Court File and Parties

DATE: 20160601 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. 4: The Plea 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

Around 3 p.m. on May 10, 2012, Delano Coombs was shot and killed as he drove his car on a laneway of a housing complex at 4020 Dundas Street West, Toronto. Joel Edwards was a passenger in the car. 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 in front of the car to another one, either beside it or behind it. Coombs was on the ground there. The perpetrator shot him in the head. He died. That perpetrator fled from the scene, jumped over a fence near the railroad tracks, removed the black hoodie he was wearing during the homicide, dropped the hoodie as he crossed the tracks and ran into the residential area on the other side of the tracks.

It is alleged by the Crown that three young, black men fired handguns at the car. The other two perpetrators fled from the scene in another direction. None of the perpetrators can be identified by any of the eyewitnesses to the shooting. However, Jerome Bent and Dellan McMorris were arrested in September 2013 and charged with first degree murder. The third perpetrator has not been arrested.

On July 15, 2015, Bent entered a plea of guilty to the charge of first degree murder with the assistance of counsel. He was sentenced to life imprisonment without eligibility for parole for 25 years.

Bent is a witness for the Crown in this trial. It is expected that he will decline to swear an oath or make an affirmation when he is called to testify. A judge's order compelling him to testify has been issued by the Court. Bent declined to testify when he was called as a witness at the defendant's preliminary hearing in May 2015.

This is an application by the Crown for an order admitting into evidence the audiorecording of the plea by Bent to prove its substance. Reference was made to R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720 in its historical context, including R. v. Khan, [1990] 2 S.C.R. 531, R. v. Smith, [1992] 2 S.C.R. 915, R. v. B.(K.G.), [1993] 1 S.C.R. 740, 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, [2006] 2 S.C.R. 787 and R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298.

The defence is opposed to the admissibility of the plea, on the basis of R. v. Simpson, [1988] 1 S.C.R. 3 and other like authorities – a plea of guilty by an accomplice is not admissible in the subsequent trial of the co-accused except to attack the credibility of the witness-accomplice.

B. The Circumstances of the Case

B.1 Introduction

Let me now set out the circumstances of the plea, and some other aspects of the case relied on by counsel.

B.2 The Plea by Bent

On July 15, 2015, Bent appeared before McMahon J. with his counsel to enter a plea of guilty to the charge of first degree murder relating to the shooting of Coombs on May 10, 2012 and, further, to the included offence of second degree murder relating to the shooting of Daniel Davis on July 19, 2012. These pleas were the result of the resolution discussions between the Crown and the defence relating to those charges of first degree murder, and another charge of attempted murder of two other young, black men on September 11, 2012. A plea to first degree murder and a plea to second degree murder, with a joint submission of concurrent life sentences, with parole ineligibility periods of 25 years and 15 years, respectively, and the withdrawal of the charge of attempted murder, was the agreement of counsel. It had been discussed with McMahon J. during the pretrial conferences. Defence counsel advised the court of her expectation that Bent would plead guilty. The dialogue on the record with the court was as follows, insofar as it related to the Coombs plea and the Davis plea:

The Court: And in relation to the matter, you've had an opportunity to conduct a plea inquiry with Mr. Bent?

Ms. Lam: A comprehensive plea inquiry pursuant to section 606, Your Honour, was conducted on this past Sunday, July the 12th. I think it would be probably wise to ask Mr. Bent if he understands the consequences of what ....

The Court: Absolutely, we're doing a plea inquiry with Mr. Bent in a moment, but I just want to make sure that you, as experienced counsel, have had that opportunity to go through it. And in a minute, Mr. Bent, I'm going to ask you some questions. I just ask the Crown in relation to the count, so, basically the count of first-degree murder would be in relation to the killing of Mr. Delano Coombs.

Mr. Clarke: That's correct, Your Honour.

The Court: And the second-degree murder would be in relation to the gentleman of Daniel Davis.

Mr. Clarke: That's correct, Your Honour. Count one and two.

The Court: So Mr. Bent, sir, would you be kind enough to stand up? So Mr. Bent, anybody who wishes to plead guilty, I always want to make sure that they understand all of the consequences of what happens when they plead guilty.

First of all, sir, you realize that you have an absolute right to have a trial on these charges and require the Crown Attorney to try to prove its case beyond a reasonable doubt. You understand you have that right?

Mr. Bent: Yes, Your Honour.

The Court: You understand, sir, by pleading guilty, you are giving up your right to have a trial on a count of first-degree murder and a count of second-degree murder?

Mr. Bent: Yes, Your Honour.

The Court: What is also important, sir, if a person is going to plead guilty, they do so voluntarily. You cannot plead guilty because you are being pressured by your family, your friends, your lawyer, the Crown Attorney, the police, or the judge. Is anyone pressuring you to enter pleas of guilty to the counts of first-degree murder and second-degree murder?

Mr. Bent: Not at all, Your Honour.

The Court: All right. You are doing so voluntarily?

Mr. Bent: Yes, Your Honour.

The Court: All right. Also, sir, in relation to the counts under the Criminal Code, I am obliged by law to sentence you on the count of first-degree murder to life imprisonment and that you'd have no eligibility to apply for parole until you've served 25 years from the date of your arrest. Do you understand that?

Mr. Bent: Yes, Your Honour.

The Court: All right. And far as to plead guilty to first-degree murder, you have to be able -- the Crown Attorney is going to read in what he said happened. I am going to then ask you if that's what happened. Do you understand that?

Mr. Bent: Yes, Your Honour.

The Court: All right. And in the circumstances you can only admit the facts of things that actually happened. You can't admit to something that didn't happen just to get the case over with or just because you like the position the Crown's taking in relation to the plea. Do you understand that?

Mr. Bent: Yes, Your Honour.

The Court: All right. And to plead guilty to first-degree murder of Mr. Coombs, you have to be prepared to admit that not only did you intentionally kill him, but that you, prior to that, had planned and deliberated on killing him. Do you understand that?

Mr. Bent: Yes, Your Honour.

The Court: And knowing all that, sir, you wish to plead guilty to the count of first-degree murder?

Mr. Bent: Yes, Your Honour.

The Court: Well, Mr. Bent, I am satisfied that you fully appreciate all of the consequences of entering your pleas of guilty. You've had the benefit of counsel and had a significant opportunity to consider your decision, and you have an absolute right to plead guilty should you wish to these offences. As such, in relation to counts one in the indictment, if Mr. Bent can be arraigned on those two charges at this time…

The Registrar: The indictment reads as follows, Jerome Bent stands charged that he on our about the l0th day of May, in the year 2012, in the City of Toronto, in the Toronto Region did commit first-degree murder on the person of Delano Coombs contrary to section 235(1) of the Criminal Code.

Upon this indictment, Mr. Bent, how, sir, do you plead to count one?

Ms. Lam: Mr. Bent pleads guilty.

The Court: Is that correct, sir? Are you pleading guilty to first-degree murder?

Mr. Bent: Yes, Your Honour.

The Court: All right. Then, sir, then in light of the fact that you pleaded guilty to the count of first-degree murder, I'm going to ask you to have a seat. The Crown Attorney is going to read in what he says happened. I'll then ask your counsel if that's what's substantially correct, and then I'll ask you, sir, if that's what happened. Okay?

Mr. Bent: All right.

Ms. Lam: Thank you very much, Your Honour. You should also know that Mr. Bent has had the opportunity to review the agreed statement of facts as drafted.

The Court: Okay. That's great that you've gone over it, but we'll have it read in open court, and I'll ask you those questions. Yes, sir?

Mr. Clarke: Thank you, Your Honour. Your Honour, "The charges before the Court arise out of a Toronto Police Service investigation called Project Sugar Horse.

A police agent, Jermaine Graham, was recruited during the Project Sugar Horse investigation. Mr. Graham was a known associate of Jerome Bent, the accused before the Court. Among other forms of assistance, Mr. Graham agreed to wear a body pack after the police obtained an order authorizing a one-party consent intercept as an investigative tool in this project.

The following facts form the basis for Jerome Bent's guilty plea to one count of first-degree murder.

On May l0th, 2012 at approximately 3:00 p.m., Delano Coombs was driving a grey Toyota Camry in a housing complex located at 4020 Dundas Street West in Toronto.

