COURT FILE NO.: 11-10000133

DATE: 20120202

ONTARIO

SUPERIOR COURT OF JUSTICE

Toronto Region

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 16 & 17, 2012

Nordheimer J.:

[1] In this trial on a charge of first degree murder, the prosecution seeks to introduce a number of items of evidence of prior discreditable conduct. The issue as to whether the prosecution should be allowed to do so arises in what counsel referred to as a unique set of circumstances. After the conclusion of the application, I advised counsel of my “bottom line” conclusions. Those conclusions are attached to these reasons as Appendix A. I advised counsel that I would provide reasons for my ruling at a later date. I am now providing those reasons.

[2] Some background is necessary in order to understand how this issue arises. The deceased, Kenneth Mark, had an encounter with Mr. Skeete’s younger brother, Jevar Bowyer. Mr. Mark believed that Mr. Bowyer had shown a handgun to children, including Mr. Mark’s nieces, in a housing complex where Mr. Mark lived as did his nieces and nephews. When Mr. Mark next saw Mr. Bowyer, he grabbed Mr. Bowyer and “draped him up”, that is, he held Mr. Bowyer up by the collar of his shirt. Mr. Mark expressed his displeasure to Mr. Bowyer regarding his conduct and told Mr. Bowyer that he was no longer welcome at the housing complex.

[3] A few days after the “draping up” incident, Mr. Mark was shot in the back by a male using a shot gun while Mr. Mark was sitting outside at the housing complex. Mr. Mark was injured but not killed by the gunshot. Mr. Mark told the police that he was approached by two males who shot him in the back. Mr. Mark was rushed to hospital where he was treated for his injuries.

[4] Approximately two months later, the police held a community meeting at the housing complex. The purpose of the meeting was to encourage members of the community to assist the police in their investigation of two shootings that had occurred in that community. The police wanted to impress upon the members of the community that they could not solve criminal offences and prevent further offences without the assistance of the community. After this meeting, Mr. Mark approached one of the police officers and told him that he wanted to talk to the police about his shooting.

[5] The next day, Mr. Mark met with the police and provided a videotaped statement. In that statement he identified Mr. Bowyer as the person who shot him. Mr. Mark further identified Mr. Skeete as having been present when Mr. Bowyer shot him. While both males’ faces were masked at the time of the shooting, Mr. Mark said that he recognized Mr. Bowyer and Mr. Skeete, both of whom he knew from the neighbourhood, from their clothing and from their physical appearance. Mr. Mark was shown photo line-ups and he identified pictures of both Mr. Bowyer and Mr. Skeete. Some days thereafter, Mr. Bowyer and Mr. Skeete were charged with attempted murder.

[6] A preliminary hearing on the attempted murder charge was held on April 6 & 7, 2009. Mr. Mark gave evidence at the preliminary hearing. He again identified Mr. Bowyer as the person who shot him and that Mr. Skeete was present. Mr. Mark’s evidence regarding the presence of Mr. Skeete was considerably less certain, however, as Mr. Mark admitted that he did not get a good look at the second male. Both Mr. Bowyer and Mr. Skeete were committed for trial.

[7] On December 14, 2009, the day set for the trial of the attempted murder charge, the Crown withdrew the charge against Mr. Skeete on the basis that there was no reasonable prospect of conviction. The trial then proceeded against Mr. Bowyer alone. Mr. Mark gave evidence. Once again, he identified Mr. Bowyer as the person who shot him and that Mr. Skeete had been present. On December 17, 2009, Ewaschuk J. found Mr. Bowyer not guilty of the charges. He ruled that, while the prosecution had proven on a balance of probabilities that Mr. Bowyer had shot Mr. Mark, the prosecution had not proven that fact beyond a reasonable doubt.

[8] Twelve days later, on December 29, 2009, Mr. Mark left a pizza store that he frequented with some take-out food. As Mr. Mark walked down a nearby street, a male ran up behind him. The male fired a single shot into the back of Mr. Mark’s head, killing him.

