CITATION: R. v. Chambers and Warner, 2017 ONSC 5142

COURT FILE NO.: CR-17-0085

DATE: 2017-09-07

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

• and -

TYRONE CHAMBERS & JOSHUA WARNER

Respondents

COUNSEL: Tyler Shuster and Gordon Akilie, for the Crown Richard Litkowski and Jessica Zita, for the Respondent Tyrone Chambers Devin Bains and Pamela Zbarsky, for the Respondent Joshua Warner

HEARD: August 21-24, 2017

REASONS FOR JUDGMENT ON PRE-TRIAL MOTIONS

Justice Skarica

BACKGROUND

[1] On November 15, 2013, after a two-month trial, the two accused were found guilty by a jury of one count of murder regarding Brandon Musgrave (Musgrave) and two counts of aggravated assault regarding the surviving victims, Ted Tsibu-Darkoh (Tsibu-Darkoh) and Kauner Chinambu (Chinambu).

[2] Counsel for Joshua Warner (Warner), in his address to the jury, conceded that his client had shot one of the surviving victims, Tsibu-Darkoh.

[3] On September 16, 2016, the Ontario Court of Appeal quashed all of the convictions for the accused Tyrone Chambers (Chambers), and quashed the murder conviction and aggravated assault conviction regarding Chinambu for the accused Warner. Warner’s aggravated assault conviction regarding Tsibu-Darkoh was not quashed and remains intact. The Court of Appeal ordered new trials for the quashed convictions.

[4] A new trial is set for October 2017 and the parties have brought a series of pre-trial motions.

ISSUES

[5] The major issues to be resolved by the pre-trial motions are as follows:

1. The admissibility and use of post-offence conduct.
2. The admissibility of a photo of the deceased.
3. The admissibility of a lead fragment found at the crime scene.
4. The admissibility of ammunition located at 327 Queen Victoria Drive, Hamilton.
5. The admissibility of black socks located at 181 Herkimer Street, Hamilton.
6. The application by both accused to sit outside the prisoner’s dock during the trial.

BASIC FACTS

[6] The basic facts are outlined in the Court of Appeal judgment reported at R. v. Chambers, 2016 ONCA 684, 342 C.C.C. (3d) 285, at paras. 6-28 as follows:

2. BACKGROUND

6 As I would order a new trial, I will provide only a brief summary of the pertinent evidence.

7 The shooting happened at a cover-charge house party, which began during the evening of March 12, 2010, in Hamilton, Ontario. The party was hosted by several students at Columbia International College ("CIC") and most of the guests were CIC students. However, the party had been advertised on Facebook and was open to the public.

8 Warner and Chambers went to the party together. They were not students at CIC. Chambers testified that he had known Warner for almost ten years but said that they were not close friends.

9 Both Chambers and Warner were carrying loaded handguns. Both were subject to firearms prohibitions.

10 Around 1:00 a.m. on March 13, Chambers got into an argument with Wesley Adi, who was playing music from his iPod into the speaker system. Chambers asked Adi to change the music but Adi declined. The argument escalated and Chambers suggested that they "take it outside".

11 One of the hosts, Yussuf Yanni, testified that he intervened in the argument and tried to make Chambers leave the house. Chambers told Yanni to "shut up", which caused him to challenge Chambers as to his authority to tell Yanni what to do.

12 Chambers pulled out something covered in a black sock which, according to several witnesses, he gripped like a gun. Some witnesses described Chambers saying "I could end this fucking party right now". Adi testified that Yanni then challenged Chambers to shoot him.

13 Tsibu-Darkoh testified that Warner was standing beside Chambers as this was unfolding. Another witness said that Warner moved over to Chambers' side during the argument.

14 Warner pulled out his gun shortly after Chambers.

15 By then, Chambers, Warner, Musgrave, Tsibu-Darkoh, Chinambu, and several other guests were in or at the threshold of the kitchen. Chambers gave Chinambu a harsh look and, in response, Chinambu challenged Chambers verbally. Chinambu leaned off the kitchen counter, planning to make a move.

16 Three shots were fired in the kitchen. Chinambu was shot in the chest and Musgrave in the head. The shot that hit Musgrave was fatal. The third shot hit Tsibu-Darkoh in the arm.

17 The forensic evidence confirmed that all three victims were shot by .22-calibre Sniper Subsonic bullets. A firearms expert who testified at trial could not say if all three bullets had been fired from the same gun. Chambers claimed that he was carrying a .380-calibre weapon on the night of the party. He also testified that Warner had a .22-calibre weapon and that Chambers had given him bullets for that weapon a couple of weeks before the shooting.

18 Chambers and Warner fled together. Chambers testified that he hid his gun in a bush at the side of a house on the south side of Canada Street. He did not know what Warner did with his gun.

19 Chambers and Warner parted ways at a GO Station.

20 Chambers' brother picked him up in a cab and they went to Chambers' brother's "hang out spot", where Chambers spent the night. According to Chambers, he told his brother that he had gotten into an argument at a party and that Warner had "just turned around and started shooting everybody."

21 Chambers spent the next two nights at the residence he shared with his girlfriend. During that period, he learned from Warner that one of the persons shot was unlikely to survive. According to Chambers, during that period he also spoke to a lawyer in Toronto, whom he found on the Internet but whose name he could not remember. Chambers testified that the lawyer told him that he would not be able to clear his name even though Chambers told him that he had not done anything. Chambers fled to Halifax, where he was arrested in April 2010.

22 After parting ways with Chambers, Warner left the GO Station and waited for his regular cabbie to pick him up and take him to his grandmother's house. He lay in the back seat of the cab. At first he told the cabbie that he was tired but later he said to the cabbie that he did not want the police to see him. The cabbie had heard about the shooting at the party and asked Warner if he had been involved. Warner told the cabbie that Chambers was the shooter but that he was worried because he had been with Chambers at the time.

23 Warner fled to Guyana. He was arrested there and returned to Canada in April 2011.

24 About a month after the shooting, someone found a .22-calibre revolver near a house on Canada Street. Chambers testified that this was not the handgun he was carrying. He also claimed that the gun recovered from Canada Street looked like a gun Warner owned and had shown him a few weeks before the shooting.

3. THE TRIAL

25 Warner and Chambers were charged with second degree murder of Musgrave and aggravated assaults on Tsibu-Darkoh and Chinambu. They were tried together. The trial lasted 24 days.

26 Most of the witnesses were not able to say who shot the three victims. However, Chambers testified and said that he did not fire any shots and did not know that Warner had a gun with him. Chambers said he drew his gun to defend himself against a crowd of people aggressively gathering around him.

