R. v. Johnson, 2015 ONSC 5974

CITATION: R. v. Johnson, 2015 ONSC 5974 COURT FILE NO.: CR-14-40000523 DATE: 2015-10-05

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN – and – DON DANIEL JOHNSON

Counsel: Sheila Cressman and Daniel DeSantis, for the Crown Victoria Tucci and Carol Cahill, for the Accused

HEARD: September 15-18, 2015

REASONS FOR RULING

M. Dambrot J.:

[1] Don Johnson is being tried by me, with a jury, on an indictment alleging that on February 20, 2012, he committed the first degree murder of Justin and Jerome Waterman. Before the selection of a jury, I heard several pre-trial applications. I began by hearing the following three applications together. First, the accused brought an application for an order excluding from evidence several text messages allegedly sent by Justin and Jerome Waterman on the basis that they are hearsay, and that the authorship of the messages cannot be proven beyond a reasonable doubt. Second, the Crown brought an application for an order that certain other hearsay statements said to have been made by the two deceased persons be admitted at trial pursuant to the principled approach to hearsay. Finally, the Crown brought an application for an order that evidence of certain discreditable conduct alleged to have been committed by the accused be admitted at trial. There was considerable overlap in these applications, and as a result it is convenient to give reasons disposing of them all in a single ruling. Before I address the first of these applications, I will set out a very brief overview of the theory of the Crown’s case.

The Case for the Crown

[2] Justin and Jerome Waterman were brothers. It is the Crown’s theory that they were planning to commit a robbery with the assistance of the accused. In fact, Johnson had no intention of committing a robbery at all. The robbery plan was a pretext to lure the brothers to the basement of 325 Bogert Avenue, a residential building just south of Sheppard Avenue between Bathurst Street and Yonge Street in Toronto, where they were to be murdered. The accused’s mother resided at that address at the time. The brothers were in fact lured to that location, and were murdered in the basement. The Crown says that the murders were committed in revenge for Justin Waterman having provided a statement to the police on January 2, 2010, in which he implicated Johnson in the offence of possession of a sawed-off shotgun to avoid his own liability, and gratuitously disclosed that Johnson planned to commit a robbery of a grow-op. In support of this theory, the Crown seeks to tender various ante-mortem utterances of the deceased, and a number of text messages alleged to have been made by the deceased, the accused and various other persons. These communications give rise to the motions under consideration in this ruling.

1. The Application to Exclude Text Messages

[3] Although this application raised both a hearsay objection to the admissibility of the text messages and an authorship issue, it is convenient to consider the hearsay aspect of the application together with the Crown’s application to admit hearsay. As a result, I will consider now only the authorship issue. For reasons that will quickly become apparent, I will deal with the issue only briefly.

[4] The Crown alleges that various text messages were sent or received by the accused on three different cellphones, none of which were registered under his name. The Crown has marshalled a formidable body of evidence supporting the inference that the text messages were correctly attributed to the accused, including self-identification, the content of the texts, the location of the cellphone when texts were sent, and more. Counsel for the accused concedes that the he used the cellphones in question, but not all of the time. Other people used the same phones at other times. She argued, initially, that I was obliged to determine whether the Crown had established the authorship of each text message attributed to the accused before it could be admitted. The burden of proof was initially said to be beyond a reasonable doubt, and later on a balance of probabilities.

[5] In the context of intercepted private communications in the form of audio recordings, it was established as early as 1977 in R. v. Parsons (1977), 17 O.R. (2d) 465 (C.A.), that so long as the Crown had some evidentiary basis to attribute a communication to an accused that is otherwise admissible, no voir dire to consider voice identification was necessary and the communication was admitted without more. Specifically on the question of whether the Crown had to satisfy a burden of proof, Dubin J.A., as he then was, stated for the court, at p. 474:

The learned trial Judge erred not only in the procedure adopted, but in instructing himself that the Crown had to satisfy him beyond a reasonable doubt on the issue of voice identification before the evidence could be left to the jury. He further erred in holding that the Crown had not satisfied him by a preponderance of the evidence that “there had been voice identification sufficient to put the matter before a jury”.

[6] I see no principled basis to treat text messages differently than audio recordings. I note that by the end of the argument, counsel for the accused effectively abandoned this challenge to admissibility.

2. The Application to Admit the Ante-Mortem Statements of the Deceased

[7] The following is a description of the ante-mortem statements of the deceased that the Crown seeks to be permitted to adduce in evidence, and the relevance of them according to the Crown.

(a) Utterances of Justin Waterman to Samantha Tomlinson-Cowe

i. Utterances in relation to a Nokia phone

[8] Samantha Tomlinson-Cowe was the girlfriend of Justin Waterman. She is expected to testify that two or three weeks prior to the homicides, Justin told her that Mischief, a name used to refer to the accused, was out of jail. Specifically, he said, “He’s on the road, my big brother is on the road”. Two or three days later Justin came into possession of a generic Nokia cellphone. He told Tomlinson that Mischief had given him the phone so he could keep in touch with him. Justin had the phone for approximately one week. Tomlinson will say that Justin didn’t know why Mischief took it back at that time.

[9] These utterances are relevant to the Crown’s theory that following his release from custody the accused was attempting to gain Justin Waterman’s trust. During this time period, the text messages between the accused and Justin disclose an attempted robbery apparently planned by the accused, which was to involve only him and the Waterman brothers (“this eat is between only us 3”- February 10, 2012, 10:38:24). The Crown argues that the jury could draw the inference that the accused was attempting to gain the trust of the Waterman brothers by providing Justin with a cellphone, and by organizing a robbery with them so that they would be comfortable in participating in the sham robbery that resulted in the murders.

ii. Utterances in relation to a planned robbery and Justin’s intended destination after working with his father

[10] On the Wednesday or Thursday (February 15 or 16, 2012) before the homicides, Justin told Tomlinson that he, Jerome, and Mischief were going to rob “a white guy” that Mischief knew. Mischief only wanted a chain, and Justin and Jerome would take everything else. In response, Tomlinson told Justin that he was stupid; he could do that sort of thing and lose her, or he could stay with her. The robbery was supposed to happen each day after that, but it never happened.

[11] Tomlinson will say that on Saturday afternoon (likely actually on Sunday, February 19, 2012) prior to the homicides, Justin told her that he was going to see his father. If his father didn’t give him money, then he would go see Mischief and do what he had planned. Tomlinson, logically enough, connected this to the robbery of the “white guy.” At approximately 6:00 p.m., Justin phoned her from his father’s phone and said that he had received no money from him. He said he was going to see Mischief, and would be back around 8:00 p.m. Tomlinson told him to forget it, and to just come home. Justin did not come home that night.

[12] Justin’s utterances to Tomlinson in relation to the robbery of the “white guy” are relevant to establishing that he was planning to commit a robbery with the accused in the timeframe immediately prior to the homicides. His statements regarding his plan to meet up with Mischief are relevant to support the inference that Justin did meet up with the accused on the day prior to the homicides. This would assist the jury in determining Justin’s state of mind during the time just prior to his murder. It supports the Crown’s theory that on the day of the murder, the brothers were in fact lured to the basement of 325 Bogert Avenue to participate in a sham robbery.

(b) Utterances of Justin Waterman to Dina Renaud in relation to a phone

[13] Dina Renaud was the mother of Justin and Jerome Waterman. She is expected to testify that a few weeks before the murders she started receiving text messages from Justin, although he hadn’t previously had a phone. She asked Justin whose phone it was, and he replied that it was Mischief’s. She described the phone as shiny and white. She was upset that he was using Mischief’s phone. She thinks that she received texts from that phone from approximately February 10, 2012, until February 15, 2012.

