SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 12-3-305-0000

DATE: 20130605

RE: R. v. Nicholas Walker

BEFORE: M.A. Code J.

COUNSEL:
Andrew Pilla and Simon Heeney, for the Crown

Leora Shemesh, for the Defence

HEARD: May 28 and 29, 2013

ENDORSEMENT

A. OVERVIEW

[1] The accused Nicholas Walker (hereinafter Walker) is charged with one count of first degree murder, arising out of the shooting death of Clifenton Ford (hereinafter Ford) on March 28, 2011 in Toronto.

[2] The trial commenced before me with the argument of five pre-trial Motions. They were heard over two days, on May 28 and 29, 2013. Two of the Motions, involving the admissibility of certain evidence, were not strenuously contested and I ruled the evidence admissible with reasons to follow. Two other Motions, also involving the admissibility of evidence, were somewhat more difficult and I reserved judgment. The fifth and last Motion involved disclosure and informant privilege. It was, and it remains, the most difficult of the five Motions. I made a preliminary procedural ruling with reasons to follow. That Motion is still ongoing as it is in the midst of an evidentiary hearing.

[3] These are my reasons in relation to four of the above pre-trial Motions and in relation to the preliminary procedural ruling on the fifth Motion. All of the Motions were conducted quickly and efficiently by counsel. This was made possible because they had filed thorough written materials, well in advance of the trial date, enabling the Court and opposing counsel to prepare. Extensive use was made of preliminary inquiry transcripts and video-taped police interviews. As a result, viva voce evidence was unnecessary and the Motions proceeded directly to oral argument. I am grateful to all three counsel for the efficient, focused, and professional way in which they conducted the pre-trial Motions.

[4] I will address the five Motions in the order in which they were argued which is also the order of their ascending degree of difficulty.

B. EVIDENCE OF ANIMUS BETWEEN THE ACCUSED WALKER AND THE DECEASED FORD

[5] The Crown seeks to elicit evidence from a number of witnesses about a dispute that arose between the accused Walker and the deceased Ford in the six month period preceding the homicide. The dispute allegedly had its origin in a number of incidents involving Walker and a young woman named Jonelle, commencing in October 2010. Walker is said to have been “hitting on” Jonelle, apparently without realizing that she was already in a relationship with Ford. Jonelle resisted Walker’s advances and there was eventually a physical altercation in a bar where Walker is alleged to have assaulted Jonelle and her mother. The assault was not serious and no charges were laid at the time. Walker eventually apologized to both Jonelle and her mother.

[6] However, Ford learned about these incidents and was apparently upset by them. This led to two confrontations, between Walker and Ford, in February and March 2011. These confrontations were in public, in a bar or club where others were present. Ford used a particularly derogatory term, in order to insult Walker during these two public confrontations.

[7] The Crown’s theory is that the public insults, in February and March 2011, provided the motive for the murder on March 28, 2011. The Crown’s further theory is that the earlier incidents, involving Walker “hitting on” and then assaulting Jonelle and her mother in October and November 2010, provided the background explanation or narrative of events that caused Ford to become upset and to then insult Walker in public.

[8] The defence does not strenuously contest the admissibility of this body of evidence. The confrontations between Ford and Walker, which are proximate to the murder, are obviously admissible in order to show that the relationship between the deceased and the accused was acrimonious. The earlier incidents between Jonelle and Walker are necessary context, in order to make sense of and to explain how the dispute and the confrontations arose. All of this evidence is, therefore, broadly relevant to the issue of motive. Evidence of motive, in turn, is relevant to identity which is the key issue in the case. See: R. v. Lewis (1979), 1979 19 (SCC), 47 C.C.C. (2d) 24 at 34-6 (S.C.C.); R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 at paras. 59-66 (S.C.C.); R. v. Merz (1999), 1999 1647 (ON CA), 140 C.C.C. (3d) 259 at para. 59 (Ont. C.A.).

