ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Alexis and Funes, 2015 ONSC 1588
COURT FILE NO.: CRIM J (P) 479/13
DATE: 2015 03 13
B E T W E E N:
HER MAJESTY THE QUEEN
R. Alexander Cornelius for the Crown
Respondent
- and -
MARCUS ALEXIS AND
BRIAN FUNES
Mary Cremer for Brian Funes
Adele Monaco for Marcus Alexis
Applicants
HEARD: January 6, 7, 8, 9, 2015
RULING Re: Application by Marcus Alexis to Exclude DNA Evidence
Information contained herein is prohibited from publication by order of The Honourable Mr. Justice Joseph Michael Fragomeni
Fragomeni J.
[1] The Applicant Marcus Alexis seeks an order excluding evidence of the Applicant’s DNA found on a Smith & Wesson six-shot revolver, serial number V215478 found in locker 622 at [redacted].
Summary of the Facts:
[2] The Applicant is currently jointly charged with Brian Funes in the shooting death of Kearn Nedd during the course of a robbery at an illegal poker tournament on April 16, 2011. The Crown’s evidence against Mr. Alexis principally rests on the testimony of Vetrovec witness, John Morrone.
[3] On June 9, 2011 a CDSA search warrant was executed at the residence of S.G., at [redacted], in relation to an unrelated investigation. Police also obtained a search warrant for two storage lockers, 680 and 688, believed to be associated to S.G. Neither this address nor these lockers are associated with the Applicant.
[4] Upon arrival at S.G.’s residence police identified two further lockers of interest, 622 and 118 and obtained search warrants on that same day.
[5] The police find the following items relevant to this Application at [redacted]:
Location
Item Found
Locker 680 – Freezer
40 calibre Smith & Wesson - firearm
Locker 688
Stanley lock packaging
Locker 622 – Right top bin
.38 Revolver (6 shot) – firearm
Locker 622 – Right top bin
9mm Remington pistol magazine and 2 loose 9 mm rounds
Locker 622 – Right top bin
9mm Leinad submachine gun with magazine – firearm
Locker 118 – Black leather bag
Black Smith & Wesson wood grip – firearm
Locker 118 – Black leather bag
Black Brevet pistol – firearm
Locker 118 – Black leather bag
Black compact pistol – filed off – firearm
Locker 118 – Plastic bag 1
1 box (50 rounds) Remington ammunition
Locker 118 – Plastic bag 1
1 box American Eagle ammunition 3 missing in tray
Locker 118 – Plastic bag 1
Various loose ammunition, some spent
Locker 118 – Different plastic 2
Metal file
Locker 118 – Inside a speaker
Silver and black Beretta – firearm
Locker 118 – Inside a speaker
Silver and black Smith & Wesson – firearm
Locker 118 – Inside a speaker
Black Springfield .357 – firearm
Key ring seized from S.G.
3 x Stanley keys
[6] In total nine firearms were seized. One was seized from locker 680, two were seized from locker 622, and six were seized from locker 118.
[7] The .38 six-shot Smith & Wesson revolver was found in a bin inside locker 622.
[8] The three Stanley keys seized from S.G. opened lockers 680, 688 and 118. The key to locker 622 was not located and police cut the lock to gain access to that storage locker.
[9] The firearms were swabbed for DNA and sent to the Canadian Center of Forensic Science for testing.
[10] CFS scientist Jennifer McLean issued a report on September 19, 2011 indicating that a major male DNA profile (Profile 2) was found on the .38 calibre six-shot revolver, and that there was a mixture of DNA from two individuals, at least one of whom is male and that these other minor amounts of DNA were not suitable for comparison.
[11] The same report indicates that the Beretta model 92FS contained a mixture of DNA from at least three individuals but in amounts that were not suitable for comparison.
[12] On September 21, 2011 a DNA hit was returned for Profile 2 found on the .38 calibre six-shot Smith & Wesson revolver. The DNA was found to belong to the Applicant.