[14] This evidence supports the inference sought to be drawn from Justin’s utterances to Tomlinson about a Nokia phone.

(c) Utterance of Justin Waterman to Mark Waterman in relation to his intended destination after working with his father

[15] Mark Waterman, the father of Justin and Jerome Waterman, is expected to testify that Justin worked with him on Sunday, February 19, 2012. When they finished work, Justin mentioned that he was going to see a friend who was at Bathurst and Sheppard. Justin didn’t say who the friend was or what they were going to do.

[16] Justin’s statement to his father that he was meeting someone at Bathurst and Sheppard is evidence of his intended destination, and supports the inference that he met with the accused in that area after he left his father. This evidence, along with the utterances made to Tomlinson about meeting up with Mischief, support the inference that Justin was the person referred to in text messages attributed to the accused the night before the homicides. The accused’s apparent attempt to conceal the presence of Justin at 325 Bogert Avenue, as disclosed in his text messages on the night of February 19, 2012, is consistent with a plan to kill Justin and to conceal the crime by covering his tracks.

(d) Utterances of Jerome Waterman to Taige Smith in relation to a planned robbery

[17] Taige Smith was an associate of Jerome Waterman. He is expected to testify that Jerome came to his residence on February 20, 2012, between 1:00 and 1:30 p.m. Jerome told him he had an “eat food”, meaning a robbery. He said that there was $3,500 involved, and it had something to do with selling a gun. The robbery was to take place at Bathurst and Sheppard. Jerome said he would go there and make the person think he had a big gun like a Desert Eagle. Then they would rob the person. Jerome told Smith that he got a call from one of his friends who was going to set the whole thing up. He didn’t mention the friend’s name, or whether the friend would be there. Jerome said he didn’t have a gun.

[18] Jerome asked Smith to go with him to the robbery, but Smith told Jerome that he did not want to get involved in this robbery. Jerome said, “alright cool”, and left it alone. Smith thought that he had talked Jerome out of the plan.

[19] Jerome’s utterances to Smith regarding the planned robbery of the purported gun buyer are relevant to establish Jerome’s intention to commit the offence. The particulars provided by Smith provide a more detailed picture of the planned robbery from Jerome’s perspective: it was planned by a friend, it was to take place at Bathurst and Sheppard and the victim was coming to buy a gun.

(e) Utterances of Jerome Waterman to Pamela Findlater and Toni Baxter

[20] Pamela Findlater was Jerome’s girlfriend. She lived with Jerome at an address in Scarborough. She is expected to testify that on February 20, 2012, she and Jerome woke up around 9:00 a.m. He left in her sister’s car around 9:30 or 10:00 a.m. to pick up a friend of hers to bring her to their house. When he returned, he told her that he was going to Yonge and Sheppard and that he would be back in about 25 minutes. He said he was going to pick up his brother. Jerome left the house around 10:30 a.m. Findlater didn’t hear from Jerome again until about 3:00 p.m. when he called the house. He asked if she and her sister were “O.K.” She responded that they both were. Nothing further was discussed during this call.

[21] Toni Baxter is Pamela Findlater’s sister. She testified that she woke up around 11 a.m. on February 20, 2012. She asked Jerome to pick up a friend of hers named Samantha. He used her car to do so, returning with Samantha around 11:30 a.m. Jerome told her that he wanted to go somewhere quick. He said he wanted to go to Yonge and Sheppard quickly, and that he also wanted to pick up someone up at Bathurst and Eglinton. He left between 12:00 and 12:30 p.m.

[22] Jerome’s utterances to Findlater and Baxter, as well as Renaud, which I will come to in a moment, provide a narrative of Jerome’s activities on the day of the murders. In addition, his comments that he was going to Yonge and Sheppard (Findlater and Baxter), and Bathurst and Sheppard (Baxter) are evidence of his intention to connect with the accused and Justin, who both lived near Sheppard, generally in the area around Bathurst or Yonge. The inference that he intended to meet up with his brother is strengthened by his statement to Findlater that he was going to pick up Justin.

(f) Utterances of Jerome Waterman to Dina Renaud in relation to picking up Justin

[23] On February 20, 2012, Jerome Waterman came to his mother’s apartment at around 11:00 a.m. He told her that he was going to buy some weed in the building, then pick someone up and drop them off, following which he was going to pick up Justin for a family event to be held at Ms. Renaud’s home.

[24] As I have noted, Jerome’s utterances to his mother about his planned activities on February 20, 2012, add to the narrative of his activities on the day of the murders that may be gleaned from his utterances to Findlater and Baxter. In particular, they support the inference that he intended to meet with Justin.

(g) References in Jerome Waterman’s contacts list to numbers for Johnson and “Ruckks”

[25] A computer analyst with the RCMP conducted an analysis of a Blackberry with the number (647) 981-8441 that was found on Jerome’s body after he was killed. In his report he noted that the contacts list in the cellphone included an entry for “M.I” with a work number of 1-647-210-0299, and an entry for “Ruckks” with a number of 647-764-9677. “M.I.” is alleged to be a reference to the accused, and “Ruckks,” according to Renaud, is very similar to a nickname used by Justin. Someone using the number attributed to “Ruckks” on a number of occasions exchanged text messages with someone using 647-210-0299, which the Crown attributes to the accused.

[26] The numbers contained in Jerome’s contacts list are relevant as circumstantial evidence that “M.I.” and “Ruckks” used the numbers that are attributed to them and that Jerome Waterman expected to be able to reach them at those numbers. In addition, this evidence supports the Crown’s allegation that the accused lent the “Ruckks” phone to Justin for a few days in order to communicate with him and secure his trust.

(h) Ante-mortem text messages of the deceased

[27] The following is a summary prepared by the Crown of the ante-mortem text messages of the deceased that the Crown seeks to be permitted to rely on for a hearsay purpose.

Summary of Text Messages and BBM's Relied Upon for Hearsay Purpose

Text Messages in Relation to 647-764-9677

DATE

TIME (start of conversation)

FROM/TO

PURPOSE

Feb 10

9:56:40 - 10:40:34

647-210-0299

Conversations between Johnson and Justin Waterman in which a robbery is planned. At 10:40:34 Justin indicated agreement to plan. Crown relies upon statement to show that Justin has agreed to the plan as outlined by Johnson.

Feb 12

11:38:36

647-210-0299

Exchange in which Justin advised Johnson that Public Mobile is shutting down the phone and inquiring about payment. Inference is that Johnson is responsible for this phone. Crown relies upon for truth.

Feb 12

11:34:55 - 16:49:20

647-210-0299

Justin inquired about details of what appears to be the robbery plan first disclosed on Feb. 10. The inference is that Johnson has come up with the plan. At 11:46:52 Justin indicated his agreement to the plan by saying “Ok ok…” As conversation continued it appears that robbery is not happening. At 16:32:23 Justin said he’s “hungry” (needs money). The Crown relies on Justin’s utterances to indicate his agreement to the plan and his willingness to participate in it.

Feb 12

17:58:53 21:25:48

647-210-0299 647-999-7366

Justin advised Johnson that someone named Jerry called the phone. In response to a text from “Moshe”, at 21:24:05, Justin sent a text to “Moshe” (Dan Johnson) saying that “my niga let me hol dis phn he still has the bb il sho him to link szeen”. At 21:25:48 he advised Johnson that Moshe texted him. Crown relies upon these statements for their truth in support of the inference that Johnson lent him [Justin] the phone.

Feb 12

18:17:43

416-206-5286

Justin sent a text to Samantha indicating that “dis guy sayin he has skool”, and that “Jol me and mischif wana bang of hes base” and that “he got more shit in der”. The Crown relies upon this utterance for its truth.

Feb 12

22:35:23

647-210-0299

Justin told Johnson to make sure he pays the bill. The inference is that Johnson is responsible for the phone. Crown relies upon this statement for its truth in support of that inference.

Feb 13

12:54:47-14:41:27

647-210-0299

Series of messages between Johnson and Justin, along with messages between Justin and Jerome, about what appears to be a robbery plan. Statements from Justin’s phone indicate his belief regarding his brother’s involvement and that “mans are flyin 2yu ri now”. The inference is that steps are in progress regarding the robbery plan. Justin sent a response to Johnson at 14:22:29 indicating his belief that Johnson is at “young n shep”. Crown relies upon for truth with respect to Justin’s agreement to the robbery plan, and communication of steps he believed to be in place.

BBM’s Between 2701B583 and 2274F100

Feb 20

10:16:00

BBM’s 2701B583/ 2274F100

This is a series of BBM’s between the PIN belonging to Jerome Waterman’s phone and the PIN belonging to the phone alleged to be used by Johnson (2701B583--Lifted). The messages sent by Jerome Waterman are relevant to show his state of mind regarding the proposed plan. The following messages sent by Jerome are tendered for a hearsay purpose: 11:20:17 “I’m home…” 11:24:39 “Ya G..” (indicating that he will come for the robbery) 11:31:35 “Jus now I’m getting my whip G” (that he was getting his car) 12:42:33 “I’m on the road now G” The remainder of the messages are relevant for the fact that they are said, and provide context to the messages sent by “Lifted” in which he expresses impatience with Jerome’s delay in showing up, and his insistence that no one else be aware of the plan (14:19:34 - “…no nex niggas idont show face”) (14:19:56 - doneven let niggz no ur chekin me g)

Analysis

[28] The Crown submits that the statements in question are admissible pursuant to the principled approach to hearsay. I will begin my analysis of this submission with a discussion of the framework for considering hearsay evidence.

The Framework

[29] The first step that a trial judge must take in determining whether or not hearsay should be received in evidence at a criminal trial is to consider whether or not it is relevant. Once a determination of relevance is made, a trial judge must take a functional approach to the issue. In R. v. Dupe, 2010 ONSC 6423, I summarized the functional approach to the determination of the admissibility of hearsay evidence described by Charron J. in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, as follows, at para. 17:

1. Confirm the proposed evidence is hearsay – meaning it is tendered for the truth of its contents and that there is no opportunity for contemporaneous cross-examination.
2. If it is hearsay, it is presumptively inadmissible. However, the court then considers whether it falls into a recognized exception. If it does, it is admissible.
3. If it does not fit a categorical exception, then it may still be admitted pursuant to an analysis of whether it is both necessary and reliable.
4. If found to be necessary and reliable, the trial judge maintains residual discretion to exclude where the probative value of the evidence is outweighed by its prejudicial impact.

[30] I further noted, at para. 18, “It must be remembered, when considering steps two and three, that the party seeking to tender the hearsay statement must demonstrate its admissibility on a balance of probabilities.”

[31] In this case, the evidence is clearly relevant, largely for the reasons advanced by the Crown in its factum and in oral argument. Examined cumulatively, the evidence provides substantial support for significant parts of the Crown’s theory. It will be recalled that the Crown alleges that Johnson, Justin, and Jerome were planning to commit a robbery together, but that in fact, Johnson had no intention of committing a robbery at all. The robbery plans were a pretext to lure the brothers to the basement of 325 Bogert Avenue, a residential building just south of Sheppard Avenue between Bathurst Street and Yonge Street in Toronto, where they were to be murdered.

[32] While the evidence in question says nothing about the accused’s underlying motive, it most assuredly paints a picture that supports important parts of this theory. In sum, the evidence supports inferences that:

• Following his release from custody the accused gained the trust of Justin and Jerome by planning robberies with them, and ultimately securing their agreement to participate in the ultimate robbery;
• Both Justin and Jerome engaged in the planning of robberies with the accused, and entered into an agreement with him to commit the ultimate robbery; and
• The actions of both Justin and Jerome on the day of the murder were consistent with their involvement in the ultimate robbery.

[33] In other words, the evidence is relevant to show how the accused allegedly went about securing the trust of the brothers and luring them to their death. Having reached that conclusion, I must proceed to apply the hearsay framework.

Is the evidence hearsay?

[34] Many, although not all, of the statements I have mentioned are hearsay. Some of them are statements of intention. Some of them consist of words communicated to the accused, which may have been adopted by the accused, and at the least are admissible to provide context and meaning to the words of the accused. But rather than subject this body of evidence to a lengthy and detailed piece-by-piece analysis in order to determine what might and what might not be admissible on a non-hearsay basis, I will assume that all of this evidence is hearsay – statements tendered for the truth of their contents.

Does the evidence fall into a recognized exception to the rule against hearsay?

[35] It is possible that some of the evidence may fall into a recognized exception to the rule against hearsay. For example, some of the words of Justin and Jerome might be seen as acts in furtherance of a common design to commit a robbery. Whether or not that is an available avenue of admissibility where the alleged offence is murder is a nice academic question. But for the same reason as I gave in answer to the first question, I will resist the temptation to explore such possibilities and assume that none of the evidence falls within a recognized exception.

Is any or all of this evidence both necessary and reliable?

The law

[36] In light of the fact that both Justin and Jerome are deceased, the accused unsurprisingly concedes necessity. My analysis will relate only to reliability. I will begin with a brief excursion through the law.

[37] The rule excluding hearsay is a well-established exception to the general principle that all relevant evidence is admissible. The central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability: see Khelawon, at para. 2. Since the central underlying concern about hearsay is the inability to test the evidence, it follows that under the principled approach the reliability requirement is aimed at identifying those cases where this difficulty is sufficiently overcome to justify receiving the evidence as an exception to the general exclusionary rule. The reliability requirement is usually met in one or the other of two different ways: (1) by showing that there is no real concern about whether the statement is true or not because of the circumstances in which it came about; or (2) by showing that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested: see Khelawon, at paras. 61-63.

[38] Whichever basis for meeting the reliability requirement is advanced, it is the responsibility of the trial judge to act as a gatekeeper in making the preliminary assessment of the “threshold reliability” of the hearsay statement and to then leave the ultimate determination of its worth to the fact finder.

[39] The distinction between threshold and ultimate reliability reflects the important difference between admission and reliance. Nevertheless, the factors to be considered on the admissibility inquiry cannot be categorized in terms of threshold and ultimate reliability. Rather, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence. In each case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility: see Khelawon, at paras. 3-4.

[40] Here the Crown relies on the first basis for meeting the reliability requirement. In such a case, the reliability requirement will be met if the circumstances in which the statement came about provide sufficient confidence in its truth and accuracy: see Khelawon, at para. 67.

[41] The factors that have been considered on this inquiry include: whether the circumstances are such that a sincere and accurate statement would naturally be uttered and no plan of falsification formed; the presence or absence of a motive to lie; the extent of the dangers associated with hearsay such as the perception, memory and credibility of the declarant; and the existence of confirming or contradictory evidence.

The relevant circumstances in this case

[42] I turn next to the relevant circumstances in this case.

