DATE : 20160525 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Elizabeth Jackson and Phil Tsui , for the Crown
- and -
DELLAN MCMORRIS Brian Ross and Jillian Carrington, for the Defendant
Ruling No. 2 The Admissibility of the Declarations by Bent Trafford J.
THIS IS AN OFFICIAL COPY OF THE RULING THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.
A. Introduction
4020 Dundas Street West is a townhouse complex ("complex") situated on the north side of the street, between Scarlett Road on the east and Howland Street on the west. Railway tracks ("tracks") are immediately north of the complex and parallel to it. The tracks have fences along both sides of them, apparently for safety purposes. The area north of the tracks is a residential area that, through streets such as Eileen Crescent and Bernice Crescent, includes access to Scarlett Road. Old Dundas Street is south of Dundas Street West, more or less across from the complex, another east west street but one that is angled to the northeast so as to intersect with Dundas Street West at the eastern boundary of the complex. This area is just east of the Humber River. There are several parks, ravines and other natural areas that add to its residential character. It is normally peaceful, but for all the traffic and commercial activity on Dundas Street West, Scarlett Road and some other major thoroughfares in the area.
That peace was shattered on May 10, 2012. Around 3 p.m., Delano Coombs ("Coombs") was shot and killed as he drove his car westward on a laneway within the complex towards Howland Street. Joel Edwards ("Edwards") was a passenger in the car. Three perpetrators armed with handguns waited for Coombs, situated somewhere within the complex, to gain revenge for something done by Coombs in the past. What he did to warrant such a fate is not clear. Many shots, approximately 20, were fired at the car, by at least two of the perpetrators. The deceased attempted to leave the car after two shots penetrated the windshield, and take cover. He did not succeed. One of the perpetrators moved from a location near the front of the car to another one, either beside or behind it. Coombs was on the ground there. The perpetrator shot him in the head. He died. The three perpetrators fled from the scene. Justice, street justice, they believed had been done. This was a crime in the nature of an assassination, but for the humble status of the deceased in life. It was carried out within the milieu of some urban street gangs or other similar culture in Toronto.
Several citizens witnessed parts of these events. They were terrified. Some of them called 911. The Toronto Police Service ("TPS") and various emergency services personnel attended the scene. None of the witnesses could recognize or otherwise identify any of the perpetrators.
This crime was investigated by the Homicide Squad of the TPS. Several such officers had primary roles in the investigation, including Detective Sergeant Banks, Detective Sergeant Gray, Detective Bui, Detective Margetson and many other officers who helped them. The work of the Forensic Identification Services ("FIS") complemented by the expertise of the Centre of Forensic Sciences and the Ontario Forensic Pathology Service, offered further insight into the crime including the number of firearms discharged, the nature of the firearms, the possible positioning of the perpetrators in relation to the deceased's car when some of the shots were fired and the cause of death. None of this expertise led to a satisfactory identification of the perpetrators.
However, in July 2012, Jermaine Graham ("Graham") was arrested for causing a disturbance, and held in custody. He advised the TPS that he had some information relating to the murder of Coombs. This led to a series of interviews. Some were recorded, audiorecorded, or videorecorded and audiorecorded, or merely noted. Some were in compliance or partial compliance with R. v. B.(K.G.), [1993] 1 S.C.R. 740. The interviews were conducted on July 28, 2012, October 29, 2012, November 7, 2012, November 9, 2012, April 11, 2013, June 10, 2013, August 16, 2013 and September 25, 2013. The details of the information he provided about the Coombs murder included the rumors in the community, the gossip in the community, some guesses, assumptions or opinions on his part, and some statements ("declarations") he attributed to Jerome Bent ("Bent"). Bent was a close friend of about 15 years. Graham told the TPS that Bent admitted to the Coombs murder. The early investigation of this information satisfied the TPS that the alibi of Graham was truthful – he was not one of the perpetrators. Consequently, in early 2013, Graham became an agent of the TPS and consented to the interception of some conversations with Bent, in accordance with the Code .
On April 3, 2013, Graham, while in custody on some other matters, was taken to the cells of a courthouse located at 2201 Finch Avenue West. He was placed in a cell with Bent. Their conversation, which lasted for about 3½ hours, was audiorecorded and videorecorded. In my view, the recording is of poor quality. But for a transcript prepared by the TPS, I could not determine what was said. Nor could I determine if the transcript was correct. Nor could I make any meaningful observations about their demeanour. Graham and Bent spoke about several crimes committed by Bent and some other persons, including the murder of Coombs on May 10, 2012, the murder of Daniel Davis ("Davis") on July 19, 2012 and the attempted murder of some young black men on September 11, 2012. Bent admitted his involvement in those crimes. He identified men named Young and Killa as persons who were involved, to some extent, in the Coombs murder. Young is Dellan McMorris ("McMorris"). Killa is unknown.
The reliability of the declaration attributed to Bent by Graham was investigated by the TPS. As a result, Bent and McMorris were arrested in September 2013 and charged with first degree murder in connection with the shooting of Coombs on May 10, 2012.
On July 15, 2015, Bent entered pleas of guilty to the charges of first degree murder and second degree murder relating to, respectively, the deaths of Coombs and Davis. He was sentenced to concurrent terms of life imprisonment in January 2016.
This is the trial of Dellan McMorris.
The Crown Attorneys intend to call Bent as a witness in this trial. When called to testify at the preliminary hearing in May 2015 he refused to swear an oath or make an affirmation. It is expected that he will refuse to testify in this trial.
This is an application by the defence for an order admitting into evidence the declarations by Bent to Graham in July 2012. The Crown is opposed to the admissibility of these declarations.
This is also an application by the Crown for an order admitting into evidence the declarations by Bent to Graham, or some of them, during the videorecorded and audiorecorded conversation in the cell at the courthouse on April 3, 2013. The defence is opposed to the admissibility of these declarations.
Both sets of declarations are tendered on the issue of identity and the nature and extent of the participation of Bent and McMorris, if any, in the Coombs murder. Was Bent the principal shooter? Was McMorris the principal shooter? If McMorris was not the principal shooter, was he, nevertheless, a shooter? If McMorris was not a shooter, was he present? If McMorris was present, did that presence, looking at the evidence as a whole, amount to aiding or abetting Bent or the third perpetrator in the shooting? Or, as appears to be advocated by the defence, was McMorris merely present not as an aider or abettor but as a witness to the murder of Coombs, in light of the rumors and gossip in the community that Coombs deserved to be killed, especially in connection with Coombs dealings with McMorris' cousin?
Both the Crown and the defence acknowledge the legal framework governing the determination of these applications. As I will indicate in this ruling, the legal issue to be determined is whether or not there is an adequate substitute for the absence of a contemporaneous cross-examination of Bent in the circumstances of this case.
B. The Overview of Ruling
In these reasons, I will summarize the circumstances of the case, and review the legal framework of the application. Then, I will deal with the admissibility of the declarations by Bent in July 2012, as tendered by the defence, and the admissibility of the declaration by Bent on April 3, 2013, as tendered by the Crown.
C. The Circumstances of the Case
C.1 Introduction
Let me begin with a summary of the circumstances of the case, insofar as they are material to these applications. It is necessary to set them out in detail because the positions of the Crown and the defence are based upon that detail as adequate substitutes for the absence of a contemporaneous cross-examination of Bent. In this part of the ruling, I will summarize the shooting of Coombs, the immediate circumstances of the crime, the forensic examination of the scene, the presence of McMorris in the area, the arrests in September 2013, the plea by Bent in July 2015 and the information from Graham in November 2012, April 2013 and May 2015.
C.2 The Shooting of Coombs
Around 3 p.m. on May 10, 2012, the deceased was driving a car westbound in a laneway of the complex situated at 4020 Dundas Street West, in Toronto. Joel Edwards was a passenger in the car. Three young, black men fired handguns at the car. Coombs attempted to leave the car as it moved slowly through the lane. He opened the driver's door and stumbled from the car. One of the perpetrators came around the car. He pointed his gun at the deceased and shot him in the face. All of the perpetrators fled from the scene. Several persons called 911. The TPS and several emergency services responded to the calls. The deceased was found on the ground, with no vital signs. He had several gunshot wounds to his body, including one to his head. He was transported to St. Michael's Hospital. He was pronounced dead around 3:40 p.m.
C.3 The Immediate Circumstances of the Crime
The immediate circumstances of the crime are important.
There were several eyewitnesses. None of them could identify any of the three perpetrators. All of them failed to select the defendant's photograph, and Bent's photograph, from the two separate arrays of photographs presented to them by the TPS for the purpose of identifying the perpetrators, if possible. The descriptions of the perpetrators were very general, so general that they are consistent with 100's, if not more, young, black men. It is not necessary to review those descriptions in this ruling.
However, the descriptions of the crime, looking at this anticipated testimony as a whole, included the number of perpetrators, the number of handguns, the number of shots, the position of the perpetrator(s) in relation to the deceased's car, the shooting of the deceased in the face, the flight by one of the perpetrators to and over the tracks, the description of the hair of the perpetrators, especially the one who took flight over the tracks, the dark clothing worn by the perpetrator who ran from the complex over the tracks, the removal of the black hoodie and the disposal of it near the tracks, the way the perpetrator went over the fence near the tracks and the opportunity for innocent collaboration amongst the witnesses, or some of them. The opportunities each of them had to observe the murder of Coombs were fleeting and made in very stressful circumstances.
Gyomgyi Sulyok was a resident of the complex, with her husband, Karoly Pozsgai, and their two children. At approximately 3 p.m., she left her unit with a child to meet her husband, who was waiting in the car, to pick up the other child at school. She heard gunshots as she walked down the stairwell. She stopped at the landing, situated about halfway down the stairs. She saw three males, two at the bottom of the stairs, one on each side of the stairs, and one on the other side of the laneway, all shooting at a car as it moved slowly to the west. Two of the guns were firing; the other gun only made clicking sounds. She did not see who was in the car. She did not observe anyone leave the car. The man on the opposite side of the laneway was shooting with his left hand, towards the ground. The shooting ended. The two men on the opposite sides of the stairwell ran up the stairs towards her. The man on the other side of the laneway ran towards the tracks. He was wearing dark clothing, a black sweater or pullover, with a hood. It was plain with no writing on it. He was a young, black man with braided, shoulder length hair. She never saw any of the three perpetrators before; they were strangers. She returned to her unit and called her husband. She told him to leave the area because one of the men was running towards him, after a shooting. She waited for the TPS. Later, she spoke with her husband about the man who ran towards the tracks.
Karoly Pozsgai also testified. He was waiting in a car near the garage at the west end of the complex when he heard some shots, 6 or 7. A van parked in front of him. Pozsgai saw a man running from the complex towards him. He was frightened. He started to drive away. He saw, in the rear view mirror, the man running behind his car, towards him. His hood came off as he ran. The man jumped the fence near the tracks. He was a young, black man, with braided hair, and was wearing a dark blue or black hoodie, or pullover, and black jeans. His wife called. She was crying. Pozsgai went to the office where he met the TPS, and his wife. He requires corrective lenses to drive. He was not wearing them at the time. He spoke to his wife about the incident.
Robert Cull was working at the Lambton Arena located at 4100 Dundas Street West, just west of the complex, and south of the tracks. He heard several gunshots as he prepared his lunch. He looked outside. He saw a young, black man running from the complex. He jumped over the fence near the tracks, ran across the tracks, removed a black hoodie he was wearing and dropped it as he ran away. The hoodie was off his head. He jumped another fence, went between some houses and disappeared. He had "…low hair… no braids or cornrows…. or anything like that…". It was a bright, clear day.
John Mihailovich was a tradesman working in the complex. He was in his vehicle in the parking lot, just west of the complex, close to and south of the tracks, facing south towards Dundas Street. He heard some shots. He saw a car hit a post, proceeding towards the west. There seemed to be someone in that car. He was frightened. He ducked down. A person walked passed his vehicle towards the tracks; he could only see the upper portion of his body. It was a black man. His hair may have been short; it was not long hair. That is the only person he saw. He called 911.
Matthew Williams lived in the complex with his wife and children. They had been on a family drive, and just returned home. The family walked from the garage into the common area of the complex. He was with his son, just ahead of his wife and daughter. He heard some shots. He looked down the laneway. He saw a car moving slowly, westward. Someone, the driver, stumbled out of the car, towards the east. Someone beyond the car was holding a gun, and firing at the person who was leaving the car. Williams could see the rear of the car. He heard additional shots. He grabbed his son, and went in the opposite direction, towards the garage, but looked back towards the shooting. The man who stumbled from the car was on the ground. The person with the gun had moved from the front of the car. He was standing over the person, pointing his gun down, and shooting him. He was about two feet from the victim. The driver's door was open. There was another man on the passenger side firing at the car. Both of the shooters were black men. This happened very quickly, about 10 to 20 seconds. He did not see the direction the shooters left. The car ended up against a pole. He was very frightened. He also called 911.
Much of this information was known to the three perpetrators. To the extent their flights from the scene were different, each of them had some more information. The witnesses spoke with others, including some police officers. Where this information went from the perpetrators, the witnesses and the TPS is not clear. People talk about such incidents.
C.4 The Forensic Examination of the Scene
The FIS of the TPS examined the scene of the crime. Several fired shell casings were found in the laneway. A black hoodie was found near the tracks. This aspect of the investigation is also important to the issue of threshold reliability in this case.
Ten fired shell casings were found at the scene of the crime. Nine of them were fired by the same firearm, a 9 mm calibre pistol such as a Glock semi-automatic handgun. The other shell casing was not fired by the same handgun. It was a 10 millimetre auto calibre casing. Many other shell casings and bullet fragments were also found. There is no forensic evidence that a third handgun was fired.
A black hoodie was seized near the train tracks, towards 251 Eileen Crescent, on the north side of the tracks. DNA was found at three locations of the garment:
- near the bottom of the right sleeve;
- on the front, near the bottom; and
- on the inner, back seam of the neck.
The defendant's DNA was on the sleeve. The DNA at the other two locations was a mixture of the DNA of at least three other people, one of whom was male, but it was not suitable for comparison. There is no direct or circumstantial evidence of how, or when, the defendant's DNA was deposited on the sleeve, or that he wore it on May 10, 2012.
The recovered black hoodie had a white logo, "S.T.G. Entertainment". In November 2012 the TPS found on the internet a promotional videorecording for "S.T.G. Entertainment" that included many individuals wearing clothing with a similar logo. Another videorecording, named Dundas Dollar, showed the defendant with Bent and another person, at some time not proven. The defendant has several rap videorecordings using the name Dundas Dollar.
C.5 The Presence of McMorris in the Area
McMorris was present in the area of the complex at times proximate to the murder, as described by Amanda Rumbolt and as shown circumstantially through the cell phone records and the tower technology relating to phones used by Bent and McMorris.
On May 10, 2012, Bent's girlfriend, Amanda Rumbolt, drove him, at his request, to a location on Old Dundas Road near a ravine, so that he could meet some friends. It is close to 4020 Dundas Street West, to the south. Bent asked her to park the car when they arrived. It was a black Mazda 3. Another vehicle arrived in that area a few minutes later, with two or possibly more occupants. She could not see into the vehicle because of its tinted windows. Two people exited from its passenger side; the driver may have stayed in the car. She recognized one of them as one of Bent's friends, Young. She believed his name was Dellan; his nickname was Dollar or Dundas Dollar. It was the defendant. Bent approached the other vehicle after he told Rumbolt to stay there and wait for him. He did not tell her what he was about to do with his friends. Bent spoke with Young. Bent, Young and the other occupant re-entered the vehicle. It was driven from the area. She did not see where it went, other than it went towards Dundas Street.
Approximately one hour later, Bent returned to the area, on foot, by himself. He entered her car and told her to drive home. She suspected he was having an affair with another woman, as he had in the past. She asked him what he did. He said he was doing something with his friends and added a friend dropped him off on the way back. Ms. Rumbolt heard sirens just before Bent returned. The 911 call relating to the shooting of Coombs at 4020 Dundas Street West was just before 3 p.m. The response to the call by the TPS and some other emergency services was more or less immediate.
Rumbolt does not recall the clothing worn by Bent or Young that day. However, Bent's hair was "…not completely shaved, but low…". His nickname was Germz.
On May 10, 2013 Bent and McMorris contacted one another by cell phones. They had 7 conversations over the approximate 1½ hours before the murder, and none after 2:30 p.m. before the 911 calls around 3 p.m. The calls varied in duration from about 10 seconds to 100 seconds. Most of them were about 30 seconds. The McMorris phone moved towards the complex and away from it before 2:30 p.m. Two other contacts with his phone after the murder, one at 3:07 p.m. and the other at 3:09 p.m., operated through towers about 2 kilometres and 3.5 kilometres from the complex.
C.6 The Arrests in September 2013
In September 2013, both Bent and the defendant were arrested, and charged with FDM in connection with the shooting of Coombs on May 10, 2012. No one else has been arrested in connection with that crime.
C.7 The Plea by Bent
On July 15, 2015, Bent entered pleas of guilty to a charge of FDM in connection with the shooting of Coombs on May 10, 2012 and, further, to a charge of SDM in connection with the shooting of Daniel Davis on July 19, 2012. The pleas were entered with the assistance of counsel. An agreed statement of fact was read by the Crown Attorney. Bent's counsel said they were substantially correct. Bent, when asked by the court, "…is that what happened…", said "Yes, Your Honour". Convictions were entered on both counts. In January 2016 Bent was sentenced to life imprisonment, concurrently.
C.8 The Information from Jermaine Graham
C.8.1 Introduction
Let me now move to a review of the declarations by Bent to Graham, in July 2012 and on April 3, 2013. The defence is tendering the July 2012 declarations; the Crown is tendering the April 3, 2013 declaration. It is necessary for me to review the transcripts of the Graham interviews in November 2012 and April 2013, and of his testimony at the preliminary hearing in May 2015. It is necessary because it is difficult, if it is possible at all, to determine what Bent's declarations were. The Graham interviews were audiorecorded, or audiorecorded and videorecorded, or noted. They were in the nature of investigative interviews, with little or no regard for any use that might be made of them at trial, whether as a note to jog Graham's memory as a witness, or as a prior statement to attack Graham's credibility or to prove the substance of a declaration by Bent, whatever it was. Some of Graham's remarks merely provided information to the TPS, including his own opinions, interpretations or suspicions about the case. Some of them amounted to gossip, rumor or speculation in the community. Some of them appeared to be guesses, assumptions or speculation by Graham, and described as such by him. Some of them were in response to leading questions by the TPS, concerning the declarations by Bent. Some of what Graham said about Bent's declarations is inconsistent from one interview to another. Otherwise it is difficult to identify Graham's version of Bent's declarations about the Coombs murder, unaffected by such rumor, gossip, speculation, opinion or suggestive questions. The difficulty is compounded by the suggestions, express or implied, that the murder and the various persons implicated in it may be a part of the urban street gang culture in Toronto, or another like criminal milieu, as active participants or as people who live in it and must deal with it as a reality of their life. To what extent, if any, is Graham's description of Bent's declarations tainted, innocently or otherwise, by such rumor, gossip, speculation, opinion or leading questions? The preparation of Graham by the TPS as an agent has not been proven in these applications. Graham's motivation was to help himself. It is not possible for me to say that the information in Bent's declarations could only come from him as a perpetrator. It is not up to me to determine what the Bent declarations were, but it is my responsibility, as the gatekeeper, to determine whether the jury has sufficient tools to determine what the declarations were and, further, the ultimate reliability of any such declarations, absent a contemporaneous cross-examination of Bent. The examination and cross-examination of Graham at trial is one such tool, but its sufficiency, in the context of the evidence as a whole, is to be determined in these applications.