[13] On January 12, 2012, CFS scientist Benjamin Sampson authored a report outlining the results of a comparison between the bullet recovered from the victim, Kearn Nedd, to three bullets test fired from the 9mm Beretta model 92FS semi-automatic pistol. They were found to be a match thereby identifying the 9mm Beretta as the firearm used to shoot Kearn Nedd.
Position of the Applicant:
[14] The Applicant anchors his position on the following factors:
The admission of the Applicant’s DNA on the six-shot revolver is irrelevant and immaterial.
This evidence is presumptively inadmissible as it goes to past discreditable conduct and admission would result in the jury engaging in propensity reasoning.
The prejudicial effect of the admission vastly outweighs any probative value.
[15] The Applicant’s position is succinctly set out at paragraph 16 of his Factum as follows:
Whether the Applicant was in possession, an inference that could be drawn from the presence of his DNA, at some unknown point in time of a six-shot revolver is not logically relevant to an issue in this trial. The presence of the DNA, however, can only suggest at the highest that the Applicant touched the firearm at some unknown point in time prior to the discovery of the firearm. The admission of this evidence is a red herring. It is alleged that the Applicant used a 9mm Beretta to shoot the victim. The six-shot revolver was not found in the same location as the firearm used to shoot the victim, nor can the Crown prove that the six-shot revolver was in a locker that S.G. had access to (like he had with the other firearms found, including the 9mm Beretta).
POSITION OF THE CROWN:
[16] The Crown submits that this evidence is a piece of circumstantial evidence that forms a critical link in the chain of reasoning connecting the Applicant to the murder of Mr. Nedd.
[17] The Crown submits that this evidence is of vital importance in confirming the anticipated testimony of John Morrone, an unindicted accomplice. Mr. Morrone will require a strong Vetrovec warning by the Court.
[18] The Crown grounds his position on the following:
The Applicant’s DNA was found on a .38 calibre revolver discovered amongst a set of guns held by one person, which included the murder weapon.
Mr. Morrone will testify that he drove Mr. Alexis and Mr. Owusu to Square One after retrieving two firearms from S.G.. S.G. is the very same man who controlled this cache of guns seized by the police in the execution of search warrants on June 9, 2011.
The DNA evidence will confirm Mr. Morrone’s narrative.
The probative value of this DNA evidence is in Mr. Alexis’ association to the murder weapon, not to any improper character attack or propensity reasoning arising from an inference being drawn of Mr. Alexis possessing another firearm and is therefore the type of individual who commits murder.
The prejudicial effect of this evidence is slight. It is not so discreditable when measured against the charge of first degree murder.
[19] In summary the Crown argues that this DNA evidence is probative for two essential purposes:
It establishes a connection to the person who has the murder weapon.
It is confirmatory evidence of the Vetrovec witness, John Morrone.
ANALYSIS:
[20] In R. v. Pilon, 2009 ONCA 248 the Court set out the following at paragraphs 32 and 33:
[32] The operative legal principles are clear. Relevant evidence is admissible unless subject to some exclusionary rule: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at pp. 713-15, per LaForest J. in dissent on another issue. One such exclusionary rule provides for the exclusion of relevant evidence proffered by the defence if the potential probative value of that evidence is substantially outweighed by its potential prejudicial effect: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 107.
[33] Evidence is relevant if, as a matter of common sense and human experience, it makes the existence of a fact in issue more or less likely: R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47. Relevance is assessed by reference to the material issues in a particular case and in the context of the entirety of the evidence and the positions of the parties: David Watt, Watt’s Manual of Criminal Evidence (Toronto: Carswell, 2008), at pp. 25-26. Evidence of a person’s disposition and his or her habit may provide circumstantial evidence that a person acted in a certain way on a given occasion: R. v. Scopelliti (1981), 1981 CanLII 1787 (ON CA), 34 O.R. (2d) 524 (C.A.), at pp. 536-37; R. v. Watson (1996), 1996 CanLII 4008 (ON CA), 30 O.R. (3d) 161 (C.A.), at p. 176.