[9] The defence’s real concern with this body of evidence is that the focus should be on the more proximate incidents that involve Walker and Ford. The alleged motive for the murder is the acrimony and insults and public show of disrespect, as between Walker and Ford. The earlier incidents, between Jonelle and Walker, are mere background context or narrative which help to explain how the acrimony arose and so their details are not overly important. I agree with the defence position in this regard and I have asked the Crown, when preparing its witnesses to testify and when conducting their examinations-in-chief, not to dwell on the details of how aggressively Walker was or was not “hitting on” Jonelle or how aggressively Walker assaulted Jonelle and her mother. The focus should be on how these earlier incidents impacted on Ford and on what Ford did about it. Crown counsel have responsibly agreed with this approach to the evidence.

[10] I should also note that any impermissible prejudicial effect from the earlier incidents, between Jonelle and Walker, has been effectively reduced by Ms. Shemesh’s cross-examination of Jonelle. At the preliminary inquiry, Jonelle agreed that she took a somewhat aggressive role herself in the events leading up to the alleged assault, she agreed that Walker retreated at one point, and she agreed that Walker apologized afterwards. I am satisfied that any impermissible uses of this evidence can be controlled by a limiting jury instruction.

[11] In all the above circumstances, I ruled that the evidence concerning animus between Walker and Ford, and the background concerning how it arose, is admissible at trial. I also ruled that Ms. Shemesh would be entitled to re-visit this issue, after the defence disclosure Motion is decided, should some new and relevant change in circumstances arise.

C. EVIDENCE OF THE ACCUSED WALKER’S POST-OFFENCE CONDUCT

[12] As noted above, the murder took place on March 28, 2011. The deceased Ford was sitting at the bar in a club, having a drink, when he was shot several times by the perpetrator. The incident was captured by video surveillance cameras inside the club. The perpetrator was a black male wearing a baseball hat. He appeared to have short hair given that no hair, and certainly no dreadlocks, were visible from underneath his hat. The perpetrator walked out of the crowded club, after the murder, and was last seen on the exterior video surveillance camera walking across the parking lot.

[13] Three days after the murder, on March 31, 2011, the police obtained an arrest warrant for the accused Walker. There was some publicity surrounding the issuance of the warrant. A week later, on April 7, 2011, Walker was arrested. He was wearing a hat, with dreadlocks attached to the hat. Once the hat was removed, Walker’s own hair was revealed to be short.

[14] The Crown seeks to admit the evidence of the hat with dreadlocks that Walker was wearing at the time of his arrest, some ten days after the murder and seven days after the issuance of the arrest warrant. The Crown submits that it is evidence that Walker was attempting to disguise his appearance, conceal his identity, and avoid arrest for the murder. The further inference from this evidence, in the Crown’s submission, is that Walker was aware that he had committed the murder. In other words, it is a piece of circumstantial evidence relating to identity.

[15] The defence does not seriously contest the admissibility of this evidence of after the fact conduct and I am satisfied that it is a well-established species of admissible circumstantial evidence. As Major J. put it, giving the unanimous judgment of the Court in R. v. White and Coté (1998), 1998 789 (SCC), 125 C.C.C. (3d) 385 at para 19 (S.C.C.):

Under certain circumstances, the conduct of an accused after a crime has been committed may provide circumstantial evidence of the accused’s culpability for that crime. For example, an inference of guilt may be drawn from the fact that the accused fled from the scene of the crime or the jurisdiction in which it was committed, attempted to resist arrest, or failed to appear at trial. Such an inference may also arise from acts of concealment, for instance where the accused has lied, assumed a false name, changed his or her appearance, or attempted to hide or dispose of incriminating evidence. As Weiler J.A. noted in R. v. Peavoy (1997), 1997 3028 (ON CA), 117 C.C.C. (3d) 226 (Ont. C.A.) at p. 238:

Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person. [Emphasis added].

[16] The defence’s real concern with this evidence is with its weight. Ms. Shemesh agrees that the strength of the circumstantial inference that the Crown seeks to draw from the evidence will depend on how that evidence emerges, in particular, concerning when and why Walker began wearing the hat with the attached dreadlocks and whether it actually did change or disguise his appearance.

[17] In all the above circumstances, I ruled that the evidence concerning Walker’s post-offence conduct is admissible at trial.

