COURT FILE NO.: CRIMJ(P) 250/13
DATE: 2015-09-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Adam Bernstein
- and -
LAFFETTE CHARLTON
Scott Reid
REASONS FOR JUDGMENT
Barnes, J.
INTRODUCTION
[1] Mr. Charlton is charged with attempting to murder Shamoiey Akindejoye with a firearm, by shooting him with a gun and wounding him, contrary to Section 239(1)(a) of the Criminal Code.
[2] He is also charged with discharging a firearm at Jonathan Netezerab with intent to wound him, contrary to Section 244(2) of the Criminal Code.
[3] The issue at trial is the identity of the person who tried to kill Shamoiey Akindejoye.
[4] There is an application by the Crown for an order admitting prior discreditable conduct of Mr. Charlton as evidence for the jury’s consideration.
[5] The prior discreditable conduct sought to be admitted is the existence of a gang called the “Clean Up Crew”; that Laffette Charlton, Kadeem Jowrey and Marquis Clark are members; the Clean Up Crew has an organisational hierarchy with Mr. Kadeem Jowrey as the leader or “boss”, Mr. Marquis Clark and Mr. Laffette Charlton as his lieutenants; and as a result of the hierarchy the lieutenants follow the orders of the leader.
[6] The Crown’s theory is that Marquis Clark and Laffette Charlton carried out Mr. Jowrey’s edict that Shamoiey Akindejoye was to be killed by Laffette Charlton.
FACTS
[7] On Tuesday June 19, 2012, 20 year old Shamoiey Akindejoye and 20 year old Jonathan Netezerab were shot at the rear of a plaza at 3355 The Collegeway, Mississauga.
[8] After he was shot, Mr. Akindejoye ran to his residence in a nearby complex at 3480 Colonial Drive, Unit 439, in Mississauga. He collapsed on his front lawn.
[9] Mr. Akindejoye was transported to Credit Valley Hospital and then to St. Michael’s Hospital in Toronto, where bullets were removed from his abdomen and his arm. He survived.
[10] After Mr. Netezerab was shot he ran across Ridgeway Drive in Mississauga and collapsed on a grassy area at the intersection of Ridgeway Drive and the Collegeway.
[11] Mr. Netezerab was taken to Sunnybrook Hospital in serious condition. The bullet in his leg was surgically removed. He survived.
[12] The Crown alleges that Mr. Clark lured Mr. Akindejoye to the location where he was shot. This was done under the pre-text of selling him Marihuana. It is alleged that the real purpose was for Mr. Charlton to kill Mr. Akindejoye.
[13] The Crown theorizes that Mr. Clark went to the agreed location with Mr. Charlton. Mr. Akindejoye arrived with Mr. Netezerab. In accordance with a pre-arranged plan, Mr. Charlton shot Mr. Akindejoye and Mr. Netezerab, whose mistake was accompanying Mr. Akindejoye to the scene.
[14] A voir dire was held. After reviewing the evidence and considering the submissions of counsel, I ruled that the Crown can lead evidence which describes the nature of the relationship between Mr. Marquis Clark, Mr. Charlton and Mr. Jowrey. However, no evidence shall be led with respect to the existence of a gang; and no mention shall be made of the words “gang” and “Clean Up Crew”. These are my reasons.
[15] The proceedings began on June 10, 2014. Mr. Charlton pleaded not guilty. Jury selection was completed on June 11, 2014.
[16] On June 11, 2014, the Crown informed the court that the victim Shamoiey Akindejoye could not be located.
[17] Mr. Shamoiey Akindejoye previously provided statements to the police and testified at the preliminary inquiry. The Crown brought an application seeking an order for the admission of these statements and the preliminary inquiry testimony under the principled exception to the hearsay rule.
[18] The defence objected to the application on the basis that Crown failed to comply with the notice requirements stipulated in the Criminal Proceedings Rules for the Superior Court of Justice (Ontario).
[19] On June 11, 2014, testimony commenced on a voir dire to address the notice issue.
[20] On the basis of evidence led on the notice voir dire, I issued a material witness warrant for the arrest of Shamoiey Akindejoye.
[21] Evidence and submissions on the notice voir dire were completed on June 13, 2014. On June 16, 2014, the defence application on the notice issue was dismissed. The Crown was permitted to proceed with the Crown application to introduce Mr. Akindejoye’s statement and preliminary inquiry testimony, for the truth of their contents, on the basis of the principled exception to the hearsay rule.