27 Warner did not testify. However, in his closing address to the jury, Warner's counsel conceded that Warner had shot Tsibu-Darkoh.

28 The jury deliberated for approximately 16 hours over two days before returning a verdict. Both appellants were found guilty on all counts.

ISSUE #1 – POST-OFFENCE CONDUCT

ADDITIONAL FACTS

[7] Additional evidence relevant to the post-offence conduct issue was presented by the parties. This evidence can be summarized as follows:

a. Ashley Bouchard (A.B.) testified that two men came out of the residence and headed toward Main Street. The first man (Warner) dropped the gun at the bottom of the stairs. He then turned around to the second man (Chambers) and told him to pick it up. The second man then picked up the gun: see Crown’s Witness Summaries – Post-Offence Conduct and Chambers, at para. 83.

b. Nicole Hamilton (Hamilton) saw “two guys” run out of the house. She saw the guy (Chambers) that was behind the guy in front (Warner) drop the gun. The guy who dropped the gun picked it up and both men walked towards the mountain: see Crown’s Witness Summaries – Post-Offence Conduct and Chambers, at para. 83.

c. Chambers testified that his .380 gun dropped out of a sock it was encased in and the gun fell on the sidewalk. He bent down and picked it up and just kept running: see Warner’s Transcript Excerpts, Tab 1 and Chambers, at para. 83.

d. Adnan Yousif (Yousif) is a cab driver who knows Warner as “Brix.” Yousif testified that Brix called him and told Yousif to “Come and pick us up.” In cross-examination, Yousif testified that Brix said, “Come and get us, not come get me.” Yousif could not pick them up due to the shooting in the area. One or two hours later, Yousif heard from Brix and picked him up at Herkimer Street. Brix/Warner came out of the bushes, entered the taxi and lay down in the back seat. Warner said he didn’t want the police to see him. Warner denied being involved in the shooting, stating, “It’s not me, but ‘Mischief.’” (Mischief is a nickname for Chambers.) Yousif asked Warner why he was worried and Warner stated, “Because I’m with him.” Warner no longer had his backpack with him and stated that maybe he forgot it in the bushes: see Crown’s Witness Summaries – Post-Offence Conduct and Chambers, at para. 83.

e. After the shooting, Chambers was picked up by his girlfriend and they spent the night together at 181 Herkimer Street. The next day, they drove to Yorkdale Mall in Toronto where they purchased two cell phones. On April 10, 2010, approximately one month after the shootings on March 13, 2010, Chambers was arrested: see Crown’s Factual Overview, at para. 26 and Chambers, at paras. 21, 83.

Warner was arrested a year later on April 15, 2011. He was found in Guyana following the issuance of an Interpol alert: see Crown’s Factual Overview, at para. 27 and Chambers, at paras. 23, 83

LAW ON POST-OFFENCE CONDUCT

[8] Generally, post-offence conduct may or may not be admissible depending upon (1) the particular circumstances of a case and (2) the relevance of the evidence to the live issues under consideration during the trial: see Chambers, at paras. 78-79.

[9] Given that the post-offence conduct may be probative of one live issue but not of another, judges are obliged to give limiting instructions as to the appropriate and inappropriate inferences to be drawn from the evidence: see Chambers, at para. 82.

[10] The Court of Appeal in Chambers has already laid out the road map, which I am to follow in dealing with the post-offence conduct as previously summarized. The Court of Appeal outlines, at paras. 86-104, the proper inferences that are available from the post-offence conduct:

6.3. Some Inferences Were Available from Certain Aspects of the Post-Offence Conduct

86 Before explaining how the trial judge erred in his instruction to the jury regarding the use of evidence of post-offence conduct, I wish to make clear that some inferences could legitimately and rationally be drawn from certain aspects of Warner's and Chambers’ post-offence conduct. Some of the evidence of post-offence conduct was relevant to some of the issues before the jury.

87 In my view, "logic and human experience" suggest that a jury could legitimately and reasonably infer from the fact that Warner and Chambers fled the party together, and remained together until they parted company at the GO Station, that Warner and Chambers participated together in the shootings. And this, in turn, is relevant to whether Warner or Chambers was liable as an aider or abettor to aggravated assault or murder. However, it would have had to have been made clear to the jury that other inferences were also available to them from this evidence. Both Warner and Chambers were subject to firearms prohibitions and had openly brandished firearms. A jury could also conclude that they fled together, immediately after the shots were fired, simply because they were friends who came to the party together and both were in trouble, although to different degrees.

88 Also, if the jury accepted A.B.'s evidence that the "the first man out dropped a gun and told the other one to pick it up" then that evidence may be probative of whether the non-shooter aided or abetted the shooter. And it may be that, if accepted by the jury, Hamilton's evidence of who dropped the gun and what that gun looked like was relevant to the identity of the shooter.

89 I reject Chambers' argument that a jury could not legitimately and rationally infer that Chambers had participated in one or more of the shootings because of his flight to Halifax. Unlike Warner, Chambers did not admit to any of the offences he was charged with. He relied on the fact that he was subject to a firearms prohibition at the time of the offences to explain his flight. It is not necessarily true that Chambers' post-offence flight to Halifax is equally consistent with someone fleeing because he had violated a firearms prohibition and someone fleeing because he had participated in a shooting. On this record, it may be open to the jury to conclude as a matter of logic and human experience that Chambers' post-offence flight to Halifax is consistent with someone participating in a shooting and not just someone fleeing because he had violated his firearms prohibition. It is for the jury to decide- on a proper instruction- which available inference to accept.

6.4 How the Trial Judge Erred in His Instruction to the Jury

90 As indicated above, the trial judge simply instructed the jury that they could take Warner's and Chambers' post-offence conduct "into account as a piece of circumstantial evidence of the respective states of mind of each accused if you think that is more consistent with the way someone would act who had taken part in a shooting." Then he said that the conduct could be "circumstantial evidence of guilt".

91 The trial judge treated the evidence of post-offence conduct as an amorphous whole. He failed to instruct the jury as to what inferences were (and were not) available from the various portions of the evidence of the post-offence conduct and how that evidence related to specific live issues before the jury. He erroneously left the impression that Warner's and Chambers’ post-offence conduct was relevant to all of the offences with which they were charged and could assist them in establishing the "respective states of mind of each accused".

6.4.1 The Trial Judge Should Have Delivered a "No Probative Value" Instruction in Respect of Warner's flight to Guyana

92 An inference that Warner had shot, aided Chambers in shooting, or abetted Chambers to shoot Musgrave and/or Chinambu, was not available from Warner's post-offence flight to Guyana. The trial judge's failure to instruct the jury that this was not an available inference is an error.

