ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: YC-14-50000004

DATE: 20151104

BETWEEN:

HER MAJESTY THE QUEEN

– and –

P.J.

Maureen Bellmore and Valerie Culp, for the Crown

Mitchell Chernovsky and Matt Fisico, for the Defendant

HEARD: September 22 and 24, 2015

PUBLICATION RESTRICTIONS NOTICE

Pursuant to subsection 110(1) of the Youth Criminal Justice Act, no person shall publish the name of a young person, or any other information related to young person, if it would identify the young person as having been dealt with under this Act.

RULING ON SCOPELLITI MOTION

M.A. Code j.

A. OVERVIEW

[1] The Applicant P.J. was charged with first degree murder under the Youth Criminal Justice Act, as he was seventeen years old at the relevant time. Prior to trial, he brought a Motion seeking to adduce evidence relating to the character and disposition of the deceased, Michael Cocomello. This kind of proceeding is sometimes referred to as a Scopelliti Motion, in reference to the leading authority on point, R. v. Scopelliti (1981), 1981 1787 (ON CA), 63 C.C.C. (2d) 481 (Ont. C.A.).

[2] I heard full argument and received evidence relating to the Motion prior to trial but, during submissions, Mr. Chernovsky (counsel for P.J.) conceded that the Motion was premature at such an early stage of the proceedings and that it should await the accused’s anticipated testimony at trial. At this later point, it was submitted, there would be an “air of reality” to the issue of self-defence on which the Motion depended.

[3] After the accused testified at trial, and squarely raised self-defence, I heard brief further argument. I then ruled that the proposed defence evidence concerning the character and disposition of the deceased was inadmissible and dismissed the Motion, with reasons to follow.

[4] The jury returned a verdict of not guilty of first degree murder but guilty of second degree murder. The accused P.J. is now awaiting sentence. These are my reasons for dismissing the Scopelliti Motion during the trial.

B. FACTS

[5] The background facts relevant to the Motion are now considerably fleshed out, as a result of hearing the Crown’s case and hearing the accused`s testimony at trial.

[6] In brief summary, the Crown`s evidence disclosed that the deceased died on March 4, 2013 as a result of approximately twenty injuries, including blunt force trauma to his head and seventeen stab wounds to his body. The accused P.J. admitted that he was the person who caused these injuries to the deceased. He testified that the deceased attacked him with a knife but that he succeeded in disarming the deceased by punching him in the face and taking him to the ground. While the knife was lying on the ground, the deceased then used his hands to apply considerable force to the accused's neck, strangling him for a period of time until the accused succeeded in finding the knife, picked it up, and stabbed the deceased many times in self-defence.

[7] The context for this altercation was that the deceased and the accused were both involved in the drug trade. Their text messages on the day of the homicide, together with other related evidence, indicated that the deceased Cocomello had sold the accused P.J. one-quarter pound of marijuana at about 4:00 p.m. earlier that day. P.J. paid $800 U.S. for the marijuana but the money was, in fact, counterfeit. The deceased quickly suspected that at least $100 U.S. of the money paid in this earlier transaction was counterfeit. He confronted the accused with this allegation and, by about 8:20 p.m. that same day, they appeared to have resolved the dispute. It was agreed, according to the text messages, that the accused P.J. would pay the deceased Cocomello $70 Canadian for the $100 in U.S. counterfeit and that P.J. would purchase another ounce of marijuana from Cocomello for $200.

[8] This apparent resolution of the dispute obviously did not hold up. When the deceased and the accused met near the deceased's home shortly after 9:11 p.m. that evening, ostensibly to consummate the agreed upon resolution, the homicide occurred. It was a brief incident, probably occurring between 9:13 p.m. and 9:16 p.m. The Crown's theory was that Cocomello now knew that P.J. was using counterfeit U.S. dollars in the local drug trade and that this information could seriously harm P.J.’s business if it got out on the street. Accordingly, the Crown asked the jury to draw the inference that P.J. needed to silence Cocomello and that he came to the meeting that night, with an accomplice and armed with a knife, and attacked and killed Cocomello. The evidence of an eye witness, together with certain circumstantial evidence, tended to support this suggested inference.

[9] The contrary defence theory was that Cocomello continued to harbour a grievance about the $100 in U.S. counterfeit, that it was Cocomello who came to the meeting that evening armed with a knife, and that Cocomello attacked P.J. who was alone and unarmed. The Crown countered the accused’s claim of self-defence, relying heavily on the fact that Cocomello had numerous injuries to his head, back, and torso but he had no defensive injuries. By way of contrast, P.J. had no apparent injuries, in particular, he appeared to have no marks on his neck suggestive of the strangulation that he alleged.

