ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Alexis and Funes, 2015 ONSC 1605

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

Applicant

• and -

MARCUS ALEXIS AND

BRIAN FUNES

Adele Monaco for Marcus Alexis

Mary Cremer for Brian Funes

Respondents

HEARD: February 11, 2015

RULING

Re: Crown Applications to Tender Evidence of Marcus Alexis DNA on a Firearm and to Tender Youth Court Record of Marcus Alexis; To Tender Unredacted Intercepted Communications relating to Brian Funes relating to Firearms and to tender Brian Funes’ Criminal Record

Information contained herein is prohibited from publication by order of The Honourable Mr. Justice Joseph Michael Fragomeni

Fragomeni J.

[1] The Crown seeks to now tender into evidence the following:

1. Evidence that Mr. Alexis’ DNA was found on a firearm other than the murder weapon.

2. Mr. Alexis’ Youth Record.

3. Evidence of Mr. Funes’ possession of firearms.

4. Evidence of Mr. Funes’ planning robberies separate and apart from Mr. Morrone (from the February 21, 2012 intercept).

5. Mr. Funes’ Criminal Record.

POSITION OF THE APPLICANT CROWN

Re: Marcus Alexis

[2] The Crown submits that during the cross-examination of Mr. Morrone counsel for Mr. Alexis elicited from Mr. Morrone propensity evidence. As such the Crown is now entitled to respond by calling propensity evidence relating to Mr. Alexis. In essence the Crown argues that the jury is entitled to a balanced view of the evidence as it relates to Mr. Morrone and Mr. Alexis.

[3] The Crown acknowledges that although the cross-examination conducted by Ms. Monaco on behalf of Mr. Alexis was proper it brought into play the propensity evidence relating to Mr. Morrone that now warrants a response.

[4] The Crown points to the following areas of cross-examination in support of his position:

• Mr. Morrone’s criminal record, although filed as an exhibit at the trial, was explored in significantly greater detail.

• Counsel suggested that Mr. Morrone made attempts to distance Kmar Kelly from liability.

• Counsel suggested that Kmar Kelly was in fact the shooter.

• That the police were unaware of Mr. Alexis’ involvement prior to Mr. Morrone’s interview with the police on April 19, 2012.

• That Mr. Morrone gained the assistance and compliance of others with his criminal activities through intimidation.

[5] The Crown submits that the proposed evidence, independent of Mr. Morrone’s testimony, shows that Mr. Alexis had accessed other firearms and has a record including an entry for robbery with a firearm. The Crown argues that all of this evidence would greatly assist the jury’s fair and balanced consideration of all the evidence.

DNA on the Firearm

[6] The Crown submits that my earlier ruling excluding this evidence should be re-visited in light of the cross-examination of Mr. Morrone. Since my decision to exclude the DNA evidence, Mr. Morrone has testified. He testified that he owned four to five of the nine firearms seized on June 9, 2011 in the search at [redacted], the residence of S.G.

[7] He testified that on April 16, 2011 Gabriel Owusu retrieved two 9 mm firearms from S.G.. He stated that Mr. Alexis, a person in his inner circle, had liberal access to his firearms.

[8] The Crown submits that it was suggested in cross-examination by Ms. Monaco that the police were unaware of Mr. Alexis’ involvement in this matter prior to his April 19, 2012 interview with the police. Such a suggestion, the Crown argues, has the potential of leaving the jury with the impression that Mr. Alexis’ name was randomly tendered by Mr. Morrone.

[9] The Crown submits further that as Mr. Morrone is a Vetrovec witness the Court will direct the jury to look for confirmatory evidence to restore their faith in Mr. Morrone’s testimony.

[10] The Crown points out that this DNA evidence is highly probative for the following reasons:

• It shows an association of Mr. Alexis to S.G., who had the murder weapon stored in a locker controlled by him. It also shows Mr. Alexis’ association to Mr. Morrone and Gabriel Owusu. There is an association to the parties and to the events of April 16, 2011. DNA found on Gabriel Owusu matches that of Mr. Alexis. Further to this, a phone call at the area of the Rozz Banquet Hall is found on Mr. Alexis’ phone within minutes of the commencement of the robbery.

• This DNA evidence shows that Mr. Alexis had access to guns. It does not matter, according to the Crown’s position, that the firearm with the DNA on it is found in a separate locker in a separate bay. It is open for the jury to infer that Sammy had control of all four lockers and that this was one stash of guns.

• This DNA evidence supports Mr. Morrone’s testimony, a Vetrovec witness.

• It refutes the suggestion made in cross-examination that Mr. Morrone randomly names Mr. Alexis at his April 19, 2012 interview with the police.

[11] In conclusion the Crown’s position is that this DNA evidence is highly probative and there is no prejudice the jury would misuse it by engaging in propensity reasoning.

POSITION OF MARCUS ALEXIS

[12] The Respondent, Marcus Alexis, sets out the following grounds in response:

1. That circumstances have not changed as a result of the cross-examination of Mr. Morrone to warrant a re-visitation of the ruling excluding the DNA of the Respondent on the .38 caliber revolver.

• The admittance of the Respondent’s Youth Court Record would serve no purpose.

• The DNA evidence continues to have no probative value and is highly prejudicial.

• Admission of this evidence would result in the jury engaging in impermissible propensity reasoning.

The DNA on the .38 Calibre Revolver

[13] The Respondent points to the numerous factors to support his position. The search of [redacted], the residence of S.G. revealed four lockers. Keys found on S.G. opened three of those lockers, however, those keys could not open locker 622.

[14] The Respondent’s position is fully set out at paragraphs 16 to 22 of his Factum.

[15] The Respondent points out that the Court heard evidence that the key to locker 622, the location of the .38 calibre revolver with the Respondent’s DNA, was never found on S.G. nor in any of his possessions following the execution of a search warrant both in Mississauga and Hamilton. The only evidence this Court heard linking S.G. to locker 622 is an electronic document which is essentially a template of a form, found as a downloaded email attachment in S.G.’s iPhone. The Court does not know whether this was an email that was sent or received by S.G.. The Crown entered a completed copy of the template form, with the name of the true owner of the locker, Tujinder Sidhu, as an exhibit. The Crown adduced that the same completed document also included S.G.’s phone number scribbled on the front of the document, but showed the locker as being rented to a third individual.

[16] Mr. Morrone testified and confirmed that he was the owner of the two firearms used during the robbery at the Rozz Banquet Hall, but did not testify as to which of the other firearms he owned at the time. He indicated he owned only four, five or six of the nine firearms located at S.G’s. He did not testify as to how the guns were stored (e.g. together, separate, type of concealment). The Respondent argues that the witness was not challenged on this evidence as it was an unimportant detail given this Court’s earlier ruling. The Respondent also notes that six firearms were located in locker 118, which is the locker where the murder weapon was found.

[17] There is no way to know how or when the Respondent’s DNA came to be on the .38 caliber revolver. There is also no way to know when that particular firearm was placed in locker 622. The Court heard from Mr. Morrone that he paid people to hold his guns while driving around dealing drugs for the purpose of avoiding arrest in the event of a motor vehicle stop.

[18] This revolver is not alleged to have been used in this offence. Mr. Morrone testified that he believed two 9 mm firearms were used in the commission of the robbery. One we know to be the 9 mm Beretta, found in locker 118. Another 9 mm (Leinad) firearm was also seized from locker 118.