93 Through counsel, Warner admitted the serious offence of committing aggravated assault on Tsibu-Darkoh, with which he had been charged. This, and not the explanation given to his cabbie recounted in the trial judge's charge, was Warner's explanation for his flight to Guyana.

94 Warner's post-offence flight to Guyana is as consistent with having committed the admitted offence of aggravated assault of Tsibu-Darkoh as with having committed that offence and the aggravated assault of Chinambu, as principal offender or as an aider or abettor. Therefore, his post-offence flight to Guyana is not probative of who shot Chinambu or whether he aided or abetted Chambers to shoot Chinambu.

95 While the offence of murder is more serious than that of aggravated assault, and fleeing the country is perhaps a relatively extreme instance of post-offence conduct, it cannot be said that Warner's flight to Guyana was out of all proportion to the admitted offence of wounding Tsibu-Darkoh. Accordingly, in my view, the trial judge should have directed the jury that Warner's post-offence flight to Guyana could not be used to infer guilt of Musgrave's murder either.

96 I reject the Crown's argument that the jury would have understood that it was not to use evidence of Warner's post-offence flight to Guyana in determining his guilt. The trial judge instructed the jury that the post-offence conduct was "circumstantial evidence of guilt" and, therefore, the jury would have believed that it could use the all of the evidence of post-offence conduct -- including the evidence of Warner's flight to Guyana -- as evidence against Warner on all three counts.

97 Because the failure to instruct the jury that it could not consider the evidence of Warner's flight to Guyana is dispositive of the ground of appeal arising out of the trial judge's charge regarding post-offence conduct in the case of Warner, I principally focus the balance of my analysis through the lens of Chambers.

6.4.2 The Trial Judge Failed to Relate the Evidence to Specific Live Issues before the Jury

98 This case involves more than one accused and more than one offence. There were several live issues before the jury: did Chambers shoot and kill Musgrave; did he assist or encourage Warner in murdering Musgrave knowing that Warner had the intent to murder Musgrave; did he shoot Chinambu; did he assist or encourage Warner in committing an aggravated assault on Chinambu knowing that Warner intended to shoot and would shoot Chinambu; and did he assist or encourage Warner to shoot Tsibu-Darkoh, knowing that Warner intended to shoot and would shoot Tsibu-Darkoh? All of these, in turn, raised a number of sub-issues.

99 By saying that the post-offence conduct could be "circumstantial evidence of guilt", the trial judge suggested that the jury could use all of the evidence of post-offence conduct to help resolve all of the issues before them. In essence, the trial judge improperly invited the jury to consider all of the evidence of post-offence conduct as evidence of guilt on all three charges. He failed to explain what inferences were and were not available from the evidence of post-offence conduct. In so doing, he erred.

100 By way of illustration, Chambers' post-offence flight is not probative of whether he shot Musgrave as opposed to, for example, whether he shot Chinambu. The limited available inference from his flight is simply that he had participated in one or more of the shootings.

101 As I have explained, some of the evidence of post-offence conduct is relevant to some of the live issues that were before the jury. However, the trial judge did not explain this to the jury. Rather, he treated the evidence of post-offence conduct as an amorphous whole and failed to relate it to specific, live issues before the jury.

102 In my view, the effect of his error was to leave the jury with the impression that all of the evidence of post-offence conduct was relevant to all counts and encourage a leap from that evidence to a conclusion of guilt in relation to the shootings of Musgrave, Tsibu-Darkoh, and Chinambu.

6.4.3 Mens Rea

103 There is a further flaw in the trial judge's charge relating to post-offence conduct. By indicating that Warner's and Chambers' post-offence conduct could be considered as evidence of their "respective states of mind", the trial judge erroneously left the impression that their post-offence conduct could assist in establishing the mens rea element of the offences with which they were charged. Normally, post-offence conduct cannot help to determine the state of mind of an accused, and it could not do so in this case.

104 It could not assist the jury in determining whether the aider or abettor knew that the principal offender intended to murder Musgrave or shoot Tsibu-Darkoh or Chinambu. Further, I conclude above that another issue should have been before the jury: if Warner had murdered Musgrave, was Chambers guilty as an aider or abettor of murder or manslaughter? Chambers' post-offence conduct was equally consistent with either verdict, and similarly could not assist the jury to determine Chambers' level of culpability for the murder of Musgrave.

APPLICATION OF THE LAW TO THE FACTS

[11] Given the Court of Appeal’s remarks, as quoted above, the evidence that Chambers and Warner fled the home and stayed together until they parted company is admissible in evidence and is relevant to two issues: (1) whether Chambers and Warner participated together in the shootings, and (2) whether Chambers or Warner is liable as an aider and abettor to aggravated assault or murder.

[12] Limiting instructions must be made to the jury to indicate other inferences that are available for their flight, i.e. (1) both Chambers and Warner had firearms prohibitions and had openly brandished firearms, and (2) both fled together after the shots were fired because they came to the party together and were both in trouble, although to different degrees.

[13] The dropping of the gun evidence provided by A.B., if accepted, is probative of whether the non-shooter aided and abetted the shooter. Hamilton’s evidence of who dropped the gun and what the gun looked like is relevant to the identity of the shooter.

[14] Chambers’ post-offence flight to Halifax is admissible to permit an inference by the jury, should they wish to make it, that the Halifax flight is consistent with the behaviour of someone who participated in one or more shootings. The jury will be instructed that other inferences are open to them as well, i.e. the flight to Halifax was due to Chambers’ violating the firearms prohibition.

[15] Regarding Warner, the evidence of the taxi driver Yousif, that Warner asked the driver to pick “us” up again allows for two inferences: (1) that Chambers and Warner participated together in the shootings, and (2) that Warner was liable as an aider and abettor to aggravated assault and murder. The evidence that Warner laid down in the cab in order to avoid detection by the police and the flight to Guyana is as consistent with Warner committing the aggravated assault of Tsibu-Darkoh as it is with committing the aggravated assault of Chinambu or murder of Musgrave, either as a principal or as an aider and abettor.

[16] The Crown argues that the flight to Guyana is admissible as narrative. In my opinion, the flight to Guyana has minimal probative value as narrative and is not necessary to provide context to the events surrounding the shootings. The prejudicial effect of the evidence of the flight to Guyana far outweighs any minimal probative value as narrative.

[17] Accordingly, the flight to Guyana by Warner and Warner’s laying down in the cab is not admissible at this trial as the jury will have before them Warner’s admission to the shooting and aggravated assault of Tsibu-Darkoh. Counsel for the Crown concedes that the statements made by Warner to the cab driver Yousif are admissible only against Warner and are not admissible against Chambers.