[43] I begin by noting what the statements were about. At the risk of oversimplifying, they provide evidence that:

• Justin obtained the cellphone he was using in the days prior to the homicides from the accused and was given it so that he could keep in touch with the accused: Tomlinson; Renaud
• Justin was planning to commit robberies with the accused and Jerome in the days prior to the homicides: Tomlinson
• Justin exchanged text messages with the accused about his cell phone and about the robberies they were planning to commit: seized text messages
• Justin exchanged text messages with Tomlinson concerning the robberies he planned to commit with the accused: seized text messages
• On February 19, 2012, the day before the homicide,[^1] Justin was going to see his father and if his father didn’t give him money, to see the accused and commit a robbery: Tomlinson
• Later that day, since his father hadn’t given him money, he was going to see the accused: Tomlinson
• On February 19, 2012, after meeting with his father, Justin was going to meet someone at Bathurst and Sheppard: Mark Waterman
• On February 19, 2012, Jerome was going to pick up his brother: Findlater; to pick up someone at Yonge and Sheppard and then at Bathurst and Eglinton: Baxter; to pick up someone, and then his brother: Renaud
• On February 20, 2012, Jerome was going to commit a robbery at Bathurst and Sheppard and wanted his associate Taige Smith to participate in it: Smith
• The numbers Jerome had for contacting “M.I.” and “Ruckks” were in his Blackberry contacts list: Jerome’s Blackberry
• Jerome exchanged BBM messages with the accused regarding the plan for the ultimate robbery: seized messages

[44] To simplify still further, the messages concern either the planning of or preparation for the robberies that, the Crown alleges, were integral to the accused’s murderous scheme, or the provision of a cellphone to Justin by the accused, on the surface an entirely innocuous subject but which the Crown alleges was also done as part of the accused’s scheme. The robbery plans are only discussed in a revealing manner by Justin with the accused and with his girlfriend, and by Jerome with the accused and with a person that Jerome wanted to enlist in the robbery plans.

[45] I turn next to when and how the statements were made. In every case, they were made contemporaneous to the events being described. They were not after the fact reconstructions when memory could have faded or when concerns about implicating the speaker in a prosecution could have arisen. In each case they were made naturally and without prompting, questioning or other exercise of influence.

[46] Next, I turn to the identity of the persons to whom the statements were made. In the case of incriminating statements, they were all made to trusted individuals, either confederates (the accused and Smith) or girlfriends. In the case of innocuous statements, they were all made to relatives or close friends.

[47] Next, is it possible that the declarant was mistaken? Obviously, there is no such possibility with the text messages. And in the circumstances, the likelihood of error in the remaining incidents seems small.

[48] I turn next to the suggestion by the accused that there is reason to doubt the credibility and reliability of what Justin told Tomlinson about his plans to commit a robbery with the accused. With respect to credibility, counsel for the accused pointed to evidence that Tomlinson did not approve of Justin committing crimes, and did not like Jerome. She described Justin as secretive and dishonest, and said that he would hide things from her. While this no doubt undermines Justin’s general credibility, I fail to see how it bears on his credibility when he told Tomlinson, despite her disapproval, that he was planning to commit robberies with the accused. It is true that Justin did not mention to her that Jerome was also planning to be a participant. But his failure to mention Jerome, perhaps because he knew she disapproved of him, does not undermine the credibility of what he did tell her.

[49] I turn next to the question of confirmation and contradiction. I begin with confirmation.

[50] In this case, in many instances, the statements are mutually confirmatory. For example, the robbery discussions between Justin and Jerome on the one hand, and the accused, Tomlinson and Smith on the other, are all, to some degree, confirmatory of one another. For another example, with respect to Justin’s cellphone, the accused told both his girlfriend and his mother that he had borrowed the phone from the accused, and discussed the phone with Johnson in text messages in a manner suggesting that it belonged to the accused. Further, Jerome’s accounts of his movements on February 19, 2012, to Findlater, Baxter and Renaud, if not entirely consistent, fit together rather convincingly.

[51] Crown counsel pointed to several other examples of confirmation in her factum and in her argument. I see no need to list them all.

[52] Counsel for the accused pointed to a number of items of evidence that she characterized as contradicting or undermining the reliability of some of the statements in issue. I note immediately that there is no significant piece of evidence that contradicts any of the hearsay evidence. In pursuing this exercise, counsel instead descended into a microscopic evaluation of the minutiae of the evidence that was heard at the preliminary inquiry. I will not follow her path through the evidence. In my view, this approach exceeds the bounds of my task, requiring as it does an examination of the entirety of the evidence. These items of evidence can readily be placed before the jury, can to a significant extent be explored with other witnesses and simply are incapable of tipping the balance on a threshold reliability inquiry.

The Result

[53] In the end, the hearsay statements tendered by the Crown meet the test of threshold reliability.

[54] With respect to the statements about the commission of crimes, it is very difficult to imagine that statements voluntarily made by either Justin or Jerome implicating themselves in the commission of crimes would be false. This is particularly the case in light of the identities of the persons to whom the statements were made, and the circumstances in which they were made. These statements were made to the accused, who was plainly an intended co-perpetrator of the crimes, to Justin’s girlfriend who would understandably be in Justin’s confidence and to Smith, a person that Jerome wanted to recruit into the ultimate crime. It is difficult to imagine why any of these statements would be false. I add to this that the statements were contemporaneous with the events spoken of, and clearly not the product of mistake. In addition, they were made naturally and without prompting, questioning or other exercise of influence, were made without motive to lie, and are confirmed to a significant degree.

[55] The innocuous statements about whereabouts and the cellphone are even more unlikely to be false.

[56] As a result, as I have already stated, all of the statements in issue are necessary, and meet the test of threshold reliability. However some of the statements concern or disclose discreditable conduct on the part of the accused. I will subject those statements to a probative value/prejudicial effect analysis in my discussion of the third application before I decide whether or not they are admissible in evidence at this trial.

3. The Application to Admit Discreditable Conduct Evidence

[57] The Crown seeks to adduce the following evidence of discreditable conduct by the accused:

(a) Evidence that the accused possessed a shotgun and was planning to commit a robbery on January 2, 2010

[58] On January 2, 2010, the accused was the driver and Justin the passenger in a stolen motor vehicle that was involved in a collision after a police pursuit. A shotgun was found underneath the passenger seat. The two men were arrested and charged with possession of the shotgun. Det. Mullen interviewed the accused, who made some exculpatory utterances off camera and then refused to speak further with the officer. He then spoke to Justin, who also made exculpatory utterances, and then agreed to provide a video statement regarding the incident.

[59] In this statement, Justin told Det. Mullen that the accused was in possession of the shotgun, and was planning to commit a robbery of a marihuana grow operation that night. Det. Mullen then returned to the accused, informed him that Justin had implicated him in a plan to commit a robbery of a marihuana grow operation and advised him that he was also under arrest for conspiracy to commit robbery.

[60] The accused was detained in custody on these charges from the date of his arrest until May 19, 2010, when he pleaded guilty to possession of the shotgun and certain other offences. The conspiracy charge was withdrawn. The accused was released on bail, and on June 28, 2010, he was sentenced to time served and probation for 18 months. One of the conditions of his probation was that he was not to communicate or associate with Justin Waterman.

[61] The Crown called Sgt. Jansz of the Toronto Police Service as an expert witness at the preliminary inquiry, and proposes calling him again at trial. Sgt. Jansz has testified in the past as an expert on the nature, characteristics and activities of street gangs in Toronto, gang culture and “The Code of Silence”. More specifically, he testified at the preliminary inquiry that the 4020 Complex Crips is a street gang that operates in the area of Dundas St. W. and Jane St., and is involved in drug dealing and street robberies. He testified that a photograph of the accused with a 4020 Complex tattoo on his wrist, evidence that he has been photographed wearing a blue Dodgers jacket and blue cap, which is consistent with Crip paraphernalia, and his use of certain language in his text messages support an inference that the accused identifies as a member of the Crips, and shows his loyalty to the 4020 Complex Crips.

