ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 339/13

DATE: 2014-04-11

B E T W E E N:

Her Majesty the Queen

Mark Poland, for the Crown

• and -

Marlon Nurse and Darryl Plummer

Enzo Battigaglia, Counsel for Mr. Nurse

Margaret Bojanowska and Kate Oja, Counsel for Mr. Plummer

HEARD: April 7 and 8, 2014

RULING (DISCREDITABLE CONDUCT)

PUBLICATION BAN:

Pursuant to subsection 648(1) of the Criminal Code,

no information regarding this portion of the trial shall be published in any document

or broadcast or transmitted in any way before the jury retires to consider its verdict.

Coroza J.:

OVERVIEW

[1] Marlon Nurse and Darryl Plummer (the “respondents”) stand charged that they committed first degree murder. On this murder trial, the Crown brings an application to admit evidence of prior discreditable conduct of the respondents.

[2] The deceased, Devinder Kumar, was stabbed at least 29 times and his neck was almost severed on November 10, 2011. The Crown alleges that Mr. Kumar was Mr. Nurse’s landlord who was about to evict Mr. Nurse from his residence; and that Mr. Nurse then planned and recruited Mr. Plummer to carry out the murder of Mr. Kumar in return for a promise of reward.

[3] Mr. Kumar was found on the road near 12161 the Gore Road in the Town of Caledon. Mr. Nurse lived at this address with his girlfriend, Julie Neild, and his infant daughter. Within minutes of the discovery of Mr. Kumar’s body, the respondent, Mr. Plummer was arrested at gunpoint about 300 to 400 meters from the location of the crime scene.

[4] The Crown theory is that Mr. Nurse portrayed himself as a successful and wealthy individual to others but was living a “double life”. The Crown seeks to tender evidence that in truth, Mr. Nurse was struggling financially and was weaving a web of deception. Mr. Kumar’s implied threats to evict Mr. Nurse from the home for non-payment of rent money would expose Mr. Nurse as a fraud. According to the Crown, this enraged Mr. Nurse and he recruited Mr. Plummer to commit to rob and kill Mr. Kumar.

[5] Mr. Nurse was initially at the scene and treated as a material witness. However, he was eventually arrested at the OPP Caledon Detachment on November 10, 2011.

[6] The Crown argues that the plan to rob and kill Mr. Kumar is revealed by a series of Blackberry Messenger (BBM) chats that passed between the respondents in the days leading up to the murder.

[7] The Crown argues that there are three routes of liability to first degree murder: planning and deliberation (s.231(2) of the Criminal Code); deemed planning and deliberation by committing a murder pursuant to an arrangement under which “anything of value” is promised by one person to another as consideration for that person’s causing or assisting to cause death of another (s. 231(3) of the Code); or constructive first degree murder by coupling the intent to kill with the commission or attempted commission of a forcible confinement (231(5)(e) of the Code).

[8] The Crown intends to introduce as part of its case, evidence of animus, planning, deliberation, intent and motive.

[9] The Crown will argue that the motive to rob and kill Mr. Kumar was based the following reasons:

• Mr. Kumar was about to expose Mr. Nurse as a fraud by evicting him out of the Gore Road property;

• Mr. Kumar was the target of Mr. Nurse’s extreme anger; and

• Mr. Kumar was perceived as a wealthy realtor with “deep pockets” and a viable target to rob and murder.

FACTUAL BACKGROUND

[10] Subsequent to their arrest, the Blackberry phones belonging to the respondents were seized and searched. A number of BBM chats were recovered from the phones. The Crown relies on the chats to prove that the respondents planned the murder of Mr. Kumar on November 9 and 10, 2011.

[11] A substantial portion of the evidence that the Crown seeks to tender at this trial will be the BBM chats seized from the phones belonging to the respondents. The Crown alleges that the BBM chats reveal that Mr. Nurse was involved in or associated with the planning or conduct of a number of other criminal endeavours including:

(i) a robbery and murder on October 17, 2011;

(ii) possession of a stolen Dodge Charger car;

(iii) commission of a cheque fraud with Mr. Plummer at a Pay2Day store in Brampton on November 7, 2011;

(iv) a robbery and murder of an individual known as Tex; and

(v) the attempt to acquire firearms to commit the robbery/murder of Tex and Mr. Kumar.

