R. v. Moore, 2015 ONSC 728

COURT FILE NO.: CR-14-30000123-0000

DATE: 20150209

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant/Respondent

– and –

MARK MOORE

Respondent/Applicant

Sean Hickey and Kimberly Motyl, for the Applicant/Respondent

Peter Bawden, Peter Zaduk and Daisy McCabe-Lokos, for the Respondent/Applicant

HEARD: January 13 - 30, 2015

M. DAMBROT J.:

[1] Mark Moore is being tried by me sitting with a jury on an indictment alleging four counts of first degree murder. These murders took place on three separate occasions. Prior to the selection of a jury, I heard an application brought by the Crown for an order permitting the Crown to adduce evidence at trial of certain acts of extrinsic misconduct by the accused as well as to have evidence apply across counts. I also heard an application brought by the accused for severance of counts. I heard these applications together because they are interrelated. These reasons relate to both applications.

Background

[2] At the outset of the argument of these two applications, counsel and I agreed that they would be heard in phases, and that at the end of each phase, I would announce my ruling, with reasons to follow. As a result, with some twists and turns along the way, the matter proceeded in the following phases: the admissibility of evidence across counts; the admissibility of extrinsic prior discreditable conduct evidence; and severance. To the extent possible, I will organize these reasons in the same manner. As a result, I begin with the admissibility of evidence across counts.

Admissibility of Evidence across Counts

[3] The four counts in the indictment are:

Count 1: the first degree murder of Jahmeel Spence on September 10, 2010.

Count 2: the first degree murder of Mike James on September 29, 2010.

Count 3: the first degree murder of Courthney Facey on September 29, 2010.

Count 4: the first degree murder of Carl Cole on November 24, 2010.

[4] Spence, James, Facey and Cole were each shot and killed with the same 9mm handgun, although Cole was also shot with a second gun, a .45 calibre handgun. There is some evidence that in each case, the shooter was Moore. This evidence is largely circumstantial, but in the case of James and Facey, there is also eyewitness identification of Moore as the shooter. I will summarize this evidence briefly.

Spence

[5] Spence was shot and killed after leaving a family gathering at 48 Greenbrae Circuit in the Greenbrae Toronto Community Housing Complex at 9:20 p.m. on September 10, 2010. Family members heard gunshots and looked out into a laneway behind their townhouse. They observed a lone gunman, a large black male wearing a bulky jacket who was running away to the east, and firing his gun to the west as he ran. Spence was shot eight times including two shots to the head. The police collected fifteen 9mm shell cases (eight Winchester, and seven S & B) all fired from the same firearm, at the scene of the shooting.

[6] Evidence tending to support the inference that Moore shot Spence includes the following.

[7] Moore, like the shooter, can be described as a large black male.

[8] Cell phone data placed a particular phone, which I will refer to as 5055, in the vicinity of 30 Greenbrae shortly before the shooting of Spence. There is evidence supporting an inference that 5055 phone belonged to Moore.

[9] At 11:42 p.m., two hours after the shooting, a text message was sent to Kevin Williams, an associate of Moore’s, from another cell phone linked to Moore, which I will refer to as 1926, which read, “Yea busy terrorizeing the borrows, watch cp.”

[10] On November 3, 2011, the police executed a search warrant on a storage locker rented by Moore, and found a newspaper clipping dated September 12, 2010 related to the killing of Spence.

[11] On September 10, 2011, one year after the killing of Spence, the police issued a press release concerning that killing, which included the fact that the gunman was believed to have fled the scene in a light-blue Honda Accord. At the time, Moore had such a vehicle, registered in the name of his girlfriend, Tassandra Whyte. Moore’s private communications were being intercepted at the time. On September 11, 2011, in one of the intercepted private communications, Moore read the entire press release to Whyte and urged her to retrieve the Honda papers and change its colour. The vehicle was soon repainted black and left in a parking garage until it was seized by the police on October 3, 2011. That same day, Whyte told Moore that the vehicle had been seized. He got exercised about “fucking ratting” and said that the police did not have enough evidence. The following day, Moore complained to Whyte that the police were trying to use her to build a case against him, and that they couldn’t slap him “with no M charge” because his is not the only Honda in Scarborough.

[12] Williams, a witness who will undoubtedly attract a strong Vetrovec[^1] warning, will testify that after the killing of Spence was reported in the media, Moore claimed responsibility for it.

[13] The Crown also advances evidence of motive, which I will describe and consider later.

James and Facey

[14] On September 29, 2010, shortly before 10:27 p.m., James and Facey were sitting and listening to music in and around James’ vehicle, which was parked in a laneway adjacent to 1798 Weston Road. Shirlon Marshall, who had just returned a video game to James and was walking up Weston Road, heard a gunshot and turned to see a black BMW X5 emerging from the laneway. Juan Moreno also saw the vehicle slowly emerge from the laneway adjacent to 1798 Weston Road. As the BMW drove by James and Facey, Moreno saw the driver start firing at the two men at point blank range. The BMW then drove north on Weston Road. The police collected ten 9mm shell cases at the scene: seven Winchester and three Federal. They were all shot from the same firearm.

[15] Evidence tending to support the inference that Moore shot James and Facey includes the following.

[16] Moore drove a black BMW X5 at the time. A surveillance video camera captured a vehicle similar to Moore’s BMW driving north on Weston Road within a few hundred metres of the scene of the shooting seconds after it took place.

[17] Williams will testify that he was a passenger in Moore’s vehicle at the time and saw him shoot at James and Facey. Moore was driving south on Weston Road when he saw the two men in the laneway. He drove past them, slowed, turned around, proceeded into the alley and drove by the two men, who were on the passenger side. Moore drove to the end of the alley, turned around, rolled down his window and began shooting at the two men at point blank range.

[18] Cell phone data shows that cell phones 5055 and 1926, both associated with Moore, were in the area of the shootings around the time they took place.

Carl Cole

[19] On November 24, 2010, at approximately 6:43 p.m., Cole was gunned down while standing alone in the parking lot of a high rise apartment building at 65 Greenbrae. A slow moving Chrysler 300 approached him and, without any prior interaction, the driver, a heavyset or stocky black man, shot Cole. The driver exited the vehicle and continued firing at the prone body of the deceased. He then re-entered the vehicle and sped away. Cole was shot with two handguns, a 9mm and a .45 calibre. He had 29 separate gunshot skin perforations, and was killed by multiple gunshot wounds. One of these was caused by a .45 calibre bullet that penetrated his head. The police recovered twelve 9mm shell cases from the scene, including seven Winchester and five Federal, as well as ten .45 shell cases, all fired from the same gun.

[20] Evidence tending to support the inference that Moore shot Cole includes the following.

[21] Moore, like the shooter, can be described as a heavyset or stocky black man.

[22] In addition to the 9mm firearm used in this shooting being the same one as was used to shoot the other victims, the .45 calibre firearm used in this shooting was the same one as had been used in a shooting at St. Edmund Campion School on October 9, 2010, and at another shooting at XS Nightclub on March 11, 2011. There is evidence that is capable of establishing that Moore was the shooter on both of these occasions, one obviously prior to the Cole shooting, and one after it. The Crown seeks the admission of that evidence in this trial, a matter which I will consider later in these reasons.

[23] During the period from 2:56 p.m. to 6:11 p.m. on the day of the shooting of Cole, Moore’s 5055 cell phone contacted Cole’s cell phone nine times, and Cole’s cell phone contacted Moore’s 5055 cell phone nine times. No further attempts to contact Cole’s cell phone were made on Moore’s cell phone after the shooting.

[24] On November 27, 2010, Moore advised Williams in a text message that he “got him in da cedar that dude dat robb us.” Cedar is a short name for Cedarbrae, a school in the Greenbrae area. Williams will testify that Moore later told him that he shot a man in his “melon” with his .45. Williams connected this comment to the content of the text message.

Evidence relating to all four homicides that tends to implicate Moore

[25] Moore was arrested on drug charges on November 30, 2010, and released on bail on December 2. The content of a series of text messages to and from Moore beginning on December 3, 2010, are open to the interpretation that Moore was offering to sell some guns, including a 9mm and a .45. There is also evidence based on text messages on January 7, 2011, between Moore and Guyvin July that these efforts were successful. In these messages, Moore was attempting to secure another 9mm firearm.

[26] The 9mm gun used in all of the killings was ultimately seized on June 19, 2012, during the execution of a search warrant in an unrelated investigation at an unconnected location. It was found in a drawer alongside a rubber grip.

The Cross-Count Argument

[27] The Crown argues that some or all of the evidence on each count is admissible on each of the other counts on two “parallel” bases: as “discreditable conduct evidence” and as “similar act evidence.” I will not adopt the Crown’s labels for these two avenues of admissibility. The evidence in question is discreditable conduct regardless of the basis for its admissibility. I prefer to label these two avenues of admissibility as circumstantial evidence and similar fact evidence. Initially, I was under the impression that counsel for the accused resisted both avenues of cross-count admissibility. I later came to realize that he resisted only the similar fact avenue of admissibility.

Analysis of the Cross-Count Issue

[28] Whatever label one places on these two routes of admissibility, they were both considered in the decision of the Court of Appeal in R. v. Backhouse, 2005 CanLII 4937 (ON CA), [2005] O.J. No. 754, 194 C.C.C. (3d) 1, a case somewhat similar to this one.

[29] In Backhouse, the offender was convicted of the shooting murder of one Steptoe. At trial, the Crown led evidence of a second shooting, referred to as the Croft shooting, which took place about nine months after the Steptoe shooting. The evidence established with reasonable assurance that Backhouse was the shooter in the Croft shooting. Projectiles recovered at the scene of the Croft shooting were shown to have come from the same gun that had been used at the Steptoe shooting.

[30] The evidence of the Croft shooting was tendered to prove identity in the Steptoe shooting on the basis of two different chains of reasoning. The first chain of reasoning was that since the gun used in both shootings was the same, evidence that Backhouse, as the shooter in the Croft incident, was in possession of the gun used in the Steptoe shootings was some evidence that he was involved in the Steptoe shootings. This is what I have called the circumstantial evidence approach.

