ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIM(P)2142/12
DATE: 20130426

B E T W E E N:

HER MAJESTY THE QUEEN

R. Alexander Cornelius, for the Crown

Applicant

• and -

JEROME DERBY

Jennifer Myers, for the Respondent
Peter Zaduk

Respondent

HEARD: Heard April 9, 10, 2013

RULING RE: SIMILAR FACT APPLICATION

Fragomeni J.

[1] The respondent, Jerome Derby, is charged as follows:

That he, on or about the 7th day of November 2010, at the City of Mississauga, in the Central West Region, did commit second degree murder on the person, Donald Grant, contrary to section 235(1) of the Criminal Code of Canada.

[2] The Crown seeks to introduce as evidence at the trial of this matter the circumstances relating to the November 3, 2010 robbery of Sara Vaillancourt as similar fact evidence.

[3] The grounds for this application are set out by the Crown in his notice of application as follows:

1. That the respondent is charged with the second degree murder of Donald Grant on November 7, 2010;

2. That identity will be a main issue in this case. Further, it is anticipated that the question of who brought the lone firearm to the scene, the respondent or Mr. Grant, will be an important issue for the jury to determine;

3. On November 3, 2010, Sara Vaillancourt, an escort, made an appointment to meet a man in a room at the Holiday Inn. The phone number used by the male was 647-206-3861. After allowing the male entry into her hotel room and having brief conversation, the male proceeded to choke Ms. Vaillancourt into unconsciousness and then robbed her. Ms. Vaillancourt described the male as black, with a light and clear complexion and small build. He was about 5’ 5” to 5’ 6” tall;

4. Ms. Vaillancourt called Mr. Grant and informed him of the robbery. Together, they used their joint phone account to dial the number 647-206-3861. Ms. Vaillancourt heard the male’s voice over the phone and confirmed that it was the male that robbed her;

5. On November 7, 2010, Sara Munn, an escort, made an appointment to meet a male in her hotel room at the Holiday Inn. The phone number the male used to contact her was 647-206-3861 and this number was saved on her cell phone. When the male arrived, Ms. Munn became concerned and called Mr. Grant. Mr. Grant attended at the Holiday Inn and entered the hotel room from the back. Mr. Grant and the respondent engaged in a fight. The respondent gained control over Mr. Grant and shot him in the chest and killed him;

6. Ms. Munn identified the respondent in a photo line-up as the person who shot Mr. Grant.

[4] The Crown relies on the following evidentiary record in support of his application:

(a) Transcripts of Sara Vaillancourt’s video-recorded statements to the police on November 8, 2010 and November 11, 2010;

(b) Relevant excerpts of Sara Munn’s preliminary inquiry testimony on July 16, 2012 and July 17, 2012.

[5] Prior to hearing submissions on this application, the respondent sought an order that Sara Vaillancourt be required to give viva voce evidence at this application to explore the issue of tainting and collusion as Sara Vaillancourt had not been called as a witness at the preliminary inquiry.

[6] Following submissions on this procedural issue I ruled in favour of the respondent and concluded that in order to properly deal with the issues the evidentiary record requires hearing from Sara Vaillancourt and I allowed, as requested by the respondent, viva voce evidence from Sara Vaillancourt. My ruling on this procedural issue was given orally on April 8, 2013.

Voir Dire Testimony of Sara Vaillancourt

[7] Before I proceed with a review of the evidentiary record contained in the material filed by the parties I wish to review the viva voce evidence of Sara Vaillancourt heard on April 9, 2013.

[8] Sara Vaillancourt is now 22 years of age. At the time of these events she worked in the sex trade as an escort in Mississauga, Ontario. She worked out of a Holiday Inn.

[9] Sara Vaillancourt would post ads on BackPage, a classified web-site, and prospective clients would contact her at the posted number.

[10] On November 3, 2010 at around 8 p.m. or 9 p.m. she received a call on her cell phone from a prospective client. There were four calls in total to arrange for his attendance at her location and room at the Holiday Inn.

[11] A male person attended at her hotel room and she let him in. She described this person as follows:

• Younger – 22 years of age
• Light skin – Jamaican mix
• 5’ 6” or 5’ 7” – Not much taller than she is at 5’ 2”
• Small frame, smaller build
• Wearing a black hoodie and jeans
• Also wearing a fitted fur hat – Eskimo type and checkered, red and black with ears muffs. She could not see his hair
• No facial hair.

[12] After this person was in the room and after some small talk, he choked her and she passed out. She is not sure how long she was out but when she awoke the hotel room was a disaster. The person was asking for her money; he unplugged the phone from the wall; he directed her to put her clothes in the shower. During this time he was waving a gun around. She could not be sure if the gun was real.