[18] Further, the admissible post-offence conduct cannot be considered as evidence of Chambers and Warner’s respective states of mind or as evidence establishing the mens rea of the offences charged. The admissible post-offence conduct, as outlined, cannot be used by the jury to determine whether the aider or abettor knew that the principal intended to murder Musgrave or shoot Tsibu-Darkoh and Chinambu. The post-offence conduct cannot assist the jury with respect to Chambers or Warner’s legal culpability for the killing of Musgrave, i.e. the post-offence conduct has no relevance to the issue of murder versus manslaughter.

ISSUE #2 – ADMISSION OF A PHOTOGRAPH OF THE DECEASED

ADDITIONAL EVIDENCE

[19] The Court of Appeal in Chambers, at para. 26, indicates that Chambers testified at the trial that he did not know that Warner had a gun. Chambers testified that he had a gun with him and drew out the gun to defend himself against a crowd of people aggressively gathering around him.

[20] Additional evidence relevant to the admissibility of the photograph of the deceased can be found in the trial transcript regarding evidence given by Chambers. This evidence can be summarized as follows:

a. Warner did not know Chambers was in possession of a firearm: see Volume 4, pp. 1815-1816.

b. Chambers entered into a dispute with Wesley Adi (Adi) over the choice of music: see Volume 4, pp. 1827-1828.

c. Chambers tugged at the wires connecting an iPod to the speakers, which were at the southern end of the kitchen table: see Volume 4, p. 1829.

d. Adi said something to Armel, who was a big guy: see Volume 4, p. 1831.

e. Armel’s demeanour changed: see Volume 4, p. 1831.

f. Yussuf Yanni (Yanni) joined Adi and Armel. The three were in front of Chambers approximately two to two and a half feet away. All of them were in the kitchen: see Volume 4, pp. 1832-1833.

g. Chambers felt that Armel was sizing up Chambers and was going to try to punch him. Adi was just standing there. Chambers told Yanni to shut up and Yanni responded by saying something to the effect of, “Who are you telling to shut up?” Armel was leaning forward and was close enough to punch Chambers. Chambers started to get nervous and pulled out his gun: see Volume 4, pp. 1834-1835, and Volume 5, at pp. 1991-1992.

h. Also close by, at the north end of the kitchen table to Chambers’ left, were the eventual victims Chinambu and Musgrave: see Volume 4, pp. 1835-1836.

i. The other eventual victim Tsibu-Darkoh was also standing there and Chambers could see him: see Volume 4, p. 1836.

j. Adi, Yanni, Armel, and the three eventual victims were people who Chambers did not know and had never seen before: see Volume 4, p. 1836.

k. Chambers pulled the gun out to scare the three people who were in front of him. Chambers took half a step backwards and waved the gun. He said he could end the party right now. Chambers testified, “[T]hey stiffened up, they were leaning forward at first toward me”: see Volume 4, p. 1837.

l. Chambers looked to his left and locked gazes with Chinambu. Chinambu said either “What are you looking at?” or “Don’t look at me like that”: see Volume 4, p. 1839.

m. At that point, shots rang out. Chinambu got shot and flew back. Musgrave fell forward. Chambers testified that he did not shoot these men: see Volume 4, pp. 1840-1843.

n. In cross-examination by Mr. Bains, Chambers indicated that the main person Chambers thought was a threat was Armel: see Volume 5, p. 1924.

o. In cross-examination by Ms. Narozniak, Chambers indicated that he was getting nervous and pulled out the gun “to scare them back”: see Volume 5, pp. 1991-1992.

p. As indicated in the Crown’s Factual Overview, at para. 10, the evidence at trial was that when the guns came out, Musgrave moved past Adi and told Adi, “This is not worth it.” Adi was about four feet away from Chambers at this point and Musgrave was right beside him. According to Yanni’s testimony, when Chambers pulled out his gun, he brought the gun into contact with Yanni’s chest. Chambers indicated that he stepped back and just waved the gun: see Crown’s Factual Overview, at para. 10, and Volume 5, pp. 1993-1994.

q. In cross-examination by Mr. Bains, Chambers agreed that Musgrave and Chinambu were just a few feet away, but Chambers indicated, “I did not shoot them.” Chambers could not recall Musgrave whispering in Adi’s ear when Chambers had the gun out. Chambers testified that Musgrave was standing with Chinambu the whole time. Chambers indicated that the main threat was Armel: see Volume 5, pp. 1920-1925.

LAW ON ADMISSIBILITY OF A DECEASED’S PHOTOGRAPH

[21] McMahon J. in R. v. Araya, [2011] O.J. No. 5002 (Ont. S.C.), in dealing with the admissibility of a deceased’s photograph, indicated at paras. 4-9:

4 Mr. Cikovic is not irrelevant to these proceedings. We are here today because Mr. Cikovic was shot to death in a park on October 3, 2008. We are here because his name, along with that of the accused, are found on the indictment, in fairness, his identity is conceded in this proceedings.

5 A murder trial is not simply some intellectual academic exercise that should be conducted in an antiseptic and sanitized fashion. It is about 12 men and women who will have to decide on the evidence whether the Crown has proven the guilt of the accused beyond a reasonable doubt. The jury will have to consider the circumstances of what transpired on that day in October. The jury, in doing that, is entitled to understand the narrative and the context surrounding the events which led to Mr. Cikovic's death that evening. The deceased's photo, I find, is a very small piece of the context of who Mr. Cikovic was, much in the same way they will learn no doubt his age and why he was in the park that evening. It will be part of the context.

6 As such, I find that there is some probative value to this evidence. A murder trial cannot be sanitized to the point that it is devoid of the humanity of an event such as this. While I find that there is some probative value, I must balance this slight probative value against the prejudicial effect to Mr. Araya.

7 On how this photograph and the nature of the photograph are going to be introduced, this is not the case of the Crown trying to use a loved one to put a sympathetic picture before a jury to garner sympathy which would be completely improper. The Crown simply wants to file a non-descript photograph as part of the context.

8 I find that the risk of prejudice to Mr, Araya in these circumstances is minimal. Any possible prejudice will be dealt with both with my opening instructions to this jury and my final charge. In both the jury will be specifically instructed they must decide this case objectively, dispassionately, without sympathy, bias or prejudice for either Mr. Cikovic, the deceased, or in fact the accused, Mr. Araya.

9 For these reasons, I am satisfied the Crown has met its onus on a balance of probability that the probative value of this photograph outweighs its prejudicial effect, and the Crown will be entitled to lead the photograph of Mr. Cikovic.

[22] Dambrot J. has both excluded and admitted photographs of the deceased in separate cases. Dambrot J. outlined the relevant considerations in R. v. A.D., [2004] O.J. No. 5717 (Ont. S.C.), as follows at paras. 4-14:

ANALYSIS

4 Assuming that the Crown will be able to call evidence to prove that the photograph is an accurate depiction of the accused as she looked at a time reasonable proximate to her death, then it is admissible if it is relevant, and may be excluded despite its relevance only if it has a prejudicial effect that outweighs its probative value.

5 In this case I am unable to discern any prejudicial effect. While the prejudicial effect of an ordinary photograph of a deceased taken while alive tendered by the Crown in a murder trial has rarely been considered in published reasons, it happens that I had to deal with it once before, in R. v. Willimott, (unreported, November 27, 2000). In that case, counsel for the accused argued that seeing a photograph of the deceased would evoke emotion on the part of the jury, make the jurors feel sorry for the deceased and prejudice the accused. I did accept that position. I stated, at paras. 30-31:

[30] ... I confess that I see absolutely no prejudice in the jury seeing the rather ordinary face of the deceased in life shortly before the killing. There cannot be found in this photograph any of the features usually complained of when objection is taken to the admission of photographs of a deceased. There is nothing disturbing or unpleasant about the photograph. It does not show the brutality of the crime. The objection is simply that the ordinary face of the deceased will arouse sympathy.

[31] I cannot accept the premise to the argument that prejudice flows from the admission of evidence of this nature. I see no need to sanitize a criminal trial, even a murder case, to the extent that it is robbed of all traces of humanity and resembles nothing more than a logical puzzle for the jury to solve. In addition to hiding the face of the victim from the jury, we might as easily remove the deceased's name from the evidence, his age, his weight, his place of origin, his employment, his habits, his foibles, and the like, in an effort to shelter the jury from having their sympathy aroused. But in truth, even if we did all of that, the jury would still understand that this is a real murder case. They would not be deceived by an effort to rob it of its reality. And, I am confident, even knowing who the victim was, and seeing a picture of his face, they will decide this case on the evidence, after removing all sympathy and hostility from their minds ...

6 I am comforted by the fact that in this case, counsel for the accused did not suggest that any prejudice would flow from the admission into evidence of this photograph. Of course, the absence of prejudice is not enough to justify its admission into evidence. But in the absence of prejudice, the showing of relevance need not be great. Providing that there is some relevance, there is no basis for me to exclude the photograph. What is the relevance contended for?

7 Crown counsel argues that the photograph is relevant primarily because it is a form of unfolding of the narrative. He also argues that it will assist the jury in determining the truth of the theories that are presented about how Ms. P.B. was killed. The Crown's position is that Ms. P.B. was slammed to the floor by her attacker, whom the Crown says was A.D., physically dominated by him, taken to the bathroom where the domination continued, and was ultimately drowned. Despite all of this, the jury will see from the videotape that I have previously admitted into evidence that the apartment, including the bathroom, remained surprisingly neat and tidy. The Crown is of the view, however, that the jury will understand from seeing the diminutive physical stature of the deceased in the photograph, that the absence of any sign of a struggle is not curious, but rather entirely understandable. The photograph adds to the evidence of the pathologist who will say that he measured Ms. P.B.'s height to be 4'11".

8 Counsel for the accused responds that the fact that Ms. P.B. was physically dominated by her attacker is not in dispute, so there is no live issue that could make the evidence relevant.

9 In my view, Crown counsel has provided a sufficient showing of relevance to justify the admission into evidence of the photograph.

10 With respect to the photograph being a form of the unfolding of the narrative, I note that Paciocco and Stuesser, in their book The Law of Evidence (2nd ed., Irwin Law, 1999), at p. 32, have this to say on the subject:

It is inevitable that in narrating a story, even in response to questions, witnesses will include minutiae that do not meet the tests of relevance and materiality. For example, the trier of fact is likely to learn what a police officer was doing when a call was received, whether the police officer was in a marked or unmarked police vehicle, and perhaps even the kind of doughnut he was eating. This is harmless background material, and reference to it is generally tolerated because it improves comprehension by presenting a total picture and makes it easier for the witness to recount the evidence. If theory is required to account for its reception, it can be said to be admissible as part of the narrative.

11 I agree with these comments, as well as with the authors admonition, on the same p., that:

[w]here evidence that forms part of the narrative is potentially prejudicial or would otherwise be inadmissible, it can be excluded or edited pursuant to the judge's exclusionary discretion, and great care should be undertaken before it is received. A court should always consider how necessary the information is to unfold the story in a clear, understandable manner.

12 Strictly speaking, the photograph cannot be considered to be a part of the narrative. It is not, and of course could not be a photograph of the deceased at the time of her death. But assuming that there will be evidence that it approximates her appearance around the time that she died, then like any other piece of harmless background material, it should be tolerated because it improves comprehension on the part of the jury by presenting a fuller picture of the events being recounted.

13 With respect to the Crown's second argument that the photograph will assist the jury in determining the truth of the theories that are presented about how Ms. P.B. was killed, it differs only slightly from the first argument. An argument for admissibility as part of the narrative is premised on the evidence being minutiae that does not meet the test of relevance. This argument is premised on the evidence having at least some relevance. I find merit in this argument as well.

14 I consider Ms. P.B.'s size to be one of the details that the jury may take into account when considering the Crown's position in this case. I do not know with any certainty which of the details of the Crown's theory of how Ms. P.B. met her death will truly be in issue. It is certain, however, that the defence position will differ from the Crown's position. The Crown position is that there was a rape followed by a murder. There is no direct evidence of this. It is a position that depends on circumstantial evidence. The defence position will be that there was a murder, but no rape. The jury will be asked to consider all of the circumstances in considering whether they are satisfied beyond a reasonable doubt that the Crown's theory is right. One of those circumstances is the deceased's physical size. That will be better conveyed by the photograph than by evidence of height and weight from a pathologist. While it may be true that the fact that Ms. P.B. was physically dominated by her attacker is not in dispute, what actually happened between the deceased and her assailant is. The jury may well be assisted in its deliberations in having a visual depiction of her that reveals her size.

[23] Mulligan J., in R. v. Keene, 2014 ONSC 6891, indicated that the size and stature of the deceased was a relevant issue and held that the photograph of the deceased was admissible in the circumstances of that case. Mulligan J. indicated at paras. 3-9:

3 The defence acknowledges that the prejudice from these particular photographs is low, but argues that they provide no probative value and may lead the jury to have sympathy for the victim, distracting their task. Defence agrees that her size and stature is conceded as a relevant issue, but it is an issue that is better addressed in other ways. The defence has offered to sign an Agreed Statement of Facts with respect to the victim's size and stature, or will otherwise provide an undertaking not to challenge such evidence if introduced by the Crown.

