ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 339/13

DATE: 2014-06-17

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

ENDORSEMENT

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.

[1] During the pre-charge hearings an issue has arisen that requires an immediate ruling because the Crown is scheduled to deliver his closing address to the jury tomorrow morning.

[2] In an earlier ruling, 2014 ONSC 2311, I held that evidence in relation to the Pay2Day cheque fraud was admissible because it supported the Crown contention that that the motivation to commit the robbery and murder of Mr. Kumar was, in part, financial.

[3] During the application the Crown argued that the evidence of the cheque fraud and the interactions between the accused during that alleged fraud were important because the role relationships that played out in the cheque fraud were exactly the same as those that played out in the murder. The Crown argues that the respective roles that each played in the alleged crimes portray Mr. Nurse as the “directing mind” and Mr. Plummer as the “follower”.

[4] I was not persuaded by this argument and I held at paragraph 59 of that ruling that the introduction of the cheque fraud evidence could not establish in any meaningful way, a modus operandi. I held that if the Crown wished to advance the argument that Mr. Nurse was the “directing mind” and Mr. Plummer was the “follower” that submission could be advanced by relying on the chats in relation to the murder.

[5] In his closing address, Crown counsel wishes to mention the similarities in the roles of the accused between the Pay2 Day fraud and the murder.

[6] Defence counsel object and argue that the issue has been decided and to allow the Crown to proceed in this way would be detrimental to the defence.

[7] I have had the benefit of reviewing the Crown’s written submissions on the issue, and I have heard brief oral argument today.

[8] I am not persuaded by the Crown’ argument for the following reasons.

[9] First, I am of the view that the Crown’s written submissions are really an indirect way of revisiting the earlier ruling. I remain of the view that the evidence of the Pay2 Day fraud is not probative of establishing a modus operandi.

[10] Second, allowing the Crown to make these submissions may distract the jury from their function of determining whether the Crown has proven the guilt of the accused on the murder. It is true that the evidence of the Pay2 Day fraud is before the jury. It is also true that the Crown is not explicitly inviting the jury to engage in propensity reasoning. However, highlighting this evidence in closing submissions risks distracting the jury from the task at hand. In my view, the risk of distracting the jury can be avoided because the argument that Mr. Nurse is a “directing mind” and Mr. Plummer is “the follower” can be brought home to the jury by referring to the chats relating and focusing on their respective roles to the robbery and murder.

[11] Third, I agree with Ms. Oja’s argument that there is some prejudice to the defence if the Crown were permitted to make this submission. The parties asked for a pre-trial ruling in March. That ruling was delivered in April before the trial. That ruling dealt with the admissibility and the limited use of the Pay2 Day evidence. Counsel tried this case with that ruling in mind. It is not unreasonable to suggest that defence counsel defended the case with the understanding that the Pay2 Day fraud only went to a financial motive. Permitting the Crown to invite the jury to use the evidence for another purpose defeats the spirit of the ruling and I hold that there are no material changes in circumstances that suggest that the ruling should be revisited.

Conclusion

[12] The Crown will not be permitted to mention the similarities between the Pay2Day transaction and the murder in its argument.

Coroza J.