R. v. Moore, 2015 ONSC 2336
COURT FILE NO.: CR-14-30000123-0000
DATE: 2015-04-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN Respondent
– and –
MARK MOORE Applicant
Sean Hickey and Kimberly Motyl, for the Respondent
Peter Bawden and Peter Zaduk, for the Applicant
HEARD: March 23 and April 8, 2015
M. DAMBROT J.:
[1] Mark Moore is being tried by me sitting with a jury on an indictment alleging four counts of first degree murder. During the course of the presentation of the case for the Crown, Mr. Moore brought an application to exclude evidence that the Crown proposes to introduce concerning the finding of gunshot residue, generally referred to as GSR, in a motor vehicle said to belong to the accused.
BACKGROUND
[2] On September 29, 2010, 18-year old Courthney Facey and 23-year old Michael James were peaceably listening to music coming from the radio in James’ car, which was parked in the entrance of a laneway off Weston Road. Suddenly, shortly after 10:00 p.m., a vehicle drove into the laneway, and one of its occupants shot and killed both young men. The vehicle then sped away to the north.
[3] Juan Moreno, a student who lived in the area at the time and knew Facey, testified that he witnessed these events. He was walking towards an apartment building in which he resided, located across the street from the laneway when he heard a couple of loud firecracker-like noises. He looked across the street and saw a black newer model BMW SUV slowly emerge from the laneway. Sparks were coming out of the driver’s window and he heard several more firecracker-like noises. Someone in the vehicle was shooting at Facey and James. The BMW drove north on Weston Road, past Moreno.
[4] There is a significant body of evidence that the accused acquired a black BMW X5 in the late summer of 2010, and registered it in the name of his girlfriend. In cross-examination, Moreno testified that the vehicle he saw might have had a grey stripe on its side. Moore’s vehicle did not have such a stripe.
[5] Shirlon Marshall, a friend of both Facey and James, lived in an apartment building on Weston Road across the street from the location of the shooting. On the evening of the shooting, the deceased called Mr. Marshall several times, asking him to join them. After refusing three times, he went down shortly after 10:00 p.m. to return a video game to Facey. He was with Facey and James less than a minute, and then walked north on Weston Road towards Lawrence Avenue to purchase cigarettes. After about a minute, he heard gunshots in the area behind him. He hid between two buildings briefly, and then came back out after the gunshots stopped. He looked back to the area where his friends had been, and saw a black BMW X5 come out of the laneway and drive north on Weston Road. The driver’s window was winding up. His description of the rims on the BMW in cross-examination did not match the rims on Moore’s BMW.
[6] Kevin Williams will be a witness for the Crown. He is a discreditable witness who will attract a Vetrovec warning (see R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811.) I am advised that he will testify that Moore shot James and Facey from the driver’s seat of his black BMW X5. Williams will say that he was a passenger seated in the rear seat of the vehicle at the time of the shooting, and had no knowledge in advance that it would take place.
[7] I was advised earlier in this trial that the defence will likely allege that Williams, and not Moore, was the killer of Facey and James. Despite this, in cross-examining both Moreno and Marshall, the defence has placed in issue the question whether the vehicle from which the shots were fired was in fact Moore’s vehicle.
THE PROPOSED EVIDENCE
[8] The Crown proposes to call Dr. Gerard as a witness. He is a scientist employed at the Centre of Forensic Sciences and is an expert in the analysis of GSR. Following the seizure of Moore’s BMW by the police in November 2011, Dr. Gerard examined it and located four particles of GSR: one on the steering wheel; one on the dash area; and two on the driver side door.
[9] Dr. Gerard will testify that the finding of GSR on an object could arise from the object upon which GSR is found being in the vicinity of a firearm being discharged or coming into contact with another object that had GSR on it. GSR is composed of metal compounds, and does not evaporate or decompose. However, it can disappear as a result of washing, agitation, transfer, gravity or grinding.