Analysis

4 Crown and defence pointed to a number of cases where the principles with respect to photographs being introduced to a jury have been reviewed. As Justice Fuerst noted in R. v. Wills, [2007] O.J. No. 52 at paras. 19-20, and 22:

Photographic images of the deceased can be relevant to the issues in a murder trial in any number of ways.

Whether the images are admissible, however, turns on a balancing of probative value and prejudicial effect.

The onus is on the defence to demonstrate that the prejudicial effect of the evidence outweighs its probative value. [Citations omitted.]

5 In R. v. R.(P.) (1990), 58 C.C.C. (3d) 334 at 347, Doherty J. set out a three-step process that an applications judge should consider: first determine the probative value, then determine the prejudicial effect, and lastly, consider the following approach:

The judge must balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions.

6 In R. v. Araya, [2011] O.J. No. 5002, an unreported decision dated October 6, 2007, Justice McMahon dealt with a photograph taken about a year before the deceased's death. As he noted, "The photograph simply depicts this young man smiling, and the photo is from the shoulder up. There is nothing special about the photograph other than it depicts who [the deceased] was." After considering the probative value and the prejudicial effect, McMahon J. stated, "I find that the risk of prejudice to Mr. Araya in these circumstances is minimal. Any possible prejudice will be dealt with both in my opening instructions to this jury and my final charge."

7 In R. v. Willimott, [2000] O.J. No. 6056, Dambrot J. dealt with a photograph of the deceased taken sometime before his death at a birthday party. As Dambrot J. noted at paras. 30-31:

Balanced against this less than overwhelming show of relevance, I confess that I see absolutely no prejudice in the jury seeing the rather ordinary face of the deceased in life shortly before the killing. ... There is nothing disturbing or unpleasant about the photograph. ... I see no need to sanitize a criminal trial, even a murder case, to the extent that it is robbed of all traces of humanity and resembles nothing more than a logical puzzle for the jury to solve.

Conclusion

8 I am satisfied that the Crown can show one photograph -marked as p. 2 of 5 in the Crown's application--to the jury. This photograph simply shows Alexandra Flanagan standing between two women in formal dress at a wedding or similar social occasion. It clearly depicts her small stature, at least with respect to the people that she is standing beside. It may provide some probative value relevance and it certainly puts a human face on the victim. I am satisfied that this may provide some assistance to the jury. These are not post-mortem photographs of the kind reviewed by Justice Fuerst in R. v. Wills. In my view, the prejudicial effect is low and any concern that the jury would have undue sympathy can be overcome by an instruction to the jury panel at the beginning, and again in the Charge at the end of the trial.

9 In most other crimes of violence, including aggravated assaults and attempted murders, the jury sees the human face of the victim or complainant in the courtroom. In a homicide trial such as this, I see no reason why the jury should not see a photograph of the victim in otherwise innocent social situations.

APPLICATION OF LAW TO FACTS

[24] In my opinion, a fair possible inference from the facts is that Chambers felt threatened and intimidated by the group of six men near to him who were acting in a manner that could be interpreted as aggressive towards Chambers. Accordingly, Chambers pulled out his gun to equalize matters. The jury could infer from the trial evidence that Chambers just wanted to scare the threatening group and have them back away.

[25] The size, demeanour, and appearance of the six men surrounding Chambers would be a relevant consideration for the jury in order to assess the credibility of this alleged threat to which Chambers testified.

[26] To use an extreme example, if Chambers was surrounded by six frail, elderly, unarmed individuals, the credibility of any alleged threat would be marginal. If the six individuals were linemen on a university football team, the credibility of a possible threat to Chambers would be enhanced.

[27] Accordingly, the size, demeanour, and appearance of the six men would be relevant and probative in assessing the credibility of the potential threat testified to by Chambers. I conclude that there is some probative value to viewing a picture and descriptions of the six men surrounding Chambers at the time Chambers pulled his gun out.

[28] The size of a victim is one of the details that may be taken into account depending on the circumstances of a particular case: see A.D., at para. 14.

[29] I agree with the comments made by Dambrot J. in R. v. Willimott, [2000] O.J. No. 6056 (Ont. S.C.), at paras. 30-31, and Mulligan J. in Keene, at para. 8, that there is either little or no prejudice in seeing the rather ordinary face of the deceased in life shortly before the killing. Any undue sympathy can be overcome by an appropriate jury instruction: see Keene, at para. 8.

[30] The defence has provided me with American authorities that seem to take a contrary position but I am inclined to follow the decisions of my colleagues in the Ontario Superior Court of Justice: see R. v. Barreira et al., 2017 ONSC 2478, at paras. 23-24.

[31] In the result, I find that, in the circumstances of this case, the probative value of a photograph of the deceased exceeds any potential prejudicial effect. The photograph of the deceased may be entered as an exhibit before the jury at this trial.

ISSUE #3 – ADMISSIBILITY OF LEAD FRAGMENT FOUND AT CRIME SCENE

[32] Chambers brings a motion to exclude evidence of a lead fragment found at the scene. The forensic expert called by the Crown at trial could not say that this lead fragment came from a bullet. Chambers argues that the probative value of this lead fragment is tenuous and that the prejudicial effect of admission far outweighs the probative value.

[33] Chambers’ application for exclusion of the lead fragment is opposed by both the Crown and the co-accused Warner.

ADDITIONAL EVIDENCE

[34] As indicated in the factum of the accused Chambers, at para. 4, after the forensic officers concluded their examination of the crime scene at 53 Dundurn Street South, homicide detective Inspector Hamilton did a walk-through of the scene and noted an item later identified as a lead object or fragment in the northwest corner of the hallway by the stairway leading downstairs. The forensic officers did not locate this item during their initial forensic examination of the scene. The item was not photographed where it was situated. Instead, the item was collected, placed on a counter, photographed, and then seized. The area in which the lead fragment was found was also not photographed. The officer who collected the item could not say specifically where it was found and no measurements of the area were taken.

[35] In addition to the lead fragment, Inspector Hamilton testified that he saw a small gouge at the bottom of the baseboard at the end of the hallway’s east wall. Inspector Hamilton located this mark on the wall after he saw the lead fragment. Inspector Hamilton was of the opinion that this mark could be where the lead fragment, which was part of a bullet, ricocheted off the baseboard trim of the wall: see applicant Chambers’ factum, at para. 5.

[36] Sergeant Spencer was one of the forensic identification officers at the scene. Sergeant Spencer testified that the piece of lead was found along the north wall of the hallway in the northwest corner abutting the entrance to the stairwell. He testified that the piece of lead was the remnant of a bullet. When challenged on this opinion, Sergeant Spencer testified that he has several years’ experience as a police officer in addition to being a member of the Canadian Armed Forces and is well-versed in seeing bits of shrapnel: see Crown’s factum, at para. 4.

[37] Sergeant Giuliani is another forensic identification officer who processed the crime scene. His opinion was that upon closer inspection, the lead fragment indeed looked like a “possible deformed projectile”: see Crown’s factum, at para. 6.

[38] Inspector Hamilton was of the opinion that the fragment was a disfigured bullet and that the gouge in the wall could have been a ricochet point: see Crown’s factum, at para. 7.

[39] The Crown called the Centre for Forensic Sciences (CFS) firearms expert, Benjamin Sampson, who testified that he examined the lead fragment, which weighed 55.2 grains. Mr. Sampson lifted some white chalk from the fragment, which he testified could have been drywall: see Crown’s factum, at para. 8.

[40] In order to determine the admissibility of this lead fragment, Mr. Sampson’s evidence needs careful scrutiny as, in my opinion, he was the only witness at the trial who had the requisite expertise to provide a useful opinion on this matter. Important features of his evidence in the trial transcript can be summarized as follows:

a. Mr. Sampson, in chief, noted that the fragment was made out of lead. It was extremely damaged and due to the damage, he could not assign or could not determine that “this [was] one hundred percent sure a fired bullet.” It was observed microscopically and no individual characteristics were observed due to the damage. He explained that the item “does have a certain look that could suggest it was a fired bullet, but as I said, I could not determine that with certainty.” Mr. Sampson noted that it was made out of lead and lead is probably one of the softest metals you can get. Combined with all the heat on the inside of a barrel,” once you fire a lead bullet, I have seen fired bullets in worse conditions than…”: see Volume 4, pp. 1569-1571.

b. The lead fragment weighed 55.2 grains. The bullet fragment taken from Chinambu was a damaged fired .22 calibre bullet that weighed 58.1 grains. This bullet was fired from a firearm with a right-hand twist: see Volume 4, p. 1572.

c. The bullet fragment taken from the deceased Musgrave was a damaged fired .22 calibre bullet along with two lead fragments. The fired bullet was fired from a firearm with a right-hand twist. The combined weight of the items was 56.2 grains. The smaller fragments were of no specific identification value as they were too small to be identified as fired bullets or as parts of a smaller bullet: see Volume 4, pp. 1574-1575.

d. The bullets taken from Chinambu and Musgrave lacked individual characteristics. As a result, Mr. Sampson was unable to say whether they were fired from any particular gun: see Volume 4, p. 1576.

e. The bullet fragment taken from Tsibu-Darkoh was a damaged .22 calibre lead bullet weighing 55.0 grains and it was fired from a firearm with a right-hand twist. The damaged bullet lacked any individual characteristics and had no identification value: see Volume 4, p. 1582.

f. The normal weight of a .22 calibre bullet is around 29 grains. The normal weight of a .22 calibre long rifle bullet is around 40 grains. There is only one manufacturer who makes .22 calibre bullets that weigh around 60 grains and that is “Aguila.” The brand name is S.S.S. – Sniper Subsonic: see Volume 4, pp. 1584-1588.

g. The lead fragment weighed 55.2 grains, the Chinambu bullet weighed 58.1 grains, the Musgrave bullet weighed 56.2 grains, and the Tsibu-Darkoh bullet weighed 55.0 grains. None of them weighed 60 grains. Mr. Sampson explained that when you fire a bullet and it hits something, it loses weight. It loses weight because the rifling inside scrapes away part of the outer surface of the bullet and lead sticks to the inside of the barrel. When the bullets hit something, fragments can also get away: see Volume 4, pp. 1588-1589.

h. On April 14, 2010, a revolver was discovered covered by leaves at the side of the house at 173 Canada Street. This property is located near the crime scene. The revolver was sent to Mr. Sampson to be examined. The revolver was an 8-shot revolver with five fired cartridges, two live cartridges, and an empty cylinder: see Crown’s Factual Overview, at paras. 30-31.

i. In the case of revolvers, fired cartridges stay in the revolver and do not eject from the gun: see Volume 4, p. 1594.

j. Due to the damage done to the recovered bullets, Mr. Sampson could not say whether the bullets recovered from the victims were fired from this revolver: see Volume 4, p. 1595.

k. The revolver is a .22 calibre long rifle revolver. It is capable of firing 40-grain or 60-grain .22 long rifle cartridges: see Volume 4, p. 1595.

l. Mr. Sampson examined the contents of the chamber of the revolver. There were five spent cartridges and two unspent. The five spent cartridges were .22 short calibre cartridges manufactured by Aguila. The five fired cartridge cases had circular firing pin impressions on them which were consistent with all five fired cartridge cases being fired by this revolver. These could have been originally been 29-grain, 40-grain or 60-grain Aguila bullets: see Volume 4, pp. 1596-1597.

m. The two unspent cartridges were S.S.S. Aguila bullets with the 60-grain design and had light firing pin impressions. Mr. Sampson used a firearm and was able to discharge those two cartridges. There was nothing wrong with them and they were in working condition: see Volume 4, pp. 1598-1599.

n. Mr. Sampson concluded, after microscopic examination, that the light firing impressions in these unspent cartridges were made by the revolver: see Volume 4, p. 1599.

o. There are three reasons why a specific cartridge does not discharge: one, there is no gunpowder in the cartridge; two, there is no primer in the rim of the cartridge; and three, as the hammer strikes forward, something prevents it from hitting the firing pin: see Volume 4, pp. 1604-1605.

p. After test firing the unspent cartridges, Mr. Sampson concluded that a lack of gunpowder or primer were not the cause of the misfire. That left Mr. Sampson with the option that something might have interfered with the movement of the hammer: see Volume 4, p. 1599.

q. In cross-examination by Mr. Hicks, Mr. Sampson testified that he looked for characteristics of a bullet on the lead fragment – namely, the shape, diameter, and rifling. None of these features were present and Mr. Sampson agreed that the lead fragment was a piece of metal: see Volume 4, pp. 1605-1606.

r. A projectile travelling in an easterly direction down the hallway would leave a mark if it ricocheted off the doorway, doorframe, or the wall. Mr. Sampson indicated you would expect a further mark near the point where the lead fragment landed on the north wall: see Volume 4, p. 1609.