As Mr. Coombs was driving down a laneway in the complex, three males, all of whom had been standing at the foot of an outdoor stairwell that led down into the laneway emerged from the stairwell. Mr. Bent was one of the three males. He was armed with a firearm. Mr. Bent, along with at least one other male, began to shoot at the windshield of the car. Mr. Coombs abandoned the car and attempted to escape, but one of the three suspects walked around the car, stood over Mr. Coombs and shot at him several more times at close range. Mr. Edwards managed to escape from the vehicle unharmed.

All three males fled the scene. One of the males fled west towards a set of train tracks near the complex, jumped over a fence and ran across the tracks, discarding the black hooded sweatshirt that he had been wearing. The black hooded sweatshirt was later found by the police after several eyewitnesses reported that they saw a person in a black hooded sweatshirt leave the scene in that direction.

Moments after the shooting occurred, police attended the scene in response to a 911 call received by the Toronto Police Services. Police service officers found the victim of the shooting, Delano Coombs, lying on the ground in this laneway at the complex. He had no vital signs. Mr. Coombs was rushed to St. Michael's Hospital where he was pronounced dead. An autopsy report later confirmed that the cause of death was multiple gunshot wounds to the body and one gunshot wound to Mr. Coombs' head.

At the scene, police found a grey Toyota Camry that had struck a post in the laneway and had come to rest. It had bullet holes in its front windshield and damage to its front end. One ten- millimetre bullet casing and numerous nine-millimetre bullet casings were found in the laneway in the area of Mr. Coombs' body. A nine-millimetre projectile was recovered from Mr. Coombs' lung during the autopsy.

On April 3rd, 2013, Jermaine Graham, a police agent in Project Sugar Horse investigation engaged Mr. Bent in a conversation that was intercepted pursuant to judicial authorization. During the course of the recorded conversation, Mr. Bent admitted to committing the murder of Mr. Coombs and described the incident in detail. He admitted that he used a Glock 17 handgun. He advised Mr. Graham that he had been waiting in the stairwell for Mr. Coombs. A Glock 17 handgun fires nine-millimetre bullets.

On October 18", 2013, Mr. Bent's girlfriend, Amanda Rumbolt, provided a sworn videotape statement to police. She advised that on the day of the murder she drove Mr. Bent at his request to 4070 Old Dundas Road, just south of the housing complex at 4020 Dundas Street West. There, Mr. Bent met with at least two other males. Mr. Bent told Ms. Rumbolt to wait there for him and advised that he had to 'go do something.'

Mr. Bent returned alone to Ms. Rumbolt's car some time later. Ms. Rumbolt recalled hearing sirens in the area prior to his return. Mr. Bent told Ms. Rumbolt that he 'was just dealing with something' and instructed her to drive them both home.

Those are the facts, Your Honour.

The Court: Okay, so Counsel, on behalf of your client, are those facts substantially correct?

Ms. Lam: Yes, they are, Your Honour.

The Court: Okay. And Mr. Bent, sir, would you be kind enough to stand up? I know you've gone over those facts, but is that what happened?

Mr. Bent: Yes, Your Honour.

The Court: All right. In light of the fact that you have admitted that you've planned and deliberated to kill the individual on the first count, Mr. Coombs, I find you guilty of first- degree murder and register conviction for first-degree murder.

These, then, were the circumstances of the plea to first degree murder.

B.3 The Other Circumstances

The other circumstances of the case are described in Ruling No. 2 -- The Admissibility of the Declarations by Bent, and will not be repeated in this ruling.

B.4 Conclusion

These, then, are the circumstances of the case, as they relate to this application.

C. The Legal Framework of the Application

Hearsay statements are presumptively inadmissible. See Blackman.

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 Khan, Smith, U.(F.J.), Hawkins, Khelawon and Youvarajah. 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 videorecording;
• 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.

D. The Legal Analysis of the Case

What, then, is the result of this application?