With those observations in mind, let me now summarize the Graham interviews.
C.8.2 The Interview on November 7, 2012
On November 7, 2012, Graham was interviewed by Detective Bui and Sergeant Dhillon. The interview was audiorecorded, and was under affirmation, with an indication that Graham knew he was not obliged to give a statement. A review some of the material aspects of this interview will illustrate my observations. The sequence is significant.
Graham: When Delano was killed, there was three witnesses… the shooter, somebody who just wanted to be there to see it happen and somebody that was in the car with Delano.
This is investigative information, that is not sourced. It is not a declaration attributed to Bent.
Graham: We first talked about the murder. He was really paranoid about getting caught.
This refers to the first conversation between Graham and Bent in July 2012, about two months after the alleged murder. It does not expressly attribute any declaration to Bent.
Graham: We had another conversation. I asked him why he was so paranoid about it. He told me he dropped the jacket when he was hopping a fence near the railroad tracks.
This refers to their second conversation, a few days after the first one. It describes a declaration by Bent.
Graham: And, from what I heard, it was him and another guy named Dellan there. Dellan was not shooting. He was just standing there. Another guy was in the back seat of the car. He was G-Loc. G-Loc is supposed to be a CRIPS term.
This is information from an unknown source, of unknown reliability. It may have been rumor or gossip in the community. It was not a declaration by Bent. It raised the spectre of gang affiliation and rivalry in this case.
Graham: G-Loc is known as Goon. Some say he was in the back seat. Some say he actually fired a shot or two.
G-Loc is known to the TPS as Joel Edwards, the passenger in the deceased's car at the time of the murder. This, too, is unsourced information. It appears to be rumor or gossip in the community. It is not a declaration by Bent.
Graham: Somebody in the complex that day set it up. I do not know who that person is, yet.
This, too, appears to be rumor or gossip in the community, or possibly speculation by Graham. It is not a declaration by Bent.
Bui: This conversation you had with the shooter… who is the shooter?
Graham: They call him Germz.
Bui: Do you know his real name?
Graham: Jerome Bent.
Bui: The first conversation was in person with him? He told you from his own mouth?
Graham: Yeah.
Bui: Do you remember the approximate date?
Graham: It had to have been at least a couple of months later. I don't know.
In these remarks, Bui focused Graham on the first conversation with Bent, likely in July 2012.
Graham: When I was talking to a friend about it, I asked him 'Who killed YG?' That's what they call him, the guy who died. I thought it was completely different but apparently it was him. I don't know if it was a coincidence, but the next day I met the shooter.
Clearly, Graham was telling the TPS about information he received in the community, and the time of the first conversation with Bent in relation to that conversation in the community.
Graham: I didn't ask him about anything. I don't try to inquire about it. He just pulled me off to the side and started talking to me about it, saying basically, '…fuck him, he deserved it… I'm happy I did what I did…'. There's a lot of controversy in regards to the murder. Some people say he was killed because he was talking about another killer, Menace, Shaquille Bell.
Here, Graham began to describe a conversation with Bent, but then moved to some information in the community about the rumored motive for the murder.
Bui: You mentioned another name. You said he was also there, but might not have (fired) a shot. What was the name?
Graham: Who?
Bui: The other man who was there watching?
Graham: Dellan, Morris or McMorris.
Bui: What street name does he go by?
Graham: Young
Bui: What relation does he have to Shaquille Bell?
Graham: They are cousins.
In this part of the interview, Bui focused Graham's attention on the man named Dellan, whom he referred to earlier as a man that he heard was there.
Bui: My partner will ask you some questions, about where you were when you talked to Jerome and maybe, if you can remember, a good description of one of the jackets he allegedly dropped.
Graham told Detective Mattless on September 20, 2012 that he had information about a jacket on the tracks and, further, that there were two shooters. He declined to give any further information about the jacket when he was interviewed by Detective Bui and Constable Griffiths on October 29, 2012.
Dhillon: When did you have the first conversation with Bent?
Graham: The side door of 57 Mabelle Avenue.
Dhillon: When?
Graham: Approximately two months later.
Dhillon: What were his exact words, if you can remember them?
Graham: I cannot remember the exact words, but he was saying… basically just trying to describe his feelings towards what he did, and why he did it… he wasn't very happy… he was very upset and paranoid about it, and being caught… trying to explain to me why he did it… at the same time he was happy about it, him finally dying.
Dhillon: And he mentioned this item he dropped.
Graham had earlier described a remark by Bent that he dropped the jacket when he hopped the fence near the tracks.
Graham: He never told me about the item, what the jacket looked like. But, he told me he dropped the jacket. I'm just guessing it was black.
This appears to be the first time that Graham used the term "guess" in the interview, this time in relation to the color of the jacket. Later, he merely described a declaration by Bent that included the color of the hoodie, black.
Graham: If you can imagine (killing) somebody, wouldn't you wear all black? I'm just assuming.
This is a follow-up on Graham's "guess" about the color of the jacket. To this point that color is not described as a declaration by Bent.
Dhillon: So, he's trying to describe why he did it. What was his explanation?
Graham: He took a gun from him a few years earlier – took his gun out and said "give me your gun".
Dhillon: So, when you say he took a gun from him, you (mean) the victim took a gun from Bent.
Graham: That's right.
Dhillon: How long ago was that?
Graham: It was years ago, maybe 2005.
In these remarks, Graham does not expressly say Bent told him in the first conversation that the victim took Bent's gun in 2005 and, further, that it was the reason he killed him. This information from Graham is not sourced. It may or may not have been rumor or gossip in the community, or from Bent in another conversation:
Dhillon: What else did he say?
Graham: That's pretty much it. At the time, I just wanted to get out of there.
Dhillon: You mentioned that he was angry but happy at the same time. How do you know this?
Graham: His face expressions… the way he was stalking… just the gestures… saying, over and over, '…fuck that nigger… fuck that nigger… he deserved it…'.
These remarks described observations of Bent made by Graham during the first conversation.
Dhillon: And, the second conversation?
Graham: The second time he spoke to me… we met on one of the side streets… shared a joint and talked about it… I asked him "Why are you so paranoid about it?" That's when he brought up the jacket. And, he was not sure if he (was) on camera or not.
Bui: But, he specifically said the jacket came from him?
Graham: Yeah.
Here, Graham clearly attributed the information about the jacket to Bent in the second conversation, which occurred a few days after the first conversation in July 2012.
Bui: Do you know what set of railway tracks he is talking about?
This question sought clarification of information Graham attributed to Bent earlier in the interview.
Graham: When it comes to that, I know its the tracks right behind the last row of townhouses. I don't want to (give you answers that) I don't know.
Bui: No. No. Don't guess Jermaine… just, like, what you know of the area.
Here, Graham expresses a desire not to guess, as urged by Bui, who then asked for his knowledge of the area rather than the pertinent declaration by Bent.
Graham: I know the area well. It is obvious that it is the railroad tracks there. I would just assume that he jumped the fence and then jumped the other fence, met someone in the car on Scarlett Road and (fled) to his house.
Importantly, at this stage, Graham gives some information to Bui based on his knowledge of the area and expressly stated that he assumed that is what Bent did after he shot the victim. This information was not described as a declaration by Bent:
Graham: He probably went to Bernice Crescent. I don't know. I'm just assuming.
Bui: What's at Bernice Crescent? Is there anyone associated to him?
Graham: No, but there is a good place to park.
Again, Graham is following up on the assumption he made about Bent's flight from the scene. He is not saying this was part of Bent's declaration.
Bui: So, you mentioned a car. Do you know if they were driving a car in and around that time? Whose car was it?
This is a follow-up question relating to Graham's assumptions.
Graham: I think it was his girlfriend's car.
Bui: Do you know what it looks like?
Graham: It's a Mazda, smokey grey. I believe it’s a Mazda 3.
Again, this is information from Graham that is not from Bent in either of the conversations.
Bui: Did Jerome tell you anything about how things went down, how the actual shooting occurred?
Graham: No. I never asked.
Bui: Do you remember where you were that day?
Graham: I believe I was at my mom's house, or on the way to it, 3725 Dundas Street, at Scarlett Road.
Bui obtained other information in order to investigate the possibility that Graham was one of the three perpetrators. Further investigation by the TPS satisfied Bui that Graham's alibi was truthful.
Bui: Where do you think Jerome went after the shooting?