[31] The second chain of reasoning depended on disposition. It was argued that the manner in which the two shootings were carried out was so distinctive that it was likely that the same person committed both acts. Since there was evidence that Backhouse carried out the Croft shooting, it was likely that he committed both shootings.

[32] This case obviously differs from Backhouse because each of the four shootings under consideration is the subject matter of a count in a single indictment. In Backhouse, the Croft shooting was not the subject of a count in the Steptoe indictment. Nonetheless, the arguments made in support of admissibility are the same.

[33] Returning to the Court of Appeal’s decision in Backhouse, with respect to the circumstantial evidence approach, the Court considered the Crown’s argument that an inference was available that the offender, as the shooter in the Croft incident, was in possession of the gun used in the Steptoe shootings, and that this was some evidence that he was involved in the Steptoe shootings. The Court stated, at para. 156, that this inference, while available, was not a strong one given the passage of time (eight months), the relative ease with which guns can be passed around in the criminal underworld, and evidence led in that trial that the offender was not in continuous possession of the gun following the Steptoe shootings. The Court continued that this line of reasoning, which flows simply from the fact that the appellant was in possession of the murder weapon at some time after the killings, does not depend on similar fact reasoning from disposition. The appellant's possession of the murder weapon is nothing more than circumstantial evidence of his involvement in the killings.

[34] As a result, the Court did not doubt that after-the-fact possession of the murder weapon was admissible, but emphasized that it was the fact of possession of the gun that gave the evidence its probative value, and that the use that was made of it did not appreciably increase that probative value: Backhouse, at paras. 163-164.

[35] Finally, with respect to this first line of reasoning, despite the Court’s comment that the inference sought to be drawn by the Crown was not strong, the Court said that while the fact of possession of a restricted weapon was discreditable conduct that carried some prejudicial effect, the probative value of it outweighed the prejudicial effect. However evidence of the manner in which the weapon was used showed that the offender had a disposition for violence and was highly prejudicial. Its admissibility fell to be determined as similar fact evidence: Backhouse, at paras. 165-167.

[36] The Court then went on to consider the similar fact line of reasoning. This reasoning depends on the theory that the manner in which the two shootings were carried out is so distinctive that it is likely that the same person committed both acts. Since there was evidence that the appellant carried out the Croft shooting, it was likely that he committed both shootings. Of course, this line of reasoning is an argument based on disposition.

[37] The Court noted that where the prosecution seeks to have similar fact evidence admitted to prove identity, a high degree of similarity is required. The required degree of similarity is properly described in terms such as “highly distinctive or unique” or “evidence of a propensity to commit a particular crime in a particular and distinctive way.” The manner in which the two shootings in Backhouse took place did not bear this highly distinctive or unique character. The only similarities were that the same gun was used, the perpetrator was a male and the perpetrator showed little concern that he might injure persons other than the intended victim. This, the Court said, showed nothing more than a general disposition towards violence. Against this were a large number of dissimilarities. After reviewing, at para. 169, the approach that must be taken where the prosecution seeks to rely on similar fact evidence to prove identity as explained in R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, the Court concluded at para. 170-173 that there was neither a unique trade mark or signature nor a series of significant similarities in that case. Since the Croft incident did not have the required degree of similarity, its probative value did not outweigh the prejudicial effect, and the trial judge should not have admitted the evidence as similar fact evidence.

[38] As a result, the Court held that the trial judge should not have admitted the evidence of the manner in which the weapon was used in the Croft shooting. But the court noted that the defence in Backhouse had offered to admit that the offender had possession of the murder weapon on September 3, 1998. The Court stated, at para. 172, that Crown counsel at trial ought to have accepted the offer.

[39] I have reviewed Backhouse at length because, in my view, it bears significant similarities to this case, and is highly instructive with respect to both avenues of admissibility advanced here.

The circumstantial evidence avenue of admissibility

[40] I begin with the circumstantial evidence approach. In Backhouse, the Court held that evidence of possession of the weapon used by the shooter in a murder case on one subsequent occasion eight months later was admissible despite the relative ease with which guns can be passed around in the criminal underworld, and despite evidence led in that trial that the offender was not in continuous possession of the gun following the alleged murder. The Court also held that the probative value of this evidence, despite its shortcomings, outweighed its prejudicial effect.

[41] In this case, the evidence is far stronger. Looking at the three incidents covered by the four counts in the indictment alone, there is evidence of the accused using the same gun on three occasions within 75 days. There is as well other evidence of his use of the gun reasonably proximate to these events which I will consider later. It is self-evident that the evidence that the accused was in possession of and used the gun on each occasion is admissible against him on each of the other occasions as powerful circumstantial evidence of his possession of the gun on all of those occasions, and in turn is evidence that he was a participant in each of the shootings. Indeed, in this case, unlike in Backhouse, to keep from the jury the fact that the same gun was used in each of the shootings would deprive the jury of the single most compelling piece of evidence connecting the accused to each homicide. Without this fact, the identity of the particular gun used in each homicide, which was ultimately seized at an unconnected location, would have no significance whatever. It would severely impair the truth-seeking function of this trial. As counsel for the accused himself put it in the course of argument, the real force of this case is in the linking of firearms. I agree.

[42] But that does not end the discussion of this issue. In this case, since all four counts are in one indictment, the jury will hear the evidence not only that the accused was in possession of the gun on other occasions, but will also hear evidence of the manner in which he is alleged to have used it. And even if I were to sever the counts, a matter that I will deal with later in these reasons, that would not, of itself, solve this problem. I say this for two reasons.

[43] First, it is not possible to sever evidence that the accused was in possession of a gun on any of the occasions in the indictment from the evidence of what he did with the gun. The proof in each case that the accused was in possession of the gun is the evidence that there was a shooting, and that the accused, by inference from circumstantial evidence (save for the eyewitness evidence of Williams) was the shooter. It is not clear from my reading of Backhouse whether or not it was possible to sever the evidence of possession of the gun from the evidence of the use of the gun. Further, I repeat that while the inference from possession on one occasion to possession on another was weak in Backhouse, it is powerful here. If the evidence of possession of the gun on each count in the indictment is admissible on the other counts, then I fail to see how I could exclude the evidence of the use of the gun on each occasion, since that is the very evidence that may establish possession in the accused on those other occasions. While the jury would have to be strongly warned against propensity reasoning arising from the manner in which the gun was used, they would be told that they could look at the circumstances of each offence to determine if the accused was in possession of the gun on each occasion. If they found that he was in possession of the gun in relation to a particular occasion, they could use that finding as evidence that he was the possessor of the same gun on other occasions.

[44] Second, I repeat what was said in Backhouse at paras. 163-164: after the fact possession of the murder weapon was admissible, but it was the fact of possession of the gun that gave the evidence its probative value; the particular use that was made of it did not appreciably increase that probative value. The last comment was of course made in the circumstances of that case. It is worth recalling those circumstances.

[45] The allegation in the indictment was that the accused, while armed with a revolver and masked, entered the home of Steptoe, shot and killed Steptoe and Evon, and shot and wounded Roy, and then fled. The similar fact allegation was that about nine months after the Steptoe shooting, Croft and a friend had returned from a hardware store. As they were unloading their purchases, they heard several gunshots. One of the shots grazed the friend’s pant leg. Backhouse was in a parking lot of a convenience store separated from the Croft home by two fences and a vacant lot and appeared to be the shooter. All of the shots seemed to have been aimed at the ground or no higher than the knee. In the former case, there was a history of bad blood between Backhouse and Steptoe. In the latter case, there was a history of bad blood between Backhouse and Croft.

[46] As can be seen, the nature of the shooting on the two occasions was entirely different. One can readily understand why the Court said that in the circumstances, it was the fact of possession of the gun that gave the evidence its probative value, and that the particular use that was made of it did not appreciably increase that probative value. This case is quite different.

[47] Here, the fact that the gun was not only possessed, but also used on three occasions does in fact increase the probative value of the possession of the gun to an appreciable degree. While the mere possession of a gun on two occasions gives rise to an inference of possession on a third occasion, it leaves open the argument that the possession of the gun was not necessarily continuous or exclusive, and that the accused may not have been the person in possession of it on the third occasion. The inference of continuous or even exclusive possession is stronger where the possession of the gun on the various occasions is exclusive and enduring, and is stronger still if the possessor made use of it. The extent of a person’s association with a gun is obviously greater when they make repeated use of it, rather than simply hold it, but both ordinarily amount to possession. While use of a gun on two widely separated occasions, as in Backhouse, would mean very little, repeated use might logically mean a lot more. As a result, evidence that the gun was used on each occasion would be admissible for the purpose of proving possession if the counts were severed.

[48] Before leaving this point, it is important for me to make clear what I mean when I say that use of the gun has significance. Of course, the only use that one would ordinarily make of a gun is to shoot it. The fact that the gun was shot in each instance in this case speaks to the extent of the shooter’s control over the gun and in turn to the extent of the shooter’s possession. However, the fact that the shooter shot at another person speaks to disposition, and forms no part of my analysis. It is a fine distinction to be sure, but, in my view, a meaningful one.

[49] I complete my analysis by noting that counsel for the accused, while staunchly opposing the cross-count use of the four homicides as similar fact evidence, in the end candidly conceded that he had nothing to say in opposition to cross-count use of the evidence as circumstantial evidence of possession of the 9mm firearm on each count. I hasten to add that this is a concession made by a seasoned and capable counsel. Despite the position taken by counsel for the accused, I have chosen to analyze the issue carefully, because the prospect of trying four murder counts together, while far from unprecedented, is certainly unusual, and if not managed with care, would risk being unfair to Moore.