[9] The homicide investigation began. A spent .22 calibre cartridge was found near the body of Mr. Mark. The police located a witness who was in the pizza store at the time and who had observed a male walking back and forth on the sidewalk outside of the outlet in a suspicious manner prior to the shooting, perhaps acting as a lookout. This witness also saw another male in the area who was believed to be the shooter. The witness was unable to identify either of these individuals although he was able to give physical descriptions of them.

[10] Security video was located from a store next to the pizza store that showed a male walking back and forth on the sidewalk apparently talking on a cell phone. The police concluded that this person was the lookout, not the shooter. The police also located security video from a store across the street that showed a male in an alleyway. The police concluded that this person was likely the shooter.

[11] As the investigation progressed, search warrants were obtained and executed. In Mr. Skeete’s home, a particular jacket was found. The jacket was tested and gunshot residue was found on it. Sometime later, a search warrant was executed on the home of a youth, B.I., who is associated to Mr. Skeete. Hidden in a vent, the police found a .22 calibre handgun along with ammunition. An examination of the handgun lead to a match between that handgun and the spent .22 calibre cartridge found at the scene of the murder.

Analysis

[12] The prosecution wishes to introduce the history of the attempted murder charge, along with some related matters, as evidence in this trial. The prosecution acknowledges that this evidence is evidence of prior discreditable conduct and is presumptively inadmissible. The prosecution submits, however, that the evidence should be admitted in this case both because it is part of the narrative and because it is evidence of motive. The defence objects to the introduction of this evidence on the basis that it is highly prejudicial. The defence also objects on the basis of issue estoppel and abuse of process.

A. the main issue – narrative and motive

[13] 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]

[14] I turn first to the prosecution’s submission that this evidence should be admitted as part of the necessary unfolding of the narrative. I do not find that submission entirely persuasive as a basis for the admission of this evidence. It can be too easy in many instances to try and justify the introduction of evidence on the basis that it is part of the narrative. At times, it seems that narrative has become an all encompassing notion that is used to justify the reception of almost any piece of evidence. To counter that tendency, threshold tests such as relevance and probative value versus prejudicial effect must be applied to ensure that narrative, as a justification for the admission of evidence, is kept within its proper confines.

[15] That said, it remains the fact that a “criminal trial is, after all, about the search for truth”.[^1] A jury ought to be provided with information that will allow them to put the central facts into context including the nature of the relationships between persons connected to the events that might not otherwise be obvious. Jurors should not be placed in a situation where they are attempting to perform their truth seeking function in what is effectively either a factual vacuum or an artificial one. As Dambrot J. said in R. v. Riley, 2009 CanLII 15451 (ON SC), [2009] O.J. No. 1374 (S.C.J.) at para. 60:

I say that this case is instructive because it makes clear that the Crown is entitled to lead narrative evidence, that is, evidence that tells the story of a crime in a manner that makes it possible for the jury to properly carry out its fact finding function.

[16] More important to my conclusion, however, is the issue of motive. Evidence of motive is always relevant. Hence, evidence of motive is admissible.[^2] At the same time, evidence of motive will usually involve evidence of prior discreditable conduct. Prior discreditable conduct is generally prejudicial to the accused person. Nonetheless, even highly prejudicial evidence may be admissible if it suggests a motive for the crime. If the probative value of the evidence outweighs the prejudicial effect, then the evidence is admissible even though it reveals the bad character of the accused. As Cory J. said in R. v. S.G.G., 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716 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]

[17] Of particular assistance on this point in the context of this case is the decision in R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42. In that case, the issue was the admissibility of a statement that the deceased made to his girlfriend implicating the accused as the person who would likely be responsible if anything happened to the deceased. In upholding the trial judge’s decision to admit the evidence, Charron J. said, at para. 61:

The state of the relationship between a deceased and an accused in the time period leading up to the former’s murder has been recognized as probative of the issue of motive.

and further, at para. 63:

That the relationship between a deceased and an accused was acrimonious or that the two had engaged in a dispute in the period leading up to a murder are highly relevant to the issue of motive because such information may afford evidence of the accused’s animus or intention to act against the victim: [citation omitted]

[18] At the same time, it is recognized that the admission of such evidence has the potential to be misused. The jury might leap from the fact of the prior altercation to an immediate conclusion that the accused must have killed the deceased. That is why it is important that an appropriate limiting instruction be given to the jury regarding the use to which they can put this evidence. But the mere possibility that a jury might misuse the evidence is insufficient to preclude the admission of the evidence. To conclude otherwise would not only leave the jury unarmed with relevant evidence that might assist in their fact-finding function but it would make the prosecution of certain offences very difficult, if not impossible.

