ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ (P) 1208/11
DATE: 20131017

B E T W E E N:

HER MAJESTY THE QUEEN

Eric Taylor and Robert Lemke, for the Respondent

Respondent

• and -

ERIC MORGAN

James Fleming and David Shulman, for the Applicant

Applicant

HEARD: May 13, 14, 15, 16, 21, 22, 24, 27, 28, 29, 31, June 3, 4, 11, 12, 18, 19, 20, 2013

REASONS FOR JUDGMENT ON PRE-TRIAL MOTIONS

F. Dawson J.

Overview

[1] Mervyn (“Mikey”) Spence was gunned down outside a Brampton nightclub known as Malibu Marie’s sometime around 4:00 a.m. on November 4, 2006. Eyewitnesses said two men confronted Spence on the sidewalk after he exited the club. Shots rang out. Spence was chased down the sidewalk and across the parking lot by a group of three or more black men, one or more of whom were shooting at him. Spence fell to the ground and was finished off when his assailants caught up to him.

[2] A birthday party was held the previous evening at Malibu Marie’s. The party was breaking up at the time of the shooting. The event was promoted in advance and tickets were sold to members of the public. The party was held by and for Eric Morgan, who was turning 39 years old. Most attendees were in their 30’s or 40’s.

[3] Eric Morgan was known by the nickname “Action”. He ran an event promotion business known as “Action Production”. A number of popular “DJs” had been hired to play music. Many, but not all, of those in attendance knew Eric Morgan by his real name or simply as Action. Morgan also hired a videographer to record events at the party.

[4] In the months following the shooting the police interviewed many witnesses including the accused Eric Morgan. The police did not consider Morgan to be a suspect but believed he likely knew who the perpetrators were.

[5] The investigation turned up a possible motive for the shooting. Spence had been involved in an altercation several years before at Club Paradise in Toronto. The altercation involved a group of men, known as “The Weston Men”, who were also in attendance at Morgan’s birthday party. A friend of Spence’s, Edward Allen (“Biggs Rock”), advised the police that Spence told him that evening that he was being “programmed” (given evil looks) by three of the Weston Men. The Weston Men left the club as a group prior to the shooting.

[6] In the spring of 2009, some two and a half years after the shooting, the Weston Men were arrested. Marlan McLean and Courtney Benjamin were charged with first degree murder. Everald Brissett, Michael Popert, Anthony Campbell and Ervin Malcom were charged with being accessories after the fact to murder.

[7] The main eyewitnesses to the shooting were Elaine Morrison and Sasha Allison. The two were best friends who attended the party together in Elaine Morrison’s car which was parked just outside the club. In their initial police statements they said they had left the club and returned to Morrison’s vehicle shortly before Spence was accosted on the sidewalk in front of Morrison’s car. When the shooting started they ducked down. Their opportunities to observe were brief. Each said one of the assailants stood out because he was wearing sunglasses. Both said the assailants got into an SUV after the shooting. Neither recognized nor identified any of the assailants.

[8] That changed when Elaine Morrison was re-interviewed by the police on June 11, 2010 in preparation for the preliminary inquiry of McLean and Benjamin. During that meeting, some three and a half years after the murder, Morrison advised the police that she recognized the assailant who was wearing sunglasses as someone she had seen inside the club earlier in the evening. When the police interviewed Morrison again on June 12, 2010 she identified the person she recognized outside by pointing him out on the party video. That person was Eric Morgan.

[9] Elaine Morrison’s revelations on June 11 and 12, 2010 led to a reinvestigation of the case and, by one means or another, to the termination of the outstanding charges against the Weston Men. Eric Morgan was arrested on June 15, 2010 and charged with second degree murder.

[10] Michael Popert, previously charged with being an accessory after the fact, was re-arrested and charged with second degree murder. However, he was subsequently discharged at a preliminary inquiry on the basis that there was no evidence identifying him as one of the perpetrators.

[11] Eric Morgan stood trial for second degree murder before Mossip J. and a jury in February and March 2012. A mistrial was declared when the jury was unable to reach a verdict after approximately five days of deliberation. It is common ground that identification was the central issue at the last trial and will be again at any future trial.

[12] I have been designated as the case management judge pursuant to s. 551.1 of the Criminal Code. It is anticipated I will preside at the retrial. However, based on 18 days of pre-trial motions before me, counsel for Eric Morgan seek to exclude Elaine Morrison’s identification evidence on the grounds that it is tainted and of no probative value. Crown counsel have indicated that should Elaine Morrison’s evidence be excluded they will probably ask that the case be dismissed.

[13] Counsel for Morgan also seek a stay of proceedings or, in the alternative, a variety of lesser remedies, on the grounds of police misconduct towards Sasha Allison and other potential identification witnesses, and towards a number alibi or potential alibi witnesses. The alleged misconduct occurred during the course of the reinvestigation. The defence alleges that during the reinvestigation these witnesses were variously subjected to improperly leading, psychologically coercive, abusive, misleading and oppressively lengthy interviews. It is contended the police took this approach for the purpose of shoring up Morrison’s late-breaking identification of Morgan, undermining Morgan’s alibi, and “booby trapping” potential defence witnesses by cajoling them into inconsistencies that could be used by the Crown in cross-examination or pursuant to s. 9 of the Canada Evidence Act and possibly on a K.G.B. application.[^1]

(Sections of the judgment continue exactly as in the source text, including the detailed review of witness interviews, legal analysis of abuse of process and Charter claims, and evidentiary rulings.)

Summary of Conclusions

[388] Elaine Morrison’s evidence is admissible.

[389] The overarching abuse of process application is dismissed.

[390] Should Sasha Allison give evidence inconsistent with her June 14, 2010 statement that statement will be available for use by the Crown to test Allison’s credibility and in order to see if she will adopt any portion of the statement. However, subject to a significant change in the evidence, that statement will not be admitted as substantive evidence.

[391] Subject to a substantial change in the evidence, the portion of Brian Cox’s June 23, 2010 statement taken by the police after 13:23 shall not be used in evidence for any purpose.

[392] The pre-trial applications are otherwise dismissed.

F. Dawson J.

Released: October 17, 2013

[^1]: R. v. B.(K.G.), [1993] 1 S.C.R. 740.