[22] On June 13, 2014, the Crown commenced the prior discreditable conduct application. The main witness was Marquis Clark. Mr. Marquis Clark was previously Mr. Charlton’s co-accused on this charge. Mr. Clark pleaded guilty to lesser charges on May 19, 2013.
[23] On June 16, 2014, the voir dire to determine the Crown’s application to introduce previous statements and testimony of Mr. Akindejoye began. On June 19, 2014, the Crown’s application was granted.
[24] On June 19, 2014, the Crown’s application to introduce evidence of prior discreditable conduct of gang affiliation was dismissed. However, the Crown was permitted to lead evidence on the relationship between Mr. Jowrey, Mr. Clark and Mr. Charlton without reference to the words “gang” or “Clean Up Crew”.
[25] On June 19, 2014, the jury began to hear evidence. On June 20, 2014, Mr. Akindejoye was arrested on the material witness warrant. This rendered the principled exception to the hearsay rule ruling moot.
[26] The trial concluded on July 11, 2014.
PRIOR DISCREDITABLE CONDUCT APPLICATION
Position of the Crown
[27] The Crown’s position is that Mr. Clark, Mr. Jowrey and Mr. Charlton belong to a criminal gang known as the “Clean Up Crew”. Mr. Jowrey instructed Mr. Clark to lure Mr. Akindejoye to a specific location under the ruse of selling him some Marihuana. When Mr. Akindejoye arrived, Mr. Charlton was to shoot and kill him.
[28] Mr. Clark was arrested on August 8, 2012, and provided a statement to the police. In 2013, Mr. Clark testified at a preliminary inquiry on these charges.
[29] On May 19, 2013, Mr. Clark pleaded guilty to lesser charges regarding aggravated assault which involved the use of a firearm.
[30] During his August 8, 2012, statement to the police, his preliminary inquiry testimony and his May 19, 2013, guilty plea, Mr. Clark provided information consistent with the Crown’s theory as previously described. Simply put, Mr. Jowrey instructed him to lure Mr. Akindejoye to a location and instructed Mr. Charlton to shoot him when he arrived.
[31] The Crown submits that Mr. Jowrey ordered Mr. Charlton to shoot Mr. Akindejoye because he was the “boss” of the Clean Up Crew gang. The Crown argues that evidence of Mr. Charlton’s affiliation with this criminal gang explains why Mr. Charlton would follow Mr. Jowrey’s orders and provides the motive for why he shot Mr. Akindejoye.
[32] The Crown explains that membership in the gang and its related criminal activities constitute discreditable conduct. This evidence is relevant to the identity and intent of the shooter. It is relevant to the issue of motive. It is the Crown’s position that the probative effect of this evidence outweighs any prejudicial effects, and therefore Mr. Clark’s previous testimony describing Mr. Charlton’s discreditable conduct must be admitted.
Position of the Defence
[33] The defence submits that there are other ways in which the Crown could adduce evidence of a relationship between Mr. Charlton, Mr. Jowrey and Mr. Clark without having to lead evidence of any alleged gang affiliations of Mr. Charlton. The defence submits that evidence of gang affiliations will paint Mr. Charlton as an “unrepentant hoodlum”. They argue such evidence will irreparably smear Mr. Charlton and lead the jury to conclude that he committed the offence not on the basis of the evidence presented at the trial but simply because he is alleged to be a member of a gang.
[34] The defence also submits that the police tainted Mr. Clark’s testimony. Mr. Clark told them what they wanted to hear in order to get a lighter sentence. The prejudicial effect of admitting the evidence far outweighs the probative value and, therefore, evidence of the prior discreditable should be excluded.
LAW
Governing Principles
[35] The principles I must apply in assessing the merits of this application are aptly described by Watt J.A. in R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at paras. 54 to 57, 59 as follows:
[54] First, as a general (but not unyielding) rule, evidence of misconduct beyond that charged in an indictment, which does no more than portray an accused as a person of (general) bad character, is inadmissible: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31 and 36; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 96; and R. v. Cudjoe, 2009 ONCA 543, 68 C.R. (6th) 86, at para. 63.