[19] The defence says that evidence of this type, that is the history of a relationship, is most frequently admitted in domestic homicide cases and that the principles underlying the admission of that evidence in those types of cases should not be extended to other categories of cases. I see no reason to restrict such evidence to only one type of case given the logical underpinning for its admission. If the evidences assists in understanding the dynamics of a relationship in a domestic situation, I cannot see any reason why it ought not to be used to understand the dynamics of other types of relationships. The fact is that such evidence has already been admitted in different types of cases including gang cases and cases involving the drug trade. The decision in Griffin is but one example of that.

[20] The defence seeks to distinguish the decision in Griffin on the basis that in that case the accused was “pointing the finger” at another person as having possibly committed the offence. I do not see that as a significant distinction between that decision and the situation here. Assuming that Mr. Skeete does not directly suggest that another person killed Mr. Mark, the jury will be attune to the fact that, if the person who killed Mr. Mark was not Mr. Skeete, which is the essence of Mr. Skeete’s defence, then obviously it had to be someone else. The same argument is therefore raised. In that regard, I return to the decision in Riley.

[21] If the jury is not provided with the evidence regarding the prior involvement between Mr. Skeete and Mr. Mark, the jury will be left with the troubling question as to what possible reason Mr. Skeete would have to want to cause harm to Mr. Mark. In that regard, the conundrum created mirrors the conundrum that was raised in Riley. In that case, two men were shot and killed by the accused. But for the admission of prior discreditable conduct evidence that went to motive, the jury would have been left with the same troubling question since the deceased were complete strangers to the accused. In permitting the prosecution to introduce evidence that the accused were members of a gang that was engaged in a dispute with another gang, and that the accused may have mistaken the deceased as being members of that opposite gang, Dambrot J. said, at para. 38:

Without this background, the jury will be left to puzzle over an allegation of a senseless shooting by individuals who had no motive to do it. They will inevitably be invited by the accused to find a reasonable doubt on the basis of the absence of motive when in fact, evidence of motive exists. While it is imperative that limits be placed on the bad character evidence sought to be introduced by the Crown, and that strong instruction be given to the jury about how to use the evidence that is admitted, I do not think that the jury should be expected to decide this case on the basis of some artificially crafted, antiseptic version of the case.

[22] To a similar effect is the decision in R. v. Ma (1978), 1978 CanLII 2438 (ON CA), 44 C.C.C. (2d) 511 (Ont. C.A.). In that case, the accused was charged with attempting to obstruct the course of justice in a judicial proceeding. The issue was whether the trial judge correctly admitted evidence that the accused was a member of a Chinese gang whose members would come to the aid of another gang member by threatening witnesses. In holding that the evidence was properly admitted, Lacourciere, J.A said, at p. 517:

The evidence objected to would be clearly inadmissible if it proved nothing more than the bad character of the appellant, and thus that he was more likely to commit the offence. But when it was tendered for the purpose of allowing the jury to draw an inference of motive, a material issue in this case, it became admissible.

Two other cases where the same issue arose and the same conclusion was reached regarding the admissibility of discreditable conduct evidence as going to motive are R. v. Chenier (2006), 2006 CanLII 3560 (ON CA), 205 C.C.C. (3d) 333 (Ont. C.A.) and R. v. Jacobson, [2009] O.J. No 522 (C.A.).