THE ARGUMENT
[10] The Crown says that the GSR evidence provides some confirmation of Williams’ evidence that the shooting of James and Facey was perpetrated from Moore’s black BMW X5. I did not think that this was a live issue, given that two eyewitnesses observed or heard shots apparently coming from a black BMW X5. The coincidence of Moore having such a car together with an intimation that the defence will allege that it was Williams, and not Moore, who shot James and Facey seemed to put the issue to rest. As a result, I expected the accused to argue that the GSR was not relevant to a live issue at this trial. However, having regard to the cross-examination of the two eyewitnesses, which appeared to include an effort to cast doubt on the Crown’s position that the shots were fired from Moore’s BMW, I can only conclude that the issue is a live one.
[11] Being unable to take the position that the GSR evidence is irrelevant, the accused could only argue that the GSR evidence is inadmissible either because it has no probative value, or because whatever probative value it does have is outweighed by its prejudicial effect.
ANALYSIS
[12] Without doubt, the presence of GSR in a motor vehicle can be admissible as a piece of circumstantial evidence tending to establish that a firearm was fired in that vehicle. But there are limitations on the usefulness of GSR evidence in establishing that a particular shooting took place in the motor vehicle where the GSR is found. In most cases, the possibility cannot be excluded that the GSR is present as a result of it being transferred to the vehicle, or as a result of the discharge of a firearm in the vehicle at some other time. However, circumstances may limit the likelihood of alternate possibilities, or enhance the likelihood of the proposed possibility, allowing the finding of GSR, although not definitive, to be a building block in the Crown’s case – a piece of circumstantial evidence that the jury can evaluate along with the remainder of the evidence. Obviously, every case is different.
[13] In this case, there are a remarkable number of circumstances that limit the value of the GSR evidence. I will identify a few of these:
The examination of Moore’s BMW by Dr. Gerard took place approximately 14 months after the shooting of James and Facey.
In the interim, Moore was arrested on three occasions while in his BMW, following which the BMW was seized by the police and later returned: on October 28, 2010, when he was arrested for assault causing bodily harm; on November 30, 2010, when he was arrested for a drug offence; and on March 15, 2011, when he was arrested for discharging a firearm in a night club. It seems likely that on each of these occasions, police officers were inside Moore’s vehicle, if only briefly, at least to ensure that there was no weapon present. While there is no evidence before me that police officers actually were inside the vehicle on October 28, 2010, or March 15, 2011, there is evidence that police officers were in fact inside the BMW when the BMW was seized on November 30, 2010. On that occasion, the BMW was searched for a firearm and drugs pursuant to four search warrants on the street, and later at a police station. No firearm was found in the vehicle, but a quantity of cocaine was. In addition, the police removed a set of keys from the ignition. Two of the officers who searched the vehicle were armed during the search. There is some indication that a more invasive search of the vehicle by officers with special expertise was also undertaken, but I have not been advised whether or not that actually happened.
Dr. Gerard testified at the preliminary inquiry that studies have shown that randomly sampled police officers sometimes have GSR on their hands, clothing and equipment because they handle firearms. Logically, mandatory annual firearms training for police officers contributes to this finding. This raises a possibility that the source of the GSR in the BMW was a police officer.
There is significant evidence that Mr. Moore is regularly in possession of, and discharges, firearms. The Crown has brought to my attention several instances when he actually discharged a firearm. Evidence of some of these incidents will be before the jury. Evidence of many other incidents will not. All of this evidence, of course, gives rise to the real possibility that Moore was the source of the GSR recovered from his BMW as a result of his own conduct on some other occasion, either directly or by way of transfer.
Several of these alleged shooting incidents took place before Moore acquired his BMW, specifically (1) shooting up a home on 24 Poplar Road to collect a drug debt on June 1, 2010; (2) shooting two people on Cataraqui Crescent on June 13, 2010; (3) shooting up the home of a girlfriend on June 17, 2010; (4) shooting up the home of another girlfriend on July 8, 2010; (5) shooting Naseem Khan on August 5, 2010; and (6) shooting a store clerk during a jewellery store robbery on August 9, 2010. While none of these shootings could have been the source of the GSR found in the BMW, they are relevant to the issue because they tend to show that Moore regularly discharged firearms close to the time of the James and Facey shooting, and support the inference that the source of the GSR cannot be determined.