[13] Sara Vaillancourt described the gun as follows:

• It was a very small gun
• It was pocket size
• Smooth and silver in colour
• She is not sure how the bullets are put in but it’s not one you load from the bottom
• It had a spinning thing like a cylinder but she really did not know.

[14] The person in her room took her phone and computer and left. She called Donald Grant. Donald Grant and his cousin Ian attended at her room and she told them what happened. They decided to put the phone number the person used to call her out to warn other girls. In cross-examination she described Mr. Grant as her boyfriend. She called herself his girl, his “wifey.”

[15] The next day, she called her phone provider, Telus, with Donald Grant, and the person at Telus located the last number called on November 3 to Sara Vaillancourt and told her what the number was. Sara Vaillancourt and Donald Grant called this number to see if she could recognize the voice. The person answered and said “hello, hello” and she immediately recognized the voice to be the person who was at her hotel room and robbed her.

[16] She could not recall what the number was given to her by Telus.

[17] As a result of all this, Donald Grant put this phone number out for the other escorts to see as a warning. He was trying to figure out who this person was.

[18] Sara Vaillancourt did not report this November 3 robbery to the police. Once she became aware of Donald Grant’s death, because it had been posted on Facebook, she decided to speak to the police.

[19] Sara Vaillancourt does not know an escort by the name of Sara Munn. Sara Munn works under the name Annabella and Sara Vaillancourt knows of her but has never met her.

[20] Sara Vaillancourt did not receive any information about what happened to Donald Grant other than what she saw or read in the news or on Facebook.

Cross-Examination

[21] In cross-examination by the defence, Sara Vaillancourt acknowledged that she had provided two videotaped statements to the police, one on November 8, 2010 and one on November 11, 2010.

[22] With respect to the phone number used by the person who called her on November 3, 2010 she confirmed that she does not remember the number and in general she does not remember phone numbers.

[23] She acknowledged that during her statement to the police she did not tell them the truth about certain matters such as being a sex trade worker. At the time she spoke to the police three years ago, she was younger, nervous and concerned about her own safety. She did not give the police the full story. However, she stated that at this hearing and while under oath she was being truthful.

[24] With respect to the person who called her on November 3, his voice had a Spanish accent. When the person attended at her door she was surprised to see a light skinned black man. When she and Donald called the number the next day after getting a number from Telus, the voice had the same Spanish quality to it. It had a Spanish slang with a little accent.

[25] She stated further, with respect to her clients, that up to November 3, 2010 each client that came to her was a new face. She did not have regulars. She also acknowledged that as a sex trade worker she is concerned about robberies and she said there are working girls everywhere.

[26] With respect to the firearm she saw, she acknowledged that she told the police in her statement that the gun was black. She thought it was black. She is not 100% sure.

[27] On November 11, 2010 Sara Vaillancourt was taken through two sets of photos in an effort to identify the robber. I will review the results of these photo line-ups later in these reasons.

[28] Sara Vaillancourt was asked about the reverse search conducted by Donald Grant to find out who the number belonged to. She found out about the reverse search from Donald and Ian after the fact.

[29] Two exhibits were filed relating to the Photo Line Ups. Exhibit 1(a) are photos 5 and 9 of the first set of 12 photos. Exhibit 1(b) are the balance of the photos of the first set of 12.

[30] Exhibit 2(a) are photos 1, 2, 3 and 8 of the second set of 12 photos and Exhibit 2(b) are the balance of the second set of 12 photos.

ANTICIPATED EVIDENCE OF SARA MUNN

[31] On November 7, 2010, at about 9:00 p.m., a man using a cellphone with the number (647) 206-3861 made a date with Sara Munn, a sex trade worker, to meet at the Holiday Inn Express at 5585 Ambler Drive in Mississauga.

[32] When he arrived, as was Ms. Munn’s practice, he called to tell her he was there, and she provided her room number.

[33] When he attended her room, Ms. Munn looked through the peephole, and believed that the man at her room was a robber that she had heard about through internet websites, and through a friend of a friend. Ms. Munn had heard that this robber would rob people at gunpoint and sexually assault them.

[34] Ms. Munn thought that the man at the door was the robber as he matched the very generic description that she had been given. That description was, in its entirety, “young black male, braids, baseball cap, clean shaven, dressed nice – not like a thug.”

[35] Ms. Munn was very frightened of this young man at the door. She explained that all she wanted was for him to go away. To accomplish this goal, she called her friend, Donald Grant.

[36] Ms. Munn denies that Mr. Grant was involved in her occupation in any way. Ms. Munn did acknowledge that he did pressure her to post her ads online repeatedly, wanted her to have more productive days; he picked her up from her home in Hamilton, and paid for her hotel room with a credit card belonging to a third party.

