begin my analysis of this application with the recognition 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. That general exclusionary rule does however allow for a narrow or limited class of exceptions. Those exceptions are where the evidence is “so highly relevant and cogent” that its probative value outweighs its prejudicial effect – again see Handy at para. 41.
[ 8 ] The prosecution stresses that it is not seeking to introduce the evidence of these fights as propensity evidence, that is, evidence that because Mr. Skeete, B.I. and D.L.K. were engaged in criminal activity (i.e. the fights) while they were together in RMYC in September/November 2009, they would be more likely to have been engaged in criminal activity (i.e. the murder) in December 2009. Rather, as I earlier set out, the prosecution says that the purpose of this evidence is so show the relationship between Mr. Skeete, B.I. and D.L.K. and the degree of loyalty they have to each other. As counsel put the issue during the hearing, if B.I. and D.L.K. were prepared to come to Mr. Skeete’s aid in a fight, they might be prepared to come to Mr. Skeete’s aid in other criminal activity.
[ 9 ] In my view, the prosecution’s stated purpose for wishing to introduce this evidence comes perilously close to amounting to propensity evidence even if that is not the intention. Propensity evidence was aptly defined in R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.) where Doherty J.A. said, at para. 100:
It is a fundamental tenet of our criminal justice system that persons are charged and tried based on specific allegations of misconduct. If an accused is to be convicted, it must be because the Crown has proved that allegation beyond a reasonable doubt and not because of the way the accused has lived the rest of his or her life.
[ 10 ] The prosecution does not need to introduce evidence of the fights in order to prove an association between Mr. Skeete, B.I. and D.L.K. The defence is prepared to admit that there is such a relationship and, in any event, I am prepared to allow the prosecution to lead evidence that the three of them were together in RMYC at the relevant times. I should add that I am allowing the prosecution to lead this evidence because in a separate application I ruled that the prosecution would be permitted to lead evidence that Mr. Skeete was in custody for a period of months prior to the withdrawal of the attempt murder charge. Since the jury will know that Mr. Skeete was in custody, there is little prejudicial effect from his perspective from the jury knowing that B.I. and D.L.K. were also in custody with him. The point is that the occurrence of the fights does not appreciably add anything to the state of knowledge on that issue.
[ 11 ] The occurrences of the fights also do not add probative value for the second reason that the prosecution relies on to introduce this evidence, that is, to show the degree of loyalty between Mr. Skeete, B.I. and D.L.K. It is not difficult to think of persons who might readily come to the aid of a friend who is engaged in a fistfight but who would recoil at the suggestion that they would assist that same friend to commit a murder. There is no foundation provided for the suggestion that whatever degree of loyalty there may have been that lead B.I. and D.L.K. to assist Mr. Skeete in a fight would have extended to providing assistance in the killing of another person. In addition, there may have been reasons separate and apart from loyalty that lead B.I. and D.L.K. to become involved in the fights that occurred. For example, they may have shared a common disdain with Mr. Skeete for the person who was on the other side of the fight.
[ 12 ] At the same time, there is the potential for the jury to misuse this evidence. In other words, the jury might decide that Mr. Skeete, B.I. and D.L.K. are the type of persons who would commit such a murder because of their past conduct. In enunciating that concern, I appreciate that the jury would be instructed that they could not use the evidence in this fashion and I recognize the faith that we put in the ability of juries to follow instructions from the trial judge.
[ 13 ] Nevertheless, jury instructions are not a panacea for all ills that can occur in a jury trial. We recognize that some forms of evidence have such prejudicial effects that we cannot safely rely solely on jury instructions to alleviate those effects. As was somewhat colourfully put by Binnie J. in Handy at para. 40 :
The policy of the law recognizes the difficulty of containing the effects of such information which, once dropped like poison in the juror’s ear, “swift as quicksilver it courses through the natural gates and alleys of the body”: Hamlet, Act I, Scene v, ll. 66-67.
Instead, in such instances, we conclude that such evidence must not be put before the jury because the risks of its misuse are too high.
[ 14 ] I recognize that the evidence of these two fights is not so highly prejudicial that a jury would necessarily misuse the evidence but when that possibility is measured against the absence of any significant probative value to the evidence, the argument for its exclusion is hard to overcome. There is no point to running even a reduced risk of misuse if the evidence does not add materially to the information that the jury needs to properly decide the case.
[ 15 ] The prosecution also tries to find support for its position in the fact that this evidence was ruled admissible at the preliminary hearing of D.L.K. There are different considerations for the admissibility of evidence at a preliminary hearing and at a trial. In addition, I am not bound by an evidentiary ruling made at a preliminary hearing. I do note that, in admitting the evidence at the preliminary hearing, the preliminary hearing judge said, at para. 143 of his reasons:
The existence of a previous incident where the two accused assisted each other in a violent act does make it more likely, even if only slightly, that they committed a second violent act together.
[ 16 ] With respect, I do not agree with the preliminary hearing judge that that is an appropriate basis for permitting the evidence to be introduced. It reflects reasoning that, in my view, amounts to permitting evidence of propensity which is the harm to which the rule against prior discreditable conduct is directed.
[ 17 ] As noted in Handy at para. 55 :
The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.
The prosecution did not meet that onus in this instance.
[ 18 ] It is for these reasons that I concluded that the evidence of the fights was inadmissible.
NORDHEIMER J.
Released: January 23, 2012
Court File No.:
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: