CITATION: R. v. Granados-Arana, 2017 ONSC 2113
COURT FILE NO.: CR-17-7/275
DATE: 20170405
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MAURO GRANADOS-ARANA
Anna R. Tenhouse and Elena Middelkamp, for the Crown
Tyler Smith and Misha Feldman, for the accused
HEARD: April 3, 2017
K.L. Campbell J.:
Pre-Trial Ruling
Prior Discreditable Conduct by the Accused
A. Introduction
[1] The accused, Mauro “Cruz” Granados-Arana, faces an indictment that charges him with first degree murder in connection with the August 24, 2012 killing of George Fawell in Toronto. This ruling considers the admissibility of evidence of “prior discreditable conduct” allegedly committed by the accused. The issues between the parties are relatively narrow, but need to be resolved before trial.
[2] The legal principles governing the admissibility of prior discreditable conduct by the accused, were fully outlined by the Supreme Court of Canada in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. Generally speaking, the court held that this type of circumstantial evidence is presumptively inadmissible because of the potential prejudice that it creates against the accused. First, it creates the danger that the trier of fact might become confused by the multiplicity of the incidents and accord the evidence more weight than it logically deserves. This is known as reasoning prejudice. Second, this type of evidence risks the possibility that the trier of fact will find the accused guilty not for what he or she did on this occasion, but simply because the accused is a bad person. This is known as moral prejudice. However, the court recognized that, in some exceptional circumstances, evidence of prior similar discreditable conduct by the accused may be “so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse” and outweighs the types of prejudice that will be suffered by the accused. See R. v. Handy, at paras. 31-36, 41-55, 64, 76-80, 101.
[3] In assessing the probative value of the tendered evidence of prior discreditable conduct, the court must first identify the issue in question, and then consider the cogency of the evidence on that question by considering the factors said (by the Crown) to connect the evidence to the offence, and the factors said (by the defence) to weaken the inferences sought to be drawn from the evidence by the prosecution. This process requires the trial Judge to assess not only the relevance of the tendered evidence, but also the weight (including the credibility) of the evidence. See R. v. Handy, at paras. 99-107, 111, 134.
[4] In assessing the prejudicial impact of the evidence, the court must “maintain a high awareness” of both the moral and reasoning prejudice. There is no gainsaying the “poisonous potential” of this type of evidence. In considering the moral prejudice of the evidence, the risk is that there will be an “unfocused trial” that will result in a wrongful conviction based upon “prejudice rather than proof,” and based on an inference of guilt from the “discreditable tendencies” of the accused. In considering the reasoning prejudice, the major concern is that the trier of fact will be confused and distracted from its proper focus, aggravated by the consumption of time dealing with allegations of multiple incidents. See R. v. Handy, at paras. 100, 137-146; R. v. Shearing, 2002 SCC 58, at paras. 65-70.
B. Evidence of Drug Trafficking
[5] As I understand the positions of the parties, there is no longer any dispute between them as to what evidence the Crown is entitled to lead in relation to the “drug trafficking activities” of the accused around the time of the killing of the deceased. More particularly, the parties agree that, in light of the fact that all of the key participants and witnesses in this case were heavily involved in the drug subculture in Toronto, in one way or another (i.e. buying, selling, and/or using illicit drugs), and often obtained their drugs from the accused, the jury could not possibly understand the narrative of the events leading up to the killing of the deceased without hearing that the accused was engaged in drug trafficking at the time.
[6] More specifically, the parties are agreed that the Crown can properly lead evidence establishing: (1) that the accused typically trafficked in crack cocaine, and that his drug-purchasing clientele included Lori Crook, Kim Forsyth, Michael Martins and Geraldine Boyer; and (2) that on the night of the killing of the deceased, the accused provided Lori Crook with crack cocaine and other drugs (including Percocet and OxyContin). The details of this evidence will include the fact that the accused did not always receive monetary compensation for his drugs. Sometimes he received other forms of remuneration (i.e. sexual favours and transportation services) as payment for his drugs. The parties are also agreed, however, that the Crown will not elicit, more generally, that the accused was a drug dealer who regularly trafficked in marihuana, Percocet and OxyContin.