D. EVIDENCE OF THE DECEASED FORD’S ANTE-MORTEM HEARSAY STATEMENTS

[18] As noted above, there were two altercations between the deceased Ford and the accused Walker in the month prior to the murder. Both incidents took place at a bar or club in Scarborough known as Clarenton Wildflower. On both occasions, it is alleged that Ford publicly insulted Walker in the presence of others. Walker was said to be angry, as a result of the public insults, and the two men had to be separated on both occasions.

[19] The Crown can prove the above two public altercations in the bar or club without resorting to hearsay, because witnesses were present. However, the second altercation allegedly continued in the men’s washroom at Clarenton Wildflower. The description of this further aspect of the second altercation depends on hearsay statements from the deceased Ford. After this further part of the incident ended in the washroom, Ford left the club and called his girlfriend Jonelle on the phone and told her about these further events. He then visited with her later that evening, repeated his account of what had happened in the washroom, and they proceeded to spend the night together. Ford also spoke to a good friend named Neville McInnis and told him what had happened in the men’s washroom. The two versions are somewhat different.

[20] Jonelle’s account of what Ford told her is that after the public altercation in the bar or club, Ford went into the men’s washroom with the owner of the bar, Hilford Brissett. The owner Brissett took Ford into the washroom because he wanted to know what was going on. As Brissett and Ford were talking, Walker “barged in” the washroom and was “trying to go up in [Ford’s] face, like aggressively”. Ford responded by asking Walker, “does he respect women” and by telling Walker that “he can’t go around assaulting women”. Ford then repeated the same insult that he had previously uttered in the two public altercations with Walker in the bar or club. At this point, Walker produced a knife and held it “like he wanted to stab” Ford. The incident ended when Ford said that he wanted to leave. He exited the washroom and exited the club and then called Jonelle.

[21] The Crown seeks to tender Ford’s hearsay account of what happened in the men’s washroom through Jonelle. However, the Crown is also willing to tender Neville McInnis’ somewhat inconsistent version of what Ford told him about the same incident. McInnis’ account is that Walker pulled a knife, that Ford responded by pulling a knife of his own, and that the owner Brissett then produced a gun and succeeded in getting the two men to calm down.

[22] Brissett’s account of the incident is that Walker and Ford were standing facing each other in the bar, after Ford had insulted Walker. Brissett told them, “I don’t really want it [the altercation] inside”, and he then walked Ford outside to his van. Ford drove away and nothing further happened. It can be seen that Brissett’s account appears to deny any pulling of knives or a gun and he appears to deny even going into the washroom.

[23] A fourth account of the incident was provided by Lester Coore. He witnessed the public altercation between Walker and Ford in the bar or club wherein they argued about the insult that Ford had uttered. Coore went to get the owner Brissett, who was at the door to the club, and Brissett then intervened in the dispute. Coore initially testified at the preliminary inquiry that Brissett took Ford “outside” and that Ford then left, consistent with Brissett’s account. Coore later testified that Brissett, Ford, and Walker “went in the washroom, the three of them went in the washroom, they go talk, go into the washroom and talk”. On this latter version of events, it would appear that Walker had not “barged” into the men’s washroom.

[24] The Crown concedes that Ford’s hearsay account to Jonelle, about the incident in the men’s washroom, is not admissible under the res gestae or spontaneous utterance exception to the hearsay rule. It is also conceded that it is not admissible under the state of mind or statements of present intention exception to the hearsay rule. It is apparent that Ford provided Jonelle with an after the fact account or narrative about a past event. It also appears that he said nothing about his present state of mind or about his present intentions. He simply described an earlier event. In these circumstances, Mr. Pilla properly concedes that the only possible route to admissibility is through the principled exception to the hearsay rule and not through any of the traditional common law exceptions.

