CITATION: R. v. Derby, 2013 ONSC 3031
COURT FILE NO.: CRIM(P)2142/12
DATE: 20130524
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Alexander Cornelius, for the Respondent
Respondent
- and -
JEROME DERBY
Jennifer Myers and Peter Zaduk for the Applicant
Applicant
HEARD: Heard May 9, 2013
RULING RE: APPLICATION TO EXCLUDE EVIDENCE -
DOCUMENTS FOUND AT 605 WHITESIDE PLACE, APARTMENT 605, TORONTO, ONTARIO
Fragomeni J.
[1] The Crown seeks to introduce at the trial of this matter as part of its case the following documents seized by the police at apartment 605, 605 Whiteside Place, Toronto, Ontario:
- Probation Order in the name of the accused, Jerome Derby, for the following offences:
a. Break and enter;
b. Flight from police;
c. Possession of stolen property over $5,000 x 2;
d. Fail to comply with Probation Order.
Two handwritten letters from the accused’s girlfriend sent to him while he was in custody at Maplehurst.
Two undated and unsigned drawings.
Notice of Suspension of Driver’s Licence for non-payment of a fine.
[2] The accused, Jerome Derby, seeks an order to exclude these documents on the basis that these documents are irrelevant and have no probative value. The prejudicial effect of placing these documents before the jury far outweighs any probative value that might attach to them.
[3] Mr. Derby is on trial for the second degree murder of Donald Grant on November 7, 2010, at the Holiday Inn Express in Mississauga and is being tried by a jury.
[4] The identity of Mr. Derby as being the person who attended at the hotel room and being involved in the fatal altercation with Mr. Grant has been admitted. The issues that the jury will be asked to decide is whether Mr. Derby acted in self-defence and if he did not whether he had the intent for murder.
[5] There is also no issue, and the defence is prepared to admit, that Mr. Derby grew up at 605 Whiteside Place, Apartment 605 in Toronto with his mother and some of his siblings. The family moved out of that residence on or before October 31, 2010. Det. Rice and Det. Guse attended at 605 Whiteside Place on November 23, 2010. The door was unlocked and the apartment was unoccupied. The apartment was abandoned but it appeared as though it may have been used by squatters. The defence is also prepared to admit that there were seven separate pieces of correspondence addressed to Jerome Derby including, Rogers cell phone bills and correspondence for (647) 987-2492 dated between July and September, 2010; a letter from Josee DeLeon, who appeared to be Mr. Derby’s girlfriend, dated November 20, 2009.
[6] The defence argues that none of the documents that are the subject matter of this application are relevant. The defence argues further that the documents have no probative value and the prejudicial effect of admitting these documents outweighs any probative value that could be attached to the documents.
[7] The Crown submits that the letters are probative and relevant to the issue of self-defence. The fact that Mr. Derby had a girlfriend who was available for him to engage in sexual activity would negate his position that he attended at the hotel for the innocent purpose of engaging the services of a sex trade worker. The Crown submits that although that is not the only inference that can be drawn from those letters it is one inference that would be available for the jury.
[8] The Crown argues that the relevance of the Driving Suspension order relates to the means of transportation that Mr. Derby had and again negates the innocent purpose of attending at the hotel.
Conclusion
[9] For the following reasons I am not satisfied that the documents are relevant nor am I satisfied that they are probative of any issue that this jury has to decide. I agree with the defence that the prejudicial effect of placing these documents before the jury far outweighs the probative value, if any, that could attach to these documents.
Probation Order - this document is excluded. As I indicated in my ruling on the Corbett Application, if Mr. Derby testifies on his own behalf, the jury will be aware that Mr. Derby was placed on probation on May 4, 2010 for various offences. The Crown will be able to cross-examine Mr. Derby on portions of his criminal record in accordance with my Corbett ruling.
Notice of Suspension of Driver’s Licence for non-payment of a fine dated May 18, 2010. This document shall be excluded. Again it has no relevance and is not probative of any issue the jury has to decide.
Two handwritten letters. These letters pre-date the November 7, 2010 fatal altercation by months. The letters are sent to Mr. Derby by his girlfriend while he is in custody at Maplehurst. The letters are sexual in nature and also make reference to Mr. Derby being in custody. The prejudicial effect of admitting these letters outweighs any probative value that could attach to them. The stated purpose for introducing those letters as set out by the Crown is insufficient to establish any probative value to the letters. Of course in the event that Mr. Derby testifies on his own behalf, the Crown will be permitted to cross-examine him about a girlfriend and test him on his innocent purpose for attending that hotel room to pay for the services of a sex trade worker when he has a girlfriend. These letters do not assist the jury and are not relevant to the issues this jury has to decide.
Two drawings. The two drawings shall be excluded. There is no indication when those drawings were made or by whom. The Crown concedes that the larger drawing is not relevant. However, the Crown argues that the smaller drawing makes reference to Mr. Derby’s name, DERBZ and by depicting a drawing of a gun it is relevant to Mr. Derby’s interest in guns. This, the Crown argues, would assist the jury in determining who brought the gun to the hotel room, Mr. Derby or Mr. Grant.
[10] I agree with the defence that the reference to the gun with the words Bloody Money surrounding the gun is very prejudicial. In addition to that there is nothing to establish if Mr. Derby created these drawings or when they were created. Even if Mr. Derby did create the drawings there is nothing before the court to establish when those drawings were created.
[11] In these circumstances, therefore, those drawings are not relevant, have no probative value, and are very prejudicial.
Disposition
[12] The Application brought by Mr. Derby is allowed and the documents shall be excluded.
Fragomeni J.
Released: May 24, 2013
CITATION: R. v. Derby, 2013 ONSC 3031
COURT FILE NO.: CRIM(P)2142/12
DATE: 20130524
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JEROME DERBY
RULING RE: APPLICATION TO EXCLUDE EVIDENCE -
DOCUMENTS FOUND AT 605 WHITESIDE PLACE, APARTMENT 605, TORONTO, ONTARIO
Fragomeni J.
Released: May 24, 2013