[19] The applicant will ask the jury to infer that S.G. had control over these lockers, that the firearms were all part of the cache belonging to John Morrone, and that by virtue of John Morrone’s testimony the Respondent therefore had access to these guns.

[20] It is the Respondent’s position that the evidence from which a jury could make the necessary inferences is not before the Court and that this evidence could not be put before the jury without offending the rule against collateral facts concerning the Stanley locks, access to locker 622, and so forth.

[21] The link between S.G. and locker 622 is so tenuous as to be of no probative value in this prosecution. The nature of the evidence proposed to be adduced does not corroborate Mr. Morrone’s assertion that the Respondent had access to firearms and more specifically the murder weapon in any way. As in the January motion to exclude DNA, the Crown’s reasoning is flawed. Mr. Morrone stated he owned possibly six guns, including two 9 mm firearms, all of which were potentially located in locker 118. Four Stanley locks were located on lockers 688, 680, 622 and 118. S.G. was allegedly in possession of three keys which opened lockers 688, 680 and 118. The Applicant’s position that the introduction of the DNA evidence located on a .38 caliber revolver in locker 622 demonstrates that Mr. Alexis had access to all guns, including the murder weapon is unreasonable. Moreover, Mr. Morrone did not testify whether or not he owned a .38 calibre revolver. Counsel for the Respondent did not pursue this line of cross-examination in light of this Court’s earlier ruling in excluding the DNA.

Timing of Application

[22] The Respondent submits further that the timing of this Application by the Crown is problematic. The Respondent is seriously prejudiced by the timing of this application. A more in-depth and vigorous cross-examination regarding the guns owned by Mr. Morrone would have been undertaken. However, in light of the Court’s ruling to exclude that firearm it was not necessary. Not only would the cross-examination of Mr. Morrone have been different but the cross-examination of Ali Ali was also structured to reflect the earlier exclusion ruling.

[23] The Respondent’s DNA was identified on the .38 caliber revolver on September 21, 2011. The 9 mm Beretta located in locker 118 was not identified as the weapon used to shoot Kearn Nedd until January 12, 2012. Therefore up until January 2012, the search and seizure of firearms at the residence of S.G. was a separate investigation from the homicide of Mr. Nedd. On this point, the Court will recall the testimony of PC Vaughan during the Garofoli motion when he testified as such and indicated that he did not include any mention of the DNA on the .38 caliber revolver in the ITO because that fact was not relevant. Moreover, PC Vaughan testified that as far as he was concerned the DNA on a gun had little or no evidentiary value.

Youth Court Record

[24] The Respondent submits that at no time did the cross-examination suggest that the co-conspirators acted under duress. Counsel for the Respondent did not suggest to Mr. Morrone that he gained the co-operation of co-conspirators through the use of duress.

[25] At no point did counsel for the Respondent suggest to Mr. Morrone that the Respondent was not involved in a criminal lifestyle with him and many of the questions asked exposed that. It became clear to the jury that the Respondent had a criminal lifestyle and contact with the Criminal Justice System. Mr. Morrone agreed with counsel that the Respondent pleaded guilty to a firearm charge as a youth, for Mr. Morrone, so that Mr. Morrone would not go to jail.

RE: BRIAN FUNES

POSITION OF THE CROWN

[26] The Crown submits that Ms. Cremer, counsel for Mr. Funes, cross-examined Mr. Morrone in such a way that it elicited propensity evidence. In doing so she opened the door for the Crown to call propensity evidence as it relates to Mr. Funes. The Crown argues that Ms. Cremer suggested to Mr. Morrone in cross-examination that he was the sole planner and organizer of the robbery and that Mr. Funes had no role in organizing the robbery.

[27] The Crown argues that Ms. Cremer referenced Mr. Morrone’s criminal lifestyle and usual practices as a “boss”, “director” of crime and a man people are terrified of.

[28] The Crown seeks to tender the Criminal Record of Mr. Funes as it relates to firearms, breaches of court orders and assaultive conduct to establish a balanced record. Not to be able to do so would be misleading to the jury.

[29] The cross-examination suggested that Mr. Morrone had developed an expertise in crime and that he was an expert in planning and executing robberies. He used younger gang members in the commission of drug transactions and robberies. He was the person in charge who decided what role others would play in robberies and who would carry guns. He had a reputation that elicited fear.

[30] The Crown submits that it should be open to the jury to consider Mr. Funes’ possession of firearms and his planning of the robberies independent of Mr. Morrone to counter the propensity based evidence from Mr. Morrone.

[31] The Crown also submits that this proposed evidence is necessary to refute the defence suggestion that the co-conspirators assisted in this robbery out of fear and duress.

[32] The Crown argues that this evidence is highly probative and it is not prejudicial.

[33] The prejudicial effect has to be considered in light of the evidence as a whole and considering the serious nature of the charge Mr. Funes is facing, namely, manslaughter.

POSITION OF BRIAN FUNES

[34] Counsel for Mr. Funes submits that the defence has not put his character in issue. The court should not admit the proposed evidence as to do so amounts to nothing more than bad character evidence and is inadmissible. The position put forward by the defence is the following:

i) The cross-examination suggesting Mr. Morrone is the person who planned and organized the robbery is permissible and necessary given the Crown theory that Mr. Funes was involved in the organization, planning and setting up of the robbery;

ii) the cross-examination of John Morrone’s criminal record was permissible under Section 12 of the Canada Evidence Act;

iii) The cross-examination of John Morrone’s lifestyle as a drug dealer and as a person who committed robberies is relevant to establishing motive and the wherewithal to commit the Rozz Banquet Hall robbery; was necessary to challenge the Crown narrative and version of events; was relevant to challenging the overall logic and implausibility of Mr. Morrone’s version of the events;

iv) The overall purpose of the cross-examination did not suggest that Mr. Morrone was the type of person to commit these offences but rather the cross-examination argued that Mr. Morrone was the actual person who organized and planned the robbery and not Mr. Funes. A cross-examination of this nature serves to challenge the Crown’s allegations against Mr. Funes and his alleged role as organizer and planner. Since Mr. Funes is alleged to be participating in the organization and planning of this robbery he is entitled to refute these allegations by attacking the credibility of the Crown’s main witness in this area and he is further entitled to challenge the overall reliability of the evidence of this witness. In so doing, Mr. Funes is not putting his own character in issue but rather he is exploring and exploiting the frailties of an unsavoury witness and is defending himself against the allegations.

[35] The Respondent Funes submits that the impugned evidence at issue for Crown counsel was all originally led during Mr. Morrone’s examination in-chief.

Re: Mr. Morrone’s Role as the Sole Planner and Organizer

[36] The role of Mr. Morrone in this robbery came out in examination in-chief. This was reasonable as Mr. Morrone is critical to the Crown in providing direct evidence of everyone else’s involvement in the robbery. It was important and necessary for the Crown’s narrative as to events of the day. The following exchange is relevant in the examination in-chief. At the beginning of his examination in chief, Crown counsel asked Mr. Morrone:

Q: I understand that you were in fact involved in the events that led to the shooting death of Kearn Nedd?

A: Yes, I was.

Q: What was your role?

A: I basically organized everything and got everybody in contact with each other.

Q: Okay. And your role as an organizer, did you have anyone else that shared that role with you?

A: Organizing it?

Q: Yes.

A: No, it was just me and the people to do it, and getting everybody together.

[37] Mr. Morrone testified as well in-chief that Mr. Funes’ role was to get information from the guy inside about how much money was involved and the date to do the robbery. A friend known as “B” who lived in Jamaica called Mr. Morrone and told him he would give his name to his friend named Spanish who would then get in touch with Mr. Morrone about a robbery.