Of greater significance, the Crown alleges that in addition to shooting Facey and James, Moore was in possession of and discharged a firearm several times after he had acquired his BMW, specifically: (1) shooting Jahmeel Spence on September 10, 2010; (2) discharging a .45 calibre firearm at St. Edmund Campion Jr. School on October 9, 2010; (3) shooting up a residence at 3304 Danforth Avenue on October 20, 2010; (4) shooting Carl Cole on November 24, 2010; and (5) discharging a firearm inside the XS Nightclub on March 11, 2011. Admittedly there is no suggestion that any of these shootings took place inside the BMW, but like the earlier shootings, they tend to show that Moore regularly shot firearms close to the time of the James and Facey shooting, and support the inference that the source of the GSR cannot be determined. In addition, any one of these shootings could be the source of the GSR in the BMW by transfer.
Further, the discharging of a .45 calibre firearm at St. Edmund Campion Jr. School on October 9, 2010, and the discharging of a firearm inside the XS Nightclub on March 11, 2011, have a heightened significance. Both of these events, and in particular the March 11, 2011 event, could easily be the source of the GSR in the BMW, by way of very fresh transfer.
In the former case, there is circumstantial evidence that Moore drove the BMW immediately after the discharge of the gun. His saliva was found in the schoolyard in the area of the shooting, and a witness who heard the shooting from across the street looked over to the school yard and observed that two xenon headlights on a vehicle in the parking lot were pointed at the school. Moore’s BMW has xenon headlights. Shortly after the same witness observed the vehicle drive away from the school. He described it as a black SUV, albeit a late model one, with darkly tinted windows, which resembles the description of Moore’s SUV.
In the case of the discharge of a firearm in the XS Nightclub shooting, there is very powerful direct and circumstantial evidence that Moore was the shooter, and that immediately after the discharge of the firearm, Moore fled the club, retrieved his BMW from an adjacent parking lot and drove away.
There are also numerous text messages exchanged between Moore and Williams and Moore and Guyvin July, an admitted gun dealer, particularly during December 2010 and January 2011, attesting to Moore’s close connection to and trading in firearms.
After the March 11, 2011, seizure of Moore’s BMW, it was returned to his girlfriend, and remained in her possession until it was returned to the leasing company that owned it in May 2011. There is no evidence available about whether or not the BMW was used, and if so by whom, while it remained in his girlfriend’s custody. Nor have I heard evidence of what transpired with the BMW between the time that it was returned to the leasing company in May 2011, and the time that it was seized by the police six months later in November 2011. I note, however, that the Crown advises me that it is in a position to call evidence that the vehicle remained locked in a lot during this last period of time.
[14] Mr. Bawden argues on behalf of Moore that in light of these circumstances, the GSR has no probative value. Ms. Motyl for the Crown does not hide from these limitations, but argues that they go to weight, not admissibility, relying on the decision of the Ontario Court of Appeal in R. v. Stevenson, 2014 ONCA 842, 317 C.C.C. (3d) 385, which is, to my knowledge, the only Canadian appellate decision to discuss the admissibility of GSR evidence. I do not think that the decision in Stevenson assists the Crown.
[15] In Stevenson, the appellant’s estranged wife was murdered as she left her home for work. The assailant was lying in wait for the deceased, appeared from behind her home as she walked to her van in her driveway and shot her. Identity was the only issue at trial. The evidence implicating Stevenson included motive, opportunity, evidence of an attempt to purchase a gun several months before the murder, and GSR evidence. Stevenson was arrested at his sister’s home two hours after the murder. The arresting officer wrapped his hands in plastic bags. The bags remained on his hands until they were tested for GSR approximately two hours later. Two particles of GSR were found on his left hand, twenty-two on his right hand, one on the right sleeve of his jacket and two on his pants. Dr. Gerard, the Crown’s expert in that case and in this one, testified that there were three possible explanations for the GSR: Stevenson may have recently fired a firearm; he may have been in close proximity when a firearm was discharged; or he may have picked up GSR particles from another surface. Dr. Gerard could not indicate whether any one of these possibilities was more likely than the others. GSR particles are easily transferred by contact or air movement. The finding of GSR on a surface does not assist in identifying how the particles came to be deposited on that surface.
