R. v. Moore, 2015 ONSC 1107
COURT FILE NO.: CR-14-30000123-0000
DATE: 20150220
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. In counts 2 and 3, Moore is alleged to have murdered Mike James and Courthney Facey on September 29, 2010. Moore is alleged to have shot both men in a single incident. The Crown proposes to adduce evidence of a motive on the part of the accused for the commission of these two murders. The defence asks me to exclude this evidence because it is irrelevant, and in any event, because its prejudicial effect outweighs its probative value.
Background
The homicides
[2] On September 29, 2010, shortly before 10:27 p.m., James and Facey were sitting and listening to music in and around James’ vehicle, which was parked in a laneway adjacent to 1798 Weston Road. Shirlon Marshall, who had just returned a video game to James and was walking up Weston Road, heard a gunshot and turned to see a black BMW X5 emerging from the laneway. Juan Moreno also saw the vehicle slowly emerge from the laneway adjacent to 1798 Weston Road. As the BMW drove by James and Facey, Moreno saw the driver start firing at the two men at point blank range. The BMW then drove north on Weston Road. The police collected ten 9mm shell cases at the scene: seven Winchester and three Federal. They were all shot from the same firearm, which is associated with Moore on the basis of circumstantial evidence on a number of occasions.
[3] Moore drove a black BMW X5 at the time. A surveillance video camera captured a vehicle similar to Moore’s BMW driving north on Weston Road within a few hundred metres of the scene of the shooting seconds after it took place.
[4] Cell phone data shows that cell phones 5055 and 1926, both associated with Moore, were in the area of the shootings around the time they took place.
[5] Kevin Williams, an associate of Moore’s, will testify that he was a passenger in Moore’s vehicle at the time and saw him shoot at James and Facey. Moore was driving south on Weston Road when he saw the two men in the laneway. He drove past them, slowed, turned around, proceeded into the alley and drove by the two men, who were on the passenger side. Moore drove to the end of the alley, turned around, rolled down his window and began shooting at the two men at point blank range.
The motive
[6] The motive alleged by the Crown is an unusual one. In essence, the Crown says that Moore was an aspiring rap artist, and Williams was his mentor. Moore believed that it was critical for success as a rap artist to have a reputation for violence, and that the reputation should be authentic. As a result, he had reason to impress Williams with a violent act.
[7] In 2001, Moore was shot in the face and permanently disfigured in a stairwell in the apartment building at 1765 Weston Road, directly across the street from the location where James and Facey were killed. He remained resentful of this shooting, and still sought revenge for it. In addition, September 29 was Williams’ birthday. As a result, September 29, 2011 was an auspicious day for Moore to impress Williams with his violence, and the area of 1765 Weston Road was an auspicious location to exhibit his violence.
[8] The Crown points to several items of evidence in support of the existence of this motive. I will mention some of them.
Moore was attempting to develop a career as a rap singer. His text messages suggest, and his lyrics reflect that he felt that having a reputation on the street for violence was a critical aspect of success as a rap singer, and that the reputation should be authentic.
Moore’s text messages and the lyrics in some of his songs suggest that his own shooting remained an intensely felt sore point for Moore, and that he still wanted revenge on the person who shot him.
Williams was a rapper of some note who provided management, production and other assistance to Moore. Moore wanted to impress Williams.
The date of the shooting was Williams’ birthday.
According to Williams, Moore deliberately drove to the location of the shooting, didn’t tell him where they were going, drove to the location of his own shooting in 2001, turned around in a lane and shot the two victims out of the driver window.
Moore considered the Weston Road area to be a ghetto, and a poor location for his girlfriend to live.
In a statement to the police, Jhordine Fraser, who was a girlfriend of the accused and is the mother of one of Moore’s children, said that Moore didn’t really like the Weston Road area and when he visited her in that area he wouldn’t stay long. However in cross-examination at the preliminary inquiry, she said that he didn’t really seem to have much of an opinion about the area of Weston Road, except that he considered it to be a troubled area.
Analysis
[9] There can be no doubt that evidence of motive, in the sense of ulterior intention, is always relevant and admissible in a criminal trial. If the prosecution can prove that an accused had a motive for committing the crime, however illogical it may seem, they may do so since the existence of a motive makes it more likely that the accused in fact did commit it. People do not usually act without a motive. (See R. v. Lewis, 1979 19 (SCC), [1979] 2 S.C.R. 821.)
[10] However, it is also clear that evidence as to the accused's motive cannot be admitted if it is not relevant, that is, if it does not disclose a sufficiently close logical connection between the facts that are to be proven as a motive and the crime committed. Proof of the accused's motive cannot be a means of circumventing the application of the rules of evidence regarding relevance. (See R. v. Cloutier, 1979 25 (SCC), [1979] 2 S.C.R. 709, 48 C.C.C. (2d) 1.)
[11] In this case, there is a sufficient logical connection between Moore’s alleged desire to impress Williams with his violence and the alleged crime, the shooting of James and Facey in the presence of Williams on Williams’ birthday, to meet the test of relevance. Most of the building blocks to prove this connection will be admissible in any event.
[12] The real objection taken by the defence is the added element of the alleged motive that the location of the shooting was deliberate as a result of Moore’s lingering resentment of his own shooting at that location in 2001. The defence argues that the admission of the evidence of the 2001 shooting of Moore is prejudicial because it will raise the spectre of the shooting of James and Facey James arising from post-traumatic stress, for which there is no evidence.
[13] To the extent that the Crown suggests that there is evidence that Moore had an animus to the Weston Road area that could, on its own, be considered a motive for the killing of James and Facey, the argument fails. There is, at present at least, insufficient evidence to advance that theory. There is simply no admissible evidence that I am aware of that Moore had a generalized animus to the geographic area sufficient on its own to cause him to shoot two random individuals in that area. But to the extent that Moore’s shooting in 2001 in the very area of the James and Facey shooting provides an explanation for his choice of the area to impress Williams with his violence, it provides a logical piece of the puzzle.
[14] As a result, I am of the view that the evidence of the 2001 shooting is relevant to the proof of a motive for the shootings on September 29. The remaining question is whether the prejudicial effect of the evidence of the 2001 shooting outweighs its probative value. In my view it does not.
[15] While I can only admire the ingenuity of the defence argument about prejudice, I am not persuaded by it. It seems to me that the leap to post-traumatic stress is a speculative and fanciful one. It is most unlikely to occur to any reasonable juror. Needless to say, the evidence that is led about the 2001 shooting must leave no possible inference that Moore was other than an innocent victim, just as James and Facey are innocent victims. If it were otherwise, I would not admit the evidence.
Disposition
[16] Subject to the limitations I have mentioned in these reasons, the evidence of motive is admissible.
M. Dambrot J.
Released: February 20, 2015
CITATION: R. v. Moore, 2015 ONSC 1107
COURT FILE NO.: CR-14-30000123-0000
DATE: 20150220
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 20, 2015