The similar fact avenue of admissibility

[50] When the similarity of the four murders in the indictment before me is considered in similar fact analysis, it is difficult initially to avoid overemphasizing the fact that in each case, the same gun was used. I have already noted that the fact that the same gun was used in a series of shootings is cogent evidence that the same person was the shooter in each case. But here we are engaged in similar fact analysis. The question that must be asked is whether this is the type of similarity spoken of in the similar fact cases. In similar fact analysis, when identity is the issue, the trial judge must consider similarities “consisting of a unique trademark or signature [or] a series of significant similarities.” (Arp, p. 345). In doing so, “the trial judge should only consider the manner in which the acts were committed and not the evidence as to the accused’s involvement in each act.” (Arp, p. 345.) “[E]vidence linking the accused to each similar act should not be part of this evaluation.” (Arp, p. 344.)

[51] It has been said that it is not often easy to draw a bright line that distinguishes between evidence that demonstrates similarity among the acts and evidence that shows an involvement in them: see R. v. McCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516. That is certainly true here. But upon close analysis, it is apparent that while the fact that a particular 9mm firearm was used in each of a series of shootings that are otherwise linked to Moore is significant as circumstantial evidence of identity, this is a similarity that, on its own, has little significance in similar fact analysis. However, when added to other similarities, it might incrementally advance the series of similarities towards an objective improbability of coincidence.

[52] I have already said that the fact that the very same 9mm firearm was used in each shooting is a weighty item of evidence. But the real value of this fact is not the firearm’s repeated use in the shootings of other people. Rather, its real value is the firearm repeatedly being in the possession of and used by the same person, whether or not it is used in a shooting of another person. In other words, it is of far greater significance as a step in linking an accused to a gun than in contributing to a propensity for an anonymous shooter to commit his shootings in a particular way.

[53] As a result, while I do consider the fact that the same gun was used in each shooting to be a relevant similarity, I do not think that it has the overwhelming value as similar fact evidence that it seems to have at first blush. Only if other similarities amongst the shootings in this case are significant similarities, of themselves or collectively, could the use of the same gun tip the balance in favour of a finding of striking similarity, or an objective improbability of coincidence.

[54] In this case, Crown counsel has done yeoman’s service in charting the additional similarities amongst the shootings, including: temporal proximity; time of day (two of the shootings); physical location (two of the shootings); taking place in a parking area, out of doors, in a low income housing neighbourhood; a perpetrator who was black, male, large or of stocky build, who acted alone, made no attempt to conceal his face, fired from or near the driver’s seat of a vehicle, fired multiple shots using mixed manufacture ammunition, predominantly Winchester, shot the victim in the head and immediately vacated the area; a victim who was black, male, engaged in innocent activity prior to the shooting, and did nothing immediately before the shooting to provoke it. I leave aside for the moment the cell phone evidence referred to above.

[55] It is not necessary to list or consider the dissimilarities amongst the shootings. Despite the Crown’s efforts, the similarities standing alone fall short of the mark. While the similarities other than the use of the same gun raise a suspicion that the same person committed them all, they go no further than that. They do not come close to the requisite level of striking similarity, or an objective improbability of coincidence. All firearm killings bear a degree of similarity. There are additional similarities here, but even viewed cumulatively there is no unique trademark, no signature and no series of significant similarities. The addition of the fact that the same gun was used in each shooting does not appreciably enhance the improbability of coincidence. It is not improbable that the gun was shared. The real value of the fact that the same gun was used in each shooting is spent in the circumstantial evidence analysis. It is only where the use of the same gun in one instance is linked to the accused in an accumulation of other instances that it takes on significant force. In the absence of other truly significant similarities between counts, to permit the use of the evidence across counts as similar fact evidence as well as circumstantial evidence of identity is really to permit its use for essentially the same purpose twice. The Crown would gain very little, there would be an increased risk of prejudice to the accused, and the jury might become confused when instructed on two different ways to consider the fact that the same gun was used in each shooting. I note that these reasons rather artificially consider separately the Crown’s motion for cross-count use of evidence and the Crown’s motion to permit the use of extrinsic discreditable conduct evidence. For the present I will simply say that adding the extrinsic evidence to the similar fact analysis would have added nothing of significance, and would not have changed the result.

[56] Before concluding on this issue, I will return to the cell phone evidence. It will be recalled that: cell phone data placed cell phone 5055, which can be associated to Moore, in the vicinity of 30 Greenbrae shortly before the shooting of Spence; cell phone data shows that cell phones 5055 and 1926, also associated with Moore, were in the area of the shooting of James and Facey around the time of the shootings; and during the period from 2:56 p.m. to 6:11 p.m. on the day of the shooting of Cole, the 5055 cell phone contacted Cole’s cell phone nine times, and Cole’s cell phone contacted the 5055 cell phone nine times. No further attempts to contact Cole’s cell phone on Moore’s cell phone were made after the shooting.

[57] Crown counsel argues that this forms part of the similar fact analysis, and the fact that the same cell phone was at least in proximity of each shooting is a significant similarity. In my view, the presence of the same cell phone in the location of each shooting, obviously leaving aside its connection to the accused, is of limited significance in similar fact analysis in this case. There is no evidence of any connection between the cell phone and the shooting except in the case of Cole, where the user of Cole’s cell phone and the user of 5055 were in frequent contact for a three hour period before the shooting. The evidence does not place the cell phone in the hands of the shooter, does not imbue the cell phone with any use in the shooting, and can be explained in other manners.

[58] Of course, if the three shootings had taken place at three locations remote from each other, and if the cell phone had not otherwise been present in those locations on a regular basis, it would be a significant similarity. But that is not the case here. In this case, there are only two locations – the Spence and Cole shootings were both on Greenbrae Circuit, while the shooting of James and Facey was near 1798 Weston Road. In addition, the cell phone records reveal that the user of 5055 made or received almost half of his/her calls in the Greenbrae area, and made occasional calls in the area of 1798 Weston Road. While this does not strip the presence of the same cell phone in the location of each shooting of its significance, it renders it far from a significant similarity. On the other hand, in circumstantial evidence analysis, the presence of a cell phone associated with Moore at any particular shooting, as opposed to all of the shootings, is a cogent piece of circumstantial evidence that, when added to the other relevant evidence, points to Moore as the shooter in that particular incident. As can be seen, the cell phone evidence does not alter my view about the admissibility of similar fact evidence across counts.

[59] In the end, it is undeniable that the fact that the same gun was used in each shooting and the fact that the same cell phone was in the vicinity each time are notable similarities. But the similar fact exercise concerns more than the presence of notable similarities. Where the proposed evidence is offered to prove identity, we require a high degree of similarity among the acts for the evidence to be admitted. In some cases, the acts display a unique trademark or signature that renders them “strikingly similar” and satisfies the strict standard for admissibility. In other instances, the cumulative effect of a number of significant similarities in the manner in which the acts were committed will satisfy the admission requirements. Here the acts do not display a unique hallmark or signature, and there is not a striking similarity in the manner in which the acts were committed. The use of the same gun does not carry the day, and the presence of the same cell phone is external to the shootings. While the cell phone’s presence is a significant piece of circumstantial evidence connecting the accused to the shooting in each count, it does not play a major role in similar fact analysis.

[60] In the result, I will permit cross-count use of the evidence as circumstantial evidence of possession of the firearm on each count, and in turn as circumstantial evidence of the identity of the shooter on each count, but I will not permit cross-count use of the evidence as similar fact evidence. That leaves only the consideration of probative value and prejudicial effect. As I have said, I view the probative value of this evidence as powerful. What about prejudicial effect?

[61] As noted by Watt J.A. in McCormack at paras. 67-70, the potential prejudicial effect of evidence of similar acts includes both moral and reasoning prejudice. Moral prejudice, the potential stigma of “bad personhood”, refers to the risk of an unfocussed trial and a wrongful conviction, a verdict based on prejudice as a surrogate for proof. Reasoning prejudice has to do with the distraction of the trier of fact from properly focussing on the charges, aggravated by the consumption of time in dealing with a multiplicity of incidents. However, at para. 68, of particular pertinence here despite the fact that the cross-count evidence is not similar fact evidence, he stated:

68 This case involves the invocation of similar act principles across counts in a multi-count indictment. The evidence relating to each count is relevant to and admissible in proof of the allegation contained in that count. Each incident is of equivalent gravity and of minimal inflammatory potential. This is not a case, in other words, in which conduct extrinsic to the crimes alleged in the indictment is enlisted as evidence of similar acts to prove what is alleged, and lugs with it inflammatory claims of greater gravity or moral depravity.

[62] Subject to consideration of the severance application brought by the accused, there is no enhanced moral or reasoning prejudice created by permitting the use of some of the evidence across counts. The jury will hear all of the evidence in any event, and will be given a strong warning against reasoning from propensity. At worst, the cross-count ruling will make the jury charge slightly more complex. But given the fact that at the end of the day, the only real issue for the jury will be identity, this will not be particularly burdensome. I need say no more on this issue until after consideration of the severance application.

Extrinsic Evidence of Discreditable Conduct

[63] As I have indicated, in addition to its application for an order that evidence apply across counts, the Crown applies to be permitted to adduce evidence at trial of certain acts of extrinsic misconduct by the accused. To the extent possible, I will group acts that are tendered for a common purpose and consider them together. As a result, I will not consider them in chronological order.

1. Discreditable conduct capable of proving that Moore was in possession of the 9mm firearm

[64] I have already determined that I would permit cross-count use of the circumstantial evidence of possession of the firearm on each count, and in turn as circumstantial evidence of the identity of the shooter on each count. There is no reason that the same general approach should not be applied to extrinsic evidence of the accused’s possession of that same firearm on other occasions not the subject of any count in the indictment. Indeed that was what happened in Backhouse, which I have relied on in reaching my conclusion concerning admissibility across counts. There remains, of course, a probative value – prejudicial effect balancing in each case. The following is the evidence extrinsic to the indictment that the Crown proposes to adduce.