[38] In further examination in-chief Mr. Morrone stated that he asked his cousin Kmar Kelly to be the get-away driver. At a meeting at Studio 10 just prior to the robbery Mr. Morrone reviewed the plan with Mr. Alexis, Gabriel Owusu and Mr. Kelly. Mr. Morrone further testified on behalf of the Crown that he had asked his cousin Mr. Kmar Kelly to be the driver for the robbery. This occurred about two days before the actual robbery occurred. Mr. Morrone further testified in chief that he told his cousin to meet him at the movie theatre, Studio Ten, on the day of the robbery. He was not able to give a time that the meeting was to take place.

The following exchange is relevant:

Q: So what happened when you got to the movie theatre?

A: Me and Gabriel and Marcus got out of the car, and Kmar got out of the car, and we just started talking. I just basically gave him the rundown on what’s supposed to happen, how Marcus is supposed to control the situation, Gabriel jump over the counter to where the coats are to get the money with the knapsack, and that the guns were in the bag, and to make sure they had their change of clothes.

[39] During his examination in chief the Crown specifically led evidence of Mr. Funes’ role in planning and organizing the robbery with Mr. Morrone. The Crown specifically asked Mr. Morrone what was his knowledge and understanding of Mr. Funes’ role.

Q: Sir, you have told us about having discussions with Mr. Owusu and Mr. Alexis about – and Mr. Kelly – about what the plan was. Is that correct?

A: Yes, that’s right.

Q: Did you ever have similar discussions with Mr. Funes?

A: No, not that I remember.

Q: And do you know if he ever knew the intricacies of the plan?

A: No.

Q: And any reason for that?

A: There was no reason for him to really know who was going to jump over the counter, who was supposed to control everything. I felt there was no need for him to know that.

Q: Did you ever tell him that guns would be used?

A: I didn’t tell him directly but I’m pretty sure he’d figure that guns, we would use guns. Because we were known for having guns, so…

[40] Counsel for Mr. Funes submits that the defence is duty bound to challenge the logic of this evidence and present an alternate version in order to make full answer and defence. Doing so does not put the accused character in issue.

Evidence Of John Morrone As A Person People Are Testified Of

[41] Again Counsel for Mr. Funes submits that this evidence was elicited by the Crown in examination in-chief. It is asserted by Crown counsel that cross-examination on behalf of Mr. Funes delved into evidence that Mr. Morrone had a reputation in evoking fear in others. However, it is respectfully submitted that it was Crown counsel who initially and deliberately brought out evidence of Morrone’s reputation of evoking fear. During his examination in-chief Crown counsel asked Mr. Morrone if he spoke to any of the other people involved in the robbery when he found out that Mr. Nedd had died.

The following exchange is relevant:

Q: When you discovered that someone else was shot and actually died, did you communicate with any of the people that were involved in the robbery with you?

A: No.

Q: Why was that?

A: We just didn’t talk about it. We had – we’ve done lots of stuff before so this was nothing really the way it felt. It was just we move on, we just continue what we’re doing. It wasn’t really a big event for us.

It is respectfully submitted that evidence of evoking fear and the callous nature of Mr. Morrone’s personality was elicited during his examination in chief. In fact, the Crown chose to specifically follow up on this and asked the further question:

Q: The fact that someone died didn’t make it a big event?

A: No.

[42] Mr. Morrone testified that he owned four to five guns and members of his gang had guns. The guns were stored at S.G.’s building for easy access and so the guns would not be linked to him.

[43] Crown counsel also led evidence of Mr. Morrone’s criminal lifestyle not only as a drug dealer but also as a person who committed robberies. He testified during his examination in chief that he and his “employees” would rob other drug dealers. Crown counsel also went further and specifically elicited further details on how these robberies would be committed:

Q: When you robbed these other drug dealers, how did you actually do it?

A: Go to their house, knock on their door. Somebody would set them up for us.

Q: Okay. I take it you didn’t simply ask nicely for them to turn over their drugs or money?

A: No.

Q: How did you do that?

A: Well, we tie them up, or threaten them that we were doing to shoot them with a gun if they don’t give us the drugs.

Q: So you, when you committed robberies, you had guns?

A: Yes.

[44] With respect to his Criminal Record and specifically the 2007 entry for pointing a firearm, the Crown asked Mr. Morrone to explain what happened. Mr. Morrone stated he fired a shot through somebody’s car window when they were driving behind him.

[45] All of this evidence came out in examination in-chief and Ms. Cremer points out that the defence is entitled and duty bound to explore this area and to expose these traits of an unsavoury witness, without putting Mr. Funes’ character in issue.

[46] Finally, the Respondent Funes’ position as it relates to Mr. Morrone’s lifestyle is summarized at paragraphs 22 and 23 of his Factum as follows:

It is respectfully submitted that evidence of Mr. Morrone’s criminal lifestyle was initially led through the Crown’s examination in chief. Mr. Morrone testified that he supported himself by selling and dealing drugs. He had been working as a drug dealer for quite a long time, for about six or seven years, and he was making enough money to at least support the monthly rent on his condominium which was $1700 a month. He would sell drugs in Toronto, Mississauga, and Hamilton, and he mainly sold crack cocaine. In addition, he had people that used to work for him including Kmar Kelly and Ali Ali. Mr. Morrone further testified that he did not own a vehicle but instead rented cars. He always used to switch his car because he had a lot of enemies and he always needed to evade police. He would regularly switch his cars in order to allow him to evade his enemies and the police.

Gabriel Owusu started working for John Morrone when he was thirteen years old. Mr. Morrone testified that Gabriel sold drugs for him, he used to hold the drugs in the car and he would either have to hoop it, “stick the drugs in his ass,” or take the charge if the police ever pulled the car over. Mr. Morrone would pay Gabriel to perform any and all of these functions. In addition, Gabriel would also hold the guns for Mr. Morrone when they were in the car. Mr. Morrone would pay Gabriel on a weekly basis to hold guns and drugs for him. If in the event they were pulled over by police Gabriel would take the charge and say that it was his gun so that Mr. Morrone would not be charged. It was preferable for Gabriel to get charged instead of Mr. Morrone because he was a youth. Mr. Morrone had a longer criminal record, he was an adult, and he already had a firearm charge on his record. Therefore, he would be subjected to a harsher sentence than a youth.

It is respectfully submitted that the defence is entitled to cross-examine on this information as it pertains to motive and wherewithal to commit the Rozz Banquet Hall robbery.

ANALYSIS AND CONCLUSION

THE LAW

[47] There is no dispute from counsel that as a general rule the Crown is not permitted to lead evidence of the accused’s bad character either by evidence of reputation or specific acts, (Sidney Lederman, Alan W. Bryant and Michelle Fuerst, The Law of Evidence in Canada, Fourth Edition Ed. (Markham, Ontario: LexisNexis, 2014) at 10.46 – 10.47 at page 626).

[48] In R. v. T. (J.A.), 2012 ONCA 177, Justice Watt sets out the governing principles on the admissibility of extrinsic evidence and bad character evidence at paragraphs 51, 52, and 54 as follows:

[51] Evidence of an accused’s extrinsic misconduct that shows only that she or he is the type of person likely to have committed an offence with which she or he is charged is inadmissible: B. (F.F.), at p. 730; R. v. Morris, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, at pp. 201-202. On the other hand, evidence that tends to show from extrinsic misconduct that an accused is a person of bad character, but that is also relevant and material, falls outside the general exclusionary rule, provided its probative value exceeds its prejudicial effect: B. (F.F.), at pp. 730-731; Morris, at p. 202; R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at p. 735.