(i) The Robbery and Murder Plot of October 17, 2011

[12] The Crown alleges that chats from Mr. Nurse’s phone reveal that on October 17, 2011 he was planning on luring unidentified victims to his property on the Gore Rode for the purpose of carrying out a robbery and murder. The chats between Mr. Nurse and an individual, “MAC”, including the following excerpts[^1]:

Nurse

You down to let your sociopath out to play tomorrow night

Nurse

Gonna break the cherry on the land tomorrow surprise party for about 3 dudes skinny somalians one short and fat I got 2 other soldiers coming to assist you want in

Nurse

KK real talk though be ready on yyour grizzy all black everything

MAC

Who’s paying for our services

Nurse

Its non paying we take what they got and split the profit on 2 cars

MAC

Lol some real hood shit huh?

Nurse

Cutting out the middle man on the car link

Nurse

Getting the key to the dozer to fill in a new hole were gonna make

Nurse

Either that or a dump off site but I’m serious grizzly tome tomorrow night

Nurse

U gonna be here fo 11 tomorrow?

MAC

What did these dumb bastards do warranting such treatment

Nurse

Called me every half hour demanding cars be sold tonight nigga don’t rush me so I’m making him bring the 2012 fusion tomorrow with all the proper paper work so we have that to move at a proper price plus whatever they holdin I already got the direct car contact so when there on vacation we can still do the work

MAC

Oh okay I understand

Nurse

Kk so I can count on you tom night to come play like the sociopath I kno you are

MAC

For suuuurrrrre!

Nurse

:) early us can come set up plan out the better

Nurse

Okay psycho lol

(ii) Dodge Charger

[13] Subsequent to Mr. Nurse’s arrest, the police conducted a search warrant on Mr. Nurse’s property and found a stolen 2012 Dodge Charger car in Mr. Nurse’s garage. The Crown alleges that the murder of Mr. Kumar began in the garage because Mr. Kumar’s glasses were found resting on the floor of the garage.

[14] The Crown alleges that the Dodge Charger was stolen from a local car rental place. A search of Mr. Nurse’s electronic communications from his phone and computers revealed that Mr. Nurse sold this vehicle to an individual known as “Tex”. Tex had paid a deposit but then aborted the sale and repeatedly asked for his money back from Mr. Nurse.

[15] A search of the electronic communications also revealed that Mr. Plummer had been promised a Dodge Charger. The police have seized photographs of Mr. Plummer posing with the car.

(iii) The Pay 2Day Fraud of November 7, 2011

[16] On November 7, 2011 the respondents attended the Pay2Day cheque cashing store in Brampton where Mr. Plummer presented a false Ontario Driver’s Licence, and a fake cheque which he attempted to cash. The owner of the Pay2Day became suspicious and phoned the police.

[17] The Peel Regional Police attended and Mr. Plummer was arrested at the scene. Mr. Nurse was investigated and released from the scene. Mr. Plummer was subsequently released on a promise to appear and used Mr. Nurse’s address as his own.

[18] At the time of his arrest, Mr. Nurse provided a number of statements to the police and disclosed that Mr. Plummer had attended at his house on November 10, 2011 because Mr. Nurse had told him he was not comfortable with his address on Mr. Plummer’s release papers.

[19] A search warrant executed after Mr. Nurse’s arrest for the murder revealed a printer and computer in his residence. These tools were used to create the false identification and forged cheque that Mr. Plummer attempted to use during the commission of the fraud.

[20] The chats between the respondents also reveal that Mr. Nurse was actually involved in the scheme and responsible for providing identification and the cheque to Mr. Plummer:

Plummer

Like if I don’t get money today….where am I gonna live…

Nurse

Ther will be

Plummer

Did u make another I’d?

Plummer

The drivers?

Nurse

Ya

Plummer

Good

Plummer

Have u cashed here under this name and address

Nurse

Nope

Nurse

My government

Nurse

That name and addy is fresh

Plummer

He tryna search the company online

Plummer

Will he find it

Nurse

Its not a company

Nurse

It’s a person

Nurse

U can give him my number to call if he wants to call somebody

Plummer

Cause they want a # to him….

Nurse

Text me the address on the check

Plummer

Marquis Fields
62 Zeller Drive
Kitchener, Ontario
N24 4A9

Nurse

I got jos address give him my num

[21] After Mr. Plummer’s arrest on November 7, 2011, the post arrest BBM chats reveal that Mr. Nurse would assist Mr. Plummer with his charges:

Plummer

First time ever I got caught

Plummer

Ever in my life

Nurse

What’s the charges

Plummer

Fraud under and 3 counts of utter forged documents

Nurse

The cheque we can drop I can facilitate back story for that no prob

Plummer

K

Plummer

I can’t believe this

Plummer

I’m going back to jail

Plummer

I have 0 money

Nurse

Whens trail

Plummer

December 5 for finger printing and December 8 for court

Nurse

Kill your prints before then

Nurse

Naw

Nurse

I already was speaking to them in regards to the 10-11 release

(iv) The Concurrent Plot to Rob and Kill Tex

[22] The Crown alleges that on November 9 and 10, 2011, a series of chats between the respondents reveal that Mr. Nurse was plotting the robbery and murder of Tex and Mr. Kumar. Tex was asking for his money back for the deposit on the Dodge Charger. Tex apparently drove a Cadillac Escalade and Mr. Kumar was apparently driving a Range Rover.