The 3304 Danforth Avenue shooting on October 20, 2010

[65] Kevin Williams will testify that Andrea Furlonge was engaged in the sex trade as a dominatrix. He and Moore, whom he introduced to Furlonge, were joint participants in her venture until he was excluded by Moore. He believed that Furlonge lived in the upper unit of a building in the Danforth Avenue area. When he and Moore picked her up, she would emerge from her backyard into a laneway that ran behind her apartment.

[66] In fact, Furlonge lived with Jennifer Brooks in the ground floor apartment at 3304 Danforth Avenue at the time. Brooks will testify that she believed that Furlong was a prostitute. From time to time Furlonge would leave the apartment with an overnight bag via the back door to a waiting vehicle in the back alley, and return a few days later flush with cash. Brooks will also testify that Furlonge was having a dispute over money relating to her trade.

[67] Between September 24, 2010, and October 25, 2010, text messages exchanged between Moore and Furlonge support the view that Furlonge was engaged in prostitution, and that she and Moore were having a dispute about money. Moore’s demands for money from Furlonge culminated in a specific threat by Moore in the days prior to October 20, 2010, to “fly shots” through Furlonge’s house. On October 18, Moore said, “If I don’t get it tonight your crib getting it.” On October 19, he said, “your brave ah I know were u at u will hear sumthin soon.” On October 20, he said, “Did u get my money.”

[68] Peter Botsinis, the operator of a garage at Danforth Avenue and Bynge Avenue, heard firecracker-like sounds coming from the alley behind 3304 Danforth between 10 and 11 a.m. on October 20, 2010. Soon after he saw a bluish-green Honda Accord driven by a black male emerge from the alley. At the time, Moore owned a bluish Honda Accord.

[69] On October 20, 2010, Crystal Beatty, a tenant in the upstairs apartment at 3304 Danforth Road, noted a small hole in her door. Two days later, she observed what appeared to be bullet strikes to her barbeque and patio furniture. She called the police.

[70] On October 22, 2010, when Brooks first learned from the police that the upstairs apartment had been struck by bullets, she told Furlonge, who was not at home, what had happened. When Furlonge returned home a few days later, she immediately moved out.

[71] When the police attended the upstairs apartment at 3304 Danforth, they observed numerous bullet strikes and collected six 9mm shell cases. These shell cases had all been fired from the same 9mm gun as was used to shoot Spence, James, Facey and Cole.

[72] Williams will testify that Moore told him that he had shot up Furlonge’s apartment.

[73] The James and Facey shooting took place on September 29, 2010. The Cole shooting took place on November 24, 2010. The foregoing is strong circumstantial evidence that on October 20, 2010, approximately halfway between the James and Facey shooting and the Cole shooting, Moore was in possession of and used the same 9mm gun as was used in those and the Spence shooting. It is obviously circumstantial evidence that he was in possession of that firearm on the dates of the murders alleged in the indictment, and strengthens the inference that can be drawn from those occurrences that his possession of the firearm was strong and exclusive.

The offer to sell a 9mm pistol on December 5, 2010, and the attempt to purchase another one on January 7, 2010, and related communications

[74] On December 5, 2010, in a text message, Moore offered to sell a 9mm pistol to Guyvin July, a trafficker in illegal firearms and ammunition. Moore described it as a Smith & Wesson, 16 shot capacity 9mm shiny gun with a rubber grip. This matches the gun that was used in each of the four homicides, right down to the rubber grip, which was found beside the gun in a drawer when it was seized. The content of text messages between Moore and July on January 7, 2011 support an inference that these efforts were successful. In these messages, Moore was attempting to secure another 9mm firearm.

Analysis

[75] These items of evidence are clearly relevant, and carry with them little moral or reasoning prejudice in the circumstances of this case. Although the 3304 Danforth incident was a shooting, no one was shot, nor does it appear that anyone was intended to be shot. The efforts to sell the gun and later purchase another, although illegal, of themselves could occasion only insignificant prejudice in the circumstances of this case. This evidence will not occupy an inordinate amount of time, and will not distract the jury from its task.

[76] On the other hand, I conclude that these items of evidence have considerable probative value. It must be recalled that in Backhouse, the Court of Appeal held that evidence of possession of the weapon used by the shooter in a murder case on one subsequent occasion eight months later was admissible despite the relative ease with which guns can be passed around in the criminal underworld, and despite evidence led in that trial that the offender was not in continuous possession of the gun following the alleged murder. The weakness in the inferences sought to be drawn in that case is significantly minimized by the circumstances of the four homicides here, which all took place within 75 days. With respect to the 3304 Danforth shooting, however, having regard to the four homicides involving the same gun, the defence suggests that enough is enough. I cannot accept this argument.

[77] It remains open to the defence to argue that even if they find that Moore likely possessed and used the gun on one occasion, the jury should not conclude beyond a reasonable doubt that he possessed or used it on each other occasion. The Crown’s position with respect to the gun is strengthened by the frequency with which Moore possessed the gun, and the infrequency with which anyone else did. This position is further strengthened by the evidence of Moore trying to sell the gun, and soon after purchase a similar gun. It suggests that he had a reason to get rid of it, and that it was his to sell, both of which strengthen the case that it was him that used it in each instance.

[78] Whatever minimal moral and reasoning prejudice this evidence might cause is strongly outweighed by the probative value of these occurrences.

2. Discreditable conduct capable of proving that Moore was in possession of the .45 calibre firearm

[79] It will be recalled that in the shooting of Cole, and Cole alone, a second firearm was used – a .45 calibre gun. There is evidence of the possession and use of that gun by Moore on two other occasions. The admissibility of this other evidence obviously falls to be determined on the same principles as does the possession and use of the 9mm firearm on other occasions.

The St. Edmund Campion School shooting on October 9, 2011

[80] As I have already noted, Guyvin July was a trafficker in illegal firearms and ammunition. He admits to selling ammunition to Moore on several occasions, but denies ever selling him a .45 calibre handgun. However text messages exchanged between July and Moore on October 7 and 8, 2010, are open to the interpretation that July was offering to sell a gold .45 calibre handgun to Moore.

[81] On October 9, 2010, at 10:13 a.m., Moore texted Williams that he was coming for “dat ting n teet” in ten minutes, and that he was trading it. I note that Williams will testify that in October 2010, Moore acquired a .45 calibre handgun with a gold hammer, gold trim and an ivory handle. Also on October 9, 2010, Moore and July exchanged nine cell phone calls. By 7:39 p.m., Moore’s cell phone was using the cell phone tower at 30 Livonia. St. Edmund Campion School is located at 30 Highcastle Road, and is within the footprint of that tower.

[82] At approximately 8:00 p.m. on October 9, 2010, Edward Cerexo was working across the street from the St. Edmund Campion School when he heard what sounded like firecrackers at the school. He observed xenon type headlights illuminating an alcove in a wall in the school and heard voices and slamming car doors. He then saw a black SUV vehicle proceed at a high rate of speed south on Highcastle. At 8:27 p.m., cell phone records indicate that Moore was near a cell phone tower located south of 30 Highcastle.

[83] When the police attended the scene, they located nine .45 calibre shell cases and nine bullets or bullet fragments that were determined to have been fired from the same firearm as the .45 calibre firearm that was one of the weapons used to kill Cole. The police also recovered a sample of fresh spittle in front of the alcove that matches the DNA from a buccal swab taken from Moore.

XS Nightclub shooting on March 11, 2011

[84] On March 5, 2011, Moore texted July inquiring about the availability of .45 calibre ammunition. July will testify that he did in fact sell such ammunition to Moore on March 11, 2011.

[85] Williams testified that very early on March 11, 2011, he performed at XS Nightclub at 261 Richmond Street West as part of Canadian Music Week. Members of his group got into a shoving match with other club patrons. Williams saw Moore walk out of the washroom and fire shots into the air as he was exiting the club.

[86] Pat Cerendolo, a bouncer at the club, will testify that he saw the shooter fire off a “clip” into the ceiling of the club as the shooter was walking up the exit ramp. He chased the shooter out of the club. Cerendolo was delayed briefly by people in his path, but when he got outside, he saw the shooter driving a black BMW X5 pulling out of an adjacent parking garage and heading into traffic, and making a U-turn on Richmond Street West.

[87] Video surveillance captured images of two black men running down the ramp of the parking garage adjacent to the nightclub at 1:35 a.m. and leaving in a black BMW SUV. The parking lot attendant noted the BMW’s licence plate as BKJB 434, which was the plate number of Moore’s BMW X5. Video surveillance and the parking ticket taken by the attendant show that the same group had arrived in the same vehicle at 11:02 p.m. on March 10.

[88] The police arrived at the club at 1:30 a.m. and collected 7 cartridge cases and 10 bullets or bullet fragments from the scene. The cases had all been fired from the same .45 calibre gun that had earlier been fired at St. Edmund Campion School on October 9, 2010, and the Cole homicide on November 24, 2010.

Analysis

[89] Little need be said about probative value. This is evidence that the accused was in possession of the .45 on two occasions in addition to the Cole homicide, one less than two months before the homicide, and one slightly more than three months after the homicide. It is circumstantial evidence that he was in possession of the gun on November 24, 2010 and used it to kill Cole. While not as strong as the evidence concerning the 9mm firearm, it is nonetheless of significant value. At the same time, neither act gives rise to significant moral or reasoning prejudice. While the XS Nightclub shooting certainly put members of the public at risk, and was more reprehensible than St. Edmund Campion shooting, in neither case is there any suggestion that the accused was trying to shoot or even harm anyone. The probative value clearly outweighs the prejudicial effect.

3. Discreditable conduct capable of proving that Moore was in possession of firearms

[90] For the most part, the evidence that the accused was in possession of the 9mm firearm and the .45 calibre firearm is circumstantial, although of course, there is direct evidence from Williams and from text messages that Moore has been in possession of guns. While Williams is a discreditable witness, from what I know of the totality of the evidence it appears quite convincing and quite reliable on this point. Nevertheless, the Crown seeks to introduce one additional piece of eyewitness evidence relating to the possession of a handgun by Moore in the relevant time frame: the eyewitness evidence of Nadine Keen.