[55] Said in a different way, what the law prohibits as a general rule is the introduction of evidence of bad character(as revealed by evidence of other discreditable conduct) for use as circumstantial evidence or proof of conduct on the occasion charged: Handy, at para. 31; Moo, at para. 96. The general exclusionary rule is based on several policy considerations, including the potential for evidence of other discreditable conduct to foster prejudice, to distract the trier of fact from the true focus of the trial, and to waste time: Handy, at para. 37. The prejudice this evidence engenders has been characterized as moral prejudice, the danger that a finding of guilt will be grounded on "bad personhood", and reasoning prejudice, the danger that the evidence will create confusion or distract a lay trier of fact from its true task: Handy, at paras. 139 - 146.
[56] Second, the general rule excluding evidence of other discreditable conduct is not unyielding. After all, sometimes this evidence is so relevant and cogent that its probative value exceeds its prejudicial effect: Handy, at para. 41; Moo, at para. 97; Cudjoe, at para. 63. To engage the exception to the general exclusionary rule, Crown counsel must establish, on a balance of probabilities, that the probative value of the evidence exceeds its prejudicial effect: Handy, at para. 55.
[57] Third, in prosecutions for domestic homicide, evidence may be admitted of other discreditable conduct of the accused that shows or tends to show the nature of the relationship between the principals, or animus or motive on the part of the accused. This evidence is relevant to prove the identity of the victim or deceased's killer and the state of mind that accompanied the unlawful killing: Moo, para. 98;Cudjoe, at para. 64. As a threshold requirement, the evidence of other discreditable conduct must be capable of establishing animus or motive: R. v. S. (P.), 2007 ONCA 299, 221 C.C.C. (3d) 45, at paras. 27 and 39; R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404, at paras. 97-100. The same principles apply to domestic attempted homicides.
[59] Finally, when evidence of other discreditable conduct is admitted because it shows or tends to show animus or motive on the part of an accused, limiting instructions usually required for this evidence are not necessary: Moo, at para. 100; R. v. Jackson (1980), 1980 CanLII 2945 (ON CA), 57 C.C.C. (2d) 154 (Ont. C.A.), at pp. 168-169; R. v. Merz (1999), 1999 CanLII 1647 (ON CA), 46 O.R. (3d) 161 (Ont. C.A.), at para. 59; R. v. Krugel (2000), 2000 CanLII 5660 (ON CA), 143 C.C.C. (3d) 367 (Ont. C.A.), at paras. 85-90; and R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319, at paras. 65-68.
[36] Each case is driven by its own facts and in circumstances where gang membership is intertwined with the criminal activity, in this case the unlawful shooting, evidence of the accused’s membership in the gang is prior discreditable conduct that “shows or tends to show the nature of the relationship between the principals, or animus or motive on the part of the accused. This evidence is relevant to prove the identity of the victim or deceased's killer and the state of mind that accompanied the unlawful [shooting]”.
[37] Relying on Mr. Clark’s previous testimony and statements, the Crown seeks to introduce certain past discreditable conduct of Mr. Charlton:
a. Mr. Charlton is a member of a criminal gang called the “Clean Up Crew”;
b. Other members of the gang are Mr. Jowrey and Mr. Clark;
c. Mr. Jowrey is the boss or leader of the Clean Up Crew; and
d. The gang hierarchy requires Mr. Clark and Mr. Charlton to follow the orders of Mr. Jowrey. In this case, to kill Mr. Akindejoye.
[38] The defence contests the existence of the Clean Up Crew and Mr. Charlton’s membership in it. The defence also submits that there is no evidentiary foundation from which to conclude there was a hierarchy in the Clean Up Crew.
Analysis
[39] It is not disputed that evidence of membership in a gang is discreditable conduct. The discreditable conduct is presumptively inadmissible unless the Crown can demonstrate that it is relevant to an issue in the case and the probative value of the evidence outweighs any prejudicial effects: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.
[40] Prior discreditable conduct of Mr. Charlton which shows the nature of his relationship with the other members of the gang, including the existence of a hierarchy, is relevant to show animus or motive on the part of Mr. Charlton. Specifically that, as a member of the gang, Mr. Charlton followed the instructions of his boss, Mr. Jowrey, to kill Mr. Akindejoye. This evidence is relevant to the identity of the shooter and the intent of the shooter.
[41] Mr. Clark testified at the preliminary inquiry. On April 10, 2013, he testified that he, Mr. Charlton and Mr. Jowrey grew up in the same neighbourhood. He said Mr. Charlton’s nickname was Gully and Mr. Jowrey’s nickname was KK. Mr. Clark testified that all three of them belonged to a street gang called the “Clean Up Crew.” Mr. Jowrey was the boss.
