ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR/14/300001240000

DATE: 20151126

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

TASSANDRA WHYTE

S. Hickey and K. Motyl, for the Crown
M. Bornfreund, for Tassandra Whyte

HEARD: November 25, 2015

M. Forestell J.

RULING ON AIR OF REALITY

TO DEFENCE OF DURESS

Introduction

1The accused, Tassandra Whyte is charge that she, between September 11, 2011 and October 5, 2011, knowing that Mark Moore committed the offence of murder, assisted Mark Moore for the purpose of enabling him to escape.

2Her trial proceeded before a jury over four days.

3The Crown’s case is complete. Counsel for Ms. Whyte requested time to consider whether he would call a defence. On November 25, 2015, in the absence of the jury, counsel for Ms. Whyte advised that he would not be calling a defence. Counsel then made submissions on whether there was an air of reality to the defence of duress.

Positions of the Parties

4Counsel for the accused argues that an implicit threat to Ms. Whyte may be inferred from the totality of the evidence, including evidence of threats by Mr. Moore to Ms. Whyte in September of 2010, evidence that a bullet was shot through the door of Ms. Whyte’s apartment in July of 2010, Mr. Moore’s violent disposition and the nature of the relationship between Ms. Whyte and Mr. Moore. Counsel for Ms. Whyte argues that based on this body of evidence there is some evidence of each of the elements of duress and that the defence of duress should be left with the jury.

5The Crown argues that there is no evidence of duress. There is no evidence of a threat to Ms. Whyte that relates to the time period in question of September and October 2011 or that relates to the conduct that forms the basis of the offence.

Summary of the Evidence

6The allegation against Ms. Whyte is that Mark Moore’s Honda car was registered in Ms. Whyte’s name. Sometime after Mr. Moore killed Jahmeel Spence on September 10, 2010 that car was painted black. It had been a blue-green colour before it was painted. Mr. Moore was in custody in September and October of 2011 on unrelated charges. The police released information to the press, including information that they were interested in a Honda in relation to the Spence homicide. On October 3, 2011 the police came to Ms. Whyte’s residence and asked about the blue Honda registered in her name. On October 4, 2011 the police provided Ms. Whyte with a search warrant for the Honda. On the warrant the car is described as black. The evidence led by the Crown included intercepted telephone calls between Ms. Whyte and Mark Moore and between Ms. Whyte and Hyacinth Moore (Mark Moore’s mother) between September 11, 2011 and October 4, 2011. In the calls, Mark Moore appears to tell Ms. Whyte to go to the Ministry of Transportation and to change the colour on the registration from blue to black. On October 4, 2011 Ms. Whyte attended the Ministry of Transportation office and changed the registration of the colour from blue to black.

7In the course of the trial, counsel for Ms. Whyte indicated that he would rely on the defence of duress. He cross-examined police witnesses on Mark Moore’s disposition for violence. I permitted this line of questioning on the basis that if evidence was led of a threat to Ms. Whyte, Mark Moore’s disposition for violence and aggression would be relevant to the jury’s assessment of whether Mark Moore had in fact threatened Ms. Whyte. For the same reason, the defence was permitted to lead evidence, through his cross-examination of the Crown witnesses, that on July 8, 2010 a bullet was fired through the door of the apartment of Ms. Whyte. A projectile and shell casing were collected. The bullet that was fired through Ms. Whyte’s door in 2010 was determined to be from a gun that was later connected to Mark Moore.

8There is no evidence that Ms. Whyte knew or believed that Mr. Moore had shot her door. The shooting was in July 2010. She continued her romantic relationship with Mr. Moore. She acted as his surety when he was released on bail on December 2, 2010.

9Telephone records were entered as exhibits in the trial. The records relate to a phone that was used by Ms. Whyte and a phone that the jury may infer was used by Mark Moore. The records cover the period from August 14, 2010 to March 12, 2011.

10Included in the records are text messages apparently between Ms. Whyte and Mark Moore. The text messages at times contain expressions of affection between Ms. Whyte and Mr. Moore and at other times contain angry exchanges. In September 2010 there are messages from the phone associated with Mr. Moore to Ms. Whyte that are threatening. In particular, in the course of a long exchange of angry messages on September 21, 2010 Mr. Moore texts: “Suck your fucking self man naw et pussy I should come over there and shot you in your face don’t diss fool” , “Who u think u talking to man a badman like really r u sick” and then “you fuyking idiot.” Ms. Whyte then texts; “U know what FUCK OFF if that’s what u took off what I wrote really I don’t won’t anything to do with u n I’m done”.

11Somewhat later in the same exchange Mr. Moore writes: “U gwan bring it bitch u don’t scare me u lil punk fuk wit me n I will damage u n your family” and “ok good I bin cold 4 bodies” and “don’t be the 5th”. Ms. Whyte writes, four minutes later, “I don’t give a fuck.”

12The intercepted telephone calls between Ms. Whyte and Mr. Moore and Ms. Whyte and Hyacinth Moore for the period of September 11, 2011 to October 4, 2011 comprise two volumes of transcripts. Mr. Moore was in jail during this time. The calls contain no explicit threats against Ms. Whyte.