The Nadine Keen Evidence

[91] Nadine Keen is the older sister of Moore’s girlfriend, Tassandra Whyte. She will testify that her sister and Moore have been romantically involved since early 2010. As a result of information she had received, she warned her sister about Moore’s history of domestic violence. In July of 2010, Moore confronted her in the bedroom of her apartment, removed a handgun from his waistband, waived it in the air, and demanded to know the source of her information. There is nothing in this evidence that can identify the type of handgun Moore was said to have used.

Analysis

[92] I acknowledge that proof that an accused had access to guns in general and knew how to use them, for example by evidence of prior possession of guns, can be relevant to the issue of the accused’s possession of the murder weapon in a case of murder by shooting. (See R. v. Riley, 2009 CanLII 15451 (ON SC), [2009] O.J. No. 1374 at paras. 100-110.) But in my view, in this case, this particular evidence has minimal probative value. If the jury does not conclude that the accused has been in possession of handguns from the mass of other evidence pointing to that conclusion, and relating specifically to the two guns used in the murders alleged in the indictment, this additional tiny piece of evidence will not likely tip the balance. On the other hand, the evidence has considerable prejudicial effect. Moore’s alleged act itself is of no great consequence in this case, but the reason for it introduces a wholly new and entirely reprehensible type of misconduct – domestic violence. And not just an instance of domestic violence, but a history of it. I will not admit this evidence.

4. Discreditable after the fact conduct capable of use as evidence of consciousness of guilt

[93] There are several instances of after the fact conduct in this case that are admissible as circumstantial evidence of consciousness of guilt. One of these, which can be viewed as discreditable conduct, has been challenged by the defence.

The drug arrest on November 30, 2010

[94] I have already mentioned that Moore was arrested on possession for the purpose of trafficking charges (small quantities of marihuana and cocaine) on November 30, 2010, and released on bail on December 2. The content of a series of text messages to and from Moore beginning on December 3, 2010, are open to the interpretation that Moore began offering to sell some guns, including the 9mm used in the homicides as well as a .45. As I have mentioned, there is also evidence based on text messages on January 7, 2011, between Moore and July that these efforts were successful. In those messages, Moore was attempting to secure another 9mm firearm.

[95] I mentioned this evidence earlier because it is part of the proof that the 9mm gun was in the possession of Moore at each of the homicides. But the evidence is also after the fact conduct that may be available as circumstantial evidence of consciousness of guilt on all of the counts. Crown counsel points out that Cole was killed on November 24, 2010. The drug arrest took place four days later. The accused was released on bail on December 2, and texted to Williams that he “jus came out the bin someone ratting hard.” The very next day he began his efforts to sell a 9mm and a .45 to Williams. Then on December 5, he began trying to sell the guns with the assistance of July. He said in a text to July, “I got some pows I need to get rid of.” Crown counsel argues that it would be open to the jury to conclude that the arrest was a wake-up call. Someone appeared to be informing on Moore, which alerted him to the need to get rid of the guns that had been used in the four homicides, possession of which would be evidence of his guilt in those homicides.

Analysis

[96] I agree with the Crown’s position. While the efforts to sell the guns would likely be admissible as after the fact conduct without evidence of the drug arrest, those efforts take on far greater force when seen to follow closely upon Moore’s release after the drug arrest, which he apparently thought came about as a result of “ratting.” The defence argued that the inference was weak, because the accused was often paranoid, and there was no special connection between the drug arrest and getting rid of the guns. I have not been shown any other evidence of the accused’s paranoia, but I will assume that at least some such evidence exists. Even so, this would not, in my view, detract from the inference the Crown seeks to draw. Moore’s concern about “ratting” was a very rational one on the heels of a drug arrest. In any event, evidence of general paranoia would be a matter for the jury to consider when deciding whether or not to draw any such inference. In a murder case such as this one, small trafficking charges involving marihuana and cocaine will create little or no moral prejudice.

[97] I note as well that this evidence has a secondary, but still very significant purpose. Throughout these reasons, I refer to text messages and cell phone calls to and from the accused. But the cell phone in question, which I have referred to as 5055, is not registered in the name of the accused. His sole possession and use of it, a very important issue in this trial, is a matter of inference from circumstantial evidence. It is not conceded. While it does not stand alone, it is very telling that from November 30, 2010, when Moore was arrested, to December 2, 2010, when he was released, dozens of calls were made to 5055, but not one single call was made from it. Yet a call was made from it at 7:02 p.m. on November 30, two minutes before Moore’s arrest, which was received on a cell phone tower in the immediate vicinity of the arrest, and calls and texts from 5055 recommenced on December 2, 2010, after Moore was released. In the texts, Moore mentioned that he “jus came out the bin” and that he “got bail.” The probative value of this evidence, once again, is considerable, and the prejudicial effect minimal.

5. Discreditable conduct capable of proving that Moore had a motive to kill Spence

[98] While motive is not one of the essential elements that Crown counsel must prove in a murder case, the presence of motive is certainly something that the jury may consider in deciding whether or not an accused is guilty. In addition, we regularly advise juries that the absence of proven motive is a circumstance that they may find tends to support the presumption of innocence. As a result, I would not lightly deprive the Crown of evidence of a motive. In this case, there is little evidence of motive. However the Crown does advance a motive for the Spence killing. It arises out of the shooting of Naseem Khan.

The Khan shooting on August 5, 2010

[99] There is evidence that Spence bore a physical resemblance to another Greenbrae habitué known as “Steppa,” that they both tended to wear articles of clothing that were green, and that one could be mistaken for the other in the darkness.

[100] On August 5, 2010, five weeks before the Spence shooting, Steppa had been present with Naseem Khan at a barbeque in Gilder. At about 9:30 p.m., their mutual friend Cuz became involved in a fist fight with Moore’s younger brother Taimone. Taimone suffered a bloody mouth. Less than an hour after this altercation Moore attended the alley behind the Greenbrae complex, demanded to know what had happened to his brother, and allegedly shot Khan several times at point blank range. Kevin Williams will testify that after Moore’s brother was assaulted, Moore expressed a dislike for the Greenbrae area and its residents, and indicated that he was looking to kill someone from the area.

[101] On September 10, 2010, five weeks after the shooting of Khan, Spence was shot and killed.

Analysis

[102] There is no question that it is open on the evidence to conclude that as a result of the beating of his brother, Moore had an animus towards Khan and his friends, including Steppa (although there is evidence that Steppa interceded to protect Moore’s brother in the fight), that Moore shot Khan in revenge for the beating, and that he maintained an intention to shoot others after shooting Khan. If Moore were alleged to have shot Steppa or Cuz, this evidence of motive or animus would surely be admissible, subject to probative value – prejudicial effect analysis. But in my view, transposing that motive to the shooting of Spence rests on too frail a foundation.

[103] The shooting of Spence took place five weeks after the shooting of Khan, over which time passions might have cooled. It is noteworthy that no other shooting in the neighbourhood took place in the interim. But more significantly, having had the opportunity to examine photographs of Steppa and Spence, I can say with some certainty that the resemblance is superficial at best. While it is certainly possible for them to have been mistaken for each other in the dark, nothing raises the likelihood of that happening any higher. It seems to me to be entirely speculative that this was the motive for the shooting of Spence. The probative value of this evidence is not great.

[104] I do not doubt that a speculative motive may be received in evidence in some cases. Most motives, by their nature, are somewhat speculative. But the low probative value of this motive as it relates to Spence must be weighed against the great prejudicial effect of introducing another shooting committed by the accused with still another gun, where the reason for the shooting was shockingly trivial. While it is true that Khan did not die, that is apparently nothing more than good fortune. This shooting has the appearance of a failed assassination. I will not admit this evidence.

6. Discreditable conduct providing insight into the relationship between Williams and Moore that supports Moore’s credibility

[105] As I have noted, Williams is a witness who will undoubtedly attract a strong Vetrovec warning. He will certainly attract a strong attack on his credibility. His evidence will be vigorously challenged. The Crown argues, persuasively, that evidence about the history of the relationship between Moore and Williams will assist the jury in placing Williams’ evidence into context, and in assessing his credibility. In particular, it may help make credible Williams’ assertion that Moore felt uninhibited enough to commit a double homicide in his presence, and confess his involvement in two other murders to Williams. In addition to leading general evidence about the relationship between Moore and Williams for this purpose, the Crown applies to be permitted to adduce evidence of the joint participation of Moore and Williams in the Arax Jewellery robbery and shooting.

The Arax Jewellery robbery and shooting on August 9, 2010

[106] On August 9, 2010, two masked men armed with a semi-automatic pistol robbed the Arax jewellery store. The robbery was captured on the store’s security camera. During the robbery, the larger of the two robbers shot one of the employees. The gun used to shoot the employee was the same gun as was used in the shooting of Naseem Khan, but this can have no significance in this trial since I have already excluded evidence of the Khan shooting. Cell phone records and text messages indicate that Moore was with Williams and Sarah Patsula in the hours before the robbery, and that the three of them made arrangements to get together the next day to “split dis.”

[107] There are a number of pieces of evidence that connect Moore to the robbery. Ten days after the robbery, Moore’s girlfriend Whyte paid a $10,000 deposit on a BMW X5 SUV. In numerous intercepted private communications, Moore refers to the vehicle as his BMW. He has also been stopped a number of times driving the vehicle. In addition, the police recovered a number of the pieces of jewellery taken in the robbery at a Scarborough Money Mart. The items had been pawned by Moore on March 12, 2011. A watch taken in the robbery was found in the possession of Williams when he and Patsula were arrested for the robbery on October 2, 2011.

[108] Another intercepted private communication reveals that upon learning of the arrest of Williams and Patsula, Moore called his mother and directed her to destroy a red shirt. The larger of the two robbers was wearing a red shirt during the robbery. Moore was also intercepted explaining the need for people to keep quiet about the not yet arrested third robber, and attempting to have messages to that effect passed on to Patsula and Williams.