[16] On appeal, the appellant argued, as does Moore, that the prejudicial effect of the evidence outweighed its probative value. Doherty J.A., writing for the Court, rejected this argument. With respect to probative value, he stated, at para. 77:
77 I cannot accept counsel’s submissions. The GSR evidence was one brick in the Crown’s evidentiary wall. Alone, it could not connect the appellant to the discharge of a firearm. Dr. Gerard readily acknowledged the limits of the evidence. However the jury could, after considering the evidence of the possibility that the GSR was transferred from another surface and the body of evidence implicating the appellant as the killer, conclude that the GSR on the appellant’s hands and clothing was explained by his recent discharge of a firearm.
[17] He further stated, at paras. 81-83:
81 In oral argument counsel for the appellant referred to R. v. Gjikokaj, [2014] E.W.C.A. Crim. 386, a recent decision of the England and Wales Court of Appeal (Criminal Division). In that case the Crown expert testified that GSR was found in the appellant's car. He went on, as in this case, to indicate that there were three possible explanations for the presence of the GSR and that he could not offer any opinion as to which was more likely.
82 The Court of Appeal held that the expert’s evidence was admissible even though he could offer no opinion as to the most likely source of the GSR. That opinion taken with the other circumstantial evidence, could lead the jury to a conclusion on the source of the GSR. The court said at para. 43:
The judge was not inviting them [the jury] to reach an evaluative opinion where the forensic scientist could not, but inviting them to consider this piece of primary forensic evidence as part of the circumstantial case.
83 This trial judge was doing exactly the same thing with the expert evidence in this case. She presented it as part of the circumstantial picture. In that context it could properly have assisted the jury in determining whether the Crown had proved that the appellant was the killer. The prejudice presented by the potential misuse of the evidence was insignificant. The trial judge did not err in admitting the evidence.
[18] With respect to prejudicial effect, Doherty J.A. stated, at para.80:
80 I also cannot agree that this is the kind of scientific expert opinion evidence that could be given exaggerated importance by the jury. While the technology underlying the testing is no doubt complicated and technical, the expert’s opinion was neither. This was not a case in which the jury was asked to accept an expert's interpretation of complicated data or phenomena that the jury could not observe or comprehend without an expert’s help. The presence of the GSR was never really contested. How it got on the appellant's hands and clothing was beyond the expertise of Dr. Gerard and he made it clear that he offered no opinion on that subject. In my view, the risk of misuse of this evidence was not significant.
[19] In Stevenson, although the expert witness could not identify the source of the GSR found on the appellant’s hands, it is apparent that when seen in the context of the remaining pieces of circumstantial evidence, the GSR evidence could properly have assisted the jury in determining whether the Crown had proved that the appellant was the killer. After all, Stevenson had a substantial quantity of GSR on his hands when he was arrested two hours after the murder; the GSR had not likely been on his hands long since GSR disappears from the hands at least after repeated hand washing; there was little chance of GSR being deposited on Stevenson’s hands after the shooting because little time had passed and the arresting officer had the foresight to immediately wrap Stevenson’s hands upon arrest; and there was no evidence of any other possible source of GSR.
[20] In this case I fail to see how the GSR evidence, even when viewed in the context of the other evidence in this case implicating the accused in the James and Facey homicides, could properly assist the jury in determining if Moore’s BMW was the one from which the fatal shots were discharged. I say this having regard to the fact that fourteen months had passed since the James and Facey shooting; the largely unknown history of the vehicle after the shooting; the three subsequent police seizures of the vehicle, including at least one where police officers conducted a search of the inside of the vehicle; and Moore’s continuous association with firearms and his long history of firing them, including, on at least two occasions, in proximity with the driving of his BMW. The Crown says this all goes to weight and should be left with the jury. With respect, I do not see how this can be an issue of weight. As I see it, if the GSR evidence is admitted, the jury will have no basis to reach any conclusion about the likely source of the GSR in Moore’s BMW.