[10] In this context, the evidence heard on the Scopelliti Motion, which the defence seeks to tender at trial, is a series of images extracted by the police from the “memory card” of the deceased’s Blackberry cell phone. The Crown disclosed these images to the defence. It cannot be determined who took the photographic images found on the memory card, or when they were stored on the memory card, or how they came to be stored on the memory card. For example, a photographic image could have been downloaded from the internet or could have been sent by someone else to Cocomello’s device and he then stored it in his own memory card. Alternatively, Cocomello could have created the image himself and stored it on his memory card.

[11] Furthermore, the memory card is not intrinsic to this particular Blackberry cell phone. Det. Cst. Morden testified on the Motion that a memory card can be transferred from one device to another, so it may have belonged to someone else before it ended up on Cocomello’s present cell phone or it may have been taken from a cell phone that Cocomello previously possessed when he was younger. The memory card is somewhat akin to a portable photo album that outlives the particular cell phone and that can be carried around on different cell phones over an extended period of time. The filing system in the memory card indicated that most of the images had been filed in 2011 and 2012 and had, therefore, been stored in the memory card for some time, when the relevant events occurred in March 2013. Det. Cst. Morden was able to determine that the various images had originated in a number of different devices, prior to ending up in Cocomello’s current Blackberry.

[12] In other words, the provenance of these images is uncertain. All that can be said is that they were found in a memory card in Cocomello’s current cell phone at the time of his death in March 2013.

[13] The specific images that Mr. Chernovsky, counsel for P.J., sought to tender in evidence are a small portion of a much larger number of images found on the memory card. He conceded in argument that many of the images found in the memory card are benign. He sought to tender a small number of less benign images that can be categorized as follows:

• Two photographs of an individual holding and pointing a long-barrelled rifle and a third photograph of four individuals, one of whom is wearing a bandana covering his face and one of whom is pointing his hand and fingers in a manner that could have been meant to mimic the pointing of a gun. The identity of the persons in these photos was not established in evidence on the Motion but the defence hoped to prove that Cocomello was the man with the long gun;

• Three photographs of an individual holding a large amount of Canadian currency and six photographs of large amounts of Canadian currency. Once again, the identity of the person or persons holding the money was not established in evidence on the Motion but the defence hoped to prove that it was Cocomello;

• Two photographs of a hand holding a green substance which could be marijuana, assuming someone with sufficient knowledge and expertise could identify it as such;

• One photograph of nine knives of various kinds, all laid out on a cloth, and one photograph of an apparently folding knife held in someone’s hand. There is no evidence as to the identity of the person holding the folding knife and no such evidence was anticipated;

• Four photographs of four different firearms. Three of these firearms are hand guns and one is a long barrelled rifle. One photograph of one handgun shows the thumb and forefinger of someone, who may be female, touching the muzzle. There is no evidence as to the identity of this person and no such evidence was anticipated;

• Three images of three different slogans or sayings. The first one states, “Karma has no deadline”. Counsel could not clarify what this means and conceded it is ambiguous. The second one states, “I don’t fuck around”. This slogan appears behind a stylized silhouette or image of a man wearing a baseball hat, holding a gun, and putting his index finger in the general area of his mouth and nose. At the bottom of this image the name of a website – “screenmuncher.ca” – appears. There was no evidence about this particular website. The third and last slogan or saying states, “Money is the motive”.

[14] In response to the defence Motion, the Crown tendered certain evidence relating to the character and disposition of the accused P.J. The Crown sought to tender this evidence in response to the defence evidence, if the defence evidence concerning the character and disposition of the deceased was admitted.

[15] Given that I decided not to admit the defence evidence, I will only briefly describe the Crown’s responding evidence. It encompassed five separate items, as follows: a knife found in a drawer in the accused’s bedroom on arrest; marijuana and various baggies found in another drawer in the accused’s bedroom on arrest; a red bandana found in the accused’s bedroom on arrest, to be supplemented by expert evidence to the effect that the red bandana is a gang symbol; evidence from correctional officials to the effect that a “shank” or fabricated weapon was found in the accused’s cell on March 6, 2014, some seven months after his arrest; and a video seized by way of a search warrant showing the accused and two associates smoking marijuana at someone’s home and showing one of the two associates making certain gang signs or symbols (this latter evidence would, once again, need to be supplemented by expert opinion evidence).