[23] In response, the defence says that what distinguishes this case and makes its circumstances unique is the outcome of the earlier attempted murder charge. The charge against Mr. Skeete was withdrawn and Mr. Bowyer was acquitted. The defence asserts that these results mean that Mr. Skeete and Mr. Bowyer were not involved in the earlier attempt on Mr. Mark’s life and that the prosecution is therefore estopped from leading evidence of a motive arising out of a crime that Mr. Skeete did not commit. In that regard, the defence relies on the decision in R. v. Mahalingam, 2008 SCC 63, [2008] 3 S.C.R. 316.

[24] I believe that the defence’s reliance on Mahalingam is misplaced. That decision dealt with the application of the principal of issue estoppel in criminal proceedings but, as I shall explain, issue estoppel does not arise in this case. The Supreme Court of Canada retained the application of the principle of issue estoppel on the basis that fairness dictated that an accused person should not be called upon to answer allegations of law or fact already resolved in his or her favour by a judicial determination on the merits.[^3] However, for issue estoppel to apply in the criminal context, three requirements must be met. The first of those requirements was stated by McLachlin C.J.C. at para. 52:

The first requirement for a claim of issue estoppel is that the issue has been decided in a prior proceeding. This requires the court in the second trial to decide whether the issue the Crown is seeking to prove is the same as an issue resolved in the accused’s favour in a prior criminal proceeding. The onus of establishing this is on the accused who seeks to bar proof of the issue alleged to have already been resolved. To establish this, the accused must show that the question was or must necessarily have been resolved on the merits in the accused’s favour in the earlier proceeding. It is not enough to show that the evidence was led in the earlier proceeding and an acquittal entered. It must be a necessary inference from the trial judge’s findings or from the fact of the acquittal that the issue was in fact resolved in the accused’s favour.

[25] The prosecution in this case is not attempting to prove that Mr. Skeete was involved in the earlier shooting of Mr. Mark. Rather, what the prosecution is attempting to prove is that Mr. Mark believed that Mr. Skeete was involved in the earlier attempt on his life, that he gave evidence against Mr. Skeete and his younger brother to that effect and that, as a consequence of those allegations, Mr. Skeete spent thirteen months in custody. Those facts, the prosecution will assert, would create animus by Mr. Skeete towards Mr. Mark. The prosecution will add to that assertion the existence of a “code of silence” or “snitch” culture within the community involved, a violation of which would provide an additional reason for Mr. Skeete to want to cause harm to Mr. Mark. It does not require a finding that the accusations of Mr. Mark towards Mr. Skeete and his brother are true to provide the necessary motive. A false or mistaken accusation can give rise to animus and the giving of evidence, even if the prosecution is ultimately unsuccessful, still involves a breach of the code of silence.

[26] This conclusion finds support in the decision of Mahalingam itself. In that case, the Supreme Court of Canada referred to its earlier decision in R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339 where the court, in turn, referred to an earlier decision in which issue estoppel was raised, R. v. Ollis, [1900] 2 Q.B. 758. In Ollis, the court admitted evidence of an earlier trial on a charge of obtaining money by false pretences in a second trial for another charge of the same offence because it showed the state of mind of the accused. In Arp, the Supreme Court of Canada held that the decision in Ollis was correct. In commenting on that conclusion in Mahalingam, McLachlin C.J.C. said, at para. 64:

On the second trial, the evidence was called not to show that the earlier determination was in error, but to show that on the second occasion the accused could not have believed he had sufficient funds to cover the cheque, as he could not have made the same mistake twice. This rationale does not involve challenging the judicial determination in the first trial or in any way rejecting the findings at the first trial as to the accused’s state of mind. The original acquittal, and the reasons for it, stand unimpeached. Yet, the facts on which it was based may have relevance in the second trial and can be admitted on that basis, without calling the first finding into question.

[27] While the issue in Ollis was the accused’s state of mind as to whether he had monies in his bank account to cover the cheque, the reasoning applies equally here. The issue is the state of mind or motive of Mr. Skeete in relation to the December 2009 murder. The fact of the earlier trial can be admitted as evidence to establish motive without challenging in any way the determination in the earlier proceeding.