[21] In R. v. Cloutier 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709 the Court stated the following at paragraph 2:
(2) The Court of Appeal held that the trial judge erred in refusing to admit an "air waybill". This document is governed by the Carriage by Air Act, which states that it consists of three original copies. The copy sought to be introduced in the case at bar was not one of these three originals, but a copy which could not be admitted unless accompanied by the affidavit prescribed in s. 30(3) of the Canada Evidence Act. The admissibility of the items tending to establish that the accused was a user of marijuana is determined by the relevance of the evidence or the existence of a connection between the two facts which makes it possible to infer the existence of one from the existence of the other.
In the case at bar there is no connection between the fact that the accused is a user of marijuana and the fact that he knew or ought to have known that the dresser contained a narcotic at the time it was imported. Mens rea is an essential aspect of the crime attributed to the accused, and it must be established beyond all reasonable doubt. The type of evidence which merely raises suspicions against the accused is precisely the type of evidence which cannot be admitted; nor should this evidence be admitted because it may disclose the interest of the accused in the importation. Proof of the motive for a crime is generally admitted as circumstantial evidence, but only if it is relevant. In the case at bar, it cannot be said that the use of marijuana by appellant is in itself a fact seriously tending to establish motive for the crime of importation with which he is charged.
[22] The Crown relies on the decision of R. v. McFarlane, [2006] O.J. No. 4859 at paragraphs 23 to 46. At paragraphs 35 to 45 Justice Clark analyzes the issue as follows:
[35] Respecting the evidence that the accused was in possession of firearms, I am mindful of the decision in R. v. Backhouse, 2005 CanLII 4937 (ON CA), [2005] O.J. No. 754, Rosenberg J.A., speaking for the court held at para. 165:
“The mere fact that the appellant had possession of a restricted weapon was itself discreditable conduct and did carry some prejudicial effect. However, the probative value of that evidence outweighed the prejudicial effect.”
[36] Unlike this case, the restricted weapon in Backhouse was in fact the murder weapon. However, I am of the view that notwithstanding the fact that neither of the weapons found in the possession of the accused was related to this crime, the probative value is still high because it puts in context the remarks said to have been made by this accused to Cleveland Blackwood, about whom more will be said later in these reasons, to the effect that the guns seized by the police were “clean”. If the accused knew that the guns seized were “clean”, that is to say, not used in the homicide, that leaves open the permissible inference for the jury that the accused was in a position to so indicate because he had some knowledge of the guns that were used.
[37] In R. v. Beaucage, [2005] O.J. No. 2802, the Court of Appeal upheld the trial judge’s decision to admit evidence that the accused was involved in the sale of drugs, gambling, and operating an illegal “booze can”, had his licence as an insurance salesman suspended, and left his family while his wife was pregnant. In this regard, the Court held at para. 26:
“The trial judge ruled that this was important evidence for the jury to know in the context of motive, and relevant to the manner in which he earned his living, and to the lies that he conveyed to the victim with respect to paying the family debts. The trial judge made it clear that the jury could not reason that because of that conduct, the appellant was the type of man who would commit the offence of murder. While the trial judge failed to give the usual warning that the jury should not punish the appellant for past misconduct, we do not regard this oversight as sufficiently serious to warrant appellate intervention. No objection was made at trial on this issue. The real risk here was that of improper propensity reasoning and the jury was properly cautioned on that score. The jury would have been fully aware of the gravity of a charge of first degree murder, and in our view there was no risk that in the circumstances of this case, the jury could have returned a verdict of guilt on that charge to punish the appellant for these considerably less serious transgressions.”