Graham: I think he went to his girlfriend's house, at Jane Street and Lawrence Avenue.
Bui: There's a building right across the street from 4020 Dundas Street, associated with a lot of these guys. Do you think he went there?
Graham: It doesn't make sense. Why would they hop the railroad track, and hop it again, to go to the other side of the street. Its obvious they went across to Scarlett Road. I don't know much about where anybody specifically went. I'm not sure where Young went. I don't think they would run together because they are, like, 'I'm just a witness. I didn't pull the trigger'. They probably waited around. Cops came. You know. I don't even think they ran, just the shooter.
Here, Graham is giving more information in the nature of an assumption. It is not a part of Bent's declaration, in either conversation.
Bui: Are Jerome and Young associated in the music industry?
Graham: They just made a music video. It came out a couple of weeks ago.
Bui: On Youtube?
Graham: It's got him in it, Young, the guy who saw the shooting.
This is information not attributed to Bent. Earlier in the interview, Graham said "…from what I heard, Dellan was just standing there…".
The rest of this interview was about some conversations Graham had with Bent about some other crimes he committed, including the murder of Daniel Davis on July 19, 2012.
Thus, to this point of the investigation, November 7, 2012, the declarations of Bent, as described by Graham, were that he committed the murder and fled from the scene, hopped over a fence by the tracks and dropped a jacket near the tracks. The rest of the information, including the color of the jacket, the route taken by Bent from the scene, the description of the car used to make good the flight and the motive for the shooting was not expressly described by Graham as parts of Bent's declarations. These declarations were made by Bent during two conversations in July 2012, one at 57 Mabelle Avenue and the other on a side street near 4020 Dundas Street.
C.8.3 The Interview on November 9, 2012
On November 9, 2012, Graham was interviewed by Detective Sergeant Gray and Detective Margetson. It was videorecorded and audiorecorded, with Graham's consent, and otherwise conducted in accordance with B.(K.G. ), under an affirmation. It began with some questions about another murder. Gray expressly told Graham she had not promised Graham any benefit in exchange for the information he was providing to the TPS. Graham was in custody. He acknowledged that to be true and said "…I just want to start over… to leave that life behind me… to go back to school… it's the right thing to do…". Eventually, the interview focused on the Coombs murder on May 10, 2012.
Margetson: How do you know that Germz killed YG?
YG was a nickname of Coombs.
Graham: Because we spoke about it, in front of me, many, a few, times.
Margetson: You and Germz?
Graham: Yeah.
Margetson: Face-to-face.
Graham: Like, people are saying, spreading rumors that he did it because YG was saying 'Menace is so wild he should die… he can't be trusted…', and that Menace ordered (the killing). But I found out that is not true. Menace ordered nothing. Germz did it because a couple of years back YG took Germz' gun. And, the talk was it was the perfect time for Germz to get rid of the guy because Menace wanted to get rid of him too.
This, again, is unsourced information from Graham, perhaps rumor or gossip in the community. It was not in a declaration by Bent.
Margetson: So, can you remember what Germz specifically told you about the YG murder.
Graham: Other than pretty much telling me 'Yeah, it was (me)… he deserved it… I dropped the jacket…', he was paranoid about getting caught for it.
This expressly described a declaration by Bent, much as described in the interview of November 7, 2012.
Margetson: Who dropped the jacket?
Graham: Germz.
Gray: Where? At the murder?
Graham: Yeah. At the tracks.
This is not described as a declaration, but the dropping of the jacket near the railroad tracks was described as a declaration during the interview of November 7, 2013.
Gray: This is over by your neighbourhood.
Graham: Yeah.
Gray: Right there, across the road?
Again, this was an attempt by the TPS to clarify the information that was provided by Graham on November 7, 2012 as an assumption, given his knowledge of the area. It was not described as a declaration by Bent, in either the earlier or this interview.
Later in the interview, Graham explained the significance of a theft of a gun in the criminal milieu, perhaps referring to urban street gang culture or another one like it.
Graham: Taking somebody's gun is like taking their pride away. …the gun is, like, protection… it is pretty valuable to you on the street… they take away their gun, they take away their protection… (it makes you look weak)… the ultimate disrespect… a few people have died over gun taking…
Gray: We know what it means… taking somebody's gun is the ultimate insult… next to taking their women…
Graham: Women is the worst.
Again, this was information about the cultural milieu surrounding the theft of a gun. It was not described as a declaration by Bent. In the earlier interview of November 7, 2012, Graham was not clear on this point. It may or may not have been a Bent declaration, or rumor or gossip in the community. This was not clarified by Detective Sergeant Gray or Detective Margetson.
C.8.4 The IPC of April 3, 2013
As I said earlier, On April 3, 2013, Graham, while in custody on some other matters, was taken to the cells of a courthouse located at 2201 Finch Avenue West. He was placed in a cell with Bent. Their conversation, which lasted for about 3½ hours, was audiorecorded and videorecorded. In my view, the recording is of poor quality. But for a transcript prepared by the TPS, I could not determine what was said. Nor could I determine if the transcript was correct. Nor could I make any meaningful observations about their demeanour. Graham and Bent spoke about several crimes committed by Bent and some other persons, including the murder of Coombs on May 10, 2012, the murder of Davis on July 19, 2012 and the attempted murder of some young black men on September 11, 2012. Bent admitted his involvement in those crimes. He identified men named Young and Killa as persons who were involved, to some extent, in the Coombs murder. Young is McMorris. Killa is unknown. It is helpful to review the transcript to illustrate those points.
Graham: Yo, I heard fuckin' Young's out there fuckin' talking greasy dog.
Bent: Who?
Graham: Young.
Bent: Talking greasy?
Graham: When's the last time you talked to him?
Bent: What he say?
Graham: How he fuckin' slapped out Ying, and shit.
To this point, Graham was lying. Neither he nor the TPS had any information that Young was bragging about killing Coombs himself. Apparently, this was a ploy developed by Graham and the TPS to stimulate conversation about the murder.
Bent: You're talking shit.
Graham: Word, my word. He's he's been saying that.
Bent: He did?
Graham: How did he slap away? He was just there, dog.
Bent: He slapped him out… I came and he did it.
At this point, Bent adopted the information provided by Graham as his version of the murder, but Graham began to challenge him on its truthfulness. Eventually, Graham accused Bent of lying.
Graham: Are you serious?
Bent: Yeah.
Graham: Are you serious?
Bent: Yeah.
Graham: Naw, you're lying.
Bent: I swear.
Graham: Why did he slap out Ying?
Bent: Huh?
Graham: Why?
Bent maintained his version was true, and provided a reason why Young would commit the murder – a threat by Coombs to kill Young.
Bent: Why Y.G.?
Graham: Yeah.
Bent: 'Cause man dem called his phone, supposedly saying he's gonna slap him out. 'Cause Links…
Graham: Are you serious?
Bent: Link's supposedly called and shit saying Y.G.'s gonna slap you out, talking pure shit to Young. You never knew about that?
Graham then confronted Bent with part of what Graham claimed Bent told him in July 2012.
Graham: No. You told me you fuckin' slapped him out.
Bent: Young did.
Graham: Wow. That's fucked. So, you know, a lot of people think you did it?
Bent: (laughs) Yeah.
Graham: Everybody thinks you did it. I'm, like, 'yo, why would Young just fuckin', why would he just fuckin' stand there and watch while you shoot?' You know, it makes no sense.
Bent: That's what he's out there saying?
Graham: Yeah.
Bent: Don't lie.
Graham: Ask around.
Bent: Hm.
Graham: Ask Bluey. Ask peoples. Ask niggas, dog.
Bent: That's what niggas saying?
Graham: In his rap and shit. Was talking about catching bodies and shit. Biggs don't like him though. Biggs is, like, "yo, he's not catching no bodies… never caught a body lying like… Yo, that was Germz."
Bent: Who's that? Biggs said that?
Graham: Yeah. It's crazy.
Bent: I don't care what people think, what people know, no them one de?
Graham: Yeah.
Bent: I handle mine. Mans are lying. And when niggas are, they're shit. You don't hear me saying "ra, ra, ra", you know what I'm saying? I think it's just a surprise. Everyone thinks I'm a good person, you know.
Graham: Yeah.
Bent: I'm nice and humble and cool. Know wa me a say?
Graham: Don't try to lie to me.
Bent: Hm.
Graham: Don't try to lie to me.
Bent: (Laughs)
Graham: Don't try to lie to me. (Laughs)
Bent: (Laughs)
Graham: This guy kills me.
Bent: Remember everyone in the hood knows me. They know us when we were young. So, something happened with that, like, you see something, like when M-Loc does something, everyone knows cause his shit so out there, so bold and shit he'll come back like, 'yo, I just slapped out a yout in Jungle.' He tells everybody everything, know what I'm saying? Me, I don't talk. You probably know about one or two of them.
Graham: I swear him and Ying were good.
Bent: Young? No. No I don't like him either. Ying wanted to, M-locs dumb. Ying wanted to slap out M-loc too. He's like 'Yo, Nips, no one can talk to him dog. We have to get rid of him.' Nips said, 'bro, are you dumb." I wish Nips was here now to tell you. When he was on 2B he saved me, yo. I don't like that guy, dog, I don't like that guy, dog.
Bent then began to talk about the day of the murder, and Graham asked him some leading questions relating to the number of perpetrators, three. Bent replied with some answers that tended to indicate a common purpose amongst them.
Graham: So that day when you, when he fuckin', when he was leaving Plex and whatever, whatever, whatever.
Bent: Ya.
Graham: How, like, he doesn't, like, he didn't realize, like, 'kay there's three niggas standing with hoodies.
Bent: Naw, he didn't see. The car pulled up. We were all there waiting for him. The car just pulled up. He was supposed to get it, still.
Graham: Yeah. But I'm saying, like, he sees you and Young. Obviously you guys both don't like him.
Bent: I know. We're standing there, like. I think he froze up and he tried to do something with the car. I dunno what he did, tried to, like, either put it in reverse. I think he tried to put it in reverse. When he was doing it he was looking and he was, like, and he ended up putting it in neutral.
Graham: He looked at you?
Bent: Yeah.
Graham: (Exhales)
Bent: Looked like, he like looked, like that, when he was in the car, looked like he was looking back and he looked at me again, like, three times.
Graham: Yeah, closed casket. He got it bad still. That's what's gwannin', dog. When I heard that was, like, 'okay, you finally dropped out'.
Bent: Nobody likes him dog.
Some court officers then provided Bent and Graham with lunch.
Bent: Nobody likes him. Man made the area so loud doing doing stupidness. You can't come back. He robbed niggas for straps. He, he never… he never ever went to the green side.
There was some further dialogue with the court officers.
Graham: I'm surprised Ying never had a machine in his car.
Bent: I heard that… they found a machine.
Graham: After?
Bent: News never said weapon in the car. Cause they're not gonna make it bait.
Graham: Bro, he's so dumb, dog. He's own stupidity led to his death.
Bent: Huh.
Graham: His own stupidity led to that because, my nigga, when…
Bent: Why was he in the hood driving anyways.
Graham: I know.
To this point, Bent had not expressly said he was a principal shooter, or, indeed, a shooter. However, he now began to describe a prior theft of his handgun by the deceased.
Bent: Jammed me and SP. Like fuckin' get him myself.
Graham: What he did take from you? 38 right?
Bent: Naw four, four fifty revolver.
Graham: Four fifth revolver. Oh yeah. I remember it was a big. Okay, big four-fifty revolver. SP gave it to you right.
Bent: Yeah.
Graham: Went and took that shit, eh. What a fuckin'.
Bent: He's a bitch, nigga dog.
Graham then led Bent to talk about another perpetrator, Killa.
Graham: So you haven't seen that next guy Killa since.
Bent: Which guy?
Graham: Same guy, KB's bro or whatever or whoever was there.
Bent: Cuz.
Graham: Yeah Cuz…
Bent: Yah, I seen him.
Graham: He never said nothing about it.
Bent: He said he never hid.
Graham: Yeah.
Bent: I seen him the same day. He's, like, yo.
Graham: He's wearing the same clothes from that day.
Bent: No, he's wearing some next shit.
Graham: What he say?
Bent: He was like going to Benny's fuckin'.
Graham: Right near St. Clair.
Bent: Yeah he's fuckin'.
Graham then suggested Bent should have killed Killa too, because he is a witness. Bent discounted any risk of Killa testifying against him, because he, Killa, shot at G-Loc, Joel Edwards.
Graham: B, you should'a slapped him out too, dog.
Bent: Slap him out, a lie?
Graham: Just the fact that him knowing about that shit. Know what I'm saying.
Bent: He tried to beat it up at G-loc.
Graham: That day right.
Bent: Yeah.
Graham then suggested the handguns used were 9 mm and 10 mm in calibre.
Graham: 10 mm you said.
Bent: Yeah.
Graham: You were perxin nine-as.
Bent: Yeah, Glock seventeen.
Graham: Glock seventeen, fuck dog. Sick machine still, Glock seventeen. Eyebs get the sickest machines.
Bent: Eyebs eh? (laughs)
Graham: Fuckin'.
So, in this intercepted conversation, as transcribed, Graham lied to Bent to stimulate a conversation about the Coombs murder. Bent adopted as true the information that McMorris was the shooter, but added some information about his own motive to kill Coombs and described the third perpetrator as the one who shot at Edwards. The identity of that perpetrator, Killa, and the calibre of the handguns used in the murder were suggested by Graham and adopted by Bent. Bent's declarations on April 3, 2011 are inconsistent with the declarations of July 2012 attributed to him by Graham in the earlier interviews.
C.8.5 The Interview on April 11, 2013
On April 11, 2013, Detective Margetson, Detective Diaz and Detective Constable Fernandes interviewed Graham in accordance with B.(K.G.) . The oath was administered by a Commissioner of Oaths. The interview then reviewed the intercepted conversation on April 3, 2013, and the circumstances in the cells at the courthouse, 2201 Finch Avenue. The interception was consented to by Graham. Bent, an undercover officer and another inmate were present. The conversation with Bent lasted for about 3½ hours. Bent and Graham talked about some murders and other crimes, some other people and their own situations. Bent had not yet been arrested in connection with the Coombs murder in May 2012.
Graham: I knew about the Coombs murder… and bits and pieces about the Jungle murder… while I was incarcerated, everything came to light… that's how I began having more conversations with the people involved…
Margetson: Do you know the first murder you spoke about?
Graham: Delano Coombs.
Margetson: How did that conversation go?
Graham: I don't recall fully. I just passed on what I knew. I knew who the suspect was.
Margetson: You passed that to whom?
Graham: A homicide detective.
Margetson: No, I mean how did the conversation with Germz go (in the cells)?
Graham: I brought it up, by mentioning one of the people at the scene was claiming to be the shooter. In reality that person was not the shooter… (he) was just watching…
This is merely a recital by Graham of how he stimulated the conversation with Bent on April 3, 2013. Graham was an agent of the TPS. How he was prepared, and the extent to which he was briefed on confidential investigative information about the Coombs murder, if at all, has not been proven on this application. This answer re-iterates Graham's belief that Young was merely at the scene, a belief based upon rumor or gossip in the community. It was not based upon a declaration by Bent.
Graham: He pretty much told me 'Yeah, (he's) the person', in a joking manner. I knew he was joking. So, I asked him what kind of gun the other person had and he described it. There was three people there, Germz, Young and Killa. Germz told me how it went down. He saw YG in the car. He was about to leave. There was somebody in the back seat, by the name of Joel. It was him, Young and Killa who just kind of wanted to be involved. They were waiting for him to come. As soon as he drove up, he saw them and tried to reverse. They pulled their guns and started shooting… shot him a few times, through the front windshield… he opened the driver's door and tried to get out… he kept shooting at him… he fell back… he walked up to him and shot him in the face… while he was shooting, the other guy who was shooting too… he shot, I believe, two shots at the guy in the backseat.
Graham, in this part of the interview, described his memory of the remarks by Bent on April 3, 2013. However, as I interpret that interview, Bent did not describe the shooting through the front windshield, the firing of three guns by the three perpetrators, the attempt by the victim to get out of the car, the shooting of the victim in the face or the shooting at the passenger by one of the perpetrators. This all appears to be information obtained by Graham from a source other than Bent. Graham's opinion that Bent was joking when he described Young as the shooter is not admissible at trial in my view to prove the bona fides or lack thereof by Bent. As a witness may not express such an opinion about the credibility of another one, a police agent may not do so about a declarant.
Graham: Then they ran… jumped over the tracks… he said there was cars waiting, in the valley… in the neighborhood. There was two cars waiting for them… but Germz got away differently… he ran to Scarlett Road… he saw Courtney in a car, and approached him saying '…let me in… let me in… I heard shots…' …he jumped into the car…
As I read the interview of April 3, 2013, Bent did not say this. It appears that Graham obtained this information from another source.
Margetson: Did he mention what kind of firearm he had?
Graham: It was a Glock 17.
Bent did tell Graham on April 3, 2013 that he used a Glock 17.
Margetson: Did he ever mention what the other guy was using.
Graham: A 10 millimeter.
Margetson: Who had the 10 millimeter?
Graham: Killa.
Margetson: What about Young?
Graham: Young did not have a gun… he was just standing there watching.
Again, as I read the intercepted conversations, Bent did say a 10 millimeter was involved, in response to a leading question by Graham. However, Bent did not say Young did not have a gun. In fact, when Graham falsely suggested Young was taking credit for the murder in the community, Bent said, more or less, that Young was the shooter and he, Bent, was merely present.
Margetson: Before, you mentioned something about a jacket after they fled the scene. What was that?
Graham: Germz said he dropped a black hooded jacket when he was jumping over the fence at the train tracks.
Previously, Graham described a declaration by Bent that he dropped a jacket when he crossed the tracks, and guessed or assumed it was a black jacket. Here, Graham attributed that color to Bent's declaration, as well as the jumping over the fence. This incremental information to the Bent declaration may be guesses or assumptions by Graham, or inferences he drew in light of his knowledge of the area, or otherwise unsourced information.
Graham: He also said it was Young's jacket, but he was wearing it.
This is the first time Graham attributed this information to Bent. He never mentioned it before this interview.
Margetson: It was a black hoodie.
Again, the color of the jacket, now described as a hoodie, was assumed to be black by Graham until it was described in this interview as a declaration by Bent.
Margetson: Why would he tell you these things?
Graham: We were part of the circle.
Margetson: Do you think he was truthful to you?
Graham: Yes.
Margetson: Why?
Graham: Because everyone knew.
Margetson: Do you think it is anything he would lie about?