[7] I agree with the manner in which the parties have resolved this issue. It strikes me that this agreement between the parties will: (1) fairly permit the jury to understand the contextual circumstances and narrative of the events that led to the death of the deceased; and (2) fairly ensure that defence counsel will be able to fully cross-examine important Crown witnesses as to the nature and scope of their drug use, as that conduct may impact on their credibility and reliability as witnesses. In addition, by their agreement, the parties have evidenced their realistic understanding of the more limited abilities of these witnesses to more carefully tailor their testimony in the presence of the jury. While the jury will need to be fully and properly instructed as to the use they can, and cannot, make of this evidence, I am satisfied that the tendered evidence is admissible. The probative value of the evidence well exceeds the potential prejudicial impact of the evidence.
[8] Moreover, the judicial authorities support the admission of this type of contextual or narrative evidence in these kinds of circumstances. See R. v. MacDonald (1990), 1990 CanLII 11021 (ON CA), 54 C.C.C. (3d) 97 (Ont.C.A.), at pp. 106-107, leave denied, [1991] 1 S.C.R. xi; R. v. Lamirande, 2002 MBCA 41, at paras. 59-99, leave denied, [2002] S.C.C.A. No. 221; R. v. Riley, 2009 CanLII 15451 (ON SC), [2009] O.J. No. 1374 (S.C.J.), at paras. 19-26, 36-66; R. v. Labossière, 2014 MBCA 89, at paras. 20-24, leave denied, [2015] S.C.C.A. No. 33.
C. Evidence of Acts of Violence and Intimidation
[9] The Crown contends that many of the key Crown witnesses, including Ms. Crook, acted in the way that they did in the events leading up to the killing of the deceased as they were afraid of the accused. Initially, the Crown expressed an interest in leading evidence that the accused had previously engaged in acts of violence and intimidation so as to explain why these Crown witnesses were afraid of the accused. However, defence counsel objected to the admission of this evidence on the basis that its admission would be extremely prejudicial to the accused, depicting him as the kind of violent man who might well have killed the deceased.
[10] Following a productive dialogue between the parties and the court, an agreement was reached between the parties that the Crown would lead the Crown witnesses through aspects of their evidence, eliciting their respective explanations for their behavior during the narrative of events leading up to the killing of the deceased (i.e. that they were scared of the accused), but that the Crown will not lead any evidence of the basis for that fear (i.e. the specific acts of alleged prior violence and intimidation by the accused). This agreement was reached on the understanding that defence counsel would not, in cross-examination, suggest that there was no basis for this fear. Of course, it is understood that, if defence counsel raise the issue in cross-examination and suggest that there was no basis for their alleged fear of the accused, this may open the door to the Crown seeking to adduced further evidence on this topic.
[11] Again, this reasonable agreement by the parties strikes me as a fair and sensible resolution of the issue. It permits the Crown to lead some general evidence to explain why some Crown witnesses engaged in certain behavior that might otherwise be difficult to understand. At the same time, however, it avoids the introduction of evidence that might be very prejudicial to the accused, and might suggest that he is just the kind of violent person who might have killed the deceased. Accordingly, I endorse the agreement of the parties as to how they should proceed with respect to this issue. See R v. Sutherland (2001), 2001 CanLII 8545 (ON CA), 156 C.C.C. (3d) 264 (Ont.C.A.), at paras. 19-24, leave denied, [2002] S.C.C.A. No. 21.
D. Evidence of Motive
[12] As it turns out, the main point of controversy between the parties in relation to this pre-trial motion regarding the admissibility of alleged “prior discreditable conduct” on the part of the accused relates to the evidence of motive.
[13] The Crown contends, essentially, that the accused killed the deceased because of his close familial relationship to an individual named Burton Parlee, and because Mr. Parlee and his friends had earlier attacked him. The killing of the deceased, according to the Crown, was how the accused took his revenge on Mr. Parlee and his friends. More particularly, the Crown argues that the evidence will show that the deceased and Mr. Parlee were raised effectively as “brothers” by Mr. Parlee’s mother. Around the time of the killing, Mr. Parlee was a rival drug dealer for the accused. Moreover, approximately a week before the killing, Mr. Parlee was involved, together with some of his friends, in an attack on the accused. During this assault on the accused, Mr. Parlee used some type of “Taser” on the accused. The accused was also punched and beaten, and ended up losing his “Prada” designer sunglasses. The Crown’s theory is, basically, that the accused killed the deceased to teach Mr. Parlee and his friends a “lesson.”