[52] The inherent prejudicial effect of evidence of extrinsic misconduct can infect a jury’s deliberative process in three main ways:

i. the jury may assume, from its acceptance of the evidence of extrinsic misconduct, that an accused is a “bad person”, thus likely to be guilty of the offences charged;

ii. the jury may tend to punish the accused for the extrinsic misconduct by finding him or her guilty of the offences charged; and

iii. the jury may become confused by the evidence of extrinsic misconduct, their attention deflected from the main purpose of the trial, the offences charged, and substitute their conclusion on the extrinsic misconduct for their verdict on the indictment they are trying.

See, R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, at pp. 127-128. Inherent in evidence of extrinsic misconduct are both moral and reasoning prejudice: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31; and R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 64.

[54] Whether evidence of extrinsic misconduct will be admitted by exception is determined by the application of principle, not pre-ordained by inclusion in or absence from a closed list of exceptions. Evidence of extrinsic misconduct may be admitted to demonstrate a system of violent control over others, thus to explain why abuse could occur and continue unabated and unreported: B. (F.F.), at p. 732. The evidence may also be admitted as part of the narrative to provide context for other events, as well as to establish motive or animus: R. v. F. (D.S.) (1999), 1999 CanLII 3704 (ON CA), 132 C.C.C. (3d) 97 (Ont. C.A.), at paras. 22-24; R. v. S. (P.) (2000), 2000 CanLII 5706 (ON CA), 144 C.C.C. (3d) 120 (Ont. C.A.), at para. 31; and R. v. Trotta (2004), 2004 CanLII 34722 (ON CA), 190 C.C.C. (3d) 199 (Ont. C.A.), rev’d on other grounds, 2007 SCC 49, [2007] 3 S.C.R. 453, at para. 46. In each case, the evidence of extrinsic misconduct must be relevant to some material issue, other than propensity, and be more probative of that issue than prejudicial through impermissible propensity reasoning.

[49] In R. v. Handy, 2002 SCC 56, Binnio, J laid out the rationale for this analysis at the following paragraphs: 31, 35, & 36:

31 The respondent is clearly correct in saying that evidence of misconduct beyond what is alleged in the indictment which does no more than blacken his character is inadmissible. Nobody is charged with having a “general” disposition or propensity for theft or violence or whatever. The exclusion thus generally prohibits character evidence to be used as circumstantial proof of conduct, i.e., to allow an inference from the “similar facts” that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty of the offence. The danger is that the jury might be confused by the multiplicity of incidents and put more weight than is logically justified on the ex-wife’s testimony (“reasoning prejudice”) or by convicting based on bad personhood (“moral prejudice”): Great Britain Law Commission, Consultation Paper No. 141, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (1996), at § 7.2.

35 The dangers of propensity reasoning are well recognized. Not only can people change their ways but they are not robotic. While juries in fourteenth-century England were expected to determine facts based on their personal knowledge of the character of the participants, it is now said that to infer guilt from a knowledge of the mere character of the accused is a “forbidden type of reasoning”: Boardman, supra, at p. 453, per Lord Hailsham.

36 The exclusion of evidence of general propensity or disposition has been repeatedly affirmed in this Court and is not controversial. See Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345; R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339.

[50] There is also no debate from counsel that the general exclusionary rule is not absolute. The Crown may adduce evidence of bad character of the accused where the accused has put his character in issue.

[51] The applications now being brought by the Crown were deemed to be necessary by the Crown following the cross-examination of a critical Crown witness, Mr. John Morrone.

[52] Mr. Morrone is a Vetrovec witness. All counsel agree that a strong Vetrovec warning will be necessary in the final jury instructions. All counsel agree that the circumstances in which Mr. Morrone testified clearly warrants such an instruction.

[53] I will not review all of these circumstances in this ruling, however, they include the following:

1. Mr. Morrone had been arrested on April 19, 2012 for second degree murder as it related to this robbery and shooting.

Mr. Morrone entered into an Indemnity Agreement with the Crown and in exchange for his testimony the Crown would not proceed with the second degree murder charge.

2. Mr. Morrone subsequently entered into the Witness Protection Program.

3. Mr. Morrone is an admitted liar and admits that he has lied to the police even while under oath.

4. Mr. Morrone has a serious and extensive Criminal Record and has been involved in a life of crime since the age of 13.

5. He derives his income from selling drugs, specifically crack cocaine.

6. He is also involved in robberies predominantly of other drug dealers.

7. He owns four to five firearms and uses them in his life of crime. There is no dispute that all these circumstances warrant a strong Vetrovec caution.

[54] The critical issue that now has to be determined is whether the Respondents have put their character in issue by the manner in which they conducted their cross-examination of Mr. Morrone.

[55] In R. v. A. (W.A.), 1996 CanLII 3087 (MB CA), [1996] M.J. No. 556 ( Man. C.A.), the Court stated that the accused can put his good character in issue in three ways:

i. By putting questions to the witness for the Crown to obtain admissions that the accused is of good character;

ii. By testifying himself as to his good character;

iii. By calling witnesses as to his good character.

[56] In this analysis in the case at bar we are only dealing with i.

[57] In R. v. Sipes, [2012] B.C.J. No. 2945, the Court noted that an accused person may also put his or her character in issue in other ways including the following:

i. By eliciting evidence of good character.

ii. By claiming self-defence and leading evidence of the victim’s propensity for violence.

iii. By pointing to an alternate suspect and leading evidence of that person’s disposition to commit the offence charged.

[58] The jurisprudence in this area also deals extensively with the parameters of when an accused person does not put his or her character in issue.

[59] In R. v. Osae, 2010 ONSC 3106, O’Marra, J sets out the following at paragraphs 23 to 25:

[23] The defence has submitted that the question of the defendant’s size had nothing to do with propensity. The reference to size was no more than a response to the allegations and the issue of identification. It was noted in R. v. McNamara (No. 1) (1981) 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 at p. 346 that an accused does not put his character in issue by denying his guilt and repudiating the allegations made against him, nor by giving an explanation of matters which are essential to his defence. Similarly, Doherty J.A. in R. v. P. (N.A.) (2002), 2002 CanLII 22359 (ON CA), 171 C.C.C. (3^rd) 70 (OCA) at para. 34 stated, “that an accused must be able to repudiate the charges by presenting his or her version of that context without suffering the disadvantage of putting character in issue”.

[24] Defence counsel pointed out that the Crown in the examination-in-chief of Mr. Koroma suggested that he was protective of Mr. Osae because of his size. Further, the Crown has emphasized continuously in the questioning of other witnesses that Osae is known by the nickname “Littles”. Further, the Crown’s position, based on the anticipated evidence of Owusu is that Koroma left the car to protect and assist Osae because he could not handle Mr. Paul due to his larger size.

[25] Propensity evidence does not include an explanation of matters essential to the defence or the defence theory. Propensity evidence suggests that the defendant is not the type of person to engage in the impugned behavior. In other words, he does not have the disposition or the necessary character traits of the person who committed the offence. The defendant’s size or height is neither a character trait nor a descriptor of disposition. There is nothing in the definitions referred to above or any jurisprudence to suggest that the size or physical stature is a characteristic of character or predisposition. Certainly, size in the context of this case is a feature of identification, not character.