C. ANALYSIS

[16] Mr. Chernovsky conceded at the outset that none of the evidence tendered on the Motion by the defence was known to the accused P.J. Although P.J. knew the deceased, he was not aware of any of the images stored in the memory card of the deceased’s cell phone nor was it suggested that he knew anything about the deceased’s alleged character or disposition for violence or for possessing weapons. In other words, the sole relevance of the tendered evidence was to infer the likelihood of certain alleged conduct by the deceased Cocomello on the date of the homicide.

[17] The process of reasoning urged by the defence involved two steps: first, that the images stored in his cell phone inferred that the deceased Cocomello had a strong interest in guns, knives, money, and marijuana; and second, that this strong interest could further infer that the deceased Cocomello was determined to get his drug-related earnings back from P.J. (in exchange for the $100 of U.S. counterfeit), that he was more likely to have been carrying a knife to the fatal meeting on the night of March 4, 2013, and that he was more likely to have been the aggressor.

[18] Mr. Chernovsky conceded that none of the evidence tendered on the Motion involved any actual acts of violence, let alone acts of violence that could be brought home to the deceased Cocomello. The proposed evidence was characterized as images of uncertain provenance, stored in a cell phone, that inferred strong interest and determination in relation to the subject matter of the images, namely, guns, knives, drugs, and money. The further inference relating to the deceased Cocomello’s actual conduct on March 4, 2013 – carrying a knife and using it as the aggressor – arose from this initial inference of strong interest in the general subject matter of guns, knives, drugs, and money.

[19] The root case concerning the admissibility of evidence of the deceased’s disposition for violence, where self-defence is raised, remains R. v. Scopelliti, supra. That case was significant because it permitted, for the first time, proof of the deceased’s disposition by way of prior acts of violence rather than limiting such proof to reputation evidence or expert opinion evidence. Martin J.A. gave the judgment of the Court and set out the test for admitting disposition evidence, in the form of prior specific acts, in the following terms:

Obviously, evidence of previous acts of violence by the deceased, not known to the accused, is not relevant to show the reasonableness of the accused’s apprehension of an impending attack. However, there is impressive support for the proposition that, where self-defence is raised, evidence of the deceased’s character (i.e. disposition) for violence is admissible to show the probability of the deceased having been the aggressor and to support the accused’s evidence that he was attacked by the deceased.

The American decisions are by no means uniform on the question whether the deceased’s character (disposition) with respect to violence, where self-defence is an issue, may be proved by specific acts, or whether it may be proved only by evidence of reputation. In R. v. McMillan this Court, although it left the question open, pointed out that some of the authorities holding that the character of a third person is admissible, if relevant, do not appear to confine such evidence to proof of general reputation, but appear to admit evidence of specific acts of conduct (p. 175).

I am of the view that previous specific acts of violence by a third person which have significant probative value to prove a disposition for violence are admissible where such disposition is relevant. Indeed, I did not understand Mr. Hunt [Crown counsel] to contend that previous acts of violence of third persons may not be admissible to show a propensity for violence where that propensity has significant probative value in relation to an issue before the jury.

To sum up, the disposition of a third person, if relevant and otherwise admissible, may be proved: (a) by evidence of reputation, (b) by proof of specific acts, and (c) by psychiatric evidence if the disposition in question falls within the proper sphere of expert evidence.

I agree, of course, that evidence of previous acts of violence by the deceased, not known to the accused, must be confined to evidence of previous acts of violence which may legitimately and reasonably assist the jury in arriving at a just verdict with respect to the accused’s claim of self-defence. To exclude, however, evidence offered by the accused which is relevant to prove his innocence would not, in my view, be in the interests of justice.

Since evidence of prior acts of violence by the deceased is likely to arouse feelings of hostility against the deceased, there must inevitably be some element of discretion in the determination whether the proffered evidence has sufficient probative value for the purpose for which it is tendered to justify its admission. Moreover, great care must be taken to ensure that such evidence, if admitted, is not misused.

In the present case, the impugned evidence discloses serious acts of unprovoked violence and intimidation by both the deceased, acting together, on three occasions which were reasonably proximate in time to the occurrence in question, and, in my view, such evidence had significant probative value on the issue whether the deceased attacked the respondent in the manner that he alleged on the occasion in question. [Emphasis added.]