[14] Defence counsel argues that the Crown should not be permitted to lead this evidence because it is prejudicial to the accused. It is prejudicial, defence counsel contends, because: (1) it necessary involves the introduction of evidence suggesting that the accused was engaged in stealing (or receiving stolen property) from Mr. Parlee’s residence, as it was that alleged earlier incident that led to Mr. Parlee and his friends subsequently “jumping” the accused; and (2) it is a speculative theory without sound evidentiary support, and will simply distract the jury from the key issues in the case. Defence counsel argues that this body of motive evidence is simply not sufficiently cogent to justify its admission given its potential prejudicial impact on the accused.
[15] In my view, having reviewed the relevant materials filed on this pre-trial motion, the Crown is entitled to lead this evidence of motive for the consideration of the jury. The probative value of this evidence outweighs its potential prejudicial impact on the accused.
[16] First, and perhaps most importantly, this motive evidence is not evidence of “prior discreditable conduct” on the part of the accused. The Crown does not propose to lead evidence of the earlier incident that led to Mr. Parlee and his friends attacking the accused. More particularly, the Crown does not propose to lead any evidence suggesting that the accused might have been involved in the initial theft or breaking and entering offence. Rather, the Crown proposes only to lead evidence of: (1) the close familial relationship between the deceased and Mr. Parlee; (2) circumstantial evidence suggesting that the accused knew of that close relationship; and (3) the physical attack of the accused by Mr. Parlee and his friends just prior to the killing. Of course, in this attack, the accused was the victim, not the aggressor. He suffered harm from the discreditable conduct of others. The accused did not himself engage in an act of prior discreditable conduct. He did nothing that might lead a reasonable person to conclude that he had done anything discreditable. Accordingly, the general exclusionary rule rendering presumptively inadmissible evidence of prior discreditable conduct by the accused is simply not engaged by this evidence. See R. v. Handy, at para. 34; R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918, at pp. 940-944; S.C. Hill, D.M. Tanovich and L.P. Strezos (ed.), McWilliams’ Canadian Criminal Evidence (2016, 5th ed.), vol. 1, § 10:40.10.10, at p. 10-34; R. v. Johnson, 2010 ONCA 646, at para. 90. In any event, any potential prejudicial impact to the accused from this evidence could only be described as slight. The Crown does not seek to tender the only evidence that might have been prejudicial to the accused.
[17] Second, in my opinion, this theory is not speculative, but rather is based upon evidence that appears, at least at this point, to be available to the Crown for this trial. More particularly, the evidentiary materials filed on this pre-trial motion, which contain the earlier statements and testimony of Lori Crook, reveal that she has earlier indicated as follows:
• She witnessed at least part of the physical attack on the accused by Mr. Parlee and his friends, during which the accused was tasered, punched and lost his glasses.
• On the night of the killing, the accused told Ms. Crook to bring the deceased home with her, where the accused and his friends were waiting, as he was going to “mincemeat” him.
• The accused told Ms. Crook, at some subsequent point in time, that he had killed the deceased to “teach” Burton Parlee and his friends a “lesson.”
[18] In his argument on this point, however, defence counsel noted that, in his statement to the police, Mr. Parlee described the incident involving his attack on the accused somewhat differently. More specifically, Mr. Parlee indicated that he ran up to the accused, but did not really “jump” him, but rather just grabbed him. They then got into a “little bit of a fight,” but when it was over, they agreed that the problem had been “solved and dealt with,” and they would no longer have any “beef” with each other.