Analysis

[109] There can be no doubt that Williams’ credibility, and the truthfulness of his evidence, will be severely tested. In particular, his claim that he observed Moore shoot James and Facey will be challenged. I am told that the defence will take the position that Williams, and not Moore, was the shooter. In those circumstances, it is inevitable that Williams’ criminal history, including his history for violence, will be explored. Some of that history is shared with Moore. As a result, it is unrealistic to imagine that Moore’s criminal history will not be revealed to the jury, at least to some degree.

[110] In addition, the jury will have to grapple with the question of why, according to Williams, Moore would commit the James and Facey murders in the presence of Williams, and would disclose his commission of the other two murders to Williams. One part of the explanation for this level of trust between Moore and Williams, and a compelling part at that, is the fact that the two men committed the Arax robbery together, and that Williams had already seen Moore shoot another person prior to the James and Facey homicide. As a result, the evidence of the Arax robbery is relevant in this trial and has considerable probative value.

[111] On the other hand the robbery has some prejudicial effect, and the fact that Moore shot another person on this occasion is particularly prejudicial. Counsel for the accused suggested that the joint commission of the robbery by Moore and Williams is sufficient for the Crown’s purpose, and noted that the video shows that the firearm was exchanged between the two men in the course of it.

[112] I agree with the Crown that the effect of the evidence is weakened by omitting the shooting, but I agree with the defence that this additional, gratuitous shooting with a different gun is highly prejudicial, and that the prejudicial effect outweighs the probative value. This evidence will be excluded, but with a caveat.

[113] If the accused, in cross-examination of Williams or otherwise, suggests that Williams has a disposition for violence and so was more likely the killer of James and Facey than Moore was, this may open the door to proof by the Crown of Moore’s disposition for violence: see Regina v. McMillan (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750 (C.A.). In those circumstances, it may become necessary for me to review this part of my ruling.

Balancing Probative Value and Prejudicial Effect

[114] I have addressed probative value and prejudicial effect very briefly when I examined each individual piece of evidence of discreditable conduct throughout these reasons. I have not analyzed the issue comprehensively. The accused correctly argues that it is necessary to examine prejudicial effect cumulatively in a case such as this one. I will proceed to address this issue in greater detail now.

[115] In R. v. M.T., 2012 ONCA 511, 289 C.C.C. (3d) 115, Watt J.A. stated, at para. 83:

83 Evidence of extrinsic misconduct may infect the deliberation process with both moral and reasoning prejudice. Moral prejudice refers to the risk of an unfocused trial and a wrongful conviction grounded on an inference of guilt from general disposition or propensity: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 139. Reasoning prejudice refers to the risk of distracting the jurors from their proper focus on the offences charged when allegations of other misconduct enter the trial: Handy, at para. 144-145.

[116] Justice Watt elaborated on moral and reasoning prejudice in R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, where he stated, at para. 117:

117 In some cases, for example those that involve evidence of extrinsic misconduct, what is proposed for admission might engender moral prejudice or reasoning prejudice. Moral prejudice is the danger of bad personhood: the risk that an accused will be convicted because of the kind of person the evidence reveals him or her to be, rather than because of what the evidence establishes that she or he did: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31, 100, and 139-142. Reasoning prejudice is the danger that a jury might be confused by the multiplicity of incidents revealed by the evidence and distracted from the core issues in the case: Handy, at paras. 31, 100, and 144-146.

[117] In this case, it cannot be denied that there is potential moral and reasoning prejudice from the introduction of the evidence challenged on this motion. With respect to moral prejudice, there is undoubtedly a risk that the verdict on some of the counts could be tainted by the jury concluding that the accused is a bad person who is disposed to commit violent criminal acts, rather than deciding this case based solely on the evidence admissible on each count and in accordance with the legal instruction. However I am of the view that this risk can be eliminated by early, repeated, carefully crafted and forceful instruction. I say this having in mind the items of evidence of discreditable conduct viewed both individually and collectively.

[118] With respect to reasoning prejudice, the risk is smaller. No doubt my ruling will result in a longer trial. As well, the charge at the end of this trial will of necessity be long, will relate to several incidents in addition to the four counts in the indictment, will cover a great many issues and will contain several admonitions. But it must be borne in mind that the ultimate issue on each count in the indictment is simple: is the jury satisfied beyond a reasonable doubt that Moore was the shooter? My confidence that there will not be any significant reasoning prejudice is strengthened by the fact that as is the case in most modern murder trials, certainly in this province, the jurors will be supplied with copies of the charge. It cannot be doubted that this development assists juries in staying on track. Those of us who have been presiding over jury trials for a long time frequently note that juries equipped with written instructions generally need far less assistance with legal issues than was formerly the case, and ask far fewer questions about the applicable law. In any event, regardless of anecdotal reflections on jury experience, simple logic cannot fail to tell us about the value of written instructions.

[119] On the other side of the coin, the evidence of discreditable conduct that I have found to be admissible is of significant probative value. For the most part, it is evidence that may have great force in assisting the jury with the identity of the possessor of the gun or guns at each homicide, and in turn the identity of the shooter. In addition, I have admitted one piece of evidence relating to consciousness of guilt, and one that casts light on the degree of trust between Moore and Williams. Both of these are also of significant probative value. Further, the former carries little risk of prejudicial effect, and the latter, carries perhaps greater risk but again, nothing of significance.

[120] In my view, the balance between probative value and prejudicial effect is clear with respect to the items of evidence that I find to be admissible, both individually and collectively. Probative value substantially outweighs prejudicial effect.

Severance

Background

[121] The cross-count admissibility of evidence in this case stands as a logical impediment to severance. There would be little point to separate trials of the three homicide incidents if the circumstantial evidence capable of establishing the accused’s possession of the 9mm firearm, and therefore the evidence capable of establishing that he committed each homicide, was admissible on each separate murder trial. I am aware that a different view was expressed by the Manitoba Court of Appeal in R. v. Khan, 1996 CanLII 7296 (MB CA), [1996] M.J. No. 327, 108 C.C.C. (3d) 108, a case involving cross-count admissibility of similar fact evidence. But it is instructive to understand why this was so in Khan.

[122] In Khan, the accused was convicted of two counts of murder that were tried together. At his trial, the evidence adduced on each count was admitted as similar fact evidence on the other. It appears from the judgment of the Court of Appeal that as the trial progressed, for reasons that I need not explain, “the trial judge failed to realise that the evidence adduced on one count was not relevant to, or probative of, an issue raised on the other count, and was inadmissible as similar fact evidence.” Despite this development, the trial judge invited the jury in the charge to view the evidence of the two counts cumulatively, thus permitting the jury to shore up the weak and inconclusive evidence on one count with the weak and inconclusive evidence of the other count. As a result, a new trial was ordered.

[123] The problems in the case lead Philp J.A. to make the following comment, at para. 55:

55 One can speculate that if the Crown had proceeded on an indictment charging a single count of murder, or if the trial judge had severed the counts, the admissibility of similar fact evidence would have become a more focused issue at the trial. Counsel for the Crown would have had to identify, as the evidence unfolded, the nature of the similar facts he sought to have admitted; and the relevance and probative value of that evidence. The ultimate test -- whether the probative value of the similar fact evidence outweighed its prejudicial effect -- would have been determined in its proper context, and with an evidentiary foundation. That, in my view, was the preferred procedure in the circumstances of this case.

[124] In other words, in the circumstances of Khan, despite the ruling that the evidence applied across counts, the Court of Appeal was of the view that the two murder counts should have been tried separately, so that the Crown would have been required to identify the nature, relevance and probative value of the evidence as it unfolded.

[125] In 2015, we have developed far greater confidence in the pre-trial motion as the vehicle to adjudicate on matters such as the admissibility of similar fact evidence than was the case in 1996, and likely demand a better record than was available to the trial judge in Khan. At the time that the appeal was heard in Khan, s. 645(5), which permits a trial judge to hear and determine any matter that would ordinarily be heard in the absence of a jury before the jury is sworn, was already eleven years old. But the movement to make criminal trials, particularly long criminal trials, proceed in a more efficient manner has only grown since Khan. In November 2008, the Ontario Ministry of the Attorney General released the Report of the Review of Large and Complex Criminal Case Procedures. This report, written by the Honourable Patrick LeSage and then Professor Michael Code, now Code J., and generally referred to as the LeSage-Code Report, identified issues and recommended solutions to move large, complex cases through the justice system faster and more effectively.

[126] Amongst the many important comments made in the LeSage-Code Report is this:

… early rulings on many of the pre-trial motions are essential to what we mean by “judicial case management”, in its full sense. These early rulings will facilitate resolution discussions, will determine whether the case proceeds at all and will determine how long it is likely to take at trial. In short, the modern criminal case is not really being managed at its early stages unless there is a judge available with power to rule on the pre-trial motions.

[127] As a result, the authors made Recommendation 10, which reads:

Where early assignment of ‘the trial judge” is not feasible or advisable in a particular long complex case in a particular jurisdiction, a “pre-trial case management judge” must be given the power to make rulings on pre-trial issues. This Recommendation requires a Criminal Code amendment. In particular, s. 645 must be amended to provide that a judge, other than the judge who eventually hears the evidence at trial, has the authority to rule on pre-trial motions. ….

[128] In Recommendation 11, the authors of the report made it clear that one of the evidentiary motions they contemplated being determined by a case management judge was the admissibility of similar fact evidence.

[129] In 2011, Parliament took up the solutions proposed in the Report, and enacted Bill C-53: the Fair and Efficient Criminal Trials Act. But rather than simply amending s. 645 as proposed in the Report, Parliament created Part XVIII.1 of the Code, entitled Case Management Judge. A case management judge, who need not be the trial judge, can now be appointed before the selection of a jury where it is necessary for the proper administration of justice (s. 551.1(1)) and a case conference can be ordered (s. 551.1(2)). The case conference judge has the power, amongst many other things, to adjudicate issues related to the admissibility of evidence. Today, matters that can be resolved early generally are.