[62] With respect to the code of silence, he said that it “directs” criminals not to “rat” on other criminals. He went on to say that within the criminal subculture there is a distinction between individuals who commit crimes, and those who are members of gangs. Within the gang culture it is a rule that you do not talk to the police. There are harsh punishments for gang members or associates who breach these rules, which are more serious than punishments for individuals in the community/criminal subculture who are not members of gangs.

[63] Sgt. Jansz further testified that there are degrees of breaches of the code of silence. A “first degree” breach of the code of silence would involve someone going out of their way to report an offence. Justin’s actions in providing a statement to the police not only claiming that the accused, who was a gang member, was the owner of the gun, but in addition that he had planned a robbery, was a very serious first degree breach of the code of silence. The fact that the robbery charge was ultimately withdrawn would not detract from the seriousness of the breach. Sgt. Jansz further testified that respect, reputation and revenge are key elements of gang membership. If a gang member is disrespected in any way, the gang will exact revenge in order to uphold its reputation.

[64] It is the Crown’s position that the fact that the accused identifies with the 4020 Complex Crips, a street gang that engages in illegal activities such as drug trafficking and street robberies and adheres to the code of silence, taken together with the fact that Justin provided a statement to the police implicating the accused in criminal offences, supports an inference that the accused bore animus towards Justin and provides the accused with a motive for murdering Justin. This position is further supported by a text message sent by the accused on the night prior to the murders which reads, “these r_tz hard to cach famly im tellin u”. The Crown does not seek to tender the contents of Justin’s statement for its truth, but simply for the fact that it was given. It is a piece of circumstantial evidence supporting an inference that the accused had a motive to kill Justin.

(b) Evidence that the accused spent time in custody, on probation and on judicial interim release between January 2 and January 17, 2012

[65] The accused was in custody during all of the following time periods:

• January 3, 2010, to May 19, 2010 (followed by 18 days out of custody)
• June 7, 2010, to June 9, 2010 (followed by 39 days out of custody)
• July 19, 2010, to July 20, 2010 (followed by 11 days out of custody)
• August 1, 2010, to May 2, 2011 (followed by 14 days out of custody)
• May 17, 2011, to January 9, 2012

[66] In addition, the accused was bound by conditions of bail or probation which prohibited contact with Justin whenever he was at liberty during this period until his release in January 2012.

[67] It is the Crown’s position that it should be permitted to lead this evidence because it is explains the accused’s two year delay in taking revenge for Justin’s breach of the code of silence.

(c) Evidence that the accused planned to commit a robbery with Justin Waterman between February 10 and 13, 2012

[68] As I have already indicated in my discussion of the second ruling, the Crown proposes adducing evidence of the accused planning an earlier robbery with Justin between February 10 and 13, 2012. Evidence of this planning is contained in the text messages I have referred to in the first and second rulings. In addition, as I have also already indicated, the Crown asks to be permitted to adduce the evidence of Tomlinson about a plan between the accused and Justin to rob a “white guy” in the days leading up to the homicides. Jerome is also mentioned as a participant in each of these incidents. I have already determined that all of this evidence is relevant to the Crown’s theory that the accused lured the victims to the basement of 325 Bogert Avenue on the pretext of committing a robbery. This evidence, viewed in the context of other evidence, would permit the jury to draw an inference that the accused was trying to gain the trust of the victims by showing them that he was prepared to help them gain funds through the commission of criminal offences. The joint commission of robberies prior to the homicides would have lulled the victims into a false sense of security in their dealings with the accused.

[69] In the course of her argument, counsel for the accused appeared to concede that if I were to admit evidence about the code of silence in relation to the criminal subculture, this evidence would be admissible to show that the accused was engaged in street crime, and as a result the code of silence was applicable to him on that basis, but not on the basis of gang membership.

(d) Evidence that the accused engaged in drug trafficking

[70] The Crown also proposes adducing evidence of the drug trafficking activity disclosed by text messages on one of the cellphones which the Crown attributes to the accused. This activity is consistent with the accused associating with a criminal street gang that engaged in drug trafficking, and supports the Crown’s position that the accused adhered to the code of silence, and in turn had a motive to kill the deceased. The Crown argues that this evidence is relevant for two additional reasons which I will address later in these reasons.

[71] The Crown summarizes the pertinent text messages in its factum as follows:

Text messages which were sent from the phone which the Crown alleges was used primarily by the Respondent contain some references to drug trafficking. There is a reference on Feb 6, 2012 at 12:52:26 to “wop” and “u have twerk” which Sgt Gansz [sic] identified as drug language. On the same day at 13:00:55 the Respondent’s phone sends a text reading, “…ware r ur heads at n have twerk”, with “heads” being defined by Sgt Gansz as referring to “crackheads”. There is a series of text messages on February 18, 2015, commencing at 15:19:07, in which the Respondent’s phone sends a text that he’s “tryna cop a bounce fer like 230”. The messages carry on with references to “fire”, “super fire”, and making arrangements to meet up with a “yute” or a “blak nigga”. On that same date at 17:49:53 the Respondent’s phone sends a text indicating that he’s not doing “his usual handtohand shit brauddaylite”, and at 17:50:21 “especially a big bag of piff”. There are further references on this same date which the Crown alleges are clear references to the trafficking of controlled substances.

(e) Evidence that the accused was on probation

[72] The Crown initially asked to be permitted to introduce evidence of the finding of a probation order in the accused’s name in a drawer at 325 Bogert Avenue, apartment 147, but with the nature of the charge redacted. Crown counsel took the position that this evidence is relevant because it gives rise to an inference that the accused had been residing at that address, which is of course located in the building complex in which the homicides took place. In the course of argument, the Crown withdrew this request “for now.”

Analysis

[73] I will begin with some general comments about the admissibility of evidence of discreditable conduct, and then proceed to consider the admissibility of each proposed category of discreditable evidence in turn.

Framework for Consideration of Discreditable Conduct

[74] I begin by repeating what I said in R. v. Riley, [2009] O.J. No. 1374 (S.C.), at paras. 20-23:

Character evidence that shows only that an accused is the type of person likely to have committed the offence charged is usually inadmissible. (See, for example, R. v. S.G.G. (1997), 116 C.C.C. (3d) 193 (S.C.C.) at para. 63).

However evidence that tends to show that the accused is a person of bad character but which is also relevant to an issue in the case does not fall within this exclusionary rule. (See R. v. B.F.F. (1993), 79 C.C.C. (3d) 112 (S.C.C.) at para. 71).

As Lamer J. (as he then was) stated in R. v. Morris (1983), 7 C.C.C. (3d) 97 (S.C.C.) at p. 106-7:

This is not to say that evidence which is relevant to a given issue in a case will of necessity be excluded merely because it also tends to prove disposition. Such evidence will be admitted subject to the judge weighing its probative value to that issue (e.g., identity), also weighing its prejudicial effect, and then determining its admissibility by measuring one to the other.

In other words, evidence that tends to show bad character or a criminal disposition on the part of an accused is admissible if (1) it is relevant to some other issue beyond disposition or character, and (2) its probative value outweighs its prejudicial effect.

[75] In this case, the proposed disposition evidence is admissible, if at all, primarily as evidence of motive. In addition, some of it may be admissible as narrative.

[76] With respect to motive, returning to Riley, I stated at paras. 74-81:

Animus and motive are not the same thing, but it is very difficult to discuss them in isolation form [sic] each other. In general, it might be said that animus towards another individual is simply a step in the formation of a motive to do harm to that individual. I will begin, however, with a discussion of motive.