Graham: No. If lied, he would be exposed. The real killer would say '…it's me…' …with his identity as the killer known in the community, it gives him respect… people know he is the killer, so they respect him for it… they fear him… so, he wants people to know… if someone falsely claimed a murder, people would laugh at him…
This is merely an opinion of Graham about the truthfulness of what he now said was in a declaration by Bent. It was merely investigative information for the TPS.
Graham: I know from a previous conversation with Germz that she was kind of there, but he told her to wait somewhere else. She parked, and waited for him. He was supposed to run back to her car. But, I guess, things went a different way. He got Courtney to drop him off, like, 15 minutes later… then he jumped in her car and switched cars.
This was apparently a reference by Graham to Bent's girlfriend. In this interview, Graham claimed this information came from Bent. However, in the interview of November 7, 2012, he described information like this as an an assumption on his part, without referring to his girlfriend.
Margetson: Sorry. Did you say what kind of gun he used?
Graham: He told me a Glock 17. That's what he told me. I'm pretty sure it was a 9 millimeter, but I could be wrong.
Again, Bent did make such a statement in the intercepted conversation of April 3, 2013, but not in the July 2012 conversations.
The rest of this interview related to some other crimes, or the interpretation of street jargon.
C.8.6 The Testimony of Graham at the Preliminary Hearing
Lastly, Graham testified at the preliminary hearing on May 15, 2015. The cross-examination by defence counsel was as follows:
Q. And the two of you had a conversation, correct?
A. Yes.
Q. Just the two of you?
A. Yes.
Q. And in that conversation, as I understand it, Mr. Bent was saying he was paranoid?
A. Yes.
Q. He was paranoid, he was worried that he could get caught for the Coombs homicide?
A. Yes.
Q. And you naturally asked him why were you paranoid?
A. Yes.
Q. And that's when he told you that after he shot Mr. Coombs he ran?
A. Yes.
Q. He ran to the train tracks?
A. Yes.
Q. And these are the train tracks that run north of the 4020 complex?
A. Right.
Q. That's what he told you?
A. Yes.
Q. And he dropped a hoodie there, right?
A. Yes.
Q. And he also told you though that he ran to Scarlett Road, right?
A. That's right.
Q. And at Scarlett Road he saw an individual in a car, right? That's what he told you?
A. Yes.
Q. And he told you that this individual was Courtney?
A. That's right.
Q. And he told you he got in Courtney's car, right?
A. Yes.
Q. And that Courtney drove him away?
A. Yes.
Q. To the valley?
A. Yes.
Q. And I think I know where that is. And I'm just looking at Exhibit #2. Is the valley around where Old Dundas Street is?
A. Yes.
Q. South of the 4020 complex?
A. It's that whole area there that you're pointing at.
Q. And just like almost like in the intercept that you have, I've got to describe this for the record, although the words are recorded it doesn't show us. You see where I'm pointing at. I'm making a circle that's sort of bordered by Dundas Street to the north, Varsity Road to the east and Old Dundas Street to the south?
A. Yes.
Q. And I guess the west of that would be is that a river, Humber River?
A. Yes.
Q. And I guess it's a park actually just east of the river?
A. Yes.
Q. So it's that area that we call the valley? Or if it's small than that –
A. It's actually much larger. It's just that whole community.
Q. I'm going to give you a red marker and just ask you to circle the valley if you could, please?
A. So where I've highlighted and also off the map that entire area would be considered the valley.
Q. Okay, so, just going back to what I'm saying, so he told you that Courtney dropped him off in the valley?
A. Yes.
Q. Was he anymore specific about where?
A. I don't believe so.
Q. And he told you that Courtney dropped him off in the valley about 15 minutes after the shooting?
A. I'm not sure if he gave me the time frame, but that would sound about right.
Q. Okay. I'm going to just show you a transcript just to see if it helps refresh your memory. April 11th, 2013 transcript. It's a -- well they don't have line numbers, but about two-thirds of the way down the page, I'm just going to ask you to read that to yourself and ask if it helps refresh your memory if a time was given. It's p. 42.
A. So I say --
Q. So does that help refresh your memory of what Mr. Bent told you?
A. Yes.
Q. Okay, so I'11 just ask you having read that, do you recall Mr. Bent telling you that he was dropped off by Courtney in the valley about 15 minutes after the shots were fired?
A. I do. Yes.
Q. Okay. And Jerome Bent specifically mentioned to you that when he -- that he was paranoid because he dropped his jacket when he hopped the fence by the railroad tracks, correct?
A. Yes.
Q. He specifically said he hopped the fence, right?
A. Correct.
This cross-examination was all proper under R. v. Lyttle, [2004] 1 S.C.R. 193. However, to some extent, some of the leading questions put to Graham were based upon information that Graham had not previously described as a declaration by Bent. It was previously said to be rumor or gossip in the community, guesses or assumptions by Graham or otherwise unsourced information. The rumors or gossip in the community included Dellan was standing there, G-Loc was in the back seat, and someone in the complex set it up. The guesses or assumptions by Graham included the jacket was black and he jumped the fence near the tracks, went to Bernice Crescent and left in his girlfriend's car. The otherwise unsourced information included the theft by Coombs of Germz' handgun in 2005. Bent is not available for any cross-examination, about the alleged murder in May 2012 or, as prior inconsistent statements, the conversations with Graham in July 2012 and during the intercepted conversation on April 3, 2013. Graham is available for cross-examination but how that may reliably sort out declarations from gossip, rumor, guesses, assumptions and other sources of information, whatever they may have been, in May 2015 for events in July 2012 through November 2012 and April 2013 is not clear to me.
C.8.7 Conclusion
That completes my review of the information from Graham.
C.9 Conclusion
That completes my summary of the circumstances of the case.
D. The Legal Framework of the Application
Let me now summarize the legal framework of the application.
Hearsay statements are presumptively inadmissible. See R. v. Blackman, [2008] 2 S.C.R. 298 at para. 37.
Where, as here, the hearsay does not come within one of the exceptions to the rule, it is inadmissible unless it comes within the principled exception to the rule. That exception applies where the condition precedents to admissibility, necessity and threshold reliability, are proven on a balance of probabilities by the proponent of admissibility. That can be done by showing there is no real concern about the truth of the statement because of the circumstances in which it is made or because there are adequate substitutes for the absence of contemporaneous cross-examination of the declarant. These criteria have been described as procedural reliability and substantive reliability. The ultimate reliability of the declaration is to be determined by the jury. For an elaboration of these principles see R. v. Khan, [1990] 2 S.C.R. 531, R. v. Smith, [1992] 2 S.C.R. 915, B. ( K.G. ), R. v. U. (F.J.), [1995] 3 S.C.R. 764, R. v. Hawkins, [1996] 3 S.C.R. 1043, R. v. Khelawon, 2006 SCC 57 and R. v. Youvarajah, [2013] 3 S.C.R. 603. The concern for trial fairness is one of the reasons for the principled approach, with fairness including the legitimate interest of the public in the truth-seeking capacity of the trial and the right of the defendant to make full answer and defence, by effectively challenging the reliability of the evidence tendered by the Crown.
Over the years, the courts have considered many factors in determining the admissibility of hearsay under the principled exception to the rule. They include:
- the presence or absence of an oath or affirmation;
- the existence of a warning of a criminal sanction if the declaration is untrue;
- the recording of the declaration, audiorecording or videorecorded;
- the availability of the declarant for cross-examination at trial;
- the nature of the relationship between the declarant and the witness;
- the demeanor of the declarant;
- the motivation of the declarant, to fabricate or otherwise;
- the contemporaneity of the declaration to the subject matter of the declaration;
- the spontaneity of the declaration, or its character as a response to a leading question; and
- the presence or absence of confirmatory evidence.
This list is not intended to be an exhaustive one. Any one or more of them may be of more significance in the circumstances of a given case. Some regard for the importance of the hearsay to the proponent's case is appropriate in determining the issue of threshold reliability.
A trial judge has a discretion to exclude evidence that is within the principled exception where its probative value is exceeded by its prejudicial effect, in the case of Crown evidence, or, in the case of defence evidence, where such probative value significantly exceeds such prejudicial effect. See R. v. Seaboyer, [1991] 2 S.C.R. 577.
A trial judge may also relax the rules of evidence as they apply to the defence where it is necessary to prevent a miscarriage of justice. See R. v. Williams (1985), 18 C.C.C. (3d) 356 (Ont. C.A.), R. v. Folland, [1999] O.J. No. 143 (C.A.), and R. v. Kimberley, [2001] O.J. No. 3603 (C.A.).
Whether or not evidence is confirmatory of the reliability of the declaration can be an important consideration in these applications. One must begin by defining the issue to which the declaration is relevant. For example, if it is tendered on the issue of identity, evidence that tends to prove the truth of the rest of the declaration may not be confirmatory evidence. In my view, confirmatory evidence is independent evidence that implicates the defendant or other persons whose identity is material in the circumstances of the case. Evidence that only confirms other ancillary parts of the declaration is not sufficient. For example, in Khan , the defendant's semen on the child's clothing at the time of the declarations implicated the defendant. As a further example, in R. v. Couture, [2007] 2 S.C.R. 517, Charron J., for the majority said at para. 84:
This Court clarified in Khelawon that corroboration can be considered in assessing the threshold reliability of a statement. Indeed, corroboration can be powerful to substantiate the trustworthiness of a statement. Recall the semen stain in R. v. Khan, [1990] 2 S.C.R. 531. For example here, Darlene told the police that Mr. Couture had admitted to sexually assaulting both victims after their death. There was no forensic evidence of this nature on the voir dire or at trial. However, assuming that there had been evidence that the victims had indeed been sexually assaulted, and that this evidence was not likely to have been known by anyone other than the investigators and the perpetrator at the time of the statement, this corroborative evidence would lend much cogency to the statement. However here, the evidence erroneously relied upon by the trial judge as corroborative is of no assistance in assessing the inherent trustworthiness of Darlene’s statements.