[23] The Dodge Charger had been promised to Mr. Plummer by Mr. Nurse. The chats on November 9 and 10, 2011 include the following exchanges which the Crown submits reveals the plot to rob and kill both Tex and Mr. Kumar:

Nurse

I can set 2 robberies up for here

Nurse

One dude u prob know but I don’t give a fuck the next dude is a realtor with deeeep pockets I’m sayin 2 surprise parties see if henny down real talk I’m bout it to. Buss triggers tonight

Nurse

That would be 2 whips out of the parties tonight to an escalade ext and a range rover sport

Plummer

What colour range?

Plummer

Perfect I like it

Plummer

I don’t think living in the house would be smart

Nurse

K but we could clean it out in a night

Plummer

And put shit where without people seeing us

Plummer

The range belongs to who?

Nurse

Like I’m talking no talking just straight confetti happening before they realize anything

Nurse

Escalade don’t even matter its gonna get litterd with confetti and left with the party target in it.

Plummer

The range has gps in it

Nurse

Ya that’s fine

Plummer

What do u mean?

Plummer

What if they try to locate the truck?

Plummer

U gonna keep the truck for urself?

Nurse

No the truck I decided is gonna look like a mobile surprise party or maybe I’ll keep it I unno all I kno is that the party person getting confetti in it

Plummer

So both trucks finna be dirtied up

Nurse

Just one

Plummer

Not the range right?

Plummer

Are u gonna keep the range for urself?

Nurse

No

Plummer

What u gonna do with it?

Nurse

If u don’t want it ill sell it

Nurse

And split the profit

Plummer

I was gonna say I’d take the range over the charger

Plummer

It wouldn’t be wise to drive the range home huh?

Nurse

Depends

[24] There are a number of other chats that reveal that the respondents were attempting to obtain a gun to commit the crimes. However, the following chats reveal that the original plan to use guns was changed to knives:

Nurse

How u feel bout knives

Plummer

Ok

Nurse

Henny’s thing is a blanker

Nurse

Its pretty but busts blanks

Plummer

Fuck

Plummer

Needs modification

Nurse

Ya

Nurse

But he donnt want me to mofify it wants me to keep it straight so I’m thinkin old school methods waiting hear back from chef bout the community toy

Plummer

Remember my shank got took

Nurse

Ya I got sharps just seein if u like usin em cuz original plan of bussin confetti aint gonna work if don’t have a confetti machine so its gonna have to be an old school draw out the round the corner surprise

Plummer

I hear u

[25] Mr. Plummer asked why Mr. Kumar was the target and Mr. Nurse explained his motivation for killing Mr. Kumar:

Plummer

Ur gonna eat the realter that got u ur crib

Nurse

Yes

Nurse

He pissed me off

Nurse

When people annoy me they get got

Plummer

How does the range look send me a pic

Nurse

I don’t have pics anymore just look up black 2010 range rover sport

Plummer

Though us said it 09

Plummer

Is it the sport?

Nurse

Ya late model so 10 is same and ya sport

Plummer

K ima have to get it re-vinne

Nurse

O

Nurse

K

Plummer

Don’t I

Plummer

I want the range over the charger

Plummer

Ok

Nurse

Yer

Nurse

In the morning

Nurse

I may be getting a confetti link tonight but if not its old school

Plummer

What happens if he don’t go before 12?

Nurse

Then he continues to piss me iff and I’m gonna rape his wife burn down his house with his family tired up inside then merc his partner and all his family then find his wife’s family and merc them

Plummer

What kind of piss off

Plummer

Like u always say piss off. I don’t even know what gets u pissed.

Nurse

He hasn’t pissed me off yet just at annoyance level. But I feel piss of coming soon

THE APPLICATION TO INTRODUCE DISCREDITABLE CONDUCT

(i) Nature of the Evidence

[26] The Crown has listed two broad categories of discreditable conduct it seeks to tender. There is no dispute that the Crown bears the onus on this application. For the most part, the respondents oppose the Crown application.[^2]

[27] First, the Crown seeks to tender evidence of specific instances of criminal activity that are necessary to prove motive; elements of planning and deliberation; to support its theory of first degree murder; and key aspects of the narrative that led up to the murder of Mr. Kumar.