Evidence of motive, in the sense of ulterior intention, purpose or object, is universally thought to be relevant in a criminal trial. As Duff C.J.C. noted in R. v. Barbour (1938), 71 C.C.C. 1 (S.C.C.) at pp. 19-20:

If you have acts seriously tending, when reasonably viewed, to establish motive for the commission of a crime, then there can be no doubt that such evidence is admissible, not merely to prove intent, but to prove the fact as well.

Dickson J., as he then was, expanded on the significance of motive in a criminal trial in R. v. Lewis (1979), 47 C.C.C. (2d) 24, where he formulated a number of propositions based upon the authorities, namely:

(1) As evidence, motive is always relevant and hence evidence of motive is admissible.

(2) Motive is no part of the crime and is legally irrelevant to criminal responsibility. It is not an essential element of the prosecution's case as a matter of law.

(3) Proved absence of motive is always an important fact in favour of the accused and ordinarily worthy of note in a charge to the jury.

(4) Conversely, proved presence of motive may be an important factual ingredient in the Crown’s case, notably on the issues of the identity and intention, when the evidence is purely circumstantial.

(5) Motive is therefore always a question of fact and evidence and the necessity of referring to motive in the charge to the jury falls within the general duty of the trial judge “to not only outline the theories of the prosecution and defence but to give the jury matters of evidence essential in arriving at a just conclusion.”

(6) Each case will turn on its own unique set of circumstances. The issue of motive is always a matter of degree.

Lewis was confirmed in S.G.G., where Cory J. stated, at para. 64:

Evidence which incidentally demonstrates bad character can also be directly relevant to a key element of the Crown’s theory of the case, such as motive, opportunity or means: see R. v. Davison (1974), 20 C.C.C. (2d) 424 (Ont. C.A.); Hinchey, supra, at para. 135. Evidence of motive, for example, is always relevant in that it makes it more likely that the accused committed the crime, although it is not an essential element of criminal responsibility: Lewis v. The Queen, [1979] 2 S.C.R. 821.

This statement of the law is subject to two provisos.

First, where motive is proved circumstantially by other acts of the accused, there is a two step reasoning process involved. The jury must first find that the other acts establish a motive. The jury may then typically treat the evidence of motive as circumstantial evidence of identity and intent. (See R. v. Merz (1999), 140 C.C.C. (3d) 259 at paras. 57-59 (Ont. C.A.)). In some cases, however, the evidence of motive may be excluded because of an absence of a temporal or factual nexus to the offence charged. In other words, when the acts, when reasonably viewed, cannot tend to prove motive, they should not be admitted. (See R. v. Barbour (1938), 71 C.C.C. 1 (S.C.C.) at pp. 19-20).

Second, in some cases other acts of the accused of which the Crown proposes to introduce evidence are morally neutral. But sometimes they amount to discreditable conduct. In those cases, they are subject to the probative value/prejudicial effect balancing. As Cory J. stated in S.G.G., at para. 65:

Evidence which is directly relevant to the Crown's theory of the case is admissible even though it may also demonstrate the bad character of the accused, as long as its probative value outweighs its prejudicial effect: B. (F.F.), supra, at p. 731.

There are many examples of evidence of discreditable conduct being admitted in evidence for the purpose of showing motive. See, for example, D.S.F.; R. v. Shepherd (2001), 54 O.R. (3d) 199 (C.A.); R. v. Schell (1977), 33 C.C.C. (2d) 422 (Ont. C.A.); and R. v. Redd (2002), 2002 BCCA 325, 165 C.C.C. (3d) 412 (B.C.C.A.).

[77] Of course, in a criminal case, for an item of evidence to be relevant to prove motive to commit the particular crime, it must, by the application of everyday experience and common sense, render the existence of a motive to commit that crime slightly more probable with the evidence than it would be without it: see R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 204. It has sometimes been said that there must be a logical connection between the circumstances said to give rise to the motive and the crime itself.

[78] As for narrative evidence, I discussed this issue in Riley as well, at considerable length. It is sufficient here to adopt what I said at para. 60, that “the Crown is entitled to lead narrative evidence, that is, evidence that tells the story of a crime in a manner that makes it possible for the jury to properly carry out its fact finding function.”

[79] I note that my approach to both of these issues was adopted by Nordheimer J. in R. v. Skeete, 2012 ONSC 737, who made reference to several additional authorities to similar effect.

[80] Of course, as with all evidence, relevant motive or narrative evidence must still be excluded if its prejudicial effect outweighs its probative value.

[81] The approach to assessing prejudice in this context was recently summarized by Watt J.A. in R. v. Ansari, 2015 ONCA 575, at paras. 106-1, as follows:

The prejudice component of this general exclusionary discretion may involve either or both of two types of prejudice.

Moral prejudice refers to the risk of an unfocused trial and a conclusion of guilt based on a prohibited chain of reasoning from a general disposition or propensity to guilt of the offence charged. In other words, a finding of guilt that is based on character, not conduct: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31 and 139.

Reasoning prejudice involves the distraction of the trier of fact from their proper focus on the offence charged by the introduction of evidence of other incidents that consume undue time and may be accorded more weight than should be their due: Handy, at para. 31 and 144.

When invited to exclude relevant, material and otherwise admissible evidence on the basis that its prejudicial effect predominates over its probative value, a trial judge will consider the individual constituents of the rule -- probative value and prejudicial effect -- and then balance them to determine which predominates.

The assessment of probative value involves consideration of the strength of the evidence; the extent to which it supports the inferences the proponent seeks to have drawn from it; and the extent to which the matters the evidence tends to prove are at issue in the proceedings: R. v. B. (L.); R. v. G. (M.A.) (1997), 116 C.C.C. (3d) 481 (Ont. C.A.), at para. 23.

An assessment of prejudicial effect should take into account:

i. the degree of discreditable conduct disclosed by the evidence;

ii. the extent to which the proposed evidence may support an inference of guilt on the sole basis of bad character;

iii. the extent to which the evidence may confuse issues; and

iv. the ability of the accused to respond to the evidence.

B. (L.); G. (M.A.), at para. 24.

[82] I turn next to the specific categories of evidence.

(a) Evidence that the accused possessed a shotgun and was planning to commit a robbery on January 2, 2010

[83] I have no doubt that evidence that Justin gave a video statement to the police upon his arrest in a motor vehicle on January 2, 2010, in the company of the accused, both of whom were members of the criminal sub-culture, to the effect that the gun seized under Justin’s seat was actually in the possession of the accused, provides a motive to the accused to kill Justin. This motive takes on greater force because Justin went on to add, gratuitously, that the accused was planning to commit a robbery of a marihuana grow operation that night. Ordinarily, such evidence, without more, would meet the requirement of a logical connection between the circumstances said to give rise to the motive and the crime itself: see, for example, Skeete; and R. v. Jefferson, 2010 ONSC 5531. It would seriously tend, when viewed reasonably, to establish a motive for the murders.

[84] However in this case, it must be remembered that the “wrong” done to the accused by Justin took place 25 months before the homicides. The accused argues that in light of the lapse of time, the logical connection between the circumstances said to give rise to the motive and the crime that might otherwise exist is defeated. I am not so sure I would agree with the accused on this point, even if there was no other evidence that overcame this lapse of time. In the criminal subculture, “ratting” of this nature is very serious, and not readily forgiven. But I need not decide the issue on this basis. In addition to the strength of the motive there are two other pieces of evidence that overcome the lapse of time.

[85] First, for the initial four-and-a-half months after the arrest of the accused, he was in custody. This gave time for his resentment to cool, and for a more calculated plan of revenge to emerge. Overall, during the period from January 3, 2010, to January 9, 2012, the accused was at liberty for a total of only 82 days, comprised of periods of 18, 39, 11 and 14 days. Even then, the accused was always subject to terms of release when out of custody that prohibited contact with Justin. Obviously this did not prevent the accused from taking revenge in his short periods of release, but it made it difficult for him to murder Justin in the manner that this murder is alleged to have taken place, involving as it did a period of contact with Justin before the homicides that, if detected, would have brought a quick end to the accused’s liberty.