[60] At paragraph 38 of his factum Mr. Funes advances the following proposition:

Merely challenging Crown witnesses and suggesting they are unreliable does not result in the accused person putting their character in issue. This is in compliance with the principle of the right of an accused person to make full answer and defence. However, where the accused and the witness are similarly situated a distorted picture will not be allowed to go before the jury. However, the distortion would have to amount to more than simply challenging and discrediting the witness. The distortion would arise where the accused and the witness are similarly situated in regards to bad character but an impression is left from the evidence that the accused is a peaceful person. A mere absence of evidence would not suffice.

Sidney Lederman, Alan W. Bryant & Michelle Fuerst, The Law of Evidence in Canada Fourth Edition Ed., (Markham, Ontario: LexisNexis, 2014) at 10.102 at pg 648

R. v. McMillan, 1975 CanLII 43 (ON CA), [1975] O.J. No. 2247 (Ont C.A.) at para 65

R. v. Corbett, 1988 CanLII 80 (SCC), [1988] S.C.J. No 40 at para 51

R. v. Shortreed (1990), 1990 CanLII 10962 (ON CA), 54 C.C.C. (3d) 292 at para 35-36

[61] The Crown in the case at bar relies heavily on the decision in R. v. Parsons, 1993 CarswellOnt 120. At paragraphs: 23 to 25 Finlayson, J.A. sets out the following:

23 It was because of this position taken by defence counsel that Mercier J. refused to admit the evidence respecting Miller. He ruled that to admit this type of evidence with respect to Miller and yet deny the Crown the right to admit similar evidence with respect to the appellant would be misleading to the jury. This is in accordance with what Martin J.A. said in McMillan, supra, at pp. 767-68 O.R., pp. 177-78 C.C.C.:

It was implicit in the defence advanced that there were two people in the house who could have inflicted the injuries which caused the baby's death, one was a psychopath (the wife), the other was a normal person of good character (the respondent). In my view, the entire nature of the defence involved an assertion that the respondent was a person of normal mental make-up. In those circumstances, Crown counsel was entitled to show, if he could, that there were two persons present in the house who were psychopaths, not one. Any other conclusion would permit an accused to present an entirely distorted picture to the jury. The respondent, having introduced psychiatric evidence to show that it was more probable that his wife had caused the injuries to the child than that he had caused them, because he lacked her dangerous characteristics, lost his protection, in the circumstances of this case, against having his own mental make-up revealed to the jury.

24 The concern about leaving the jury with an incorrect impression if but part of the story is brought out, was discussed by the Supreme Court of Canada in a different context in R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, 41 C.C.C. (3d) 385. There the accused brought out the fact that two Crown witnesses had prior criminal records and yet wished his own criminal record to be excluded when he testified. Dickson C.J.C., speaking for the majority, said at p. 690 S.C.R., p. 399 C.C.C:

It is my view that on the facts of the present case, a serious imbalance would have arisen had the jury not been apprised of Corbett's criminal record. Counsel for Corbett vigorously attacked the credibility of the Crown witnesses and much was made of the prior criminal records of Marcoux and Bergeron. What impression would the jury have had if Corbett had given his evidence under a regime whereby the Crown was precluded from bringing to the jury's attention the fact that Corbett had a serious criminal record? It would be impossible to explain to the jury that one set of rules applies to ordinary witnesses, while another applies to the accused, for the very fact of such an explanation would undermine the purpose of the exclusionary rule. Had Corbett's criminal record not been revealed, the jury would have been left with the quite incorrect impression that while all the Crown witnesses were hardened criminals, the accused had an unblemished past. It cannot be the case that nothing short of this entirely misleading situation is required to satisfy the accused's right to a fair trial.

25 In my opinion, Mercier J. was correct in ruling that if the evidence relating to Miller's propensity to commit robberies was introduced into evidence, fairness dictated that the very similar evidence that the Crown possessed relating to the appellant could also be introduced. I would go further and suggest that if the appellant chose to throw sticks at Miller, the Crown should be able to counter this evidence with any similar evidence relating to the propensity to commit robbery, not only of the appellant, but of the other suspects arrested with the appellant, Lesperance and Crowe. To rule otherwise would leave the jury with the highly misleading impression that Miller alone of those arrested had a propensity to commit robberies, whereas in truth he was part of a gang that committed robberies and the appellant was part of that gang.

[62] In R. v. Vanezis, 2006 CarswellOnt 6992 our Ontario Court of Appeal dealt with the issue of whether adducing the evidence of a third party suspect’s character, the accused puts his own character in issue.

[63] In Vanezis the defence position was that a specific third party committed the murder. The defence had evidence of this third party’s threats and acts of violence against the deceased. The Court ruled that in doing so the accused did not put his own character in issue. At paragraphs 27, 28 and 29 the Court stated:

[27] At the same time, it was essential to his defence that he be able to lead evidence of Hertel's prior threats and acts of violence towards Ms. Bonn. There was a considerable body of such evidence and it formed one of the mainstays of his "alternate suspect" defence. Specifically, it showed that Hertel had a motive to kill Ms. Bonn and motive was a factor that the jury could consider in determining the identity of her killer. In that regard, as [page249] between the appellant and Hertel, the appellant came out ahead. The Crown had no similar evidence to offer in relation to the appellant.

[28] That is the backdrop against which defence counsel, Ms. Tuck-Jackson, sought a ruling from the trial judge that would have permitted her to lead evidence from Hertel of his threats and acts of violence towards Ms. Bonn but no one else. In other words, even though Hertel had assaulted and threatened other people and even though the details of those threats and assaults could be brought out in cross-examination, defence counsel undertook that she would refrain from doing so. (As indicated, Hertel was called as a defence witness but it was agreed that he was hostile and that the defence could cross- examine him at large.)

[29] In approaching the matter that way, defence counsel made it clear that it was not her intention to show that Mr. Hertel was "the kind of person" likely to kill Ms. Bonn but that he was "in fact" the person who did so. The essence of her submissions are captured in the following passages from her argument:

So assuming then that Mr. Hertel qualifies in law as an alternate suspect, I am seeking to tender evidence of Mr. Hertel's acts of violence and threats of violence towards only, and I want to underline triplicate, only, Pamela Bonn.

As your Honour heard in the pre-trial applications, there is other evidence out there that Mr. Hertel has engaged in acts of violence, even similar to the manner in which Ms. Bonn met her untimely death. And that's in relation to third parties. Your Honour may recall a gentleman by the name of Leo Gagliano in relation to which I filed an occurrence report. I'm not seeking to tender any of that evidence. I am only seeking to tender evidence in relation to acts of violence and threats of violence relating solely to Pamela Bonn.

THE COURT: I hate to interrupt. Just so I do not lose this thought. Does that mean that you would not be questioning Mr. Hertel about those other alleged acts?

MS. TUCK-JACKSON: Most definitely, I would not.

THE COURT: And what does that mean if you seek to question him about his criminal record?

MS. TUCK-JACKSON: I . . . and I'll address it with Your Honour now, as a matter of fact. If I wasn't alleging that Mr. Hertel was an alternate suspect, as Your Honour well knows, I would be entitled to cross-examine Mr. Hertel on the underlying acts of all of his convictions. And as Your Honour knows, he does have convictions for violence.

I would be undertaking to my friend and to the court that I would not be questioning him about any of the convictions, the underlying acts for convictions of violence. [page250]

In my respectful submission, I would still be entitled to cross-examine him about the underlying acts of his convictions for dishonesty because that goes purely to the . . . the issue of credibility.