[42] On June 19, 2013 Mr. Clark provided further details at the preliminary inquiry. He said that Mr. Jowrey told him and Mr. Charlton that a message had to be sent and Mr. Jowrey instructed Mr. Charlton to kill Mr. Akindejoye. Mr. Clark said he was fearful of what might happen to him and Mr. Charlton if they did not comply with Mr. Jowrey’s instructions.
[43] I conclude from Mr. Clark’s preliminary inquiry testimony that he said that the Clean Up Crew was a gang with a hierarchy. The “boss” was to be obeyed and the boss gave the order to kill Mr. Akindejoye. Mr. Clark and Mr. Charlton followed the instruction.
[44] On May 9, 2013 Mr. Clark pled guilty in the Ontario Court of Justice to aggravated assault and using a firearm while committing the offence of aggravated assault. These guilty pleas were in relation to the shooting of Mr. Akindejoye and Mr. Netezerab.
[45] As part of the sentencing an agreed statement of facts was prepared and filed:
There had been ongoing issues between various young males in the townhouse complex located at 3480 Colonial Drive, Mississauga. These issues revolved around drug trafficking, gang affiliations, and other allegiances to one another. These issues resulted in an escalating tension between Shamoiey Akindejoye and other males by the name of Kadeem Jowrey (hereafter Jowrey) and Joshua Akacelise (hereafter Akacelise).
More specifically, Akindejoye and a friend of his, a male by the name of Parell Palmer (hereafter Palmer), had stolen $1000 and a firearm from one Akacelise. Akindejoye denied involvement in the theft but was being blamed for it by Jowrey and Akacelise.
The tensions had already resulted in a physical confrontation between Akindejoye and Akacelise as well as ongoing verbal confrontations between Akindejoye, Jowrey, and another one of their friends, a male named Jimmy Le (hereafter Le). Jowrey had also sent threatening messages to Akindejoye via the internet.
Jowrey was closely associated with two other individuals, Marquis Clark (hereafter Clark) and Laffette Charlton (hereafter Charlton). Clark is also known by the name “Keys”. Laffette Charlton is also known by the names “Gully” “G” or “GG”. These three individuals were close friends and had grown up together in the townhouse complex at 3480 Colonial Drive, Mississauga.
Together, these three individuals were known as the “Clean Up” which is a Bloods affiliated street gang. Jowrey was the leader and was a “boss” within the Colonial Drive townhouse complex. Jowrey was also known as “K” or “KK”.
In 2009, Jowrey was arrested and spent time in custody following his involvement in a home invasion style robbery where two firearms were stolen from a residence in Brampton. Charlton was also involved in this offence but was never charged. Charlton sold the firearms following Jowrey’s arrest but failed to pay Jowrey any of the proceeds from those firearms. As such Charlton was indebted to Jowrey.
On Jun 19, 2012, Jowrey instructed both Marquis Clark and Laffette Charlton to set up and kill Shamoiey Akindejoye. Specifically, Jowrey told Charlton to shoot Akindejoye in the head. This was in retaliation for the ongoing tensions between Jowrey and Akindejoye. Specifically, for Akindejoye’s failure to pay Jowrey and Akacelise back for the stolen money and firearm. Further, Akindejoye had offered to purchase marijuana off of Jowrey as a way of repaying part of the debt. This was seen by Jowrey to be disrespectful.
Charlton was to be the shooter because of the debt he owed Jowrey. Jowrey had arranged a drug transaction with Akindejoye which would serve to lure Akindejoye into a trap. Clark was to attend the arranged meeting spot together with Charlton and contact Akindejoye via text message when they arrived. It was expected that Akindejoye would not be suspicious of Clark given Akindejoye had purchased marijuana from him several times before.
Clark agreed to do this because he was fearful for his safety if he said no. He was also fearful for the safety of Charlton.
[46] At his plea, Mr. Clark confirmed that there was a disagreement between Mr. Akindejoye and Mr Jowrey. Mr. Jowrey instructed Mr. Clark to lure Mr. Akindejoye to a location on a ruse. Mr. Charlton was to kill him. Mr. Clark said he and Mr. Charlton followed their instructions. Mr. Charlton shot Mr. Akindejoye.
[47] At the voir dire, Mr. Clark did not confirm the existence of a gang. He said any gang affiliations were matters of the past. Mr. Clark testified that Mr. Charlton was never a member of a gang. He explained that Mr. Clark was an affiliate. Mr. Clark described an affiliate as a person who did not advertise the existence of the gang, who was not necessarily trusted and not included in several gang activities. He explained that the essence of gang membership was loyalty and trust. This did not necessarily apply to affiliates.