[86] Second, there is one piece of evidence that the jury might view as demonstrating that the motive for killing Justin remained alive and well in the accused’s mind. As I have noted, the accused allegedly sent a text message on the night prior to the murders which reads, “these r_tz hard to cach famly im tellin u”. In context, an inference is readily available “these r_tz” are Justin and Jerome, and by “r_tz”, the accused meant “rats.”

[87] This additional evidence is an answer to the argument that the Crown has simply identified some past source of conflict between the accused and Justin and then speculated that it establishes animus and therefore motive. It genuinely ensures that this is a bona fide theory of motive: see R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404. As a result, I have no doubt that this evidence is relevant and admissible, subject to a probative value/prejudicial effect analysis, which I will now undertake.

[88] First, the accused’s possession of a shotgun on January 2, 2010, is quite clearly discreditable conduct of a serious nature. It is made more serious by the allegation that he intended to commit a robbery with it. The prejudice flowing from the intended robbery will be mitigated, but not eliminated by an instruction that he must be presumed not to have had that intention since the charge was withdrawn.

[89] Second, added to this is the fact that, left unguided, the jury might think that the proposed evidence supports an inference of guilt, since these homicides were committed with a firearm.

[90] On the other hand, possession of a firearm even accompanied by an intention to commit a robbery pales in comparison to a murder, particularly if a strong limiting instruction is given, which it will be.

[91] Third, I do not believe that this evidence will confuse the jury. The evidence about the events of January 2, 2010, is simple and discrete, and the logic of its alleged connection to the offence is simple to understand.

[92] Finally, I see no impediment to the accused responding to this evidence if he so chooses.

[93] In my view, with careful instruction given to the jury, there will be no more than a small risk of moral prejudice if this evidence is admitted, and no risk of reasoning prejudice.

[94] On the other hand, the probative value of this evidence is high. It provides a substantial basis for the jury to make sense of the other evidence that tends to implicate the accused in the murders. Without it, the jury will be invited to perform their truth seeking function in a factual vacuum. This does not, on its own, make the evidence admissible. But it is a powerful consideration favouring admission.

[95] The accused argued that the force of this evidence is eviscerated by the following evidence: (1) the accused may also have violated the code of silence, albeit much more modestly than Justin, by suggesting in an oral utterance to the police upon his arrest that the gun was not his, but must have been Justin’s; (2) the friendship between the accused and Justin was longstanding, they appeared to remain close in the short time after the accused’s release from custody up to the time of the homicide, and in any event there is no evidence of any conflict between them, or of Justin expressing any fear of the accused; and (3) the robbery charge was ultimately withdrawn. I do not see any of these considerations as in any way minimizing the potential force of the evidence of motive, particularly since the Crown’s position is that the accused lured an unwitting Justin to his death. In that circumstance, the accused would not logically have put Justin on notice that he had anything to fear from the accused. With respect to the withdrawal of the robbery charge when the accused pleaded guilty to the gun charge, this does not logically detract from the significance of the fact that Justin had gratuitously implicated the accused in a serious crime.

[96] In the end, I am satisfied that the probative value of this evidence substantially outweighs its prejudicial effect.

[97] There remains to be considered an additional feature of this category of evidence – that part of the evidence relating to the code of silence which tends to show how seriously the accused, allegedly a member of a street gang, would have viewed Justin “ratting” to the police, and how he would have responded to it. The evidence tending to show that the accused was a member of a street gang includes a photograph of a 4020 Complex tattoo on the accused’s wrist and the expert evidence of Jansz.

[98] I begin by saying that the jury would not likely need any expert assistance to know that anyone implicated in a crime by a friend or associate would bear some degree of animus towards that person. But knowledge that such animus might end in murder is likely outside the experience of most lay-persons. I do not doubt that the Crown is entitled to call a properly qualified expert witness to try to establish the seriousness of ratting in the criminal subculture, and the sort of consequences that might flow. What does trouble me is the Crown’s proposal to adduce evidence that based on his tattoo, the colour of his cap and coat, and the use of a few words in his text messages, the accused was associated with a specific dangerous Crips street gang, and then have Jansz testify to the heightened seriousness of ratting on gang members.

[99] While there are many cases where gang membership is integral to the Crown’s case, and must be admitted, here it is peripheral at most. I will examine this evidence first from the point of view of its probative value, and then from the point of view of prejudice.

[100] With respect to probative value, it seems to me that the gang-related part of this evidence adds little to the Crown’s position. Jansz testified at the preliminary hearing that the code of silence is a belief that began in the criminal subculture that criminals don’t “rat” or snitch on other criminals. Today this belief has expanded to members of communities where criminal street gangs operate. Individuals who rat know that they risk punishment. Jansz went on to say that within the gang culture, there is a heightened belief, really a rule, that gang members must be loyal to their group, and don’t talk about what the gang does. The punishment for members or associates of gangs who “rat” on other members of their group is much harsher than for an individual who is not a part of a gang.

[101] A hypothetical was put to Jansz as follows: two men involved in a criminal lifestyle are caught by the police with a gun in the car, and one says that the gun is not his, while the other gives a video statement saying that the gun belongs to the first one, and proceeds to tell the police in the video statement that the first one had been planning a robbery. Jansz described the second man’s actions as the most “abhorrent type of snitching, particularly if the first man was a member of a street gang.”

[102] It seems to me that the Crown’s purpose can be effectively placed before the jury based on the evidence of Jansz about the code of silence in the criminal subculture without reference to street gangs, and without the evidence tending to show that the accused was a gang member. I acknowledge that evidence about the heightened punishment meted out on rats by gang members would strengthen the Crown’s position, but not by much. I say this because Justin is neither a member of the accused’s gang, nor a member of the accused’s community. In the end, what Jansz would be saying in the circumstances here is that if the accused is a gang member, he is the kind of person that would be likely to mete out a very harsh punishment on a rat – perilously close to impermissible evidence of bad character.

[103] The probative value of the evidence is further weakened by the tenuous nature of the evidence that the accused was a gang member, based as it is simply on a tattoo, a few “Crips” words, and blue clothes.

[104] I turn to prejudicial effect. It requires little analysis to recognize that attributing gang membership to the accused risks significant prejudice. But it is worth examining the proposed evidence of Jansz to fully expose that prejudice. Jansz began his examination-in-chief by briefly summarizing the nature and activities of street gangs in Toronto. After describing their involvement in drug trafficking, robberies, and the trade in firearms, he said that they are groups of individuals who will “commit acts of violence out in daylight hours, without any concern for the public.” They are “known for their violence and they use that violence to instill fear into the communities in which they operate.” They identify as Blood or Crips to send a message to people in their communities that “if you interfere with our business, it’s going to cause you some issues.” Punishments for interfering with their business runs from “general warnings, the destruction of property right to the higher end which is murder.” If this is not enough, Jansz went on to classify Justin’s ratting as an example of “first degree snitching,” based on the frail footing of a single article entitled “The Degrees of Snitching” in a magazine published by inmates of a the Bluewater Youth Centre, a detention facility that has been closed for some years.

[105] The enormous moral prejudice that even a toned down version of this evidence might cause is evident.

[106] Further, there is considerable risk of reasoning prejudice. The jury will inevitably be distracted from their proper focus on the offence charged by a controversy about whether or not the accused was in fact a member or an associate of a street gang, and if he was, whether or not the code of silence had special application to the ratting of a non-member who did not live in his community.