13Counsel for Ms. Whyte points to a telephone conversation between Mr. Moore and Ms. Whyte on September 11, 2011 as evidence of an implicit threat. In that call Ms. Whyte describes to Mr. Moore her mopping of the floor, Mr. Moore tells Ms. Whyte that he can’t wait to see her. In the call both Ms. Whyte and Mr. Moore are, at different points, speaking to others in the background. At one point, Mr. Moore sings the lyrics, “I put a hole in nigga that trying to shoot you…It ain’t nothing..”. During the singing Ms. Whyte says “pardon”. Mr. Moore continues to sing, “cause loyalty is what I’m used to..”. Ms. Whyte says “oh” as Mr. Moore continues to sing, “and what I don’t do…I have one of my troops do…(unintelligible) salute you. I put a hole in the nigga that’s trying to shoot you…it ain’t nothing ‘cause loyalty is what I’m used to…and what I don’t do I have one of my troops do.” Mr. Moore then goes on to speak about the murder of Jahmeel Spence which occurred a year prior to this conversation.

14In the intercepted call on September 11, 2011 and in subsequent calls, Mr. Moore asks Ms. Whyte to change the registration of the car. He also tells her not to speak to the police.

Legal Principles: Air of reality and Duress

15The question of whether there is an air of reality to the defence of duress is an issue of law involving an assessment of whether there is evidence on the record based upon which a properly instructed jury acting reasonably could acquit. In applying the air of reality test, I must consider the whole of the evidence and assume the evidence relied upon by the accused to be true: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; [2002] S.C.J. No. 28, at paras. 49-57.

16The Supreme Court of Canada clarified the law on the availability of duress in R. v. Ryan, 2013 SCC 3, [2013] S.C.J. No. 3. In distinguishing duress from self-defence the Court said, inter alia, that “duress is available only in situations in which the accused is threatened for the purpose of compelling the commission of an offence” (Ryan, paras. 2 & 33).

17The Court in Ryan set out the relevant elements of duress, at para. 81:

• There must be an explicit or implicit threat of present or future death or bodily harm. This threat can be directed at the accused or a third party.

• The accused must reasonably believe that the threat will be carried out.

• There is no safe avenue of escape. This element is evaluated on a modified objective standard.

• A close temporal connection between the threat and the harm threatened.

• Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard.

18In discussing the nature of threat required for duress to be available, the Court in Ryan reaffirmed that an implicit threat was sufficient. The Court referred to the decision of the Ontario Court of Appeal in R. v. McRae, 2005 26592 (ON CA), [2005] O.J. No. 3200. In McRae, the Court of Appeal held that the trial judge had erred in deciding that there was no air of reality to the defence of duress. The accused in McRae was charged with being an accessory after the fact to murder. He helped his cousin destroy evidence and dispose of bodies after his cousin murdered two hitchhikers at a remote cabin. The accused in that case testified that his cousin had woken him and demanded his help. He was terrified and in shock. His cousin had a gun. The Court of Appeal held that the escalating violence, presence of a gun and demands by the cousin to help dispose of the bodies were evidence of an implied threat.

19The Court in McRae, quoting from R. v. Mena, 1987 2868 (ON CA), [1987] O.J. No. 392 (C.A.), explained that, “Where an implied threat is relied upon to constitute duress… the threshold question is whether the acts, conduct or words of the person alleged to have made the threat could reasonably be construed as a threat of the required kind. On this threshold question, an objective standard must necessarily be met. If the judge at the conclusion of the evidence is of the opinion that no reasonable jury could find that the words or conduct constituted a threat of the kind required, the judge will withdraw the defence of duress from the jury.”

Application of the Principles

20The issue before me is whether the words and conduct of Mark Moore could reasonably be construed as a threat to Ms. Whyte to kill her or cause her death if she did not comply with his demands and assist him to avoid arrest or prosecution for murder.

21The totality of the evidence includes the evidence of prior threats by Mr. Moore to Ms. Whyte in September of 2010 and the evidence that someone shot through Ms. Whyte’s door in July 2010. The evidence includes the evidence that Mr. Moore, in a text message to Ms. Whyte in September 2010, said “I bin cold 4 bodies…don’t be the 5th”, arguably referring to killing four people. There has also been evidence of Mark Moore’s violent disposition. The jury could infer that Ms. Whyte knew of Mr. Moore’s propensity for violence.

22There is no question that Mr. Moore was a violent person in 2010 and 2011. He has been convicted of four murders.

23There is also no question that Mr. Moore threatened Ms. Whyte in September 2010 in the course of an argument.

24What is not present on the evidentiary record in this case is any evidence of a threat of any kind against Ms. Whyte proximate in time to her actions on October 4, 2011 or any threat made for the purpose of compelling her to submit to Mr. Moore’s demands that she change the registration of the car.

25Mr. Moore’s song lyrics on September 11, 2011 are argued by counsel for Ms. Whyte to constitute evidence of an implied threat. The jury could not reasonably construe the song lyrics to be a threat to Ms. Whyte made for the purpose of compelling her to act as she did three weeks later. There is evidence that Mr. Moore was attempting to become a rap singer. Heard in the context of the call, the song lyrics do not appear to be a threat directed at Ms. Whyte or anyone else.

26The bullet shot through the door of Ms. Whyte on July 8, 2010 does not provide evidence of duress. There is no evidence that Ms. Whyte knew or even believed that Mr. Moore was responsible for shooting her door. Even if there was such evidence, the incident occurred over a year prior to October 4, 2011. There is no evidentiary nexus between the threats and the shooting in 2010 and the conduct of Ms. Whyte in 2011.

27I cannot find, on the evidence in this trial, any evidence of words or conduct by Mr. Moore that a reasonable jury, properly instructed, could find to be a threat to kill or cause bodily harm if Ms. Whyte did not act as demanded.

28The absence of any implicit or explicit threat ends the inquiry into the air of reality to the defence of duress. The remaining elements of duress require the context of a threat.

Conclusions

29For these reasons, I find that there is no air of reality to the defence of duress and it will not be left with the jury.

M. Forestell J.