[37] Ms. Munn called Mr. Grant to help her. In the approximately 30 minutes that it takes before Mr. Grant arrives at the hotel, Ms. Munn has a number of conversations with Mr. Grant, and a number of conversations, by text and phone, with the number (647) 206-3861.

[38] Ms. Munn denies having made any plan with Mr. Grant about what would happen when Mr. Grant arrived at the hotel.

[39] Ms. Munn had never been given a phone number for the potential robber that she had been warned about Mr. Grant, however, was expecting, based on the information received from Ms. Munn, an armed intruder. The phone number Ms. Munn gave to Mr. Grant was the same phone number Sara Vaillancourt believed had called her and that was the number she had obtained from Telus.

[40] Although Ms. Munn was afraid of the person at the door, she did not leave through the back door. Mr. Grant told her to answer the door. The potential customer was let in the front door, either by Ms. Munn or Mr. Grant, and Ms. Munn was told to leave and get out of the way by Mr. Grant. Ms. Munn cannot recall what words were exchanged, and a fight started between Mr. Grant and the male.

[41] Ms. Munn did not see where the gun came from – she had turned around, but she saw a gun during the altercation in the other male’s hand, and they were fighting over it. She was not really watching the fight, and can’t give the exact positions that they were in. She made these observations from outside of the hotel room. She ran behind Mr. Grant’s back, and called to his friend that had been outside of the hotel room.

[42] The gun was silver, it looked like a toy cap gun, it had a long barrel, and was a revolver.

[43] During the dispute, Mr. Grant was shot once. He died from that injury.

[44] Ms. Munn picked Mr. Derby’s photo from a photographic line-up. She told the officer that the photograph looked somewhat familiar as she recognized the scars. Ms. Munn said that the person that came to her room had scars on his left cheek, it was the scars that assisted her in making the identification.

Statements of Sara Jasmine Vaillancourt – November 8, 2010 and November 11, 2010

[45] Ms. Vaillancourt was robbed at gunpoint during the evening hours of November 3, 2010, in her hotel room at 100 Brittania Road East, Mississauga, by a person who called and got her number through a friend of a friend. She denied being a sex trade worker.

[46] Ms. Vaillancourt described the male that robbed her as light-skinned, big white smile, nice complexion, no scars, “nothing to make it look like he’s lived a rough life …”. He had fitted jeans, a black hoodie and a “goofy hat like the ones that people are wearing these days with the fur. Like some of them have plaid here and the fur like flips up, like the Eskimo Hats … He had one of those on with the flaps up and I couldn’t tell what his hair looked like.” He was 5’ 5 or 5’6, with a regular build. Later she adds that the hat was black and red checkered. He was about 20, he may have had a little bit of facial hair, His shoes were white, nasty and run down. He had big lips and a bigger nose.

[47] Ms. Vaillancourt thought the gun was fake, it was a one shooter, a black steel, skinnier gun with normal steel texture. She was “pretty sure it had a spin.” It was a littler and daintier gun, nothing big.

[48] After the robbery, Ms. Vaillancourt called Donald Grant from the hotel phone, as her cell phones had been stolen. Mr. Grant arrived at the hotel with his cousin Ian. Ms. Vaillancourt told the police that they called Telus and received some information. Ms. Vaillancourt’s cell account was linked to Mr. Grant’s in some way, and they were able to get, from Telus, lists of the phone numbers that had called. Mr. Grant called one of those numbers, and Ms. Vaillancourt heard the voice on the other end say, “hey, who is this?” She believed it to be the voice of the person that robbed her. There was no follow up done to try to find out who the guy was.

[49] Ms. Vaillancourt does not recall the phone number. She’s “pretty sure” that the area code was 647. She thinks that Don saved the number.

[50] On November 8, 2010, Ms. Vaillancourt spoke to someone on Facebook about a robbery of a girl in Brampton. She believed that it was the same person as it was a robbery in Brampton. She also talked to Ian, Mr. Grant’s cousin, every day. She had heard through those sources that another girl had given a statement. She had found “Annabella,” the girl that “was in that hotel room” on-line, and had tried to call but her phone was off. She had heard that Don was shot walking through the sliding door.

[51] Despite telling the police that as of November 8 she was not aware that Mr. Grant had done any follow-up to try to find the person that robbed her, by November 11, she believes that Don had had done research to try to find the guy, and that she believed that the phone number had a one in it. She has heard that he did some reverse calls, and got papers of where he lived.

[52] When Ms. Vaillancourt attended the police station to do the photo line-up, she believed that the person that robbed her was the same person that shot Mr. Grant. Although she says that a number of the photographs look similar to the robber, when shown the photograph of Mr. Derby, she says “no”.