Now my respectful submission, if I tender evidence of his acts of violence and threats of . . . of violence towards Ms. Bonn, in the context of this case, that does not amount to evidence of propensity.

And it doesn't amount to evidence of propensity because I am not tendering it for the purpose of showing that he is the kind of person who would kill Pamela Bonn. I am tendering it for the purpose of showing that he was the person who killed Pamela Bonn and, of course, the flip side of that is that I am tendering it for the purpose of raising a doubt that Mr. Vanezis killed Pamela Bonn.

And that's a very important distinction, in my respectful submission, because clearly if I was tendering it to show that he was the kind of person to kill Pamela Bonn, then clearly that would be propensity evidence and the decisions of our Court of Appeal in McMillan [(1975), 1975 CanLII 43 (ON CA), 23 C.C.C. (2d) 160 (Ont. C.A.)] and Scopelliti [(1981), 63 C.C.C. (2d) 48 (Ont. C.A.)] tell us that that creates the potential for an unbalanced impression with the jury.

And I entirely agree that if Your Honour concludes that what I'm trying to tender here is propensity evidence, then indeed I have opened up my client's character at large and the Crown would be entitled to tender evidence in reply and . . . and I don't mean in reply in a legal sense of the word, but . . . but in my respectful submission, this isn't propensity evidence.

Clearly, the identity of the killer in this case is a material issue and the evidence that I'm seeking to tender is probative of that material issue.

(Emphasis added throughout)

[64] At paragraph 30 the Court stated the following:

[30] In support of her position, defence counsel referred the trial judge to a number of authorities that drew a distinction between bad character evidence that was relevant to a material issue in the case and bad character evidence that merely showed a general propensity to engage in certain types of conduct. In particular, she focused on the distinction between bad character evidence that showed a specific propensity to do a particular criminal act and bad character evidence that showed a general propensity to act in a certain way. (See R. v. G. (S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, [1997] S.C.J. No. 70, 116 C.C.C. (3d) 193, per Cory J., at p. 747 S.C.R., p. 217 C.C.C.; R. v. F. (D.S.) (1999), 1999 CanLII 3704 (ON CA), 43 O.R. (3d) 609, [1999] O.J. No. 688, 132 C.C.C. (3d) 97 (C.A.), at pp. 613-19 O.R., pp. 103-08 C.C.C.; R. v. Misir, 2001 BCCA 202, [2001] B.C.J. No. 499, 153 C.C.C. (3d) 70 (C.A.), at pp. 72-76 C.C.C.; R. v. MacDonald, 1974 CanLII 1641 (ON CA), [1974] O.J. No. 721, 20 C.C.C. (2d) 144 (C.A.), at pp. 150-53 C.C.C.). Counsel also referred the trial judge to the case of R. v. J.C., [2002] O.J. No. 5263, [2002] O.T.C. 1056 (S.C.J.) in which Archibald J., in circumstances similar to those in the case at [page251] hand, ruled that the defence could lead evidence of an alternate suspect's motive to kill the deceased, consisting of prior acts of violence towards the deceased, without putting the defendant's general disposition for violence into play.

[65] Finally, in Vanezis the Court set out the following at paragraphs 37 to 39:

[37] The issue facing the trial judge was by no means a simple one. Not unlike the evidence in the case, it had a number of twists and turns. The trial judge was alive to this. As he observed in his ruling: "there is considerable merit in the positions presented by [page253] both the defence and the Crown". In the end, however, he accepted the Crown's position. With respect, I believe that he erred in doing so.

[38] The appellant's sole defence was that he did not kill Ms. Bonn; rather, it was Hertel who killed her. The two strongest features of that defence were Hertel's motive to kill Ms. Bonn and his confessions to others that he had in fact done so. If the defence had any chance of success, it was essential that those two items of evidence be presented to the jury. That was not a tactical decision; it was the only one open to the defence in the circumstances.

[39] As regards the two items of evidence, the issue of Hertel's general propensity for violence arose only in the context of his confession to Ms. Snow; it did not arise on the evidence pertinent to his motive to kill Ms. Bonn. As defence counsel quite properly pointed out, Hertel's previous threats and act of violence towards Ms. Bonn were not being led to show that he was the kind of person likely to have killed her but that he was in fact the person who killed her.

[66] In 2012, Justice Ducharme dealt with the Parsons decision and the proper scope of the Parsons principle in R. v. Magno, 2012 ONSC 4014.

[67] Justice Ducharme conducts a very thorough and informative analysis of the proper application of the principles in Parsons. Justice Ducharme’s discussion of the ratio in Parsons commences at paragraph 27 and because Justice Ducharme’s review is very instructive it is important to set out in detail his analysis. At paragraphs 27 to 37 Justice Ducharme states the following:

[27] In my view, the Crown’s submission is not supported by a proper reading of Parsons nor is it consistent with the way our Court of Appeal has subsequently interpreted Parsons. As I will explain below, Parsons, properly understood, does not support the admission of this evidence.

(a) Parsons is a Case about Propensity Evidence, Not Merely Evidence of Bad Character

[28] Parsons was a case in which an accused wanted to argue that a third party had committed the relevant crimes on the basis of propensity evidence. Our Court of Appeal has consistently interpreted Parsons as applying to such circumstances. Moreover, Parsons has been interpreted as permitting the introduction, not just of any bad character evidence, but only of propensity evidence, should any exist. Thus, in R. v. Rodgers the Court said the following in relation to Parsons and McMillan:

Once the accused introduces evidence relating to the propensity of a third party, usually to establish that third party as an alternate suspect, the Crown may in reply offer propensity evidence relating to the accused. Otherwise, the trier of fact would be left with a distorted view of the facts.[19]

[Emphasis added; citations omitted.]

Similarly, in R. v. Truscott, the Court described McMillan and Parsons as applying to cases in which “an accused ... points to a third party as the perpetrator and leads evidence of that third party's disposition to commit the criminal act in issue.” In such cases, “[C]ourts have held that an accused has put his own disposition to commit the criminal act in issue.”[20]

[29] But the case before me is not a propensity case in the sense contemplated by Parsons. The defence will not be arguing that the jury should find that Mr. Paskalis committed the arson based on his propensity for fraud or for criminal activity. There is no dispute that Mr. Paskalis was involved in the arson. This is precisely why he is such an important witness for the Crown. There is no doubt that the defence will rely on Mr. Paskalis’ criminal antecedents, prior perjured testimony and prior false statements to myriad people to suggest that he is an inveterate liar who is not worthy of belief. While this suggests that he has a propensity to lie, this is not the type of propensity evidence involved in Parsons. Rather this is precisely the sort of cross-examination that a suspect witness such as Mr. Paskalis demands.

[30] It is likely that the defence will cross-examine Mr. Paskalis on the fact that he has committed numerous frauds that had nothing to do with Mr. Magno. But again this is not using propensity in the way described in Parsons. It is simply making the legitimate point that Mr. Paskalis has proven himself capable of a wide range of fraudulent activity without the need for Mr. Magno’s involvement.

[31] Thus, as the defence will not be making the sort of propensity argument discussed in Parsons with respect to Mr. Paskalis, as in Truscott, the evidence of discreditable conduct is not admissible on that basis.