[25] The necessity criterion is established as a result of Ford’s death. However, there are a number of concerns about the reliability of Ford’s hearsay account of the incident in the men’s washroom, as recalled by Jonelle:

• in terms of the circumstances in which Ford’s out of court statement was made and recorded, it was simply a late night telephone call to a girlfriend. It was neither under oath nor was it recorded in any fashion. It was also not made on an occasion of any solemnity. Furthermore, the declarant Ford is not available for cross-examination;

• the earliest version of Ford’s account was provided by Jonelle on March 30, 2011, in her video-taped police interview. Jonelle testified that the events in the men’s washroom occurred “towards the end” of February. Accordingly, at least a month had passed before Jonelle provided any record of what Ford said to her in his out of court statement;

• in that March 30, 2011 statement to the police, Jonelle recounted Ford’s phone call to her with some uncertainty. For example, she told the police, “maybe he [Walker] was drunk or something but he was just, was being really aggressive. This was what I’m hearing. Like I don’t know … so I guess words were exchanged. He [Ford] was telling me but it wasn’t like in full detail so I’m assuming words were exchanged”;

• although Ford’s phone call to Jonelle was made soon after the events in question, which is a circumstance that can enhance reliability, Ford and Jonelle had just had a relatively serious dispute or disagreement that night. They had gone separately to Clarenton Wildflower, that is, to the club where the altercation between Ford and Walker was to occur. Jonelle testified at the preliminary inquiry that Ford had been calling her earlier that evening and she had not responded to his calls. She was going out to the Clarenton Wildflower club with her mother and “I didn’t want him [Ford] to know I was going out”. After Jonelle and her mother had arrived at the club, Ford walked in and saw them. She testified that “he wasn’t too happy” and that they “got into an argument”. Ford wanted to know “why I never answered his phone call, why didn’t I tell him I was coming” to the club. Jonelle “was not in a good mood”, as a result of this disagreement with Ford, and so she and her mother left the club. In her video-taped statement to the police, Jonelle said that Ford was “upset” and was “mad at me” and that she was “kind of freaking out” and would not “stand beside him or anything” while they were in the club. In other words, the altercation between Ford and Walker in the men’s washroom at the club took place shortly after Ford and Jonelle had a dispute or disagreement of their own which caused Jonelle to leave him at the club. Ford’s phone call to Jonelle was shortly after their own dispute or disagreement had taken place;

• the inconsistencies between Ford’s out of court account to Jonelle and his out of court account to McInnis suggest that Ford may have been trying to present himself to Jonelle in a favourable light. For example, the account to Jonelle portrayed Ford as defending her honour to a man [Walker] who does not “respect women” and who “goes around assaulting women”. In addition, the account to Jonelle did not mention that Ford may have been armed with a knife and may have pulled it out;

• the fact that Ford and Jonelle had a fight that night, that she had left him alone at the club, and that he now apparently wanted to spend the night with her, may have provided reasons for Ford to give a less than full and honest account of his altercation with Walker in the washroom;

• there is nothing about the relationship between Ford and Jonelle that particularly suggests a habit of openness and honesty. He had been unfaithful to her and they had separated twice. In addition, she did not know a lot about his friends and family or about some of his habits;

• finally, there is no corroboration of the central factual assertion in Ford’s out of court statement, namely, the assertion that Walker pulled a knife on him in the men’s washroom.

[26] In all the above circumstances, I am not satisfied that the Crown has established the requirement of threshold reliability, on a balance of probabilities, in relation to Ford’s account of the incident in the men’s washroom. See: R. v. Khelawon (2006), 2006 SCC 57, 215 C.C.C. (3d) 161 (S.C.C.); R. v. Blackman (2008), 2008 SCC 37, 232 C.C.C. (3d) 233 (S.C.C.); Brisco Estate v. Canadian Premiere Life Insurance Co. (2012), 2012 ONCA 854, 113 O.R. (3d) 161 (Ont. C.A.); R. v. Smith (1992), 1992 79 (SCC), 75 C.C.C. (3d) 257 (S.C.C).

[27] In the present case, as in Khelawon, Blackman, Brisco Estate, and Smith, the circumstances in which Ford’s statement was made provide no adequate substitutes for testing the reliability and honesty of Ford’s out of court assertions at trial. Accordingly, admissibility depends entirely on the inherent trustworthiness of the contents of Ford’s statement. Far from appearing to be inherently truthful and accurate, the above circumstances raise real concerns about the trustworthiness of the statement.