[38] Similarly, in R. v. Kinkead, 2003 CanLII 52177 (ON CA), [2003] O.J. No. 3480, 67 O.R. (3d) 57, (C.A.), where the appellant argued that the trial judge had erred by admitting evidence that the appellant had on earlier occasions, unrelated to the murders charged, possessed a knife of the sort used to commit the killings charged, at para. 73 ff., Simmons J.A. held:
“In my view, the [defence submissions] ignore the basic premise that discreditable conduct evidence is, by its very nature, propensity evidence, and that prejudice arises, not from its use as such, but from its lack of cogency in particular circumstance.”
I specifically reject Kinkead's submissions that using the discreditable conduct evidence to draw the inferences requested by the Crown required impermissible reasoning. As was pointed out in Handy, where discreditable conduct evidence is relevant to and probative of specific inferences relating to live issues at the trial, the fact that the probative value of the evidence arises from propensity reasoning does not, in itself, make the evidence inadmissible.
Moreover, I reject Kinkead's suggestion that the impugned evidence carried significant potential prejudice. The risk of reasoning prejudice was minimal. The evidence was straightforward and unlikely to confuse the jury or consume an inordinate amount of time.
The risk of moral prejudice was also limited. As noted by the trial judge, none of the impugned evidence was "highly discreditable". In the context of a murder trial, there was little risk that the jury would convict Kinkead to punish him for his past conduct of carrying a knife, sharpening it regularly, and, on one occasion, threatening Burey. Nor, in my view, is it likely that the jury would have used the evidence that Kinkead carried a knife and sharpened it regularly to conclude that he was the type of person who would commit a planned and deliberate murder.”
[39] To my mind, the same logic applies in this case. While undoubtedly there is some prejudice, none of the conduct is “highly discreditable” when measured against the gravity of the offence charged and there is little risk that in the context of a murder trial a properly instructed jury would engage in either reasoning or moral prejudice related to possessing illegal firearms, particularly when neither of the firearms found in the possession of the accused was the murder weapon.
[40] The potential prejudice of this evidence is reduced further, in my view, because the jury will be aware of the fact the fact of the accused being illegally in possession of firearms as well as the fact that he was engaged in trafficking drugs by virtue of the confession he made to one Cleveland Blackwood, to whose evidence I now turn.
[41] The proposed evidence is also important in an indirect sense because it tends to confirm the evidence of Cleveland Blackwood. In January 2004, Mr. McFarlane and Cleveland Blackwood were inmates at the Central East Correctional Facility. Blackwood is to be a Crown witness in the trial of this matter. According to Blackwood, Mr. McFarlane told him the following details about the killing of Josh Julien and related matters:
(i) the guns seized by police are clean;
(ii) the police are looking for the gun they shot the kid with but the police can’t find it;
(iii) he has a friend from the States who brought in the gun;
(iv) in May 2003 he got into a “beef” with some kid who is a “punk” over 2 “doors” (2 kilos of cocaine);
(v) he met the “punk” in December 2002 when a “white bitch” took the chap to his house and they took pictures;
(vi) the punk was “hard to dead” (meaning difficult to kill) because he had to use a 9 millimetre after using a 380 calibre pistol;
(vii) he took the body up to Newmarket and dumped it on Warden in a field;
(viii) he had a friend from New York who was going back to New York with that gun and 18 pounds of herb (marijuana);
(ix) they held his friend at the border, but the gun found was not one of the guns that did the job; and
(x) there is a body shop at Eglinton and Warden where he takes vehicles in order to fix them so as be able to conceal marijuana and other things in order to transport them back to the States.
