R. v. Moore, 2015 ONSC 1199

COURT FILE NO.: CR-14-30000123-0000

DATE: 20150225

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 9 & 17, 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. Prior to the selection of a jury, the Crown brought an application to be permitted to introduce in evidence at trial two utterances said to have been made by the accused to persons in authority, one on March 15, 2011, and the other on April 30, 2013. After having heard evidence on a voir dire, I reserved. This is my ruling.

THE UTTERANCE ON MARCH 15, 2011

The Evidence

[2] In the early morning hours of March 11, 2011, a male person discharged a firearm at the XS nightclub at 263 Richmond St. West in Toronto and then fled the scene. No one was hit. Det. Jason Shankaran took over as the officer in charge of the investigation of this shooting when he came on shift later that morning. He testified that after reviewing witness statements and video footage from the nightclub and an adjacent public parking lot, he developed reasonable grounds to believe that Moore was the shooter, and that he had left the club immediately after the shooting and drove out of the parking lot in a black BMW X3. The gun used in this shooting was also used in a shooting at St. Edmund Campion School on October 9, 2010, and in the shooting of Carl Cole on November 24, 2010. I have already ruled that evidence of the XS shooting is admissible in this trial.

[3] Det. Brian Daikon was in charge of a mobile support unit that was assigned to conduct surveillance on Moore in unmarked cars in connection with the homicides before this court during the week of March 14, 2011. Shanakaran learned that the surveillance was being conducted by this unit, and asked that the mobile unit be assigned to arrest Moore on the charges of discharging a firearm and failing to comply with a recognizance that he was investigating. The mobile unit did so on March 15, 2011.

[4] Det. Daikon’s mobile support unit was conducting its surveillance of Moore in shifts. D.C. Caroline Gallant was one of the members of the unit. Gallant testified that on March 15, 2011 she commenced her shift along with five other officers, each in a separate unmarked police vehicle, at 8:00 a.m. The officers were all dressed in plain clothes. Gallant was wearing jeans. They set up at 50 Tuxedo Court.

[5] Moore came out of 50 Tuxedo Court shortly after 9:30 a.m. and entered a black BMW X3 bearing licence number BKJB 434, which he had been driving the previous day. Surveillance continued until 3:20 p.m. At that time, Gallant was driving behind Moore on Yorkdale Road on the south side of Yorkdale Mall, when she was advised by Det. Daikon that Moore was to be arrested for discharging a firearm and failure to comply. Moore was alone in his vehicle at the time. Three of the police vehicles boxed him in and he stopped. Daikon initially told Moore to remain in his vehicle and Moore complied.

[6] The officers put on vests bearing the word police in fluorescent letters and take down jackets also bearing the word police, and got out of their vehicles, with their guns out. Gallant approached the driver door of Moore’s vehicle and tried to open it. It was locked. Moore unlocked it, and Gallant and two other officers opened the door. Moore was then told to get out of his vehicle and he again complied. Daikon yelled that he was a police officer and instructed Moore not to move. Gallant then arrested Moore. She and one other officer turned him around, took him to the ground at the side of his car momentarily, cuffed him to the rear and seated him on a one-foot tall retaining wall surrounding some plants. To this point, Gallant was close enough to hear everything said to or by Moore.

[7] Gallant told Moore that he was under arrest for discharging a firearm and failing to comply, and fully advised Moore of his right to counsel. When asked if he understood and wanted to make a call, Moore replied that he understood, and already had a lawyer. The officers then stood by waiting for Moore to be transported to a police station by other officers.

[8] From the time Moore was stopped until he was transported, Gallant had Moore under observation, was no more than five feet away from him and was always in a position to hear what was said to and by him. She heard no other discussion or conversation with him and nothing else said by him beyond what she testified to. She said that Moore drove normally before he was arrested, seemed to understand when he was spoken to, his responses made sense, and there were no indicia of any cognitive problems. No force was applied to him other than the force used to take him to the ground and handcuff him. He made no complaint about his treatment, and was pretty compliant.

[9] Det. Shankaran testified that when he was advised that Moore had been arrested, he, D.C. Lee and D.C. Goodenough attended at the scene of the arrest in an unmarked police car equipped with a cage for the purpose of transporting him to 52 Division. Shankaran arrived at the scene at 4:00 p.m., dressed in a suit and tie. He observed Moore seated on the curb, with Daikon standing next to him. No one was in physical contact with Moore. As Shankaran approached Daikon, Moore, unprompted, said, “What are you guys, from homicide?” Shankaran asked Moore why he asked that question, and Moore replied, smiling and almost jovially, “Who did I kill? Who did I kill?”