[28] I recognize that the evidence to be lead emanates almost entirely from the deceased. I also recognize that the evidence can be used to prove the state of mind of the deceased but not the state of mind of the accused. Those realities do not mean that the evidence is not relevant and material to the issue of motive, however. The deceased’s beliefs and actions can provide evidence of motive. As Watt J.A. said in R. v. Candir, 2009 ONCA 915, [2009] O.J. No. 5485 (C.A.) at para. 52:

Motive or animus has to do with an accused’s state of mind, not that of the deceased. Yet evidence of the deceased’s state of mind may constitute a link in a chain of reasoning that could lead a trier of fact to conclude that an accused bore the deceased some animus or had a motive to kill the deceased: [citations omitted]

[29] I should address one other aspect of the issue estoppel argument advanced by the defence. In acquitting Mr. Bowyer of the offence of attempted murder, the trial judge said that Mr. Bowyer had “the exclusive motive” to harm Mr. Mark. The defence says that the prosecution, by adducing this motive evidence, is attempting to avoid or get around this finding. Assuming that this finding by the trial judge gives rise to an estoppel on that issue, a result that I have serious doubts about, the flaw in the argument is its assumption that there must be a commonality of motive between the two offences. But that is not the case. The motive to harm Mr. Mark in September 2008 does not have to be the same motive to harm Mr. Mark in December 2009. The fact that Mr. Bowyer may have had the exclusive motive to harm Mr. Mark in September 2008 does not mean that another person could not have a motive to harm Mr. Mark in December 2009. The “draping up” incident did not directly involve Mr. Skeete. The institution of the attempted murder charge, and its consequences, did. The fact that Mr. Bowyer had the only motive to harm Mr. Mark leading up to the shooting in September 2008 does not mean that he was the only one that might have had a motive to harm Mr. Mark when others, notably Mr. Skeete, were swept up in the aftermath of that shooting.

[30] The position of the defence also carries with it the express contention that Mr. Skeete could not have a motive to harm Mr. Mark because the attempted murder charge was withdrawn against him. That position ignores the reality, that I have already noted, that a person might equally develop an animus towards, and thus a motive to harm, another person if he believed that he was falsely accused by that person especially if that was coupled with a pre-existing antipathy towards persons who provide assistance to the police.

[31] As an alternative to its issue estoppel argument, the defence says that to permit the prosecution to lead this body of evidence would constitute an abuse of process and thus violate Mr. Skeete’s s. 7 Charter rights to a fair trial. Abuse of process was defined in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128 where Dickson, C.J.C. said, at pp. 136-137:

…there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings…

The defence does not seek a stay of the charge but rather only a ruling that the evidence is inadmissible.

[32] This argument involves essentially the same issue as was addressed on the issue estoppel argument. If the issue raised is not the same and therefore issue estoppel does not prevent the introduction of the evidence, then admitting the evidence does not amount to an abuse of process because it does not involve Mr. Skeete in re-litigating an issue that was already resolved in his favour. In the circumstances of this case, this argument also amounts to a replay of the prejudicial effect versus probative value argument. I have already acknowledged that there is more than a measure of prejudice to this evidence because there is the possibility of it being misused by the jury. At the same time, I have concluded that this evidence has probative value to the issue of motive as well as a lesser but still significant value in terms of the proper unfolding of the narrative. I have also held that a proper instruction to the jury can address the prejudice issue. The prejudicial effect can therefore be constrained without losing the probative value of the evidence. I note that prejudice in this sense does not mean that the evidence may increase the chance of conviction but rather that the evidence might be used for an improper purpose.[^4]

[33] I conclude therefore that the admission of this body of evidence does not violate the fundamental principles of justice and consequently does not constitute an abuse of process. To the contrary, it advances those fundamental principles.

B. related issues

[34] While the above is sufficient to deal with the main issue regarding the bulk of the evidence that the prosecution seeks to introduce, there were some related issues that arose on the admissibility of certain individual pieces of evidence upon which I was required to rule. Some of those issues deserve separate comment.

(i) the tattoo

[35] The prosecution sought to introduce evidence that Mr. Skeete’s nickname is “Ammo” and that he has a tattoo on his forearm of a shotgun shell. The defence was prepared to admit the nickname but objected to the evidence of the tattoo. I agreed with the defence.