[130] I can safely say that in 2015, certainly in Ontario, in trials with a jury, it would be a rare case indeed for a similar fact motion not to be heard and determined before the jury is picked. But even if in some cases there still remains a reason to hear a cross-count admissibility application during trial, there is no conceivable reason to do so here. The sort of problem that arose in Khan will simply not arise here. In this case, there is no question that the same 9mm firearm was the lethal weapon in each homicide. That is the lynch pin of the cross-count admissibility ruling, and it will not change. As a result, I am confident that the cross-count admissibility ruling stands as a strong disincentive to severance of the murder count on this indictment. Of course it is still necessary to consider all of the pertinent factors before ruling on severance. But before embarking on that task, it is necessary to identify what the accused seeks in this case by way of severance.

[131] Counsel for the accused does not seek severance of the counts into three trials (Spence; James and Facey; and Cole). Instead, he proposes that there be two trials: first, one trial for the James and Facey homicide together with the Cole homicide, and a second for the Spence homicide. While at first blush this may seem surprising, in truth it is not. The accused recognizes the force of the cross-count admissibility of possession of the 9mm firearm, as well as certain other considerations that will become clear later, and attempted to craft a proposal that mutes the impact of a multiple count murder case, while preserving for the Crown what the Crown legitimately seeks to gain from such a case.

[132] The accused recognizes that a simple request to sever the Spence murder count is a request that is not likely to succeed in light of my ruling on the cross-count admissibility of evidence concerning the 9mm firearm. As a result, he does not make it as a bare proposal. Instead he couples it with an offer of an admission. In doing so, he relies on the decision in Backhouse. There, as I have already explained, the trial judge admitted evidence of a subsequent shooting by the accused using the murder weapon as evidence that the accused was the shooter in the murder case being tried. The Court of Appeal concluded that when viewed as similar fact evidence, the prejudicial effect of the subsequent shooting outweighed its probative value, and then commented, at para. 172, “Crown counsel at trial ought to have accepted defence counsel’s offer of the admission that the appellant had possession of the murder weapon on September 3, 1998.”

[133] As a result, Mr. Bawden has tendered a document entitled “Admission for the Purpose of the Severance Applications.” If the counts are severed as he proposes, and the trial of the James, Facey and Cole homicides proceed first, then the accused will admit on that first trial “that he had physical possession of the (fatal) 9mm handgun on September 10, 2010,” on the understanding that it can be used as circumstantial evidence tending to prove that he also had possession of that gun on September 29 and November 4, 2010, provided that no facts will be admitted relating to the use of the gun on September 10, 2010. That admission will not be made on the second trial, but the defence acknowledges that the accused will effectively be foreclosed from testifying that he did not have possession of the gun that day on that trial. Mr. Bawden made this offer on the basis that if it is not accepted, it is withdrawn and cannot be used against him. I accept without reservation, as does Crown counsel, that this document is provided to the Crown and to me solely for consideration on this application, and that if severance is not granted, the admission will not be used against the accused.

[134] For reasons that I will consider later, Crown counsel does not accept the proposal advanced by Mr. Bawden, and argues that it does not preserve for the Crown what the Crown legitimately seeks to gain from joinder of all four murder counts. I turn next to my analysis of the severance application.

Analysis

[135] Section 591(1) of the Code permits the Crown to join any number of counts in the same indictment, subject only to s. 589 of the Criminal Code, which has no application here. However, pursuant to s. 591(3), the trial judge may order that the accused be tried separately on one or more of the counts in an indictment “where it is satisfied that the interests of justice so require.” The onus of satisfying the judge that the interests of justice require severance is, obviously, on the applicant.

[136] The interests of justice encompass the accused’s right to be tried on the evidence admissible against him, as well as society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.

[137] Section 591(3) does not identify the factors that can be weighed when deciding whether to sever or not, but the courts have filled the gap. Justice Deschamps explained in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para 17:

The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial. It is important to recall that the interests of justice often call for a joint trial. Litchfield [R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333], where the Crown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example. Severance can impair not only efficiency but the truth-seeking function of the trial.

[138] Justice Deschamps went on to provide a non-exhaustive list of the factors identified by the courts in earlier cases that are properly considered on a severance application, as follows:

• the general prejudice to the accused;

• the legal and factual nexus between the counts;

• the complexity of the evidence;

• whether the accused intends to testify on one count but not another;

• the possibility of inconsistent verdicts;

• the desire to avoid a multiplicity of proceedings;

• the use of similar fact evidence at trial;

• the length of the trial having regard to the evidence to be called;

• the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and

• the existence of antagonistic defences as between co-accused persons.

[139] I will endeavour to apply those factors to the circumstances here. I note that Deschamps J. placed general prejudice to the accused at the top of her list, but I will leave it to the end. By doing so I do not intend to diminish the fundamental importance of this factor in any way. But it seems to me, at least in this case, that my discussion of prejudice will be informed by my consideration of the other factors.

The legal and factual nexus among the counts

[140] I begin with factual nexus. For the most part, there is a sufficient factual nexus to justify a single trial of multiple counts when they arise out of the same transaction. It is undisputable that the James and Facey homicide counts arose out of a single transaction, and must be tried together. The issue here is whether or not those homicide counts should be tried together with the Spence and Cole homicide counts, which arise out of two separate transactions.

[141] It is not only where counts arise out of a single transaction that a factual nexus between counts can exist. But if the counts arise out of different transactions, they must nonetheless be closely connected in a meaningful way. The mere fact that the four homicides in this case were committed relatively close in time and geography, and allegedly by the same person is insufficient to make out a factual nexus. That does not amount to a meaningful connection. But there is much more in this case. First and foremost, of course, the same gun was used in each homicide. In addition, there is the following.

[142] I begin with the witnesses. The Crown advises me that there are approximately 100 witnesses on the Crown’s witness list, and if the Spence count was severed, virtually all of them would be required as witnesses on each trial. If the defence admission is accepted, then eight witnesses relating only to the Spence homicide would not be needed at the James, Facey and Cole homicides trial. Of course, admissions will likely reduce the numbers at each trial, and perhaps reduce the amount of overlap. But that is a matter of speculation. When it comes to nexus, the real point is that each case is proved by substantially the same witnesses.

[143] Not only will the same witnesses be called on each trial, but many of the same facts will be proved, and many of the same issues will be litigated. I have in mind, by way of example only, proof of cell phone records, proof of the association of Moore to certain cell phones, a controversy about the use of cell phone tower evidence, and ballistic evidence (although the ballistic evidence will not be controversial).

[144] Of particular significance when it comes to common witnesses, Williams will be required as a witness at each trial. With respect to the allegation that Moore shot James and Facey, Williams will testify that he was an eyewitness. With respect to the shooting of Spence, Williams will be asked about a text message sent to him, allegedly by Moore, two hours after the shooting which reads: “Yea busy terrorizeing the borrows, watch cp.” Williams will also testify that after the killing of Spence was reported in the media, Moore claimed responsibility for it. With respect to the shooting of Cole, Williams will be asked about a text message that Moore allegedly sent him that he “got him in da cedar that dude dat robb us.” Williams will also testify that Moore later told him that he shot a man in his “melon” with his .45.

[145] Not only would severance require Williams to testify twice, it would also mean that the necessary attack on his credibility will have to be repeated. As Mr. Bawden described it in his factum, there will be a wholesale attack on his credibility in the James, Facey and Cole trial. He suggested that the attack will be more narrowly focussed in the Spence trial, but frankly, I think that may be the product of wishful thinking. As I understand the case, Williams’ evidence, if believed, is as damaging on the Spence homicide as on the Cole homicide, and in any event, must be undermined on each of the counts. What is more, in the face of a strong attack on the credibility of a Vetrovec witness, the Crown is entitled to sketch out the nature of the relationship between the two men, and to find confirmation where it can, including across counts.

[146] The factual nexus amongst the counts is significant in this case. Whether or not it would carry the day on its own I cannot say. I turn then to my consideration of legal nexus.

[147] The meaning to be attributed to a legal nexus in this context is less than clear. In the vast majority of cases considering whether or not there is a legal nexus between counts, the court treated that phrase as referring to counts arising from different transactions that “meet the test of similar fact evidence.” This phrase may have originated in Ewaschuk, “Criminal Pleadings and Practice in Canada,” (2d), Paragraph 9:13160, and in any event is found there. It has been quoted with approval in a great many cases. (For a recent example of similar fact evidence being considered under the heading of legal nexus see R. v. Waudby, 2011 ONCA 707, [2011] O.J. No. 5031, at para. 4, where the Court stated, “[t]he Crown’s similar fact application, assessed carefully at the time of the severance application, appeared to have sufficient merit to establish a legal nexus between the LC and TK counts.”)

[148] I note that in Last, the Court offers a separate heading for consideration of this issue, namely “the use of similar fact evidence at trial.” This may be because of the concern that it might otherwise be forgotten that while the onus is on the accused to satisfy the court that severance should be ordered, the Crown bears the onus of satisfying the court that similar fact evidence is admissible across counts. So long as that fact is kept in mind, I see no harm in considering similar fact evidence under the present heading.

[149] In other cases, legal nexus has implicitly or explicitly been held to include situations where there is cross-count admissibility of evidence on a basis other than similar fact (R. v. L.W.G., 1996 ABCA 261, [1996] A.J. No. 653 (C.A.), 49 C.R. (4th) 178; R. v. Mousseau, 2002 ABQB 191, [2002] A.J. No. 229); where there are essential elements in common between counts (R. v. Ticknovich, 2003 ABQB 597, [2003] A.J. No. 905); or even where there are simply legal issues common to the various incidents under consideration (R. v. Shrubsall, 1999 CanLII 19100 (NS SC), [1999] N.S.J. No. 496 (S.C.)).