[21] Relying on the decision of the Court of Appeal in Regina v. White and Côté, (1996), 1996 CanLII 3013 (ON CA), 29 O.R. (3d) 577, Crown counsel took the position that the accused could only take advantage of the possibility that the GSR in his vehicle came from his discharging a .45 calibre firearm at St. Edmund Campion Jr. School on October 9, 2010, or his discharging a firearm inside the XS Nightclub on March 11, 2011, if he was prepared to admit that he did these acts. I fail to see the logic in this submission. The Crown alleges that Moore discharged a firearm on these two occasions, and has led evidence to that effect in this trial. The very real possibility that one or the other of these events was the source of the GSR exists regardless of the presence or absence of an admission on the part of the accused.
[22] After argument was completed on March 23, 2015, but before finally determining the issue, I thought it advisable to consider R. v. Gjikokaj, [2014] E.W.C.A. Crim. 386, a decision of the England and Wales Court of Appeal (Criminal Division) that more closely resembles this case than does Stevenson and that was referred to by Doherty J.A. in Stevenson. Since it had not been discussed in argument, I gave counsel an opportunity to make further submissions in respect of Gjikokaj.
[23] In Gjikokaj, the appellant was convicted of murder. The Crown led evidence of motive and opportunity. Specifically, regarding opportunity, the appellant admitted that he had visited the deceased shortly before he was shot to death on October 6, 2008, and had parked his car near a drain at a particular intersection. In addition, bullet casings matching the bullets that killed the deceased were found in the drain where the appellant had parked, and two GSR particles were found in the rented vehicle that the appellant had been driving that day. One particle was type I GSR and the other was type II. Both type I and type II gunshot residue were found on the deceased’s body.
[24] With regard to the vehicle, the evidence established that the appellant had rented it prior to October 6, 2008, and had driven it continuously between October 6 and October 15, when it was taken into police custody. The vehicle was kept in storage by the police until it was examined for GSR on October 24.
[25] The Crown’s expert witness testified that the GSR might be present in the vehicle as a result of the appellant being in the residence at the time of the murder, as a result of innocent contamination or by sheer chance. He would not give an opinion that evaluated these possibilities in view of the small quantity of GSR recovered in the vehicle. He did testify that he would not expect GSR to remain on the appellant himself in the lapse of time between the murder and the arrest. He also testified that the more the car was used, the greater the opportunity for GSR to be lost.
[26] With respect to other possible explanations for the GSR being in the vehicle other than that the appellant had been present when the deceased was shot, the only evidence was that a police officer observed a minor traffic accident involving the appellant and his rented vehicle on October 2, 2008. The officer almost immediately asked the appellant to get out of the vehicle and spoke with him away from the vehicle. He did not recall touching the vehicle at all. The officer had last fired a firearm on July 28, 2008. He was not armed on October 2, but was wearing body armour. The evidence I have been made aware of to foreclose the possible alternative sources of GSR in this case pales in comparison to the evidence in Gjikokaj.
[27] The GSR evidence was admitted in Gjikokaj over the appellant’s objection that it had no probative value. The Court of Appeal held, at para. 35 of its judgment, that the evidence was properly admitted on the following basis:
It was admissible to show, in a case where the evidence was circumstantial, that it was not open to the appellant to say there was an absence of scientific evidence connecting him with the crime. The scientific evidence was consistent with the appellant being there and he could not therefore claim that the absence of forensic evidence showed he could not have been there and fired the shot. The primary scientific evidence was therefore plainly admissible for that purpose.
[28] The Court further stated, at para. 38, that that having regard to the evidence that shell casings thrown into the drain matched bullets found in the deceased, the evidence that the appellant had parked near the drain shortly before the murder, and the evidence that the appellant admitted he had sat in the passenger seat where the GSR particles were found, “the jury was entitled to take into account the presence of the two particles of gunshot residue as supporting that case.”
[29] It emerged during argument in the Court of Appeal that the real issue concerning the GSR evidence related to the direction to the jury concerning the use they might make of the evidence. The trial judge told the jury that while the expert was unable to interpret the finding of a mere two particles of GSR, and as a result testified that they could have been present quite by chance, he was looking at the GSR in isolation. The jury, on the other hand, could go further and, if certain conditions were met, aggregate the GSR evidence with the other circumstantial evidence and conclude that the appellant was present when the deceased was shot.
