R. v. Moore, 2015 ONSC 1095
COURT FILE NO.: CR-14-30000123-0000
DATE: 20150219
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant/Respondent
– and –
MARK MOORE
Respondent/Applicant
Sean Hickey and Kimberly Motyl, for the Applicant/Respondent
Peter Bawden, Peter Zaduk and Daisy McCabe-Lokos, for the Respondent/Applicant
HEARD: February 11, 2015
M. DAMBROT J.:
[1] Mark Moore is being tried by me sitting with a jury on an indictment alleging four counts of first degree murder. The Crown intends to adduce evidence of intercepted private communications before the jury. All of the interceptions of the private communications of the accused were acquired by the police while the accused was in custody. The accused does not contest the lawfulness of these interceptions, and their admissibility in evidence, but asks that certain portions of the interceptions be edited out of the version played for the jury, and the accompanying transcripts, on the basis that they are irrelevant, or that their prejudicial effect outweighs their probative value. Many of these disputes were resolved by counsel, but a few were not. I am called upon to rule on the remaining few contested portions. The following is my ruling.
Background
[2] The accused is alleged to have discharged a firearm inside the XS Nightclub on March 11, 2011. He was arrested on this charge on March 15, 2011, and has remained in custody since that date, either on that charge, or in respect of other offences. In particular, he was arrested on the four murder charges in the indictment before me on October 19, 2011, and has remained in custody on those charges as well since that date. The police began intercepting the private communications of the accused on or about September 11, 2011. All of the interceptions were made while the accused was in jail.
Analysis
[3] Counsel have divided the proposed edits into two groups. All of the edits sought in the first group can be dealt with together. The edits in the second group must be dealt with individually.
Jail references
[4] With respect to the first group, the accused asks that indications that he was in custody found in several of the intercepted communications be edited out of the recording and transcript that will be admitted before the jury. Many of these indications are indirect, and arise from the way that the communications start and end. The jury will undoubtedly understand from this that the accused was in custody at the time. In addition, on several occasions, references are made in the communications themselves to the fact that the accused was in jail at the time. Most of these references were made between September 10, 2011 and October 19, 2011, when the accused was in custody in relation to the XS shooting. A few of them took place within a very few days after he was arrested for murder. The accused effectively conceded that no prejudice flows from the admission of references to jail after his arrest for murder. The jury would expect that he would be in custody at least for a few days after a murder arrest. But counsel argued that the earlier references are prejudicial because they paint him as a criminal, and have little or no probative value.
[5] For the most part, I disagree with the position taken by the accused. The Crown argued that it would be very difficult to disguise the fact that the accused was in custody throughout these interceptions. While it might be possible to delete the beginnings and endings of the calls (although this would result in the loss of several incidents of self-identification in a case where, to date, voice identification is not admitted), it would be impossible to eliminate the door-clanging and voices in the background heard in most of the calls which make it clear that the accused was in an institution, and most likely, in a jail. However I need not decide whether such deletions are possible without destroying the value of the interceptions, although it does seem to me that it is unlikely, because I am satisfied that the references to the accused being in jail are relevant, and that their probative value outweighs the very minimal prejudicial effect that would be occasioned by the jury having this information in this case.
[6] The references to jail are relevant having regard to the context in which they are made. Jahmeel Spence was killed on September 10, 2011. On the one year anniversary of this shooting, the police released a press communiqué setting out the facts of that shooting, including the fact that the shooter fled the scene in a light-blue Honda Accord. At the time, Moore was believed to own a blue-green Honda Accord that was registered in the name of his girlfriend, Tassandra Whyte. The vehicle was subsequently painted black and remained in the parking garage at Moore’s residence until it was seized on October 3, 2011.
[7] On September 11, 2011, Moore urged Whyte to “bring the Honda papers” and “change the colour on it” several times. Later that day he read the entire press release to Whyte. On October 3, 2011, after the car was seized by the police, Moore again urged Whyte to go to the Ministry and change the colour of the car on his “papers.” He repeated this request on October 4, urging her to deal with it right away because his life was on the line. Moore obviously wanted the change to be made in hopes of avoiding a murder charge.
[8] The fact that Moore had to urge Whyte to deal with this problem repeatedly, and on the telephone, was obviously necessary because Moore could neither deal with the problem himself, nor assist Whyte to deal with the problem expeditiously, because he was in jail. Without this information, the jury would be left to wonder why repeated exhortations were necessary, and perhaps how seriously the accused actually took the problem. The fact that the accused was in jail provides the context for the jury to properly assess what was taking place. The only edit of jail references that I would order, out of an abundance of caution, is the removal of the two words “seven months” in a reference to the accused being “in prison seven months” at page 19 of the call at tab 7 on October 4, 2011, at 10:03 a.m. The meaning of the phrase is left intact with the removal of the two words I have mentioned. These two words speak not only to the then current imprisonment of the accused, but also, unnecessarily, to its persistence. Of course, I will give the jury an appropriate instruction about the use that they can and cannot make of the evidence that the accused was in custody.