[42] The Crown’s case is, with the exception of Blackwood’s evidence, entirely circumstantial. Blackwood is a person of disreputable character; he is a police informant and has a criminal past. There will obviously have to be a strong Vetrovec warning in connection with his evidence. Any evidence that tends to confirm the evidence of Blackwood is obviously highly probative in an indirect sense. As the foregoing recitation of the facts clearly shows, a great deal of what Blackwood told the police the accused had said to him is independently confirmed by other evidence. In R. v. White (1998), 1998 CanLII 789 (SCC), 125 C.C.C. (3d) 385, affirming 1996 CanLII 3013 (ON CA), 108 C.C.C. (3d) 1, at para. 45, Major J. speaking for the Court, held that one of the uses of evidence of prior discreditable conduct was to corroborate the evidence of a Crown witness.
[43] Applying the B.L. analysis, I find that the evidence is strong. The guns were found on a search of the accused home and vehicle. No issue has been taken with the constitutional validity of that search. The evidence supports the inference for which the Crown proffers it, namely, to show, by virtue of his ability to speak in an informed way to Blackwood about the seized guns being “clean”, knowledge on the part of the accused of what weapons were used in the homicide. That fact is important because it renders more likely (than it would be without the evidence) the proposition that the accused was the killer.
[44] In assessing the prejudicial effect of the proposed evidence, I find that, although it is discreditable, it is not such that either reasoning or moral prejudice would likely cause the jury to convict of a crime as serious as murder because the accused is a drug dealer, because he possessed firearms illegally, or even on the basis of both facts taken together. The evidence is not such as to confuse the jury; indeed, to my mind, it may add considerable clarity to a picture that would be only partially drawn without the proposed evidence. Lastly, I find that the accused is in a position to respond to the evidence should he see fit to do so.
[45] Therefore, notwithstanding its obvious potential for prejudice, I am of the view that, with a strong instruction both at the time the evidence is introduced and again when the jury is ultimately charged, that risk can be overcome. That said, I conclude that the probative value outweighs the potential prejudicial effect of this evidence and it will be admitted.
[23] The distinguishing facts in McFarlane are the following:
Justice Clark found the probative value high because it put in context the remarks said to have been made by the accused to Cleveland Blackwood to the effect that the guns seized by the police were “clean”. If the accused knew that the guns seized were “clean”, that is to say, not used in the homicide, that left open the permissible inference for the jury that the accused was in a position to so indicate because he had some knowledge of the guns that were used.
The guns were found on a search of the accused’s home and vehicle.
It confirmed the evidence of Blackwood as set out in paragraph 41 of his decision.
[24] In the case at bar there is a large inferential gap that cannot be filled by the DNA evidence. The DNA evidence established that the Applicant held or touched this gun at some unknown point in time under circumstances that are unknown. The Crown submits that any temporal connection is not necessary because the important aspect of the evidence is the Applicant’s association to the murder weapon.
[25] However, the DNA gun is found in locker 622 that had to be cut open. The locker had been sub-let as of May 12, 2011. There were some items linking S.G. to this locker so the jury could find that it was still under his control. That may be speculation in light of the sub-lease. In any event, the DNA gun is located in a separate locker.
[26] Mr. Morrone does not say the Applicant has ever used a revolver. Mr. Morrone does not say the Applicant has ever been inside the lockers or that the Applicant knew that guns were stored in those lockers.
[27] In R. v. Riley, 2009 CanLII 15451 (ON SC), [2009] O.J. No. 1374 Justice Dambrot states at paragraph 100 that “just as evidence of motive is always relevant in a criminal case, so is the evidence of the accused’s opportunity and means to commit the offence.” At paragraph 109 Justice Dambrot states this:
[109] I see very little to distinguish this case from Kinkead. If anything, the association of the three accused with guns is more compelling than in Kinkead. The extent of the evidence far exceeds the evidence in Kinkead. Some of the evidence here is also more proximate to the offence in time than was the evidence in Kinkead. I recognize that it cannot be definitively said that any particular gun possessed by any of the accused is the same type of gun as was used in the murder, but that was also true in Kinkead with respect to the knives, and in any event diminishes only marginally the force of the evidence. At the very least, the evidence shows that the accused had access to guns and knew how to use them. This in turn is relevant to whether or not the accused could have participated in the shooting, and so is relevant to all three counts. As will be seen, some of this evidence survives a probative value/prejudicial effect analysis.