It is necessary to begin with a clear statement of what is and what is not tendered by the Crown. It seeks the permission of the court to use the substance of the plea itself as a part of its case. It does not seek to use any portion of the agreed statement of facts ("ASF") relied upon by the Crown in support of the plea by Bent and acknowledged by both Bent and his counsel to be "…what happened…" or "…substantially correct…", respectively. This application does not seek an order permitting the substantive use of the plea to the Davis homicide or the ASF relating to it. It relates exclusively to the Bent plea of guilty to the charge of first degree murder arising from the shooting of Coombs on May 10, 2012. If accepted by the jury as ultimately reliable, in the context of the evidence as a whole, it proves that Bent was one of the persons who killed Coombs in a planned and deliberate "murder", either as a principal offender or as an aider or abettor of a principal offender.

The position of the defence is that Canadian courts at all levels have repeatedly held that a plea of guilty by one person accused of a crime is inadmissible at a subsequent trial of another person charged with the crime except for the limited purpose of assessing the credibility of the person who entered the plea and who is a witness at the subsequent trial. Reference was made to Simpson, R. v. Caron, [1971] O.J. No. 480, R. v. Ellis, [1972] 2 O.R. 306, R. v. Chow, 2011 BCCA 317, [2011] B.C.J. No. 1454, R. v. C.(P.), 2015 ONCA 10, [2015] O.J. No. 262 and R. v. G.(C.), 2016 ONCA 379, [2016] O.J. No. 2312. Youvarajah cannot be used to provide for the substantive admissibility of the plea in any case. That case related to the admissibility of the ASF under the principled exception to the hearsay rule. A plea of guilty unlike an ASF is not a statement. The application should be dismissed for these reasons, in the submission of the defence.

Respectfully, I disagree.

The application succeeds in that Bent's plea of guilty to first degree murder in connection with the death of Delano Coombs, complemented by some parts of the ASF, meets the test of threshold reliability under Khelawon and other like authorities since then. The inclusion of some parts of the ASF, and the editing of some other parts of the ASF, is necessary to ensure the fairness of the trial, 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.

Let me elaborate on that conclusion.

First, in my view a plea of guilty is an admission by a person of the commission of a crime, as arraigned. It is, contrary to the defence submission on this issue, a prior statement by that person. Where it is tendered in a subsequent proceeding to prove its substance as relevant, material and otherwise admissible evidence relating to a live issue in the subsequent proceeding, it is hearsay unless it comes within the principled exception to the rule. In this case, the complicity of Bent in the death of Coombs as a party to the alleged first degree murder is a live issue and is part of the Crown's case against the defendant.

Second, the plea itself, that is, without any reference to the ASF, is vague and otherwise imprecise, given the scope of the definition of parties under s. 21 of the Code. As there is no eyewitness testimony identifying the perpetrators of the alleged offence, the plea, by itself and in the context of the evidence as a whole, could be evidence of the commission of first degree murder by Bent as a principal offender or as an aider or abettor of a principal offender who was not at the scene of the crime. The plea may lead to speculation by the jury. That is the antithesis of the judicial function. It would tend to undermine the public interest in the reliability of the fact-finding processes of the trial and the right of the defence to challenge the Crown's case.

Third, the probative value of the plea may be augmented by some parts of the ASF, assuming the plea and the parts meet the test of threshold reliability. Editing of the ASF must be done so as to delete:

• the facts that are irrelevant, such as:
  • the project of the TPS that led to the charge of first degree murder against Bent and the defendant;
  • the use of Jermaine Graham as an agent of the TPS in the project; and
  • the intercepted conversation between Graham and Bent on April 3, 2013;
• the testimony of other witnesses, such as Amanda Rumbolt;
• the description of the circumstances of the crime, in the form of the anticipated testimony of the eyewitnesses to the death of Coombs; and
• the investigation by the TPS, including the investigation of the crime scene by the FIS.

Some of the other agreed facts are hearsay and, as such, could not be part of Bent's testimony, if he was a witness. The rules of evidence apply to a declaration as well. Irrelevant information in the declaration, and all other information in the declaration that is not admissible, must be edited.