[20] Scopelliti was decided in late 1981. Ten years later, in R. v. Seaboyer and Gayme (1991), 1991 76 (SCC), 66 C.C.C. (3d) 321 at 391-2 (S.C.C.), the Supreme Court held that it is a s. 7 Charter principle of fundamental justice that relevant defence evidence can only be excluded in certain limited circumstances. McLachlin J, as she then was, gave the majority judgment and stated:

Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law.

These principles and procedures are familiar to all who practise in our criminal courts. They are common sense rules based on basic notions of fairness, and as such properly lie at the heart of our trial process. In short, they form part of the principles of fundamental justice enshrined in s. 7 of the Charter. They may be circumscribed in some cases by other rules of evidence, but as will be discussed in more detail below, the circumstances where truly relevant and reliable evidence is excluded are few, particularly where the evidence goes to the defence. In most cases, the exclusion of relevant evidence can be justified on the ground that the potential prejudice to the trial process of admitting the evidence clearly outweighs its value. [Emphasis added.]

[21] In R. v. Scopelliti, supra, in the passages of the judgment highlighted above, Martin J.A. referred three times to evidence of the deceased's disposition being admitted because it had “significant probative value”, a standard that seemed inconsistent with the principles subsequently developed in Seaboyer. However, Martin J.A. also stated that the test for admissibility was whether the proferred evidence would "legitimately and reasonably assist" the jury and whether it had “sufficient probative value” in light of the “feelings of hostility against the deceased” that it was “likely to arouse”, standards that were arguably consistent with Seaboyer.

[22] In its first post-Seaboyer opportunity to re-visit the issue, the Court of Appeal clarified that the “sufficient probative value” test in Scopelliti was the applicable one and that it accorded with the principles subsequently developed in Seaboyer. In R. v. Yaeck (1991), 1991 2732 (ON CA), 68 C.C.C. (3d) 545 at 563 (Ont. C.A.), Osborne J.A., as he then was, gave the judgment of the Court and stated:

In Scopelliti, Martin J.A. referred to the proffered evidence of the deceased’s disposition for violence having significant probative value (see pp. 494-6). However, I do not take it that he held that the evidence going to the deceased’s disposition for violence had to pass a test of significant probative value, to be admissible. It seems to me that, on the facts of Scopelliti, he simply concluded that the evidence of the deceased's prior acts of violence and intimidation did have significant probative value on the relevant issue of the deceased’s disposition for violence. His test for admissibility was whether the evidence had “sufficient probative value for the purpose for which it is tendered to justify its admission.” [Emphasis of Osborne J.A. in the original].

After setting out the above quoted passages from Seaboyer, Osborne J.A. stated the following (Yaeck, supra at 566-7):

In my opinion, Martin J.A., in Scopelliti, did not depart from basic principles controlling the admissibility of evidence, when he held that evidence of the deceased’s prior acts of violence, not known to the accused, must have sufficient probative value for the purpose for which it is tendered to justify its admission. I, therefore, see no basis upon which Scopelliti should be reconsidered.

[23] In its most recent decision on this issue, R. v. Jackson (2013), 2013 ONCA 632, 301 C.C.C. (3d) 358 at 366-7 and 382 (Ont. C.A.), the Court applied Scopelliti, Seaboyer, and Yaeck and held that “even if the proposed evidence were to have some probative value, that minimal value was significantly outweighed by the prejudicial effect of its admission” (per. Gillese J.A.), and that “the test for admissibility is not whether the evidence had significant probative value, but whether it had ‘sufficient probative value for the purpose for which it is tendered to justify its admission’” (per. Rosenberg J.A.).

[24] Applying the above principles, I was satisfied that the proposed defence evidence had minimal probative value and that it was substantially outweighed by its prejudicial effect. Accordingly, I ruled that the evidence was inadmissible.

[25] In terms of the minimal probative value of the proposed evidence, I note the following:

• the various images of guns found on the memory card border on the irrelevant as guns have nothing to do with the present case. The main probative value of these particular images would simply be inflammatory;

• the various images of money and marijuana are largely redundant as there is persuasive evidence already in the trial record to the effect that the deceased was a vendor of marijuana, that he was determined to get back the U.S. $100 that the accused had paid him in counterfeit, that he had $510 in Canadian cash on hand in his bedroom, and that he had a further $700 in U.S. cash on hand in his bedroom (which turned out to be counterfeit);

• the two images of knives and the two images of certain aggressive and mercenary slogans or sayings are the most probative parts of the proposed evidence and yet they suffer from two fundamental flaws that run throughout the entire body of proposed evidence. First, the uncertain provenance of all the images stored in the memory card means that no reliable inference can be drawn concerning Cocomello’s present interest in the subject matter of these images in March 2013. He was twenty years old at the time of his death. The circumstances in which he or someone else created, received or downloaded these images and decided to store them in the memory card during the prior two year time period was completely unknown. Second, even if a reliable inference of ongoing present interest in the subject matter of the images could be drawn, the further inference – from mere interest in an image to actual aggressive conduct – was extremely weak.