[28] It is important to set out the factual context in Riley that gave rise to this conclusion by Justice Dambrot. At paragraph 101 Justice Dambrot sets out the following:
[101] In this case, membership in the Galloway gang and, in particular, in the Ride Squad is evidence of the opportunity and means of the accused to have committed the offences in question. Of particular significance is the evidence that the Crown proposes to lead of their possession and use of guns. Needless to say, evidence of possession of the murder weapon, before or after the shooting, would be relevant and admissible. But no murder weapon was unequivocally identified in this case. Examination by forensic experts of the bullets retrieved from the victims and bullet fragments retrieved from the scene of the shooting permits them to say no more than that the bullets retrieved were of a particular calibre. This limits to some degree the possible firearms from which the bullets could have been shot, but leaves open the possibility that a Glock was one of the firearms used in the commission of the offence. As a result, for the most part the Crown proposes to adduce evidence involving guns possessed or used by the accused generally. It is necessary to examine the law in order to inform discussion of the admissibility of such evidence.
[29] The Crown in Riley sought to adduce evidence involving guns possessed or used by the accused generally. At paragraphs 166 and 167:
[166] I have already concluded that evidence of the possession, use and trafficking of guns by gang members, including the accused, is relevant and admissible in this prosecution, subject to a probative value/prejudicial effect analysis. Specifically, as I have already explained, it is admissible:
• as part of the narrative on all counts to show the existence of the gang and its purpose and activities and to show that the accused were members of the gang and participated in its activities
• to show the opportunity and means the accused had to commit the offences of murder and attempt murder
[167] I have also said, however, that there must be some temporal restriction on the evidence admitted as proof of specific offences. Although I addressed this restriction in connection with relevance, it may be better considered to be an exercise of the discretion to exclude evidence where the prejudicial effect exceeds the probative value. In any event, I have said that proof of specific criminal acts prior to the shooting must be reasonably proximate to the time of the shooting, and that this limitation must be measured in months. And I have said that I will not permit the Crown to prove crimes committed by the gang after the shooting for this purpose, with certain exceptions.
[30] At paragraphs 168 to 188 Justice Dambrot reviews that evidence and concludes the following at paragraphs 189 and 190:
[189] From this evidence, it would be open to the jury to conclude that one of the guns used in the shooting of Charlton and Bell was the Glock seized from Nichol’s apartment. It was obtained by Wilson several weeks before the shooting, and given to Atkins, who had it in his possession shortly after the murder. Initially, it was left with Atkins’ baby mother at 166 Morningside Drive, or at least the clip and shells for it were. Ultimately, it was left with Nichols, who concealed it. Riley was aware that Nichols had the gun, and was very concerned that it not be found by the police. He knew that the police were investigating the Charlton and Bell shooting. Ultimately, the jury might conclude from this evidence that Riley and Atkins participated in the shooting of Charlton and Bell.
[190] This evidence is exceptionally probative. Its probative value easily outweighs any prejudicial effect that evidence that Riley and Atkins were involved with guns may have. But a couple of issues about the admissibility of this evidence remain.
[31] The factual context in Riley is much different than the case at bar. At its highest the Applicant’s DNA on the gun located in a separate locker from where the murder weapon is located is that at some unknown point in time in circumstances that are unknown he touched, handled or possessed this gun.
[32] The Crown also relies on the decision in R. v. Sandham, [2009] O.J. No. 4528. At paragraphs 11, 15 and 16:
[11] In assessing probative value, the relative importance of the issue must be considered. Here, there is no question that the credibility of M.H. is a question of extreme importance. He will be giving an eye-witness account of the central events before the court. It is conceded that he is an unsavoury witness, and that the jury must be given a Vetrovec warning. It is, therefore, essential for the Crown to present evidence that corroborates his evidence, since the jury will be warned that it is dangerous to convict without such corroboration.