[28] Second, the Crown seeks to tender evidence that is necessary to show the jury that Mr. Nurse was living a “lie”. The Crown argues that Mr. Nurse’s life was an illusion of prosperity and that Mr. Kumar unwittingly was about to bring that life down and this was a specific component of the motive for the murder.

(ii) The First Category

[29] The first category includes the following specific evidence:

a) interactions of the respondents relating to the theft of a Dodge Charger found in Mr. Nurse’s garage and Mr. Nurse’s attempts to sell this car;

b) interactions of the respondents relating to a cheque fraud that took place on November 7, 2011 at a Pay2Day store in Brampton, Ontario,

c) BBM chats between Mr. Nurse and a third party outlining a plan to commit a robbery and murder at the Gore Road property on October 17, 2011;

d) BBM chats on November 9 and 10, 2011 between the respondents revealing a concurrent plan to rob and kill a man named “Tex”, that was also intertwined with the alleged plan to rob and murder Mr. Kumar

e) BBM chats between the respondents revealing efforts to secure a firearm during the planning of the murder of Tex and Mr. Kumar

(iii) The Second Category

[30] The Crown seeks to tender evidence that Mr. Nurse asserted to a significant number of people, including Mr. Kumar, that he was wealthy, financially stable, well-educated, employed, and that he was the owner of the Gore Road property.

[31] The Crown submits that the imminent collapse of the illusion of prosperity, and his anger at Mr. Kumar’s intention to evict him from the property are directly linked to the motive for his murder.

[32] The Crown proposes on calling the following evidence that will reveal a number of lies in stark contrast to the truth:

The “Lies” about Prosperity

The Truth

-Testimony of Mr. Nurse’ girlfriend, Julie Neild about what Mr. Nurse told her about ownership of the home, financial outlook, employment and academic status
-Mr. Nurse’s text messages to Mr. Kumar regarding his real estate dealings, rental application, and his explanations to Mr. Kumar regarding his non-payment of rent on the Gore Road property
-Mr. Nurse’s real estate contracts with Mr. Kumar
-Mr. Nurse’s text messages to other third parties claiming to be the owner of the Gore Road Property

-Evidence of the state of his bank accounts with Toronto Dominion bank upon which the rent cheques were written to Mr. Kumar
-Evidence about his outstanding financial obligations including his credit history report and a record of his outstanding debt
-Evidence of a rejected mortgage application
-Evidence of the state of his health and his actual location when he sent texts to Mr. Kumar
-Evidence about the status of his education at the Toronto Film School

THE LAW

[33] A threshold issue is whether the evidence in question is “discreditable”.[^3]

[34] Discreditable evidence is defined as any “conduct or information about the accused that is morally objectionable or apt to demonstrate that he or she has a contemptible or reprehensible character”.[^4]

[35] Once a determination is made whether evidence is discreditable evidence, the law regarding prior discreditable conduct is clear. It should only be admitted if there is a specific link to an issue (other than showing general propensity) and its probative value outweighs any prejudicial effect.[^5]

[36] Prejudice does not mean merely that the evidence might increase the likelihood of the conviction, but rather that the evidence might be improperly used by the jury.

[37] As counsel for the respondents point out, it is necessary to consider both reasoning prejudice and moral prejudice. Reasoning prejudice occurs where the jury may become distracted from the central issues in the case. Moral prejudice arises when the jury might use the evidence for an improper purpose, such as to show that since the respondents have a propensity to commit criminal acts and that they are bad people, or that they are more likely to have committed the offence of murder in this case because they committed other criminal acts.[^6]

[38] In assessing prejudicial effect of the proposed evidence, it is relevant to take into account how discreditable it is; the extent to which it would support improper propensity reasoning; the extent to which it would confuse the issues; and, the accused's ability to respond to the evidence

[39] The Crown points out that there is a reduced risk that the jury will use the prior discreditable conduct improperly where the subject offence (first degree murder) is far more serious than the prior bad acts alleged[^7]

[40] Also, the Crown submits that it is relevant to consider the extent to which any prejudice can be guarded against by a limiting instruction to the triers of fact. The Crown encourages the use of this prophylactic measure in this case and urges me to consider that we presume that juries will listen and obey directions from a trial judge.[^8]

[41] An assessment of the probative value of the proposed evidence would include consideration of i) the strength of the evidence; (ii) the extent to which it supports the inferences sought to be made from it; and (iii) the extent to which the matters it tends to prove are at issue in the proceeding