[19] This conflict between the anticipated evidence of Lori Crook and the anticipated evidence of Burton Parlee, based on their earlier police statements and preliminary inquiry testimony, cannot, however, properly be resolved on a pre-trial motion, such as the present one, which is based entirely upon a partial documentary record. In other words, it cannot be for me to determine, by way of pre-trial motion, whose evidence should be accepted (and whose should be rejected) based upon any potential premature, preliminary view I might have formed as to which witness may be more or less credible or reliable, especially given that no witness has yet provided any viva voce testimony in this case. Instead, it must be left for the jury to carefully assess the testimony of the witnesses who testify at trial, and determine, what evidence, if any, they accept, based upon all of the evidence ultimately adduced before them during the course of the trial proceedings. Of course, the jury may accept some, all, or none of any witnesses’ testimony. Further, while the Crown will clearly be calling Ms. Crook as a witness in this case, whether or not Mr. Parlee will be a witness at trial is much less clear. As the trial judge in this case, I cannot now effectively reject the testimony of Ms. Crook based, even in part, upon the fact that it is inconsistent with the police statement of an individual who may not even be called as a witness in this case.
[20] Defence counsel also argued that there are inferential gaps in the motive evidence that the Crown proposes to lead before the jury. For example, defence counsel argued that there is no evidence that the accused knew of the close familial relationship between the deceased and Mr. Parlee, and the absence of such evidence undermines the Crown’s theory regarding the accused’s motive to kill the deceased. The Crown contended, on the other hand, that the evidence as to the background of the deceased, Mr. Parlee, their familial relationship, and their historical interactions and relationships with the other participants in the narrative of events, will provide persuasive circumstantial evidence that the accused was, indeed, aware of the close familial relationship between the deceased and Mr. Parlee. In my view, consideration of these arguments must be left for the jury.
[21] Motive is not an essential element of the crime of murder. Accordingly, the Crown need not establish beyond a reasonable doubt that the accused had any motive to kill the deceased. But, there is no doubt as to the potential importance of evidence of motive in alleged cases of murder. The jury in this case will, no doubt, want to consider whether or not the accused had any reason or ulterior motive to want to kill the deceased. Based upon the evidentiary materials that have been provided on this pre-trial motion, I am satisfied that the Crown should be permitted to lead the evidence in support of its theory as to the accused’s alleged motive for the killing of the deceased. In my view, the probative value of this evidence outweighs its potential prejudicial impact. See R. v. Barbour, 1938 CanLII 29 (SCC), [1938] S.C.R. 465, at pp. 469-470; R. v. Lewis, 1979 CanLII 19 (SCC), [1979] 2 S.C.R. 821, at pp. 831-838; R. v. Griffin, 2009 SCC 28, at paras. 60-66; R. v. Roncaioli, 2011 ONCA 378, at para. 43; R. v. Luciano, 2011 ONCA 89, at paras. 99-125.
E. No Suggestions of “Gangs” or “Crews”
[22] Each of the individuals who were trafficking in drugs at the time of the deceased’s death, namely, Mr. Parlee and the accused, had friends and associates who may or may not have assisted them in their respective drug trafficking operations. The parties have agreed that, with respect to the friends and associates of the accused, the Crown will not suggest that they were part of any gang or crew.
[23] I agree with this fair concession by the Crown. Such nomenclature would be apt to simply be prejudicial to the accused.
F. Conclusion
[24] In summary, this ruling now resolves the various issues between the parties, as to what evidence the Crown may lead regarding: (1) the evidence of drug trafficking by the accused; (2) evidence that certain Crown witness may have acted in the way they did as a result of their fear of the accused; and (3) evidence of the accused’s potential motive for the killing of the deceased. This ruling also endorses the agreement of the parties as to how this evidence should be fairly led so as to minimize any potential prejudice to the accused.
[25] It will be evident that this pre-trial ruling is based upon an understanding of the anticipated evidence of the various witnesses based upon earlier police statements and preliminary inquiry testimony. To the extent that the viva voce testimony of these witnesses at the trial of this matter may turn out to be different than anticipated, the parties may ask that relevant aspects of this ruling be revisited.
Kenneth L. Campbell J.
Released: April 5, 2017
CITATION: R. v. Granados-Arana, 2017 ONSC 2113
COURT FILE NO.: CR-17-7/275
DATE: 20170404
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
MAURO GRANADOS-ARANA
Pre-Trial Ruling
Prior Discreditable Conduct
by the Accused
K.L. Campbell J.
Released: April 5, 2017