[28] For all these reasons, the hearsay statements in Jonelle’s testimony concerning events in the men’s washroom at Clarenton Wildflower in late February 2011 are not admissible.

E. LAY OPINION EVIDENCE OF RECOGNITION OR IDENTIFICATION PURSUANT TO THE RULE IN LEANEY

[29] The Crown seeks to tender identification or recognition evidence from a witness named Clinton Hall (hereinafter Hall) pursuant to the principles set out in R. v. Leaney and Rawlinson (1989), 1989 28 (SCC), 50 C.C.C. (3d) 289 (S.C.C.) and R. v. Berhe (2012), 2012 ONCA 716, 113 O.R. (3d) 137 (C.A.).

[30] Hall is the owner of a bar known as “G’s Chill and Grill”, which is where the homicide occurred on March 28, 2012. Hall was working that night but he was not present in the particular area of the bar, when the shooting actually took place, and he did not see it. Accordingly, he is not a conventional eye witness. Instead, he was asked to view the video surveillance footage from the bar that was seized by the police. He identified the accused Walker as a man who is seen at various points in that video footage. Hall also identified other patrons who were in the bar that night.

[31] The rule in Leaney and Berhe allows a witness who knows the accused to examine photograph or video evidence, depicting the perpetrator of a crime, and to give an opinion as to the identity of the perpetrator. It is an example of lay opinion evidence and it is only admissible if necessary, that is, if the lay witness possesses some ability or opportunity not already possessed by the trier of fact. See: R. v. Graat (1982), 1982 33 (SCC), 2 C.C.C. (3d) 365 (S.C.C.); R. v. Briand, [2008] O.J. No. 5202 at para. 18 (O.C.J.). The test for admissibility that has emerged out of the case law following Leaney has been described as the “prior acquaintance/better position” test. See: R. v. Berhe, supra at para. 14. As Rosenberg J.A. put it, giving the judgment of the Court in R. v. Brown (2006), 2006 42683 (ON CA), 215 C.C.C. (3d) 330 at para. 39 (Ont. C.A.):

… this type of non-expert opinion evidence is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator.

[32] The rule in Leaney and Berhe requires a voir dire to determine whether the proposed witness has a sufficient prior acquaintance with the accused and is in a better position than the trier of fact to make an identification of the perpetrator. In the present case, the witness Hall was thoroughly examined and cross-examined on the relevant issues at the preliminary inquiry. Accordingly, the parties sensibly agreed that the preliminary inquiry transcript should serve as the functional equivalent of the required voir dire. In addition, the parties can waive the requirement of a voir dire which is effectively what they have done in the particular circumstances of this case. See: R. v. Park (1981), 1981 56 (SCC), 59 C.C.C. (2d) 385 (S.C.C.); R. v. Korponey (1982), 1982 12 (SCC), 65 C.C.C. (2d) 65 (S.C.C.).

[33] I am satisfied that Hall’s evidence meets the “prior acquaintance/better position” test and that it is admissible. There are a number of reasons for reaching this conclusion, as follows:

• Hall had significant prior knowledge of the accused Walker. He testified at the preliminary inquiry that he knew Walker “for years since he was a young boy”, as he knew Walker’s mother. Hall and Walker were “very close” and would greet each other and hug whenever they met. Hall left Canada for ten years, and did not see Walker during this ten year absence, but when he returned to Canada in late 2009 he saw Walker between six and eight times in the two years prior the shooting. In particular, he saw Walker four or five times at “G.’s Chill and Grill”. He testified that Walker was “always my friend”. Jonelle confirmed in her testimony that she once saw Walker speaking to Hall “behind the bar” and that they were “friendly” and “smiling”. Ms. Shemesh does not seriously challenge the “prior acquaintance” branch of the test and I am satisfied that it is easily met in this case;

• Equally significant is the fact that Hall actually saw Walker at “G.’s Chill and Grill” on the night in question. Although Hall did not see the shooting, he saw Walker “at the end of the bar toward the door”. As a result, Hall knows how Walker looked at the relevant time and place. Hall testified at the preliminary inquiry, at one point, that he based his identification of Walker in the video surveillance footage on “His clothes, what he was wearing, I knew him because he was there with me”;