(b) Parsons Requires that the Evidence about the Accused Be Similar to That Led About the Third Party

[32] In Parsons, Finlayson J.A. explicitly referred to the evidence the defence wanted to lead about Mr. Miller in order to emphasize that “very similar evidence” was available with respect to Mr. Parsons. In Parsons, withholding the bad character evidence about Mr. Parson’s distorted the trial because it prevented the jury from seeing that Mr. Parsons and Mr. Miller were very much alike in terms of their criminal propensities. Thus, the point in Parsons is not that a distorted picture results any time the defence points at a third party suspect and some evidence of the accused’s bad character exists and is not put before the jury. Rather the distortion Finlayson J.A. was concerned with only results when the accused and the person they are attacking are similarly situated in terms of bad character evidence. Where that sort of equivalence exists, the “very similar evidence” about the accused can properly be put before the jury.

[33] Determining what the necessary degree of parity should be or what evidence is “very similar” will often be straightforward. If the proposed evidence was that Mr. Magno, on occasion, had stolen a newspaper from a neighbour’s porch, no Crown should seek to lead it, nor would any court admit it. On the other hand if Mr. Magno had a checkered past similar to that of Mr. Paskalis then it would distort the trial to exclude that history. But between these two extremes there will be situations where the assessment of parity and the potential for distortion will be far more difficult.

[34] As mentioned above, Mr. Parsons and Mr. Miller had similar criminal propensities. Likewise, in McMillan the accused husband had similar psychopathic tendencies to those the defence had identified in his wife. There is no such equivalence here between the circumstances of Mr. Paskalis and Mr. Magno. Mr. Paskalis is a career criminal, a chronic fraudster and an inveterate liar. At most the evidence the Crown seeks to lead suggests that Mr. Magno has been involved in two criminal frauds.[21] While this suggests that Magno is capable of insurance fraud they do not support the broader inference that he and Mr. Paskalis are largely similar in that regard. Thus, I reject the Crown’s contention that to exclude the evidence of Incident One will not distort the trial by suppressing evidence that Mr. Paskalis and Magno are the same. They clearly are not. Indeed, what would distort the trial process would be to admit the evidence and suggest on that basis that Mr. Paskalis and Mr. Magno are comparable in terms of their character, veracity or propensity for fraud. This is another reason not to admit the evidence.

(c) The Crown’s Interpretation of Parsons is Inconsistent with the Proper Role of Defence Counsel in our Adversarial Criminal Process

[35] But the primary reason I reject the Crown’s reading of Parsons is that it would seriously overextend the ratio of the case. In effect it would mean that any time the Crown called an unsavoury witness and the defence took appropriate and necessary steps to explore and expose the frailties of the witness, the Crown could lead bad character evidence of the accused. This cannot be correct as it would permit the Crown to circumvent the requirement that the accused must first put his character at issue before leading bad character evidence that is not otherwise relevant to a material issue in the trial. Parsons has never been interpreted this broadly and it is not the law in Canada that an accused puts his character in issue simply by attacking the character of a witness in cross-examination, thereby permitting the Crown to lead bad character evidence.

[36] The Crown’s argument would have negative systemic consequences. It must be remembered that, as Fish J. stated in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 at para 2:

[W]here the guilt of the accused is made to rest exclusively or substantially on the testimony of a single witness of doubtful credit or veracity, the danger of a wrongful conviction is particularly acute.

This is precisely why our adversarial process demands that the defence thoroughly and carefully test and challenge such witnesses. But if I were to accept the Crown’s submission, it would create a powerful disincentive for the defence to perform this essential role.

[37] One might, as the Crown does in this case, argue that excluding such evidence is somehow unfair as the Crown has no choice as to who their witnesses are. Thus, as in this case, they have to rely on an unsavoury witness despite his obvious frailties as a witness. This is often the case especially in criminal conspiracies as, not surprisingly, those who conspire to commit crimes often have criminal or unsavoury backgrounds. It is also true that such unsavoury witnesses can tell the truth and without the testimony of such witnesses many serious crimes might go unpunished. But the Crown does have a choice. The Crown decides whether or not they should present a witness as someone whose testimony should be believed. The Crown must then accept the consequences of their decision. Having made the choice to call an unsavoury witness does not automatically entitle the Crown to lead bad character evidence about an accused. Rather, the overwhelming interest in guaranteeing the accused a fair trial requires that any such evidence be excluded unless it satisfies the test in Handy.

CONCLUSION

[68] Having considered the guiding legal principles viewed from the lens of the cross-examination conducted by counsel for Mr. Alexis and Mr. Funes I am not satisfied that any of the Crown’s applications can succeed.

[69] The Crown seeks to tender the following evidences:

Mr. Alexis:

1. DNA on a firearm unrelated to the murder.

2. His Youth Court Record.

Mr. Funes:

1. Mr. Funes’ possession of firearm.

2. Mr. Funes planning robberies separate and apart from Mr. Morrone by tendering the intercept dated February 21, 2012.

3. Mr. Funes’ Criminal Record.

[70] In my view all of this evidence is bad character evidence. I am not satisfied that the cross-examination conducted by counsel put the character of their respective clients in issue.

[71] I agree with the position of defence counsel that the areas of cross-examination that the Crown submits put the accused’s character in issue were originally led by the Crown during Mr. Morrone’s examination in-chief. Defence counsel were duty bound to challenge the version of events put forward by Mr. Morrone and in doing so they did not put the character of their clients in issue.

[72] In order to properly assess this issue the cross-examinations have to be considered as a whole and the cross-examinations have to be considered in light of Mr. Morrone’s testimony in his examination in-chief.

[73] At no time did counsel suggest to Mr. Morrone that he is the type of person to commit this offence. Rather the defence suggested it was Mr. Morrone who in fact organized and planned this robbery. The cross-examination was not designed to establish that he is the type of person to do this, it was designed to establish that he is the person who did this robbery. Mr. Morrone clearly acknowledged early on in his examination in-chief that he organized this robbery. The exchanges I set out earlier clearly set this out.

[74] The defence is duty bound to challenge that version of events especially in light of the fact that Mr. Morrone is a Vetrovec witness that will require a strong warning from the court. The defence is required to challenge Mr. Morrone as it relates to their clients and put to him an alternate inference with the view to establishing a reasonable doubt.

[75] The Crown theory with respect to Mr. Funes is that he was involved in the planning of the armed robbery and for that reason he is guilty of manslaughter. This theory is supported by the testimony of Mr. Morrone. Mr. Funes, in challenging that testimony and attempting to establish a reasonable doubt about Mr. Funes’ involvement, does not put his character in issue in doing so.

[76] At no time did the defence put to Mr. Morrone that Mr. Funes was not the type of person to do this or that Mr. Funes is a person of good character who would never do this. The attack of this critical Crown witness as to his criminal lifestyle, Criminal Record, entering into an Immunity Agreement, entering into the Witness Protection Program was all proper and necessary. Those areas of inquiry go to the credibility of Mr. Morrone and his testimony implicating Mr. Alexis and Mr. Funes. It does not go to propensity.

[77] Mr. Morrone’s criminal lifestyle and ability to engage successfully in these activities was such that he lived, as he said, large. He enjoyed a very good lifestyle with the money he has derived from his crack cocaine drug dealing and robberies.

[78] The cross-examination of Mr. Morrone’s criminal lifestyle was relevant for the defence to establish his motive to do this robbery, namely, realizing a possible $50,000 to $100,000 pay day. The defence was eliciting evidence from Mr. Morrone that he had the ability, the resources and the people he could easily access to do this robbery.