[36] The prosecution says that the tattoo shows Mr. Skeete’s familiarity with firearms. That assertion is, on its own, a dubious one. The tattoo might show a particular interest in firearms but that is a different thing than demonstrating a familiarity with them. In addition, the existence of the tattoo in my view merely adds “colour” to the prosecution’s case. Its effect is to show Mr. Skeete in a poor light. The evidence is thus prejudicial but its probative value is virtually nil. I suppose if Mr. Mark had been killed through the use of a shotgun, it might have assisted the prosecution’s position but the fact is that Mr. Mark was killed with a .22 calibre handgun. Consequently, I ruled that the prosecution could not introduce evidence of Mr. Skeete’s tattoo.[^5]

(ii) evidence of retaliation

[37] Mr. Mark told his brother, after he went to the police, that he was concerned about retaliation for his actions in informing the police. Mr. Mark also spoke of Mr. Bowyer and perhaps Mr. Skeete, along with some of their friends, having come looking for him, at the housing complex where he lived, between the time of the shooting and their arrest. Mr. Mark had hidden from them on these occasions. Mr. Mark actually moved units in the housing complex where he lived as a consequence of these events. Mr. Mark also spoke of others who had told him of other efforts that Mr. Bowyer and Mr. Skeete had made to find him and that, when they did so, they were armed with handguns.

[38] I ruled that the statements Mr. Mark made about the retaliation efforts of which he was personally aware could be admitted. Evidence of retaliation as a reason or motive for the accused to have acted as he did has been admitted in other cases – see, for example, R. v. E.B., [2004] O.J. No. 3528 (C.A.). Evidence of a fear of retaliation is also admissible to show why a victim acted in the manner that he did, for example, by failing to identify the accused on an earlier occasion. This was part of the issue in R. v. Boswell, 2011 ONCA 283, [2011] O.J. No. 1646 (C.A.) where Cronk J.A. said, at para. 22:

Based on this evidence, I do not agree with the appellant’s contention that Sharp’s claimed distrust of the police and his fear of retaliation did not figure prominently in his explanation for his initial lies to the police. On the contrary, Sharp clearly identified these factors as influencing his conduct in the first 48 hours after the shooting. It was for the jury, as the trier of fact, to determine what weight, if any, to assign to these considerations in assessing Sharp’s credibility.

Similarly, the jury in this case can use Mr. Mark’s concerns about retaliation to evaluate not only his actions but also whether that evidence assists in terms of determining the issue of motive.

[39] At the same time, I ruled that the information Mr. Mark received from others regarding actions that were possibly connected to retaliation and the presence of guns in that connection was inadmissible. The evidence is obviously highly prejudicial. At the same time, the evidence was double and sometimes triple hearsay and, consequently, while it might be probative, its reliability was suspect. The defence also would have no effective way of challenging that evidence. In contrast, I note that Mr. Mark was subject to cross-examination at both the preliminary hearing and the trial on the attempted murder charge. I also ruled that evidence that Mr. Mark was nervous about giving evidence, that his demeanour changed after the outcome of the attempt murder charge and that he spoke of wanting to change stores where he worked would not be admitted. The probative value of that evidence was weak given that there could have been many reasons for his nervousness or for his change in demeanour or for his wish to change job locations. Mr. Mark did not himself directly link any of those comments to concerns about Mr. Skeete or his associates. The same considerations lead to my conclusion that the evidence of friends of Mr. Mark regarding any change in his attitude or his reaction to the outcome of the attempted murder charge should not be admitted.

(iii) theft of vehicles

[40] The prosecution also sought to introduce evidence of text messages between Mr. Skeete and a youth, S.M., regarding Mr. Skeete’s need for a vehicle to be used in conjunction with the planned killing of Mr. Mark. The theory of the prosecution is that S.M. had a history of stealing vehicles, was a friend of Mr. Skeete and was the logical person for Mr. Skeete to turn to for the purpose of getting a vehicle. Mr. Skeete himself does not drive. The text messages, once interpreted by an expert in urban street language, would show that Mr. Skeete was asking S.M. to obtain the use of a vehicle by theft, although notably not for a murder but apparently for a robbery that was to be committed.