[30] One of the conditions mentioned by the trial judge to the jury was that if they thought that either the possibility of innocent contamination by reason of the traffic accident incident on October 2, or by sheer chance were possibilities that they could not rule out, then they were required to ignore the GSR evidence. It would have no value in the case.
[31] The Court of Appeal affirmed this approach. The Court held, at para. 43, that if the conditions that the judge had set out were satisfied, the jury was entitled to conclude that the evidence was consistent with the appellant being present when the gun was fired at the deceased.
[32] I do not doubt the correctness of the decision in Gjikokaj. But I make what I consider to be an obvious observation. In Gjikokaj, there was one possible source of contamination other than by chance, and there was an evidentiary record that enabled the jury to evaluate it, and rule it out if so disposed. In this case, Moore possessed the BMW for approximately one month before the Facey and James shooting, and the BMW was not tested until fourteen months after the shooting. During that fifteen month period of time, there is evidence of repeated opportunities for GSR to be transferred to the BMW: from Moore himself, as a result of his repeated use of firearms, including two occasions when he is known to have driven the BMW shortly after discharging a firearm; from unknown others during the many months that the vehicle was out of his custody; and from police officers during the course of three police interventions with the vehicle. Unlike the jury in Gjikokaj, the jury in this case has no way of evaluating these possibilities, or ruling them out. To invite them to do so is to invite them to reach conclusions in the complete absence of any evidentiary foundation.
[33] Crown counsel argues that these concerns are really concerns about continuity going only to weight, and not admissibility, and reminds me of what was said by Martin J.A. in R. v. Andrade (1985), 1985 CanLII 3502 (ON CA), 18 C.C.C. (3d) 41. In Andrade, Martin J.A. stated, at para. 59:
Where the relevance of a particular item of evidence depends on whether it came from a particular source and there is conflicting evidence upon which the jury could find that the item came from the particular source upon which its relevancy depends, the jury must determine on the basis of the conflicting evidence whether the item came from that particular source. The trial judge is not empowered to weigh the conflicting evidence as to the source of the item and, on the basis of his finding, rule that the evidence with respect to that item is inadmissible. The issue as to the source of the item is for the jury if there is any evidence upon which they could find that the item came from the source on which its relevancy depends.
[34] He also endorsed the reasoning of Dubin J.A., as he then was, in R. v. Parsons (1978), 1977 CanLII 2097 (BC SC), 37 C.C.C. (2d) 191 (Ont. C.A.) (aff’d sub. nom. Charette v. R. (1980), 1980 CanLII 31 (SCC), 14 C.R. (3d) 191 (S.C.C.)), at para. 60:
Although the Court in that case was dealing with a quite different question than the one presented here, the reasoning of Mr. Justice Dubin, speaking for the Court, is applicable. He said at p. 502:
The Crown’s proof as to the integrity of the tape, its accuracy, its continuity, and voice identification, and that there has been no tampering nor alteration in any way all relate to the proof that the evidence tendered is an accurate reproduction of what it is alleged the person against whom it is tendered said. The weight to be given that evidence is for the jury and should be dealt with in the same manner as any other issues of fact, which arise in every jury trial.
[35] I make two observations. First, there is nothing in Andrade to suggest that evidence is admissible where there is a complete absence of proof of continuity, integrity, accuracy or the absence of tampering, alteration or contamination. Andrade only says that where there is a conflict in the continuity evidence, or there are flaws in it, the evidence is admissible, and the defects are for the jury to consider. I have no doubt, however, that absent some evidence of continuity, the evidence tendered would simply be irrelevant.
[36] Second, and of far greater pertinence, in this case we are not concerned with continuity at all. We are concerned with relevance and probative value. The challenge raised to the GSR evidence in this case does not relate to proof of the chain of possession of the BMW after it was seized by the police or the safeguards in place while it was in the custody of the police. It relates to the history of Moore’s BMW prior to the police seizure, which is fundamental to the question of whether something found in it after it was seized has any evidentiary value. Nothing in Andrade touches this issue. Having regard to the history of Moore and his BMW, there is no nexus between the crime charged and the GSR. The finding of GSR in the BMW does not make it even slightly more probable that the shots that killed Facey and James were fired from that BMW. In those circumstances, I cannot leave the evidence to the jury for them to assess its weight. I am instead obliged to rule that the evidence is inadmissible.