[48] Mr. Clark said he was aware that Mr. Jowrey had a disagreement with Mr. Akindejoye. Specifically that Mr. Akindejoye had shown Mr. Jowrey disrespect. Mr. Clark also testified that there was no gang hierarchy. He explained that he decided on his own to shoot Mr. Akindejoye because of the disrespect to Mr. Jowrey.
[49] Mr. Clark testified that Mr. Charlton was not aware of his plan and did not shoot Mr. Akindejoye. Mr. Clark said that he was the shooter. He said Mr. Charlton was not present and Mr. Jowrey did not instruct him or anyone to kill Mr. Akindejoye.
[50] Mr. Clark said that in his August 8, 2012 statement to the police he implicated Mr. Charlton and Mr. Jowrey because the police threatened him with violence. They showed him Mr. Akindejoye’s statement and a chart, which was a schematic representation of gang membership in his neighbourhood. Mr. Clark explained that having seen this information he knew who to implicate. Mr. Clark said that the police promised him better treatment in prison and a lighter sentence.
[51] Mr. Clark testified that he could not identify the police officers who threatened him. It is curious that Mr. Clark is not able to identify the officers who made him falsely implicate his friend. This was a significant event.
[52] Mr. Clark’s interaction with the police was over a significant period of time. It was not a fleeting occurrence. Mr. Clark provided a detailed account of conversations made on and then off camera. Under all those circumstances, I find it difficult to accept that he could not identify the police officers who threatened him. I conclude that he sought to mislead the court and reject his evidence that his statement was tainted by police threats and direction to implicate Mr. Charlton and Mr. Jowrey.
[53] From the totality of Mr. Clark’s previous and current testimony, he has provided evidence of the existence of a gang; Mr. Charlton’s membership in the gang; a gang hierarchy that must be respected; that Mr. Jowrey ordered Mr. Charlton to kill Akindejoye; and that Mr. Charlton shot Mr. Akindejoye.
[54] Mr. Clark has also said that Mr. Charlton was not a member of the gang; there was no gang hierarchy; Mr. Jowrey did not give the order to kill Mr. Akindejoye; Mr. Clark shot Mr. Akindejoye; he acted alone; and that Mr. Charlton was not present and did not know anything about Mr. Clark’s actions.
[55] The evidence of discreditable conduct is capable of establishing Mr. Charlton’s motive for the shooting, i.e., it is capable of establishing the identity of the shooter and the shooter’s state of mind at the time of the shooting: R. v. S.(P.), 2007 ONCA 299, 221 C.C.C. (3d) 45 at paras. 27 and 39, R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404 at paras. 97-100.
[56] This evidence is a crucial component of the prosecution’s case. It enables the prosecution to adduce evidence of the identity and intent of the shooter, this evidence takes on further importance because it is clear that Mr. Clark is going to be asserting that he was the shooter at trial. He has made a complete repudiation of his testimony at the preliminary inquiry and at his guilty plea. The probative value of this evidence is obvious, however, the danger that the jury would convict Mr. Charlton simply because they conclude that he is a member of a gang is very high. The membership in a gang could lead the jury to conclude that Mr. Charlton is a bad person with the propensity to commit the crime. There is a very real likelihood that this could result in a conviction based on the fact of gang membership alone without regard to the trial evidence.
[57] In addition, there are several avenues by which the Crown can explore the nature of the relationship between Mr. Charlton, Mr. Jowrey and Mr. Clark without having to make any reference to gang membership or the Clean Up Crew. For example, there is evidence that they grew up together in the same neighbourhood and have known each other for several years.
[58] Therefore, I conclude that on balance the prejudicial effect of evidence of a “gang”, the “Clean Up Crew”, gang hierarchy and Mr. Charlton’s membership is more prejudicial than probative. The Crown is permitted to explore the relationship between Mr. Charlton, Mr. Clark and Mr. Jowrey, however, there shall be no references to the existence of a gang, the name “Clean Up Crew”, gang hierarchy or Mr. Charlton’s membership or affiliations with any gang.
Barnes, J.
Released: September 25, 2015
COURT FILE NO.: CRIMJ(P) 250/13
DATE: 2015-09-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
LAFFETTE CHARLTON
REASONS FOR JUDGMENT
Barnes, J.
Released: September 25, 2015