[41] There was no objection to the prosecution leading evidence that Mr. Skeete was looking for a vehicle but there was objection to the prosecution attempting to lead evidence that the vehicle would be obtained through theft. As I view the matter, the central point that the prosecution wishes to establish is that Mr. Skeete was looking for a vehicle. How the vehicle was obtained is largely irrelevant to that central point. Whether S.M. had a legitimate way of obtaining a vehicle for Mr. Skeete or had to resort to illegitimate ways does not change the connection of a vehicle to the offence and the prosecution’s theory as to how the offence was to be carried out. In addition, the defence was prepared to admit that S.M. had access to vehicles.

[42] Allowing the prosecution to go beyond that fact and introduce evidence that S.M. was stealing vehicles increases the prejudicial effect associated with the evidence without increasing its probative value.[^6] In addition, there was the additional element of the time that would have to be taken to have the urban street language expert interpret the contents of the text messages. Given those considerations, I ruled that the prosecution would not be permitted to introduce the text messages for that purpose although I recognize that the text messages may have relevance for other purposes, e.g., to show contact between Mr. Skeete and S.M. and to establish that Mr. Skeete wanted a vehicle. If that is the case, the text messages may be admissible but without the need to have reference to all of their content.

(iv) mode of proof

[43] An interesting issue arises in this case as to the manner in which the prosecution may lead the evidence of the attempted murder charge and its aftermath given that most of the evidence emanates from Mr. Mark either through his statement to the police or from the evidence that he gave at the preliminary hearing and the trial. I expressed my initial position to counsel that Kenneth Mark’s ante-mortem statements should not be put into evidence through the playing of his videotaped statement to the police or the reading of the transcripts from the preliminary hearing and from the trial. To do so, in my view, runs the risk of inviting the jury to evaluate that evidence and decide what they think ought to have happened regarding the attempted murder charge. That result, of course, is exactly what the jury is not to use this evidence for. While the jury will be told that they cannot use the evidence for this purpose, we should not present the evidence to them in a manner that invites them to do so.

[44] In my view, the preferable way of leading this evidence would be for one or more of the investigating officers on the attempted murder charge, who were present when Mr. Mark gave his evidence, to summarize what Mr. Mark said and did not say on these various occasions. The officers can be cross-examined, if necessary, on anything that Mr. Mark said that contradicts or amends or varies from the summary given. In that way, the jury can evaluate the pluses and minuses of Mr. Mark’s beliefs without being drawn into deciding what ought to have happened with the attempted murder charge. Undoubtedly this will be a tricky route to navigate with the witnesses. As a consequence I recognize that adjustments may have to be made as the evidence is given.

C. Summary

[45] It is for these reasons that I made the evidentiary rulings that I did and that are set out in Appendix A. At the same time, I made it clear that my conclusions were provisional in nature. I recognize that pre-trial rulings on evidentiary issues of this kind can have their foundation undermined as the trial evolves and the evidence actually unfolds. Counsel must be able to ask to revisit any such ruling if the evidence demonstrates that the ruling may be unsound or operate unfairly. Put simply, if a witness opens an evidentiary door that was otherwise intended to remain shut, counsel must be able to ask that the ground rules for the trial evidence be revisited.

NORDHEIMER J.