[37] If support for this commonplace assertion is needed, then I begin with the judgment of McKinnon C.J.N.S. for the Court in R. v. Polley (1971), 1971 CanLII 1261 (NS CA), 5 C.C.C. (2d) 94 (N.S.S.C. App. Div.). In that case the Court was concerned with the admissibility of various items seized from the trunk of a vehicle in the possession of the appellant. The Court adopted and applied the following statement of the law:
In Thompson v. The King, [1918] A.C. 221, sub nom. Thompson v. Public Prosecutions Director, 87 L.J.K.B. 478, Lord Sumner said, at p. 236:
“ . . . the fact that evidence of articles found on the premises of accused persons is constantly given without much question, though I doubt not in the vast majority of cases quite rightly, is really only misleading, unless at the same time we ask the question what exactly does this purport to prove and by what probative nexus does it seek to prove it.”
and Lord Parmoor, at p. 237:
“ . . . such evidence is admissible if there is any connecting relationship between it and the particular crime with which a prisoner is charged.”
[38] To similar effect is the judgment of Pratte J. for the majority in R. v. Cloutier, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, 48 C.C.C. (2d) 1. He noted that the general rule as to the admissibility of evidence is that it must be relevant, and that for one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. Quoting Cross On Evidence, 4th ed., at p. 16, he stated, “One fact is not relevant to another if it does not have real probative value with respect to the latter.” (Emphasis added)
[39] More recently, in R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, Watt J.A. stated, at para. 206:
206 To be relevant, an item of evidence need not prove conclusively the proposition of fact for which it is offered, or even make that proposition of fact more probable than not. What is essential is that the item of evidence must reasonably show, by the application of everyday experience and common sense that the fact is slightly more probable with the evidence than it would be without it: 1 McCormick on Evidence (6th ed.), para. 185, at p. 733. (Emphasis added.)
[40] In the end, I am of the view that the GSR evidence has no probative value in this case, and is inadmissible for that reason alone. As I have said, in all of the circumstances of this case, there is no nexus between the crime charged and the GSR, and the finding of GSR in the BMW does not make it even slightly more probable that the shots that killed Facey and James were fired from that BMW.
[41] However, assuming that the GSR evidence does have some slight probative value, I turn next to prejudicial effect. I have already noted the comment of Doherty J.A. in Stevenson, that scientific opinion evidence very similar to the scientific evidence here is not the sort of evidence that could be given exaggerated importance by the jury. Since Dr. Gerard made it clear that he offered no opinion on the subject of how the GSR came to be where it was found, the risk of misuse of this evidence was not significant.
[42] I do not challenge what Doherty J.A. said in that case, but the circumstances here are different. To permit the introduction of scientific evidence in this case that has virtually no probative value does risk misuse by the jury. Some jurors will undoubtedly be tempted to give scientific evidence from a highly qualified expert witness more importance than it deserves. If the Crown is permitted to call scientific evidence about GSR some jurors may conclude that it must have some real significance.
[43] In addition, in this case, there is another form of prejudice that might be occasioned by the admission of this evidence. In order to ensure that the jury understands the limitations of the evidence, the accused might feel compelled to place before the jury more of his unsavoury history with firearms than the Crown has been permitted to do. If the GSR had significant force, then this would merely be unfortunate for Moore. But where the GSR has little probative force, it is unfair.
DISPOSITION
[44] For these reasons, the application to exclude evidence concerning the finding of gunshot residue in a motor vehicle said to belong to the accused is granted.
M. Dambrot J.
RELEASED: April 13, 2015
CITATION: R. v. Moore, 2015 ONSC 2336
COURT FILE NO.: CR-14-30000123-0000
DATE: 2015-04-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN Respondent
– and –
MARK MOORE Applicant
REASONS FOR RULING
DAMBROT J.
RELEASED: April 13, 2015