[107] In sum, the evidence relating to gang membership and its implications is highly prejudicial, adds significant support to an inference of guilt based on bad character, and will confuse issues to at least some degree. Its prejudicial effect predominates over its insubstantial probative value. I will not admit it, subject to this proviso. Should the defence cross-examine Jansz in a manner that suggests a difference between retribution meted out by “ordinary” members of the criminal subculture and by members of a gang or otherwise explore the gang issue, or if the defence adduces evidence before the jury to suggest that the deceased were members of a street gang it will be open to the Crown to ask me to revisit this ruling.

[108] To summarize, the following pieces of evidence are all admissible: evidence that the accused possessed a shotgun on January 2, 2010; evidence that Justin implicated him in this offence and in a plan to commit a robbery, and evidence that the accused was charged with these offences; evidence that the accused pleaded guilty to the possession charge, and was subsequently sentenced for it, including details of the sentence; evidence that the robbery charge was withdrawn; and evidence about the code of silence in the criminal subculture. Evidence that the accused as a member of the street gang, and evidence about the enhanced seriousness of the code of silence among gang members, is not admissible.

(b) Evidence that the accused spent time in custody, on probation and on judicial interim release between January 2 and January 17, 2012

[109] As I have indicated, the Crown proposes leading evidence of the periods of time that the accused was in custody between his January 2, 2010, arrest and the date of the homicides as well as the periods when he was prohibited from being in contact with Justin in order to provide an explanation for the accused’s delay in taking revenge for Justin’s breach of the code of silence. The Crown does not seek to introduce the nature of the charges for which the accused was in custody other than the possession of a shotgun offence, nor the fact of any other convictions.

[110] In my view this evidence has significant probative value, much as evidence of a similar time gap did in Jefferson, at para. 120, and marginal prejudicial effect, particularly in light of the limits on the evidence proposed by Crown counsel. I will admit it. It seems to me that this evidence would best be placed before the jury by way of a carefully worded agreed statement of fact, if that is possible.

(c) Evidence that the accused planned to commit a robbery with Justin Waterman between February 10 and 13, 2012

[111] As I have already indicated in my discussion of the second ruling, the Crown proposes adducing evidence of the accused planning an earlier robbery with Justin between February 10 and 13, 2012. I have already determined that all of this evidence is relevant to the Crown’s theory that the accused lured the victims to the basement of 325 Bogert Avenue on the pretext of committing a robbery. This evidence, viewed in the context of other evidence, would permit the jury to draw an inference that the accused was trying to gain the trust of the victims by showing them that he was prepared to help them gain funds by the commission of criminal offences. According to the Crown, the joint commission of robberies prior to the homicides would have lulled the victims into a false sense of security in their dealings with the accused.

[112] The Crown also argues that this evidence is admissible as part of the narrative of the homicides, and to show that the accused was part of the criminal subculture and as a result adhered to the code of silence.

[113] I view this evidence to be admissible on each of these grounds. It is of significant probative value, and in the circumstances of this case, of minimal prejudicial effect. As I have also noted, in the course of her argument, counsel for the accused appeared to concede that if I were to admit evidence about the code of silence in relation to the criminal subculture, this evidence would be admissible to show that the accused was engaged in street crime, and as a result the code of silence was applicable to him on that basis, but not on the basis of gang membership. As a result, I have no hesitation about admitting this evidence.

(d) Evidence that the accused engaged in drug trafficking

[114] The Crown argues that the evidence of the drug trafficking activity disclosed by text messages on one of the cellphones that the Crown attributes to the accused is relevant for three reasons.

[115] First, this activity is consistent with the accused associating with a criminal street gang that engaged in drug trafficking, and supports the Crown’s position that the accused adhered to the code of silence, and in turn had a motive to kill the deceased. I note that although I have excluded the evidence tending to show that the accused was a member of or associated with a street gang, this activity is also consistent with the accused being a member of the criminal subculture, adhering to the code of silence, and having a motive to kill the deceased.

[116] Second, it contradicts a position that I was advised that the accused would take, based on the evidence of the accused’s mother and girlfriend, that the accused, who was fresh out of jail, couldn’t afford a cellphone, and as a result did not lend a cellphone to Justin to secure his trust as part of his murderous plan. Counsel for the accused was quick to respond that if I excluded the drug trafficking evidence, she would make no such argument. I note, however, that even if the accused does not make this argument, it remains open to the jury to question the Crown’s position on this point for the very same reasons that counsel for the accused initially indicated she would advance.

[117] Third, since the accused intends to deny that he was the author of some of the text messages attributed to him by the Crown, Crown counsel argues that the Crown is entitled to argue that based on the style of messaging, these messages were authored by the accused, and that this in turn strengthens the inference that the text messages in issue were also authored by the accused.

[118] There is logic to all three of these grounds of relevance, but none of them is of overwhelming significance. I will consider each in turn.

[119] First, the evidence of the accused’s participation in robberies and possession of a gun goes a long way to showing him to be a member of the criminal subculture without reference to drug trafficking. This inference is not appreciably strengthened by the drug trafficking evidence.

[120] Second, as I have noted, the accused has minimized the significance of evidence that he had a source of income at the time of these calls because he has undertaken not to advance the position that he could not afford a cellphone.

[121] Third, the suggestion that this evidence strengthens the inference that the accused had continuous possession of a particular cellphone during the relevant period of time does not have much force. The drug trafficking references are brief, appear to me to have little in the way of an identifying style to them and can readily be redacted without doing violence to the similar effect of the surrounding text messages.

[122] On the other hand, in the circumstances here, I cannot say that the prejudice is great. The jury will otherwise know that the accused engages in crime, and it is most unlikely that the jury would conclude that a drug dealer is the kind of person who commits murders. The evidence will not confuse issues, and the accused has the ability to respond to it.

[123] I consider the balancing of the probative value and prejudicial effect of this evidence to be a close call, but in the end, I conclude that the prejudicial effect is marginally greater. This evidence will be excluded, subject to developments in the trial that change the balance.

Disposition

[124] For these reasons, I conclude that:

1. The text messages attributed to Justin and Jerome Waterman are not inadmissible on the basis of any issue concerning their authorship
2. The ante-mortem statements of Justin and Jerome Waterman made to Tomlinson, Renaud, Mark Waterman, Smith, Findlater and Baxter, and those found in text messages and Jerome’s contacts list, are admissible as exceptions to the rule against hearsay, subject to exclusion on the basis that they disclose discreditable conduct
3. The application to admit evidence of discreditable conduct is allowed in part, subject to further developments in this trial, as follows:

a) evidence that the accused possessed a shotgun on January 2, 2010, evidence that Justin implicated him in this offence and in a plan to commit a robbery, evidence that the accused was charged with these offences, evidence that the accused pleaded guilty to the possession charge, and was subsequently sentenced for it, including details of the sentence, evidence that the robbery charge was withdrawn, and evidence about the code of silence in the criminal subculture are all admissible;

b) evidence that the accused was a member of a street gang, and evidence about the enhanced seriousness of the code of silence among gang members is not admissible;

c) evidence that the accused spent time in custody, on probation and on judicial interim release between January 2, 2010, and January 17, 2012 is admissible;

d) evidence that the accused planned to commit a robbery with Justin Waterman between February 10 and 13, 2012, is admissible; and

e) evidence that the accused engaged in drug trafficking is not admissible.

M. Dambrot J.

Released: October 5, 2015

[^1]: Justin’s movements and whereabouts on February 19, 2012, are of particular significance because despite telling Tomlinson that he would be home at 8:00 p.m. after seeing the accused, Justin never returned home that night. An inference is available from the accused’s text messages that he was concealing Justin’s whereabouts.