Released: February 2, 2012

APPENDIX A

The Crown will be permitted to introduce at this trial the following evidence:

(i) the so-called draping up incident that occurred about three days prior to September 2, 2008 involving Kenneth Mark and Mr. Skeete’s younger brother, Jevar Bowyer, and the reason for that incident, that is, the fact that Mr. Mark believed that Mr. Bowyer had shown a gun to children, including Mr. Mark’s nieces, in the courtyard at 2490 St. Clair Avenue West where both Mr. Mark and his nieces and nephews lived;

(ii) that Kenneth Mark was shot on September 2, 2008 including some details as to the nature of the weapon and the injuries sustained but not the pictures of those injuries;

(iii) Kenneth Mark’s identification of Jevar Bowyer as the person who shot him and the presence of Lamar Skeete at the time of the shooting including Mr. Mark’s failure to initially identify the shooter, his subsequent approach to the police that occurred at a community meeting held on November 3, 2008 and the particulars of his subsequent identification of Jevar Bowyer and Lamar Skeete;

(iv) that Kenneth Mark gave a sworn videotaped statement to the police regarding his identification of Jevar Bowyer and Lamar Skeete and that he gave evidence to that same effect at the preliminary hearing of both Jevar Bowyer and Lamar Skeete as well as at the trial of Jevar Bowyer;

(v) that the attempt murder charge against Lamar Skeete was withdrawn by the Crown on December 14, 2009 because there was no reasonable prospect of conviction;

(vi) that, by the time that the attempt murder charge was withdrawn, Lamar Skeete had spent thirteen months in custody;

(vii) that the prosecution continued against Jevar Bowyer and that he was ultimately acquitted of the attempt murder charge on December 17, 2009;

(viii) background evidence of Kenneth Mark including where he worked, where he lived, his frequent attendances at the food outlet at Dundas & Gilmour, that he did not smoke, drink or do drugs but not his views on those habits, that he knew Jevar Bowyer and Lamar Skeete for 5 or 6 years, knew them to be brothers and knew their nicknames “Littles” and “Ammo”,

(ix) that, after the shooting, Kenneth Mark was concerned about retaliation including efforts by Jevar Bowyer and possibly Lamar Skeete to find him but not the hearsay evidence regarding what other persons told him about the presence of guns or what others reported about efforts being made to locate Kenneth Mark;

(x) evidence from Ian Mark regarding Kenneth Mark’s fear of retaliation, that he was going to keep “down low” and that he moved.

(xi) that Lamar Skeete, Jevar Bowyer, Shamaree Murray and Manfred Boakye were all together in a car on December 24, 2009 but not the alleged reason why they were in that car;

(xii) through an admission, that Shamaree Murray had access to vehicles but not the method by which Shamaree Murray gained access to those vehicles;

(xiii) through an admission, that Lamar Skeete uses the nickname “Ammo”.

At the same time, I have concluded that the Crown may not lead the following evidence:

(i) that Lamar Skeete has a tattoo of a shot gun shell on his forearm;

(ii) text messages involving Shamaree Murray about the theft of vehicles;

(iii) any evidence from Margaritte Fraser and Nicholas Huntley regarding the shooting of Kenneth Mark and the injuries he sustained;

(iv) that Kenneth Mark was nervous about giving evidence or his concerns about friends of Jevar Bowyer and Lamar Skeete coming into the courtroom while he gave evidence;

(v) the conduct of Valencia Skeete towards a witness at the attempt murder trial;

(vi) any evidence from Robin Bell that, after the acquittal of Jevar Bowyer, Kenneth Mark was acting strangely and was not answering his phone;

(vii) any evidence from Margaritte Fraser regarding Kenneth Mark’s reluctance to give evidence and his reaction to the outcome of the attempted murder charge;

(viii) any evidence from Nicholas Huntley regarding Kenneth Mark transferring to another store or his demeanour in December 2009.

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:

[^1]: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at para. 44 [^2]: R. v. Lewis, 1979 CanLII 19 (SCC), [1979] 2 S.C.R. 821 [^3]: R. v. Mahalingam, 2008 SCC 63, [2008] 3 S.C.R. 316 at para. 39 [^4]: see R. v. L.B. (1997), 1997 CanLII 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.) at para. 22 [^5]: Mr. Skeete also has a tattoo of “Ammo” on is arm. The prosecution also sought to put that tattoo in evidence but I refused to allow it. Given the admission that Mr. Skeete’s nickname is “Ammo”, the tattoo has no additional probative value on that issue. [^6]: I recognize that the jury may be able to surmise this in any event as they will likely hear that S.M. was a youth with no driver’s licence.