[79] I agree with the defence that these areas of cross-examination do not suggest he is the type of person to do this but rather in fact confirm Mr. Morrone’s sworn in-chief testimony that he did this robbery without the assistance of Mr. Funes. The defence was challenging Mr. Morrone’s credibility and overall version of the events.

[80] As clearly articulated in Magno exposing those frailties of an unsavoury witness does not entitle the Crown to lead bad character evidence of an accused.

TIMING OF CROWN APPLICATIONS

[81] In R. v. Mariani, 2003 CarswellOnt 6194, McCombs, J deals with the issue of timing of applications that may affect the trial fairness of the accused. At paragraphs 6 – 12 he states:

6 The respondents' position is that Lipschitz is an incredible witness with a strong motive to lie; that he has given false and inconsistent evidence under oath; that he was himself one of the assailants; and that he came forward to divert suspicion from himself and to avoid prosecution for his part in the homicide.

7 If the Crown is right that eliciting evidence of a propensity for violence on the part of Lipschitz would place the respondents' character in issue, then the Crown would be entitled to lead evidence of a similar propensity on the part of the respondents. R. v. Rodgers, 2000 CanLII 2144 (ON CA), [2000] O.J. No. 1065, 144 C.C.C. (3d) 568, (Ont. C.A.), R. v. McMillan, 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824, R. v. Parsons (1993) 1993 CanLII 3428 (ON CA), 84 C.C.C. (3d) 226 (Ont. C.A.)

8 The respondents submit that the result of the ruling on the Crown motion will affect the manner in which they conduct their cross-examination of Lipschitz and other witnesses. They submit that they are entitled to a ruling in advance so that they will not be required to make a crucial tactical decision-how to attack Lipschitz' credibility in a vacuum.

9 If I were to refuse to rule on the issue in advance of the trial, the respondents would be required to make critical tactical decisions while guessing at the outcome.

10 I accept the respondents' submission that the situation is analogous to R. v. Underwood, 1998 CanLII 839 (SCC), [1998] 1 S.C.R. 77, 121 C.C.C. (3d) 117 (S.C.C.). In holding that an accused is entitled to a ruling on a "Corbett" application before electing whether or not to testify, Lamer C.J.C. held at pp. 121-122:

On the one hand, it would be very undesirable to force the trial judge to make a decision without all the relevant information. On the other hand, the accused must have an opportunity to make an informed decision whether to testify and, accordingly, should know as much as possible about the consequences of that decision in advance of having to make it.

A balance must be struck between these two necessities. However, the balance must reflect that the ultimate goal of the procedural and substantive protections in the criminal justice system are to ensure that trials are scrupulously fair. Our criminal process is based upon the principle that before the accused calls evidence in his own defence, he must have knowledge of the case to be met.

In this context, the case-to-meet principle suggests that the accused should have a right to make a Corbett application, and to know its outcome at the close of the Crown's case. It would be manifestly unfair to force an accused to engage in what the appellant describes as "Russian Roulette", or what Professor Deslisle, in an annotation to R. v. Hoffman, [1994] A.J. No. 574, (1994) 1994 ABCA 254, 32 C.R. (4th) 396 (Alta. C.A.) at p. 398 calls "blind man's buff". I would adopt the statements of Lederman J. in R. v. Ford, 1995 CanLII 7303 (ON SC), [1995] O.J. No. 4255, 34 C.R.R. (2d) 143 AT 146. (Ont. Ct. Gen. Div.)

I ask rhetorically why should the accused not know of this information at the close of the Crown's case? Why should counsel have to guess at what the outcome of a Corbett application will be in making the decision to call the accused as a witness?

There is no valid reason for delaying the application so as to place the accused in the irrevocable position of having given up his or her right to silence on the chance that a Corbett application will go his or her way.

The Corbett application should not be a bear trap for the accused. Increasingly, courts have said that the accused should know before he or she calls any evidence the full extent of the case he or she has to meet. In keeping with those principles the proper time to bring the Corbett application is upon completion of the Crown's case.

11 Although Underwood involved a Corbett application at the end of the Crown's case, its principles were applied in R. v. Pilarinos, [2002] B.C.J. No. 1324, (2002) 2002 BCSC 855, 2 C.R. (6th) 273 at 278 (B.C.S.C.), where the accused sought a preliminary ruling on whether the Supreme Court of Canada's decision in R. v. Starr had restricted the application of the co-conspirator's exception to the hearsay rule. Bennet J. agreed to make a preliminary ruling:

R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40, 147 C.C.C. (3d) 449. The Crown says that I should not decide whether R. v. Starr ... restricts the application of the traditional exception to the hearsay rule because the Crown has not yet stated whether it will seek to have the evidence admitted against Mr. Clark. On the other hand, Mr. Clark is entitled to know the case he has to meet. While he is aware of the evidence that has been tendered, he does not know if the law affecting the admission of the evidence has changed.

12 The reasoning in Underwood and Pilarinos applies to this case. I am satisfied that I have enough information to allow me to make an informed decision on the Crown's application. Moreover, in my view, fairness requires that the respondents not be forced to make important tactical decisions respecting the cross-examination of a crucial Crown witness without knowing the consequences of those decisions. Counsel should not have to guess at the outcome of the Crown's application before deciding how to cross-examine Lipschitz.

[82] Ms. Cremer argues on behalf of Mr. Funes that if the intercepts are now un-redacted serious prejudice will be occasioned to him. Two critical Crown witnesses, Nirmalan Satkunananthan and Joe Magdangal have already testified. The cross-examination of them was conducted keeping in mind the redacted portions of the intercepts. Those redactions were done with the agreement of both the Crown and Ms. Cremer and those portions were redacted for obvious reasons. If the Court were to now allow those redactions to be lifted Mr. Funes would have no ability to challenge those witnesses about what was said during that intercept.

[83] Further to this, however, Mr. Funes submits that the un-redacted portions are not admissible as they are bad character evidence that is presumptively inadmissible. As already set out Mr. Funes has not put his character in issue.

[84] With respect to new intercepts the Crown now seeks to file, namely the February 21, 2012 Intercept, Mr. Funes has no way to challenge it. In addition to the fact that it has no probative value. It is, however, grossly prejudicial. I agree with Mr. Funes’ position on that issue.

[85] Mr. Monaco also takes issue with the timing of this application with respect to the DNA evidence on the firearm. As I set out earlier her position was clearly that she cross-examined Mr. Morrone and Ali Ali on the basis of my earlier ruling and to allow this evidence now would be unfair and significantly prejudicial. I agree with that position.

[86] Further, I am not satisfied that as a result of the cross-examination of Mr. Morrone the circumstances have changed such that this DNA evidence has gained more probability such that it now outweighs the prejudicial effect of admission.

[87] In R. v. Grizzle, [2012] O.J. No. 1599 the Court sets out the following at paragraph 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.

[88] I agree with the position of Mr. Alexis’ counsel that there is no causal or temporal connection between the .38 calibre revolver and the murder weapon.

[89] For all of these reasons the Crown’s Applications are dismissed.

Fragomeni, J.

Released: March 13, 2015

CITATION: R. v. Alexis and Funes, 2015 ONSC 1605

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 Re: Crown Applications to Tender Evidence of Marcus Alexis DNA on a Firearm and to Tender Youth Court Record of Marcus Alexis; To Tender Unredacted Intercepted Communications relating to Brian Funes relating to Firearms and to tender Brian Funes’ Criminal Record

Fragomeni, J.

Released: March 13, 2015