• The surveillance video shows a man in various positions in and around the bar in an approximately one hour period leading up to the shooting. He is seen on four different cameras walking into the bar, greeting people, walking around, getting a drink, briefly leaving the bar and going out to the parking lot, returning to the bar, standing at the top of the back stairs (arguably with a gun), and then carrying out the shooting and leaving the bar. There is a reasonable or arguable inference that it is the same man in all of these images, engaged in all of these activities, because the man in question is wearing the same reasonably distinctive clothing throughout and because of his build and height. However, there is only one partial and somewhat grainy image of the man’s face, which can be seen from the side when he ordered a drink at the bar. He is wearing a baseball hat, with a bill in front, which obscures part of his head, his hair, and his forehead. In these circumstances, the Crown submits that the jurors should be able to notice a “resemblance” between the man in question and the accused Walker but that they will not be able to safely and positively identify Walker as the perpetrator, pursuant to the principles set out in R. v. Nikolovski (1996), 1996 158 (SCC), 111 C.C.C. (3d) 403 (S.C.C.). I agree with the Crown that it would be unsafe for the trier of fact to attempt a positive identification of the accused Walker as the perpetrator, based only on seeing him at trial in the court room, given the above summarized nature of the video surveillance images;

• Hall provided some basis for his alleged recognition of Walker, as the man in question, at various points in his video interview with the police on April 3, 2011. This was five days after the shooting. Hall told the police that it was, “the way he walks and he looks like him”, that “he always wears a cap”, that “he’s tall, got a good body on him … just looking at him, that’s him … light skin, not dark”;

• The trier of fact will not be able to identify the man in the surveillance video as the accused Walker on the basis of the clothing “he was wearing” that night or on the basis of “the way he walks”, as these features will not be available in the court room during the trial. In addition, Walker will not be wearing a hat in the court room, whereas Hall knows how Walker looks with a hat on. Finally, there has been one somewhat significant change in Walker’s appearance since the date in question. The man in the surveillance video is not wearing glasses and Walker was not wearing glasses at the time of his arrest on April 7, 2011, some ten days after the shooting. Today in the court room, Walker is wearing glasses and this has some impact on his appearance.

[34] For all the above reasons, I am satisfied that Hall is in a better position than the trier of fact to identify the man in the video surveillance images. Hall knew and saw Walker closer to the relevant time and at a time when Walker wore a hat and did not wear glasses. Hall also knew and saw Walker moving about “G.’s Chill and Grill”, rather than seated in the formal setting of a court room trial. Hall’s evidence, therefore, meets the Leaney and Berhe test for admissibility of lay opinion as to the identity of the man alleged to be the perpetrator.

[35] Ms. Shemesh has mounted a number of attacks on the reliability of Hall’s evidence. First, she has established that Hall twice misidentified a person seen on the video footage descending the back stairs of the bar, as Walker, when testifying at the preliminary inquiry. The Crown points out that both of these misidentifications essentially involved Hall trying to identify someone’s back, that Hall went on to correct one of the misidentifications when he was shown the man’s front, that Hall was never shown the other man’s front, and that the Crown will not be relying on this kind of challenging identification at trial. Second, Ms. Shemesh submits that Hall provided very few distinctive features as the basis for his alleged recognition of Walker. Third, she points out inconsistencies in his account such as initially telling the police that Walker was not wearing a hat and then telling the police that he “always wears a cap”. Finally, she points out that it took Hall some time before he eventually identified Walker during the police interview, that he was not sure at this point (saying “that almost look like Nicholas” and “not a hundred percent but I would say sixty percent that’s Nicholas”), and that the police then returned to earlier images that he had not previously identified, at which point Hall stated “it’s the same person” and “that’s the same guy”. The Crown submits that there is nothing wrong with the police letting Hall view as much of the video as he needed to see, before he first recognized Walker albeit somewhat tentatively, and then returning to images of the same man so that