[150] I need not comment on the various views of what the scope of the term legal nexus between counts may be in the context of severance. I need only say that in my view, cross-count admissibility of evidence that is relevant to each of the counts in an indictment as circumstantial proof of the identity of the perpetrator of each of the offences alleged in those counts is legal nexus. In this case, the legal nexus between counts is formidable, and weighs very strongly in favour of a single trial. As Deschamps J. said in Last, at para. 33, the fact that the evidence on all incidents covered by the counts in an indictment would have to be led in any event favours a joint trial. Admittedly she was speaking of evidence that would be lead in any event as a result of a similar fact ruling, but I see no difference in principle.

[151] It is in recognition of the force of this legal nexus that the accused proposes his admission which, as I have noted, was inspired by Backhouse.

[152] I note at once that this case does not present the same problem as did Backhouse. There, the impugned evidence was extrinsic discreditable conduct evidence. In Backhouse, the Court concluded that the prejudicial effect of the extrinsic evidence outweighed its probative value. The problem in Backhouse could have been avoided by excluding the extrinsic evidence, and substituting it with an admission,

[153] Here, the evidence of each count supports the other count in the indictments, because I have ruled that the evidence can apply as circumstantial evidence of possession across counts. Since this is a joint trial, the only way a potentially meaningful admission that did not amount to a confession could be proffered by the accused is if I first severed the Spence count, thereby converting the Spence cross-count evidence into extrinsic bad conduct evidence.

[154] As counsel for Moore aptly put it, his proposal is really more like a negotiation than a submission. Nevertheless, if it truly preserved the truth-seeking interest in hearing all counts together while taking just one homicide and its attendant prejudicial effect off the table in the first trial, it would be a very seductive proposal. But I am convinced that it does not succeed in doing so.

[155] An admission that the accused “had physical possession of the (fatal) 9mm handgun on September 10, 2010” falls far short of the permissible inferences that might be drawn from the evidence of the Spence homicide. As I have already noted, the circumstances of the various homicides, including the Spence homicide, may assist the jury in determining if Moore had continuous and/or exclusive use of the 9mm firearm. The proposed admission does not. While the admission is that the possession was physical, it does not preclude the possession being momentary or shared. Indeed, it says nothing at all about the nature of the possession.

[156] That concern is of particular significance in respect of the James and Facey homicides. The evidence will be that there were two persons in the car from which the shots were fired. Williams will testify that he and Moore were the two occupants of the car. The accused has disclosed that he will assert that Williams was the shooter. But nothing else has been disclosed. We do not even know if he will say that he was with Williams in the car. If he was, then he might have had possession of the gun briefly and innocently before the shooting, and been surprised when Williams suddenly shot James and Facey with the gun. The proposed admission about the Spence shooting will not in any way assist the jury in assessing that possibility. On the other hand, evidence about the Spence shooting might.

[157] In my view, the proposed admission is not a substitute for the legal nexus between the Spence homicide and the other homicides, and does not preserve the truth-seeking interest in hearing the evidence of the Spence homicide with the evidence of the other homicides.

The complexity of the evidence

[158] While a joint trial of three homicides with four victims will include a considerable volume of evidence, I do not consider the evidence that will be led in this case, as I understand it, to be complex. The primary issue in relation to each count is identity, which is a straightforward issue. While this trial will certainly be heavy slogging for the jury, I do not think there is anything about the evidence in this case that a jury would find exceptionally difficult to manage. I have already mentioned in my comments about reasoning prejudice resulting from the introduction of extrinsic evidence of discreditable conduct that in my view written jury instructions play an important role in keeping juries on track. The same applies to concerns about the complexity of the evidence.

Whether the accused intends to testify on one count but not another

[159] In Last, the Court recognized, at para. 25, that when assessing the accused’s intention to testify on a severance application, “the underlying concern is for the accused’s ability to control his defence, and, more specifically, his right to decide whether or not to testify with respect to each of the counts unimpaired by inappropriate constraints.” The Court went on, at para. 26, to agree with counsel for the Crown and the defence that the accused’s expression of intention to testify on one count but not on others should have both a subjective and an objective component. A formulaic expression of a subjective intention is not sufficient in and of itself to discharge the accused’s burden to have the counts severed. On the other hand, the trial judge should not substitute his or her own view for that of the accused and determine that the accused should testify or not. The trial judge must simply be satisfied that the circumstances objectively establish a rationale for testifying on some counts but not others. The burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substance to his testimonial intention.

[160] Here, the expressed intention to testify on three counts but not on the fourth is tepid. While counsel has expressed it differently on different occasions, on this motion he said that based on his current view of the case, it may be essential that Moore testify in relation to the James and Facey homicides if his alternate suspect defence goes forward. Accepting that the accused always has the right to change his mind, in my view this expression of intent falls a bit short of the mark. But assuming that it is sufficient I turn to the subjective component.

[161] I do not doubt the sense of Moore’s consideration of testifying in relation to the James and Facey homicides, where he is faced with the incriminating eyewitness evidence from a Vetrovec witness, and given his own intention to make a third party suspect allegation. What I do have difficulty with is his rationale for not testifying on the other counts. To put it simply, the Crown’s evidence in relation to each of the Spence and the Cole homicide draws a fairly tight noose. Of course, testifying is risky. But leaving the allegations unanswered is also risky. In saying this, I have not forgotten the force of the presumption of innocence.

[162] Returning to Last, the Court stated, at para 27:

27 While an accused’s provisional intention with respect to testifying is certainly a consideration which should be given significant weight, it is but one factor to be balanced with all the others. An accused’s stated and objectively justifiable intention to testify on some but not all counts is not necessarily determinative of a severance application. It can be counterbalanced by other circumstances that the judge finds may prevent the accused from testifying, or be outweighed by factors that demonstrate that the interests of justice require a joint trial.

[163] In the end, in this case, I find that the accused’s stated intention to testify is weak both objectively and subjectively. As a result, I can give only limited weight to this consideration.

The desire to avoid a multiplicity of proceedings and the length of the trial having regard to the evidence to be called

[164] I have grouped these two headings because in this case, they must logically be considered together. In addition, I have essentially dealt with these considerations under the heading of factual and legal nexus. But I will summarize my view again briefly. Considering these two factors in isolation, I can only say that it would be most undesirable to have two trials in this case. I say that because, having regard to my rulings about the admissibility of the evidence across counts, the Crown will undoubtedly lead the evidence of all three homicides on each of the separate trials. While one trial of all counts would be quite long, two trials might well each be equally long if I granted severance. While I would not want to overemphasize trial efficiency in a murder case (see R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 4), the inefficiency of two trials here would be most unfortunate.

The potential prejudice to the accused with respect to the right to be tried within a reasonable time

[165] The accused is not likely to be prejudiced by delay for a number of reasons, amongst them that he is serving a long sentence for another matter.

The existence of antagonistic defences as between co-accused persons

[166] This consideration is obviously irrelevant here.

The general prejudice to the accused

[167] I acknowledge that in Jeanvenne, the Court held, at para. 34, that where an accused faces more than one count of murder in an indictment, “there is very good reason … to apply a more stringent application of the severance test in favour of the accused in such cases, -- particularly where the murders are completely unrelated.” This, the Court held, flows from the common sense proposition that a jury may have great difficulty dissociating the evidence of one homicide from another or others and in refraining from drawing the impermissible inference that because the accused may have committed one murder, he or she is likely to have committed the other. The potential for serious prejudice to the accused is at its zenith in such circumstances. Finally, the Court said that when there is no similar fact evidence connecting the two crimes, there is even less justification for refusing to sever.

[168] I recognize the potential for prejudice in the jury hearing four murder counts together, in addition to hearing evidence of other instances of prior discreditable conduct. I am attuned to the need for extreme care in preventing it. But where the same evidence that is admissible cross-counts would also be admissible at the trials of severed counts, severance provides no shield against prejudice. That is this case. As I have explained, the proffered admission does not change this reality. I do not take from Jeanvenne that the Court was suggesting that even where there is similar fact evidence connecting two counts of murder, the severance test should be tilted to favour the accused. In Jeanvenne there was no evidence that was admissible across counts. The two homicides in Jeanvenne occurred more than 17 years apart, and there was no factual or legal nexus whatever between them, except a suspected common perpetrator. In the end, Jeanvenne does not assist me on the question of severance in this case.

Weighing the factors

[169] As I have noted, I must weigh the factors I have addressed in an effort to ensure that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial. In this case, I have virtually no concern about reasoning prejudice. My only concern is that the accused not be prejudiced, to paraphrase Jeanvenne, by a witch’s brew of bad character evidence in the cauldron of a single trial. On the other hand, I consider it to be desirable to avoid a multiplicity of proceedings involving considerable repetition of evidence. Most importantly, having regard to my ruling regarding the cross-count use of evidence, I conclude that whatever moral prejudice there is in this case will at best be only minimally reduced by severing one count as proposed by the accused. I am prepared to do all that I can to keep the jury on track in a joint trial, and am confident that this can be accomplished. In the end, after balancing all of the pertinent factors, I am not satisfied that the interests of justice, as defined in Last, require severance. The application is dismissed.

DISPOSITION

[170] The application brought by the Crown for an order permitting the Crown to adduce evidence at trial of certain acts of extrinsic misconduct by the accused as well as to have evidence apply across counts are each granted in part. The application brought by the accused for severance of counts is refused. All of these rulings remain open to further consideration in the event that there is a change in the relevant circumstances.

M. Dambrot J.

Released: February 9, 2015

COURT FILE NO.: CR-14-30000123-0000

DATE: 20150209

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

Applicant/Respondent

– and –

MARK MOORE

Respondent/Applicant

REASONS FOR RULING

DAMBROT J.

RELEASED: February 9, 2015

[^1]: A clear and sharp warning to attract the jury's attention to the risks of adopting, without more, the evidence of a witness whose credibility is impaired, as mandated in R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811.