[53] On November 11, when doing the photographic line-ups, she again is asked about descriptors and says “… he had a baby face; he didn’t have any-, he didn’t look like he had been stressed or like no bags under the eyes, no scars, no nothing.” She describes his complexion as “perfect” and says that she would have remembered if he had a scar. She says that if she had seen his picture, she would know.

[54] The video taken of the Holiday Inn lobby on November 3 shows a young man wearing a winter hat with ear flaps. The person wearing it does not appear to be Jerome Derby.

[55] Ms. Vaillancourt was not called as a witness at the preliminary hearing.

Jeanette Costello – Robbery on November 7, 2010

[56] Ms. Costello was a victim of a robbery at the comfort in at five Rutherford Road South in Brampton November 7, 2010. At about 6:50 p.m. on that date, Ms. Costello received a call on her cell phone from a potential customer. Ms. Costello was working as a paid escort. When he arrived, he called and she told him to come to room 119. When he entered the room, he pulled out a gun, and put it to her head. While he was looking for money, she ran out off the door to the lobby and called the police.

[57] Ms. Costello described the robber as between 20 and 25, between 5’ 6” to 5’ 7”, and about 150 pounds, tall and slim, he was a dark skinned black male, and he was wearing a baseball cap. He looked young on his face and had no distinguishing marks.

[58] Ms. Costello described the gun as the kind with the “turn thing on it.” It was light brown blackish color, and she wasn’t sure that it was real.

[59] There was a video footage seized of the robber leaving the Comfort Inn, as well as fingerprints on the door. The prints came back to Jahvonte Dean, and images capture his likeness. Additionally the clothing worn in the robbery was seized either from his person on arrest, or from his apartment during the execution of a search warrant.

[60] On April 12, 2012, Jahvonte Dean was convicted of robbing Miss Costello along with a weapons charge. He was sentenced to one year on the weapons charge and an additional year, consecutive for the robbery.

[61] Neither of Miss Costello’s phones had contact with (647) 206 – 3861.

Additional Cell Phone Information

[62] Ms. Vaillancourt, Ms. Costello, Ms. Munn and Mr. Grant all had at least two cell phones.

[63] The subscriber listed for (647) 206-3861 is Jermaine Jackson at 605 Whiteside place, Toronto.

[64] On November 7, 2010, the cellphone (647) 206-3861 calls (647) 402-4575, a phone registered to Rosemary Dean, Jahvonte Dean’s mother at 10:05 p.m. Jahvonte Dean’s home phone number is (647) 208-5619.

Connection of Cell Phone To Respondent’s Address

[65] At Tabs 7 to 11 of the Crown’s Application Record, the respondent’s address is noted as 605 Whiteside Place, Apartment 605, Toronto, Ontario. At Tab 9 is a Roger’s bill sent to Jerome Derby at that address. At Tab 10 is a Telus account information showing the user name as Jermaine Jackson with an address of 605 Whiteside Place, Apartment 605, Toronto, Ontario.

Position of the Crown

[66] The Crown submits that the November 3, 2010 robbery relating to Sara Vaillancourt should be admitted as similar fact evidence. The Crown submits that this evidence is relevant in three areas:

1. The purpose for which the respondent attended at the hotel room of Sara Munn. The respondent attended to commit a robbery not for the innocent purpose of accessing the services of an escort;

2. It will assist the jury in assessing who brought the lone firearm to the scene;

3. The identity of the respondent as the person who killed Donald Grant.

[67] The Crown argues that the evidence is highly probative and the probative value of this evidence outweighs any prejudicial effect that may be occasioned by its admission.

Position of the Respondent

[68] The respondent submits that evidence of prior disreputable conduct is presumptively inadmissible and the test for admissibility is a narrow one. The respondent asserts that the evidence of prior conduct must be “so highly relevant and cogent that its probative value in the search for the truth outweighs any potential for misuse.”

[69] The respondent argues that this evidence can only be admitted where the Crown satisfies the trial judge that the prejudicial effect of the evidence is outweighed by the probative value of the evidence in relation to a particular issue at trial.

ANALYSIS

The Legal Framework and Governing Principles

[70] Similar fact evidence is presumptively inadmissible. 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: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at para. 55; R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, at paras. 42 and 51.

[71] In Handy, Binnie J. sets out the following at para. 82:

The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves. Factors connecting the similar facts to the circumstances set out in the charge include:

(1) proximity in time of the similar acts: D. (L.E.), supra, at p. 125; R. v. Simpson (1977), 1977 1142 (ON CA), 35 C.C.C. (2d) 337 (Ont. C.A.), at