[26] In R. v. Jackson, supra at 367 and 383, the defence sought to tender evidence that the deceased had three prior convictions for the sale and possession of firearms. The issue in that case was whether the deceased had reached for a handgun underneath his sweater, prior to being shot by the accused in self-defence. In assessing the probative value of the three prior convictions for firearms offences, Gillese J.A. (Sharpe J.A. concurring) stated that, “possession and sale of firearms are not acts of violence … They do not show the deceased involved in acts of violence or using weapons”. Rosenberg J.A., in dissent, held that the three prior convictions inferred “that the deceased had a disposition to carry firearms”. The majority upheld the trial judge’s decision excluding the evidence. The dissent held that the three prior convictions had sufficient probative value to justify admission. On further appeal, the Supreme Court unanimously agreed with the majority and held that “the trial judge made no error in determining that the minimal probative value of the proposed evidence was substantially outweighed by its prejudicial effect”. See: R. v. Jackson (2014), 2014 SCC 30, 308 C.C.C. (3d) 348 (S.C.C.).

[27] Applying the reasoning of the majority in Jackson, the fact that Cocomello’s cell phone had images of knives and certain aggressive and mercenary slogans of uncertain provenance stored in its memory card does “not show the deceased involved in acts of violence or using weapons”. Applying the reasoning of the dissent in Jackson, these images in the cell phone memory card do not show “that the deceased had a disposition to carry” knives. Indeed, there is no evidence that Cocomello was present at the time or that he was in either of the two photographs depicting knives or that he was ever in possession of the knives displayed in these two photographs. The police searched Cocomello’s clothing, his bedroom, and the crime scene and found no knives or weapons of any kind. In short, the tendered evidence in the case at bar has even less probative value than “the minimal probative value” of the three prior firearms convictions in Jackson.

[28] Turning to the prejudicial effect side of the balance, the images stored in the memory card could lead to the inference that, at some point in time, Cocomello was an anti-social individual who aspired to live the lifestyle of a minor gangster, assuming that the images could be brought home to Cocomello. As Doherty J.A. put it in R. v. Varga (2001), 2001 8610 (ON CA), 159 C.C.C. (3d) 502 at para. 71:

Attacks on the character of the deceased are often easy to make and risk the conclusion that it is a defence to a murder charge to show that the deceased’s demise was a civic improvement.

[29] There is already evidence in the record concerning the deceased’s criminal character in that the trial evidence disclosed that he was undoubtedly a low level vendor of marijuana. Any improper reasoning flowing from this body of existing evidence is relatively easy to control with a jury caution, which I included in the charge to the jury. The images found on the cell phone memory card would make it more difficult to control and prevent improper reasoning of the kind referred to in Varga.

[30] In addition, the tendering of this body of evidence would entail considerable consumption of time and distraction of the jury from the main issues in the case. The defence would have to somehow identify Cocomello as the person in some of the images and it is presently uncertain as to whether such identifying evidence exists or where it would come from. The Crown would have to call evidence from the technology expert, who extracted the images from the cell phone memory card, in order to explain to the jury what a “memory card” is and to explain the uncertain provenance of each one of the numerous images. Finally, at least some of the Crown’s responding material would likely become admissible, concerning the accused P.J.’s disposition in relation to the possession of knives. The fact that P.J. kept a knife in a bedroom drawer, and kept the tools of his marijuana trade in another bedroom drawer, strikes me as more probative of a disposition to possess knives in conjunction with the business of buying and selling marijuana, than any of the defence evidence concerning the deceased’s similar disposition. In other words, the jury would be drawn into a protracted and distracting “battle of the two dispositions” and complicated limiting instructions about this body of evidence would be required.

[31] In conclusion, the tendered evidence had minimal probative value that was substantially outweighed by its prejudicial effect on the trial process. Accordingly, the proposed evidence was ruled inadmissible.

M.A. Code J.

Released: November 4, 2015

COURT FILE NO.: YC-14-50000004
DATE: 20151104

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
– and –
P.J.

RULING ON SCOPELLITI MOTION

M.A. Code J.

Released: ** November 4, 2015**