However, in my view, the editing should also exclude those facts that would require a cross-examination of Bent at trial because there are insufficient substitutes for the absence of such a cross-examination on those aspects of the ASF in the circumstances of the case. In other words, some of the ASF meets the requirement of "threshold reliability" and some of the ASF does not. The former parts add to the reliability of the fact-finding processes of the trial -- Bent was present during the shooting and Bent was a shooter. The latter parts detract from not only that reliability but also the fairness of the defendant's trial -- three males waited for Coombs at the stairwell and emerged when the car driven by the deceased approached them. This approach, editing, assumes there is a substantial degree of "threshold reliability", but that it is not complete for all aspects of the ASF. The incomplete does not taint the complete in this case. Severance can be in the interests of justice.

Fourth, the "threshold reliability" of the plea and the edited ASF is proven through the immediate circumstances of the plea and existence of adequate substitutes for the absence of contemporaneous cross-examination. Those substitutes include the testimony of the eyewitnesses and the work of the FIS in this case. One must note that the plea and the ASF do not implicate the defendant or anyone else but Bent by name. Bent did not shift responsibility to anyone else, as occurred in Youvarajah. Bent was represented by competent counsel through the resolution discussions with the Crown Attorney and the related pre-trial conferences. The ASF was prepared by counsel, and reviewed with Bent by his counsel in preparation for the plea. He agreed with it. The defence counsel conducted a comprehensive plea inquiry under s. 606 of the Code with Bent, to her satisfaction. An extensive plea inquiry was also conducted by McMahon J. before the plea was entered. It included references to the right to a trial where the Crown would be required to prove its case beyond a reasonable doubt, the voluntariness of the plea, the parole ineligibility period of 25 years upon a conviction for first degree murder, the mandatory sentence of life imprisonment, the importance of what actually happened, the definition of first degree murder and the opportunity of Bent to consider the possibility of a plea with the assistance of counsel. Bent has not filed an appeal and, in particular, there is no suggestion, expressed or implied, of any ineffective assistance by his counsel. She is a well-regarded lawyer in the legal community. As Karakatsanis J. said in Youvarajah at paras. 57-59:

In the circumstances of this case, the formality of the process and the involvement of counsel only provide comfort in respect of D.S.'s statements admitting his own culpability for the murder.

D.S.'s guilty plea was, indeed, a solemn occasion. The ASF was drafted by the Crown and defence counsel. It was signed and acknowledged in open court by both D.S. and his defence counsel at the time D.S. pleaded guilty to second degree murder. D.S. was represented by counsel when he endorsed the ASF and it formed the basis upon which the judge entered a conviction for second degree murder and fashioned his sentence.

To the extent that the ASF incriminated D.S., was against his interests, and admitted his own culpability in court, these circumstances provide a compelling inference that those statements were in fact reliable in establishing D.S.'s criminal conduct. However, the underlying rationale for the admissibility of admissions as against the party making them falls away when they are sought to be used against a third party.

Those remarks apply to the circumstances of this case in my view, given the editing of the ASF. Shortly I will expressly state what is left of the ASF.

Fifth, the defence placed particular emphasis on the G.(C.), decision of the Court of Appeal in taking its position. In that case, the court held that the learned trial judge erred when she used a co-accused's plea of guilty to a charge of sexual assault to confirm the reliability of the complainant's testimony that she was sexually assaulted not only by the co-accused but the defendant as well. The co-accused was not a witness at trial. The plea of guilty was an admitted fact. At para. 7, the court said in its endorsement:

This was an error. The trial judge also erred in using K.I.'s guilty plea to corroborate the evidence of the complainant. Had K.I. been available to be called as a witness -- which he was not, as he died before the appellant's trial -- his guilty plea would have been relevant to his credibility and to his own involvement in the sexual assault. However, a guilty plea by a co-accused, not called at trial, cannot be used to support the Crown's case.

That, in the submission of the defence, is a complete answer to this application.

Respectfully, I disagree.

Endorsements by the Court of Appeal are binding, but the interpretation and application of them must be undertaken with care. See R. v. Singh, 2014 ONCA 293 at para. 12. Their primary purpose is to merely give a decision to the parties before the court who, having been present in court, will understand the court's reasoning. See also R. v. Timminco Ltd. (2001), 54 O.R. (3d) 21 at para. 36 where the court said:

Reasons of this court given by "endorsement" are mainly directed to the immediate parties. Endorsements, like all judgments of this court, have precedential value but they should not be construed to support broad overarching principles which are not specifically addressed in them.