[10] Shankaran was standing right in front of Moore, at a distance of three to four feet, when Moore made this comment. The comment was made within a minute of Shankaran’s arrival. It was an interaction solely between Moore and Shankaran. Moore was then transported to 52 Division.

The Argument

[11] Shankaran and Gallant were the only witnesses who testified on the voir dire. Counsel for Moore indicated that he really had no voluntariness argument, except for the fact that in order for the Crown to satisfy its onus on the issue of voluntariness (proof beyond a reasonable doubt) the Crown was obliged to call all of the officers present, and had failed to do so. He also argued that the prejudicial effect of the evidence outweighed its probative value, premised on the argument that the utterance is not admissible as evidence of post offence conduct because it is unclear what event Moore was talking about. Post-offence conduct evidence must be linked to a specific offence. If it is not, it should not be left to the jury, because its admission in evidence invites reasoning prejudice.

Analysis

[12] I begin with the argument that the Crown has failed to establish the voluntariness of the brief utterance made by the accused to Shankaran because all persons in authority who came into contact with the accused between the time of the arrest and the making of the utterance were not called as witnesses on the voir dire. In my view, no such absolute rule exists. If such a requirement existed, it would be an empty formalism, and entirely alien to the purpose of the voluntariness rule. The essence of the rule was made clear in R. v. Oikle, 2000 SCC 38, 147 C.C.C. (3d) 321, at para 47, where Iacobucci J. stated:

The common law confessions rule is well-suited to protect against false confessions. While its overriding concern is with voluntariness, this concept overlaps with reliability. A confession that is not voluntary will often (though not always) be unreliable. The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

[13] The evidentiary scrutiny that is required when an accused is held in a police station for a period of time prior to giving a statement, or when an accused is subjected to police questioning, will differ from a case such as this one. Here the uncontradicted evidence is that the accused was arrested on the street, told the reason for the arrest, provided with his right to counsel, simply held in place awaiting transportation, and spontaneously made a comment to the transporting officer without being questioned. The Crown called evidence that accounts for the entire period of time between Moore’s arrest and his utterance. That evidence satisfies me that nothing was said or done to the accused or in his presence that could conceivably have induced him to make his comments to Shankaran. I am satisfied beyond a reasonable doubt that the accused’s utterances were made voluntarily. The failure by the Crown to call all of the other witnesses who were present from the time of the arrest to the making of the utterances does not preclude such a finding.

[14] I turn then to the second branch of the argument, that this is evidence of post-offence conduct that cannot be linked to a specific offence, and accordingly is inadmissible. I do not quarrel with the underlying premise of Moore’s argument. In this regard, the decision of Major J. in R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] S.C.J. No. 5, 87 C.C.C. (3d) 289, is instructive. He stated, at para. 43:

The test articulated in Myers [United States v. Myers, 550 F.2d 1036 (5^th Cir. 1977)] provides helpful guidance on the inferences that may be drawn from evidence of an accused's flight (or other possible indicia of consciousness of guilt, such as lying). Such evidence can serve the function of indicating consciousness of guilt only if it relates to a particular offence. Consequently, where an accused's conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence.

[15] Here, of course, the accused has not admitted culpability for any offence, but I will leave that consideration aside. If the Crown were adducing this utterance in evidence as either after the fact conduct or as an admission in relation to any of the four homicides in the indictment in this case, it would be problematic. But that is not the Crown’s position. Here the arrest was for discharging a firearm at the XS club. The accused was told that he was under arrest for discharging a firearm. The evidence is that the person who shot the gun at the XS club immediately fled, and likely would not have known if anyone was shot as a result of his discharging a firearm. This arrest took place a mere four days after the XS shooting. The homicides took place many months earlier, and at the time of the arrest, there was no suggestion that Moore was alive to the fact that he was a suspect in relation to any of the homicides. In those circumstances, the utterance logically related to the XS shooting, and could logically be seen as an admission that Moore was the shooter. While it is not impossible that the accused might, for some reason, have thought he was really being arrested for one of the four murders alleged in the indictment before me, and rather inexplicably made the comment he made in relation to one or more of those homicides, it seems to me to be most unlikely, and highly speculative.

[16] In any event, it is not for me to be satisfied that the utterance relates to the XS shooting. As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, what act post-offence conduct relates to. (See R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72.) In this case, the jury may find that the utterances were equivocal, or a joke, and did not amount to an admission at all. But there is an evidentiary foundation for the Crown’s approach, and it is a determination that the jury would be quite capable of making. This is not a situation where the utterance is equally explained by reference to two or more offences. It is not for me to usurp the function of the jury. I see no risk of reasoning prejudice, and I would not exclude the statement on this basis. It will be admitted in evidence.