This approach should be preferred in this context because of the importance of contemporaneous cross-examination, or its substitutes, to the fairness of the trial, especially from the perspective of the defence. See R. v. Bidesi, 2015 BCSC 140 at paras. 94 and 97 and R. v. Bradshaw, 2015 BCCA 195 at para. 31 where the court said:
The judge looked for evidence that would corroborate Mr. Thielen's evidence. While independent corroboration can certainly add to the guarantee of truthfulness, such as the semen stain on the child's sleeve in Khan , much of what the trial judge relied on was not evidence that provided guarantees of truthfulness of Mr. Thielen's implication of Mr. Bradshaw. For example, he concluded that the description of the shootings by Mr. Thielen was supported by forensic evidence. The difficulty with using this evidence is that it does nothing to advance the guarantee of truthfulness in relation to Mr. Bradshaw being involved in the offences. Mr. Thielen admitted many times that he was present, and indeed committed the offences. There is nothing in his statement that is supported by forensic evidence that would implicate Mr. Bradshaw as opposed to Mr. Thielen.
See also R. v. Nataucappo, 2015 SKCA 28.
The importance of confirmatory evidence is well-known in some other legal contexts -- the reliability of witnesses of unsavoury character under R. v. Vetrovec, [1982] 1 S.C.R. 811 and the definition of probable cause under R. v. Debot, [1989] 2 S.C.R. 1140.
The test for confirmatory evidence under Vetrovec is that such evidence be independent and material but need not, by itself, implicate the defendant or other person of importance.
The test for confirmatory evidence on the issue of probable cause may differ. Something more than confirmation of "…innocent and common place conduct…" of a person implicated by an anonymous tipster as a drug trafficker is required to make such a tip sufficient under Debot to arrest the person. In R. v. Lewis (1998), 38 O.R. (3d) 540 (Ont. C.A.) Doherty J.A. said at p. 543:
Constable Tischhart, of the R.C.M.P., was on duty at Pearson International Airport when he received an anonymous telephone call from a woman. After some preliminary discussion, she told Constable Tischhart that a clean-shaven, heavy-set black man named Keith Lewis would be taking a flight on Canada 3000 Airlines to Edmonton at about 3:00 p.m. the next day. The woman said that Mr. Lewis would be with a two-year old boy and that he would be carrying cocaine concealed in a wine bottle or an Appleton rum bottle.
The R.C.M.P. confirmed that a passenger named Lewis was scheduled to fly to Edmonton on a Canada 3000 flight the next day. Doherty J.A. continued at pp. 546-547:
The appellant does challenge the trial judge's finding that the police acted on mere suspicion. Counsel submits that the information provided by the tipster had been sufficiently confirmed by the police investigation to afford reasonable grounds to believe that the respondent was in possession of narcotics when he arrived at the Canada 3000 ticket kiosk. Counsel maintains that the police were entitled to arrest the respondent and conduct a search incidental to that arrest.
Most of the argument centred on the degree to which information provided by an anonymous tipster must be confirmed by independent sources or other investigative techniques before that tip can constitute reasonable grounds for an arrest or search. Crown counsel submitted that the trial judge erred in holding that the tipster's information could only provide a basis for an arrest or search if the police confirmed the criminal aspect of the tipster's information. Counsel urged that confirmation through investigation of many of the details of the information provided by the tipster could provide reasonable grounds even though the details confirmed did not go directly to the criminal component of the information provided by the tipster.
The tipster provided detailed information identifying the alleged perpetrator, the place and time of the alleged crime, and the particular means by which the crime would be committed. That detail tended to exclude the possibility that the tipster was merely relating rumour or gossip. Prior to the search of the respondent, the police confirmed many of the details provided by the tipster. The respondent was scheduled to fly to Edmonton on a Canada 3000 flight at the time indicated, he matched the description given by the tipster, and he was travelling with a young child.
The Crown's position comes down to this. If a person shows up at the airport and acts exactly as one would expect a normal traveller to act, that person is subject to arrest if an anonymous, unproven tipster has predicted that the person would attend at the airport in possession of cocaine and act like a normal traveller. I cannot accept that contention. Absent confirmation of details other than details which describe innocent and commonplace conduct, information supplied by an untested, anonymous informant cannot, standing alone, provide reasonable grounds for an arrest or search.
Neither Vetrovec nor Lewis speak to the nature of confirmatory evidence in the context of the principled exception to the hearsay rule. In my view, in this context it should be evidence that implicates the defendant in the crime, at least in some cases, especially where identity is the live issue, as in this case.
E. The Admissibility of the Declarations in July 2012
Are the declarations by Bent in July 2012 admissible in the circumstances of the case? They are tendered by the defence to prove Bent was the principal shooter of Coombs, in the mere presence of the defendant. The Crown is opposed to admissibility.
The position of the defence is that the threshold reliability of the July 2012 declarations has been proven on a balance of probabilities because there are adequate substitutes for the absence of a contemporaneous cross-examination of Bent and, in the alternative, the court should relax the application of the principled exception to the July 2012 declarations because their admission is necessary to avoid a miscarriage of justice. Graham and Bent were close friends, of about 15 years. Bent did not have a motive to fabricate in July 2012 -- he anticipated no gain through these conversations other than the emotional comfort of speaking to a friend in difficult circumstances of having killed a man and fearing arrest by the TPS. Much of the substance of Bent's remarks was confirmed by extrinsic evidence that is independent, material evidence that otherwise implicates Bent as a perpetrator. Someone shot Coombs, as described by Sulyok. Bent pled guilty to a charge of first degree murder relating to Coombs' death, with the assistance of counsel. Someone ran from the scene, as described by Sulyok, Pozsgai, Mihailovich and Cull, towards the tracks. Someone jumped the fence, as described by Cull. Someone crossed the tracks, as described by Cull, and left the black hoodie he was wearing there, as described by Cull and as found by the FIS. It was Young's hoodie, a hoodie that had Young's DNA on a sleeve. Someone was dropped off in the valley, about 15 minutes later, much as described by Rumbolt. She said that person was Bent. Young was present, but only watched. None of this information was known by Graham and it was not publicly available. It could only have been known by a perpetrator. It was an admission by Bent against his interest. These circumstances are the functional equivalent of a cross-examination of Bent at trial. In the context of the evidence as a whole, they leave the jury well-situated to determine the reliability of Bent's declarations in July 2012, in the submission of the defence.
Respectfully, I disagree.
There is no record of the declarations, whatever they may have been, by audiorecording, videorecording or contemporaneous notes by Graham. Graham's evidence of the declarations includes the attribution of some words to Bent, but that attribution changed significantly from November 2012 to May 2015. The changes included guesses, assumptions, opinions and speculation by Graham, as well as gossip and rumor in the community, a community that appears to be part of a criminal subculture in Toronto that may include the dynamics of the urban street gangs in the area. How all of that impacted on Graham's description of the declarations by Bent would be very difficult to determine, even through a cross-examination of Graham by a counsel opposed in interest. Graham's motivation, of course, was to help himself by giving this information to the TPS. He is likely a witness of unsavoury character. The handling of Graham as a police agent has not been proven on this application. He may or may not have obtained some of the information he attributes to Bent from those handlers, innocently or otherwise, or from someone in the community who was privy to it, directly or indirectly, from one of the perpetrators. Some of the purported declarations were in response to leading questions by the TPS. All of these factors may have had a lingering and cumulative effect on Graham's recollection of his July 2012 conversations with Bent, through May 2015. Gossip or rumor in the community may have affected his understanding of whatever Bent said, or motivated him to mislead the TPS. All of this frailty relating to Graham's testimony about these declarations could be the subject of cross-examination of Graham by counsel opposed in interest. But, how the jury would sort out the reliability of Graham's evidence is not clear to me, given the absence of contemporaneous notes by Graham or an audiorecording of the conversations. All of this goes to the critical importance of the absence of a cross-examination of Bent at trial -- to the extent the record of the declaration is weak the substitutes for such a cross-examination must compensate for them.
That leads me to the package of confirmatory evidence relied upon by the defence. On its face it is formidable and probative of the reliability of what is attributed to Bent. But what is attributed to Bent may, innocently or otherwise, not be his words. To what extent, if any, was the handling of Graham contaminated by the disclosure of investigative information? To what extent, if any, is Graham attributing to Bent rumor, gossip or speculation from the community, innocently or otherwise? To what extent, if any, did Graham's knowledge of the area lead to guesses or assumptions he described as declarations by Bent? The evidence may be confirmatory not of Bent's words but of rumor, gossip, speculation, guesses, assumptions or the substance of the leading questions by the TPS. For these and other similar reasons the confirmatory evidence in this case is not an adequate substitute for a cross-examination of Bent at trial, by itself and in the context of a cross-examination of Graham at trial by a counsel opposed in interest. The cross-examination of Graham at the preliminary hearing was not such a cross-examination. Rather, it merely shows the culmination of all of the problems relating to Graham's testimony that I have referred to throughout these reasons. What Graham said about the declarations at any point in time is open to serious questions about its reliability, and the reliability of what he said earlier or later about the same declarations.