Other proposed edits
[9] In addition to the jail references, the accused sought several other edits. These must be dealt with individually.
[10] At page 17 of the call at tab 2, on September 11, 2011, at 2:54 p.m., Moore sang a rap song during a conversation with Whyte. The song contains the line, “My troops putting a hole in the nigger who shot you.” The line is sung twice. This provides a taste of the nature of the song’s lyrics. The accused says that this evidence is irrelevant, and that he will be prejudiced with the jury if they learn of his interest in violent rap songs. Crown counsel argues that singing this song is in keeping with Moore’s self-portrayal of himself as a serious rapper. He also argues that its omission would violate the integrity of Moore’s subsequent reference to the murder of Spence one year earlier.
[11] In my view, the integrity of the subsequent reference to Spence’s murder stands intact without the singing of this song, and the value of the song is insignificant in showing Moore to view himself to be a serious rapper. The prejudicial effect of the playing of this song outweighs its probative value. It will be edited out.
[12] At pages 4-5 of the call at tab 6, on September 11, 2011 at 7:25 p.m., the accused makes profane references to Whyte. The defence argues that these references portray him in a negative light and are prejudicial. In my view, the prejudice, if any, is negligible, and is outweighed by the probative value of the choice of language. In the call, Moore was expressing his frustration that Whyte might answer police questions about his Honda. The language goes some distance in illuminating how great a concern this is to him. I will not exclude the profanity.
[13] At page 14 of the call at tab 13, on October 4, 2011 at 3:08 p.m., the accused said, “I’ve been in the law for years, and I’m not proud of it.” At pages 25-26 of the call at tab 16, on October 8, 2011 at 1:05 p.m., Moore said, “Think I just started committing crime last night. I know things inside out.” Later, at page 34, Moore said that if the police wanted to talk to him, he would refuse because he knew his rights. These references must be examined in context. All of these statements are made in the course of conveying to Whyte that he was worried that she was speaking about him and his Honda to the police or to others who may be speaking to the police, and that this was or would cause problems for him with respect to the murder investigation. His real intent appeared to be to ensure that Whyte said nothing to anyone. This is admissible as after the fact conduct in relation to the Spence murder.
[14] In the circumstances, the admission of this evidence does not violate the accused’s right to silence. The jury will not be asked to draw any inference from the accused’s lack of cooperation with the police. The relevance of the evidence flows from Moore’s efforts to keep Whyte from cooperating. The probative value of the impugned words outweighs the prejudicial effect. The jury will be instructed as I instructed the jury in the trial of Daniel Jackson (see R. v. Jackson, 2013 ONCA 445, 308 C.C.C. (3d) 66 at paras. 95-105) that the accused had a right to remain silent and was not required to provide information to the police, but that they could take into account as post-offence conduct his attempts to counsel Whyte not to speak to the police and to withhold information.
[15] In the call at tab 20, on October 21, 2011, at 4:30 p.m., the accused called Crime Stoppers and purported to be a tipster named Christopher Parker. He asserted that he knew Mark Moore, and that he was innocent of the four murders he had been arrested for, and that he had heard through the grapevine that “Slinky” and “Red” were responsible for the murders. He provided a description of Slinky and Red. The accused says that no one could believe that he was actually trying to divert attention from himself, and that the admission of this evidence will prejudice him by holding him up to ridicule and mockery. I do not agree. It will be for the jury to determine whether this was a rather naïve and hopeless attempt by Moore to divert attention from himself, or was in fact some sort of a joke. The evidence is clearly relevant, and its probative value outweighs any slight prejudicial effect it may have.
DISPOSITION
[16] The application is granted with respect to two items:
• The words “seven months” on page 19 of the call at tab 7 on October 4, 2011, at 10:03 a.m. will be removed.
• The rap song at page 17 of the call at tab 2, on September 11, 2011, at 2:54 p.m. will be removed.
[17] In all other respects, the application is dismissed. The jury instructions mentioned above will be given to the jury during and/or at the conclusion of the evidence.
M. Dambrot J.
Released: February 19, 2015
COURT FILE NO.: CR-14-30000123-0000
DATE: 20150219
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
Applicant/Respondent
– and –
MARK MOORE
Respondent/Applicant
REASONS FOR RULING
DAMBROT J.
RELEASED: February 19, 2015