[15] Given the importance of the evidence of M.H. to the Crown’s case, and given that the jury will be warned that they must look for corroboration of his evidence before convicting based on his evidence, I am satisfied that the probative value of this evidence outweighs its prejudicial impact, and is admissible.
[16] The jury will be strongly cautioned that they must only use this evidence as evidence which may corroborate the evidence of M.H. with respect to these two events on the night in question, and for no other purpose. Specifically, they are not to use it as evidence that the accused Kellestine is a Nazi sympathizer and a bad man, and is therefore more likely to have committed the offences before the court. It has no relevance as to whether the accused Kellestine committed the offences before the court. Its only relevance is with respect to the credibility of the witness M.H. in his description of these two discrete events.
[33] In R. v. Grizzle 2012 ONSC 2225 M.L. Benotts, J. states the following at paragraph 14 and 15:
[14] Against the frailties of the probative value, is the significant prejudice. I find the prejudice would lie in the inevitability of the jury embarking upon propensity reasoning, even if instructed otherwise. They would be asked to consider if this was THE gun used 9 months earlier. It would be difficult if not impossible for the jury to consider this task without embarking upon prohibited reasoning. Namely that, if he had a gun in May 2010, he also had a gun in August 2009 because he was in fact the type of person to have a gun.
[15] In addition, there is the highly prejudicial aspect of the location of the gun. It was found in a room clearly belonging to children. There was a child’s bed on one side of it and a baby crib on the other. When the police entered the apartment, the baby was asleep in the crib. Even if this evidence was not allowed to be part of the Crown’s case, there is a real possibility that it would come out if the accused chose to testify.
[34] Ms. Monaco, on behalf of Alexis, points out that in the ITOs of December 12, 2011 and February 9, 2012 at no time does Constable Vaughan, the affiant advise the issuing justice that the DNA of Alexis was found on this gun. At the cross-examination of Constable Vaughan as it related to the Garofoli application, Constable Vaughan testified that he did not include that information because it had no relevance to the grounds for the ITOs as it did not tell him anything. All it could tell him was that at some point Alexis touched or handled the gun.
[35] The Crown submits that this evidence is absolutely crucial to its case against the Applicant. Mr. Morrone is the only Crown witness that supports their theory that he is the shooter. The DNA evidence on this gun is essential as confirmatory evidence as a strong Vetrovec caution will be given as it relates to Mr. Morrone.
[36] While I appreciate the Crown’s concerns I cannot find and conclude that the DNA evidence is probative and confirmatory. The evidence is that it is Mr. Morrone who attends at S.G.’s to obtain the firearms not the Applicant. The association to the murder weapon lies with Mr. Morrone.
[37] The evidentiary value to this DNA evidence is low in light of all of the circumstances. On the other hand it has the potential to be mis-used by the jury. The jury could engage in propensity reasoning. The jury could engage in a chain of reasoning that is impermissible.
[38] How does this evidence assist the jury? They could find that because the Applicant had handled a gun at some unknown time he is therefore associated to S.G. and the murder weapon. Bad people possess guns. Guns are used to kill. The Applicant must therefore be the shooter. He would be that type of person. This chain of reasoning is improper. It is propensity reasoning.
[39] The inferential gap is too large to fill without the jury engaging in conjecture and speculation and an improper chain of reasoning.
[40] I agree with the Applicant’s position on this issue. The Application to exclude the evidence is granted.
Fragomeni, J.
Released: March 13, 2015
CITATION: R. v. Alexis and Funes, 2015 ONSC 1588
COURT FILE NO.: CRIM J (P) 479/13
DATE: 2015 03 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
MARCUS ALEXIS and BRIAN FUNES
Applicants
RULING
Fragomeni, J.
Released: March 13, 2015