In my view, the court in G.(C.) was not stating as a "…broad overarching principle…" that a plea of guilty cannot, as a matter of law, come within the principled exception to the hearsay rule. Youvarajah is a binding decision of the Supreme Court of Canada and its application to the circumstances of a case must be determined in its own context. See R. v. Kanagalingam, 2014 ONCA 727 at paras. 44-46. See also R. v. Duong, [1998] O.J. No. 1681 at para. 46 where Doherty J.A., in connection with a prosecution of a charge of accessory after the fact, said at para. 46:

I also think Vinette is supportable on a principled approach to evidence which could be characterized as hearsay. A previous judicial determination of guilt beyond a reasonable doubt, whether based on a plea, or following a full trial is in my view, sufficiently reliable to warrant its admissibility in a subsequent proceeding as some evidence of the facts essential to the finding of guilt. There is also a practical necessity to receive such evidence since a full reprise of the principal's trial in a proceeding to which the principal was not a party would pose immense practical difficulties: see Criminal Law Revision Committee 11th Report (Evidence), 1972, at pp. 128-29.

For a contrary view, see Dambrot J. in R. v. Riley, [2009] O.J. No. 1375 at paras. 9-10. The emergence of the principled exception to the hearsay rule and its ramifications for other well-established authorities remains to be determined by the appellate courts.

Sixth, Bent was motivated to plead guilty to second degree murder in connection with the shooting of Davis, and to obtain the joint submission of counsel that the two periods of parole ineligibility, for first degree murder and second degree murder, be concurrent. However, in my view, that motivation would not lead him to falsely admit to the first degree murder of Coombs. Obtaining the concession by the Crown on the Davis murder and the withdrawal of the charge of attempted murder would not be at the price of a wrongful conviction for first degree murder on the Coombs murder. It is the threshold reliability of the plea to the charge of first degree murder that is the core of this application. The motivation of Bent, as summarized, does not require a cross-examination of Bent at trial to care for the defence on the issue of the ultimate reliability of the plea to first degree murder. There are adequate substitutes for it, as summarized earlier.

E. Conclusion

In conclusion, the application succeeds, in part.

The Crown may tender as part of its case in-chief an edited audiorecording of the plea of guilty by Bent before McMahon J. on July 15, 2015 and/or an edited transcript of the proceedings as follows:

The Court: And in relation to the matter, you've had an opportunity to conduct a plea inquiry with Mr. Bent?

Ms. Lam: A comprehensive plea inquiry pursuant to section 606, Your Honour, was conducted on this past Sunday, July the 12th. I think it would be probably wise to ask Mr. Bent if he understands the consequences of what ....

The Court: Absolutely, we're doing a plea inquiry with Mr. Bent in a moment, but I just want to make sure that you, as experienced counsel, have had that opportunity to go through it. And in a minute, Mr. Bent, I'm going to ask you some questions. I just ask the Crown … so, basically, the count of first-degree murder would be in relation to the killing of Mr. Delano Coombs?

Mr. Clarke: That's correct, Your Honour.

The Court: So Mr. Bent, sir, would you be kind enough to stand up? So Mr. Bent, anybody who wishes to plead guilty, I always want to make sure that they understand all of the consequences of what happens when they plead guilty.

First of all, sir, you realize that you have an absolute right to have a trial on this charge and require the Crown Attorney to try to prove its case beyond a reasonable doubt? You understand you have that right?

Mr. Bent: Yes, Your Honour.

The Court: You understand, sir, by pleading guilty, you are giving up your right to have a trial on a count of first-degree murder?

Mr. Bent: Yes, Your Honour.

The Court: What is also important, sir, if a person is going to plead guilty, they do so voluntarily. You cannot plead guilty because you are being pressured by your family, your friends, your lawyer, the Crown Attorney, the police, or the judge. Is anyone pressuring you to enter a plea of guilty to first-degree murder?

Mr. Bent: Not at all, Your Honour.