Moreover, in my view, this is not a case where the court should relax the rules in favor of the defence, even by way of giving permission to tendering a declaration by Bent more or less to the effect of "…I shot… I ran… I left the hoodie on the tracks…". Who shot, who ran and who left the hoodie on the tracks is a point of contention in this case. Was it Bent? Was it McMorris? Was it someone else? Bent's plea to first degree murder, assuming the plea itself, without the agreed statement of facts tendered in support of the plea, is substantively admissible after Youvarajah , is not probative of who shot, who ran and who left the hoodie on the tracks. The plea is consistent with Bent being one of the other perpetrators. All of the other problems I have referred to in my determination of the threshold reliability of the July 2012 declarations lead me to decline to exercise my discretion in favor of the defence on its alternative position. This is not a case where the evidence of the declarations is strong and the sufficiency of the substitutes for the absence of contemporaneous cross-examination is weak. That may be a case for the exercise of this discretion. As Doherty J.A. said in Kimberley, [2001] O.J. No. 3603 (C.A.) at para. 82:
The kinds of concerns which can lead a Court to admit hearsay evidence tendered by the defence when the same evidence would not be admitted if tendered by the Crown do not operate here. The appellants have failed to demonstrate that the circumstances surrounding the making of the British Columbia statements by Teed offer any basis for a finding that those statements are sufficiently reliable to warrant their admissibility. The admission of evidence of such inherently unreliable statements would hardly prevent a miscarriage of justice. Indeed, it could occasion a miscarriage of justice.
That observation is one that is aptly made in this case too.
For these reasons, the application by the defence relating to Bent's declarations in July 2012 is dismissed.
F. The Admissibility of the Declarations in April 2013
Are the declarations by Bent on April 3, 2013 admissible in the circumstances of this case? They are tendered by the Crown on the issues of identity and the role of the defendant in the murder. The defence is opposed to admissibility.
The position of the Crown is that the threshold reliability of the declaration on April 3, 2013 has been proven on a balance of probabilities. The declaration as, tendered by the Crown, has changed somewhat over the course of the application from:
- the initial position, as set out in the application record, the entire 3½ hours of the conversation; to
- the secondary position, as a response to the Court's direction that only those parts of the conversation that are relevant, material and otherwise admissible, to the Crown and the defence, should be the subject of this application; to
- the tertiary position, editing from the secondary position those statements by Bent where the Crown acknowledges Bent falsely said McMorris was the shooter and he, Bent, was present.
The declaration in the secondary position was to the effect of "…Young shot him… I was present… we were there… me, Young and Killa… there were two guns… 9 mm and a 10 mm…". It was audiorecorded and videorecorded. It was made during a conversation between trusted friends, that included a truthful admission by Bent that he committed another murder, of Davis, as confirmed by independent, material extrinsic evidence. Graham raised the Coombs murder for discussion through a lie, but Bent's remarks about the Coombs murder, the Davis murder and another crime are detailed. Bent did not have a motive to lie to Graham. He subsequently pled guilty to the Coombs murder and the Davis murder, with the assistance of counsel and was sentenced to concurrent terms of life imprisonment. There are extrinsic circumstances that tend to establish the reliability of these declarations, about the Davis murder, the Coombs murder and the other crimes. If Bent told the truth about the other crimes, he likely told the truth about the Coombs murder. The defendant met Bent on Old Dundas Street shortly before the murder, as described by Rumbolt. McMorris' DNA was on the black hoodie found near the tracks by the FIS, a hoodie worn by the man who ran from the complex towards the tracks, as described by Pozsgai and Cull. The cell phone evidence shows some communications between Bent and the defendant, 7 such communications, of about 30 seconds each, during the 1½ hours up to about 2:30 p.m., and none thereafter until the murder around 3 p.m., at locations approaching or moving away from the complex. There were three perpetrators as described by Sulyok. It was Graham's opinion that Bent was lying when Bent said McMorris was the shooter and he, Bent, was present. The forensic examination of the scene shows the shell casings were fired by handguns using 9 mm and 10 mm ammunition. These circumstances are an adequate substitute for the absence of a contemporaneous cross-examination of Bent, in the submission of the Crown.
Respectfully, I disagree.
The declaration was not made under oath or affirmation. The conversation was between trusted friends, but another inmate and an undercover officer were in the cell too. This may have caused Bent to understate his role in the murder, or to falsely implicate others in it.
While the conversation was audiorecorded and videorecorded, its quality is very poor. But for a transcript prepared by the TPS, I could not determine what was said. Nor could I determine if the transcript is correct. Nor could I make any meaningful observations about their demeanor. Better in-court technology, such as earphones and higher resolution monitors, may be helpful, but it has not been demonstrated to me.
There is a complete absence of details in the declaration about what Bent, Killa and the defendant did during the shooting. Bent, if Graham is to be believed, has made a series of declarations about the shooting that are materially inconsistent about his own involvement in the murder and McMorris' involvement, if any. At no other time did Bent say the defendant was anything more than present and, at times, Bent never mentioned the defendant at all. Who was present? Was there a fourth person in the car observed by Rumbolt? If so, who was that person? Was that person at the scene of the murder? If so, where? What, if anything, did that person do in connection with the murder? Why did Bent adopt as true Graham's false statement that the defendant was claiming in the community he shot Coombs? If the defendant was the fourth person at the scene, was there any prior conversation with him about Bent's intention to kill Coombs? Why did the four people go to the complex? Did each of them go for a different reason? Did the defendant leave the scene before Coombs was shot? These and other such details about the presence of the defendant in the area of the complex, and his reason for being there, are completely absent. The interpretation of this declaration and the assessment of its reliability is more or less completely dependent on a cross-examination of Bent by the defence.
The declaration by Bent was not a spontaneous one. Graham made up a false story and Bent adopted it as true. The defendant's involvement was also raised by Graham and adopted by Bent, as was the number of perpetrators, 3, and the use of a 10 mm handgun. Much of what is now said by the Crown to implicate the defendant as a party to the murder was suggested by Graham. It was not spontaneously provided by Bent.
Graham's opinion that Bent was lying when Bent said, in effect, the defendant was the shooter, is not admissible in my view. The rules of evidence apply to a declaration that is admissible through the principled exception to the hearsay rule. No witness at trial may comment on the credibility of another witness. See R. v. Brown (1982), 1 C.C.C. (3d) 107 (Alta. C.A.); affirmed R. v. Brown, [1985] 2 S.C.R. 273 and R. v. Henderson (1999), 134 C.C.C. (3d) 131 (Ont. C.A.). That rule applies in this context too. That said, Graham could describe Bent's demeanor and voice tone, which may, in the context of the evidence as a whole, indicate a lie by Bent. And, to the extent that Graham expressly accused Bent of lying, that too may be proven because it is part of the conversation. It is the jury's responsibility to determine the truthfulness of Bent's declarations. This also shows the need for a cross-examination of Bent at trial.
Bent did have a motive to fabricate, to minimize his own involvement in the murder, especially in the presence of another inmate and the undercover officer. A party to a murder who is not a principal offender but rather an aider or abettor of a principal offender may be less responsible in his own mind, although not legally. A person who is merely present may also regard himself as innocent; such a person is not culpable at law. Bent's motivation at all material times, at the time of the shooting and during the conversations with Graham, is a live issue in this trial. This shows the need for a cross-examination of Bent at trial.
The detail in this declaration does not address the nature and extent of the defendant's involvement in the murder. The truthfulness of Bent's admission about his involvement in the Davis murder does not implicate the defendant in the Coombs murder. Bent admitted the Davis murder but he did not identify the other parties to it. The defendant's DNA on the black hoodie found near the tracks is not evidence that the defendant wore it that day, or of how or when the DNA was deposited on the garment, or that it was his hoodie. The presence of the defendant in the valley, as observed by Rumbolt, and in conversation with the defendant at times proximate to the murder, as shown in the cell phone evidence, at most, tends to prove circumstantially his presence during the shooting, but nothing more. The information about the number of perpetrators, three, and the 10 mm handgun, were not spontaneously provided by Bent. Bent's remark about the slowly moving vehicle is of some confirmatory value, but it does not implicate the defendant by itself or with the rest of the evidence. As to the importance of limiting the concept of confirmatory evidence as a sufficient substitute for the absence of contemporaneous cross-examination to those cases where it implicates the defendant in the alleged crime, see Bidesi, 2015 BCSC 140 at para. 77 and Bradshaw, 2015 BCCA 195 at para. 38.
Thus, in the circumstances of this case, including the absence of an oath or affirmation, the poor quality of the audiorecording and videorecorded of the conversation, the absence of important details about the roles of the perpetrators in the murder, the lack of spontaneity by Bent in making the declaration, the motivation of Bent to minimize his own role in the murder and the absence of independent, material evidence that implicates the defendant in the murder, I am not satisfied on a balance of probabilities that there are adequate substitutes for the absence of a contemporaneous cross-examination of Bent. This conclusion applies to both the secondary and tertiary positions of the Crown.
For these reasons, the application by the Crown relating to the declaration by Bent on April 3, 2013 is dismissed.
G. Conclusion
In conclusion, neither the declarations by Bent in July 2012 nor the declarations by Bent on April 3, 2013 are admissible.
May 25, 2016 Trafford J.
THIS IS AN OFFICIAL COPY OF THE RULING THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.