THE UTTERANCE ON APRIL 30, 2013

The Evidence

[17] On April 30, 2013, Moore made a court appearance in the Superior Court at 361 University Avenue in Toronto. He was placed in cell P2, which is used to house prisoners who cannot be placed in the general population. Cell P2 is near the sallyport, three or four metres from the booker and around a corner. It is four metres long by five metres wide. It has a door with a one foot by one foot sliding window in it, and contains a washroom area separated by a half wall. Court officers walk back and forth by cell P2 constantly, and when prisoners are in cell P2, the court officers do regular cell checks.

[18] Kevin Chen is a member of the Court Office Unit of the Toronto Police Service, and was on duty at the 361 University Avenue Courthouse on April 30, 2013. He testified that Moore had been placed in cell P4 that morning. P4 is an isolation cell. Chen was subsequently advised that Moore had been reclassified, and as a result, at 8:24 a.m., Chen moved Moore into cell P2. There were between 3 and 5 other prisoners in cell P2 at the time. Sometime later, Chen was present when Kevin Williams was placed into cell P2. Williams is a Crown witness in this case, and had already testified against Moore at the preliminary inquiry.

[19] Chen left the cell and proceeded perhaps five to eight steps around the corner when, at 8:58 a.m., he heard a large thump and returned to the cell. He looked through the window and saw Moore striking Williams several times in the head. Williams fell to the ground and went into the fetal position. Moore continued to stomp and kick Williams to the head. Chen saw nothing being said between the two men. Chen called his supervisor, and guards entered the cell. Moore jumped onto the half wall and sat down on it.

[20] Court officer Craig Lawrie testified that he was the acting supervisor in charge of deployment of staff that day. At approximately 9:00 a.m. he was notified of a fight in the cells. When he entered cell P2, he saw Williams lying on the floor, semi-conscious, and Moore on the back bench. Lawrie removed Moore and placed him in cell 3 to see if he was injured. Nothing lead him to conclude that he was. He asked Moore what happened, and Moore said, “He’s a snitch bro. You know how much of my life he’s ruined. It was self-defence.”

[21] Later, in a statement to Det. Ward, Williams said that he didn’t remember much of the fight, but he said that he did not pick a fight or argument with Moore and did not try to assault him. When he entered the cell, he saw Moore, and started taking off his clothes because he figured an altercation would arise. He was then placed in a sleeper hold by someone, and remembered nothing after that.

The Argument

[22] The defence made clear that the voluntariness of Moore’s statement is not in issue, but argued that it was inadmissible bad character evidence. The Crown argued that this was evidence of Moore attempting to intimidate a witness, and was admissible as evidence of consciousness of guilt.

Analysis

[23] There can be no doubt that evidence of an accused attempting to intimidate a witness, or to punish a witness for testifying against him or her, can be evidence of consciousness of guilt. (See R. v. Lawrence (1989), 1989 CanLII 7235 (ON CA), 52 C.C.C. (3d) 452 (Ont. C.A.)) However the problem for the Crown in this case is that the police did not observe how the interaction between Moore and Williams began, and did not hear what was said between the two men, if anything. While clearly Moore got the better of the fight, if it was one, it is perfectly possible, on the police evidence, that Williams was the aggressor, or that it was a consensual fight. Moreover Moore’s statement sheds no greater light on the matter. Williams clearly was a “snitch”, and contributed to Moore’s downfall, as Moore said. But Moore’s resentment of Williams does not create an inference that Moore was the aggressor in the fight, and that he was attempting to intimidate or punish Williams, particularly in view of his claim that he attacked Williams in self-defence. The assault may simply reflect the animosity between the two men. Even assuming that Williams will say at trial what he said to Det. Ward, his evidence adds little to the story. The only thing of any significance that he does say is that he did not start a fight with Moore.

[24] In the end, I bear in mind that the only issue on this application is the admissibility of the utterance made by Moore to Lawrie. Even when it is viewed in context, it does not support an inference that Moore was attempting to intimidate Williams. It simply helps paint a picture of Moore as a violent man. At this stage in the proceedings, its prejudicial effect outweighs its probative value. Although it was not the issue on this application, the evidence of the assault on Williams is also inadmissible for the same reasons.

[25] I must bear in mind, however, that there is likely to be a strong attack on the credibility of Williams in cross-examination. I cannot know now how that cross-examination will develop. As a result, I leave it open to the Crown to ask me to reconsider this ruling if so advised on the basis of subsequent developments.

DISPOSITION

[26] The utterance of March 15, 2011 is admissible. The utterance of April 30, 2013, is not admissible, subject to further developments at trial.

M. Dambrot J.

Released: February 25, 2015

COURT FILE NO.: CR-14-30000123-0000

DATE: 20150225

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 25, 2015