The Court: All right. You are doing so voluntarily?

Mr. Bent: Yes, Your Honour.

The Court: All right. Also, sir, … under the Criminal Code, I am obliged by law to sentence you on the count of first-degree murder to life imprisonment and that you'd have no eligibility to apply for parole until you've served 25 years from the date of your arrest. Do you understand that?

Mr. Bent: Yes, Your Honour.

The Court: All right. To plead guilty to first-degree murder, you have to be able -- the Crown Attorney is going to read in what he said happened. I am going to then ask you if that's what happened. Do you understand that?

Mr. Bent: Yes, Your Honour.

The Court: All right. And in the circumstances you can only admit the facts of things that actually happened. You can't admit to something that didn't happen just to get the case over with or just because you like the position the Crown's taking in relation to the plea. Do you understand that?

Mr. Bent: Yes, Your Honour.

The Court: All right. And to plead guilty to first-degree murder of Mr. Coombs, you have to be prepared to admit that not only did you intentionally kill him, but that you, prior to that, had planned and deliberated on killing him. Do you understand that?

Mr. Bent: Yes, Your Honour.

The Court: And knowing all that, sir, you wish to plead guilty to the count of first-degree murder?

Mr. Bent: Yes, Your Honour.

The Court: Well, Mr. Bent, I am satisfied that you fully appreciate all of the consequences of entering your plea of guilty. You've had the benefit of counsel and had a significant opportunity to consider your decision, and you have an absolute right to plead guilty should you wish ... As such, if Mr. Bent can be arraigned … at this time…

The Registrar: The indictment reads as follows, Jerome Bent stands charged that he on our about the l0th day of May, in the year 2012, in the City of Toronto, in the Toronto Region did commit first-degree murder on the person of Delano Coombs contrary to section 235(1) of the Criminal Code.

Upon this indictment, Mr. Bent, how, sir, do you plead?

Ms. Lam: Mr. Bent pleads guilty.

The Court: Is that correct, sir? Are you pleading guilty to first-degree murder?

Mr. Bent: Yes, Your Honour.

The Court: All right. Then, sir, then in light of the fact that you pleaded guilty to the count of first-degree murder, I'm going to ask you to have a seat. The Crown Attorney is going to read in what he says happened. I'll then ask your counsel if that's what's substantially correct, and then I'll ask you, sir, if that's what happened. Okay?

Mr. Bent: All right.

Ms. Lam: Thank you very much, Your Honour. You should also know that Mr. Bent has had the opportunity to review the agreed statement of facts as drafted.

The Court: Okay. That's great that you've gone over it, but we'll have it read in open court, and I'll ask you those questions. Yes, sir?

Mr. Clarke: Thank you, Your Honour.

On May l0th, 2012 at approximately 3:00 p.m., Delano Coombs was driving a grey Toyota Camry in a housing complex located at 4020 Dundas Street West in Toronto. He was accompanied by Joel Edwards. He was armed with a firearm, a Glock 17 handgun. He waited near a stairwell. Bent along with at least one other male, began to shoot at the windshield of the car. Mr. Coombs abandoned the car and attempted to escape, but one of the suspects walked around the car, stood over Mr. Coombs and shot at him several more times at close range. Mr. Edwards managed to escape from the vehicle unharmed.

Those are the facts, Your Honour.

The Court: Okay, so Counsel, on behalf of your client, are those facts substantially correct?

Ms. Lam: Yes, they are, Your Honour.

The Court: Okay. And Mr. Bent, sir, would you be kind enough to stand up? I know you've gone over those facts, but is that what happened?

Mr. Bent: Yes, Your Honour.

The Court: All right. In light of the fact that you have admitted that you've planned and deliberated to kill the individual on the first count, Mr. Coombs, I find you guilty of first- degree murder and register conviction for first-degree murder.

Counsel may seek the direction of the court about the presentation of this evidence to the jury.

This package of evidence, the edited audiorecording of the plea of guilty to first degree murder on July 15, 2015 and the related edited transcript of the ASF, will serve the legitimate interest of the public in the truth-seeking capacity of this trial and the right of the defendant to make full answer and defence.

June 1, 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.