s. Accordingly, Mr. Sampson testified that he would be astounded if the projectile went down the hallway and left absolutely no mark whatsoever: see Volume 4, p. 1610.

t. Mr. Sampson noted some white chalk-like material on the lead fragment and noted that it might be drywall. The chalking material was white and not tested. It could have been chalk used on a blackboard: see Volume 4, pp. 1613-1614.

u. Aguila is the only manufacturer that makes 60-grain bullets. Aguila S.S.S. ammunition is an uncommon form of ammunition to encounter: see Volume 4, pp. 1620 and 1635.

v. Mr. Sampson testified that the three bullets recovered from the victims could have come from a firearm other than the recovered revolver. However, Mr. Sampson agreed with Mr. Hicks’ suggestion that “it’s more likely that it was this firearm that fired these bullets into the people…not for sure, but more probable, more likely”: see Volume 4, p. 1621.

w. In cross-examination by Mr. Bains, Mr. Sampson agreed that the projectiles recovered from 53 Dundurn Street and the two unspent shells are consistent with being Aguila S.S.S.-type projectiles. Again, these projectiles are an uncommon form of ammunition: see Volume 4, pp. 1635-1636.

x. Regarding the unspent cartridges, there appeared to be nothing about the cartridges themselves that prevented them from being fired. Mr. Sampson fired both of these cartridges and they were in working condition: see Volume 4, pp. 1641-1642.

y. Mr. Sampson agreed that the revolver and unspent cartridges were in good working order. However, there was an inability of the firearm to fire the projectile despite impressions on them from the firing pin. Mr. Sampson agreed that a possible if not likely explanation is that something interfered with the hammer. Fabric could interfere with the hammer: see Volume 4, pp. 1642-1643.

z. A damaged fired bullet and two lead fragments were taken from Musgrave’s body. The other lead fragment was found by Inspector Hamilton in the northwest corner of the hallway, by the stairwell leading downstairs. With respect to all three fragments, Mr. Sampson cannot say with scientific certainty that they are part of a bullet. However, with the fragments from Musgrave, you could logic out that the smaller fragments detached from the larger projectile: see Volume 4, pp. 1573-1574 and 1646-1647, and Chambers’ Application Record - Exclusion of Lead Fragment, at para. 4.

aa. Regarding the other fragment, Mr. Sampson had no context in which to logic anything out. Mr. Sampson had to rely on scientific analysis alone and he could not draw a conclusion that the fragment was part of a bullet: see Volume 4, p. 1647.

bb. Mr. Sampson agreed with Mr. Bains’ suggestion that a projectile, according to the laws of physics, cannot change direction or make a sharp turn on its own: see Volume 4, p. 1647.

cc. Hitting another surface can cause the projectile to change direction. Once a bullet changes direction, you cannot predict entirely where it is going: see Volume 4, pp. 1647-1651.

dd. At these pre-trial motions, Mr. Bains entered a photograph of the hallway looking from west to east. The photograph related to Mr. Hicks’ cross-examination regarding the velocity of a bullet travelling down that hallway. The photograph was an enlarged image of part of the hallway where there is apparent damage to part of an angled wall. There is a white substance that may or may not be drywall coming from that wall. Mr. Sampson agreed that if a bullet struck the angled part of the wall and did not penetrate the wall, the logical angle for the ricochet (for a projectile fired from west to east) would be to the left, or north: see Volume 4, pp. 1652-1653.

ee. Mr. Sampson agreed with Mr. Bains’ suggestion that he could not tell what happened to the projectile once it travelled north, or to the left of the photograph. A possibility, even a likelihood, existed that the projectile that impacted the wall surface would be deformed. It would be impossible to say what form the deformity would take. Mr. Sampson could not say that what would remain would be something that on its own could be scientifically determined to be a projectile: see Volume 4, pp. 1653-1654.

ff. Mr. Sampson agreed with Mr. Bains that because there were two unspent cartridges, an interference must have happened twice. It is possible that if something was draped over the firearm which interfered with the hammer connecting with the rest of the firearm and continued for more than one firing, that there could be two interferences with the firing of the firearm: see Volume 4, pp. 1660-1661.

gg. The higher the calibre, the higher the grains (weight) of the bullet. A 9 millimeter or .380 calibre bullet weighs 123 grains. A .380 calibre special bullet weighs 158 grains. A .40 calibre Smith and Wesson bullet weighs 140 grains. A .32 calibre bullet weighs over a hundred grains. A 9 millimeter or .380 calibre short bullet weighs 95 grains. A .357 calibre bullet weighs around 185 grains. The Aguila bullets lose about ten per cent of their weight when fired: see Volume 4, pp. 1611-1613.

[41] Sam Osunbunmi (Osunbunmi) testified at the trial that upon hearing an argument, he went upstairs to the kitchen/living room area on the main floor. After Chambers and Warner pulled out their guns and started firing, Osunbunmi ran back down the hallway toward the stairs. Osunbunmi turned and “saw and heard” Chambers shooting down the hall at him: see Crown’s factum, Exclusion of Lead Fragment, at paras. 2-3.

[42] In cross-examination by Mr. Hicks, Osunbunmi agreed that he gave the following answers at the preliminary hearing:

Q: So, you’re already taking off down the hall when the shooting started?

A: Uh – uh

Q: Ok. Is it fair to say your back was to the shooters because you were already down the hall when the shooting started?

A: Yeah

See: Volume 3, pp. 1219-1221.

[43] Chambers testified that he bought the .380 calibre firearm from Warner. Chambers testified that in February or March 2010, Warner showed him the .22 calibre 8-shot revolver that was recovered from Canada Street. Chambers testified that he gave .22 calibre bullets to Warner at the beginning of March 2010. This would have occurred just before the shootings on March 13, 2010: see Volume 4, pp. 1811-1814.

LAW ON THE ADMISSIBILITY OF THE LEAD FRAGMENT

[44] It is not enough for evidence to meet the minimum threshold of relevance. A further inquiry is necessary to determine if the evidence is worth the cost of its impact on the trial process. Evidence that is otherwise relevant may be excluded if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time not commensurate with its value, or if it is misleading such that its effect on the trier of fact, particularly a jury, is out of all proportion to its reliability: see R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at para. 18.

[45] Determining whether the probative value of an item outweighs its prejudicial effect requires engaging in a cost-benefit analysis. The first step in conducting this exercise is to assess the value of the proposed evidence. Some weighing is required. Moldaver J. in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, indicated at paras. 94-99:

(c) How is Probative Value Assessed?

94 Determining whether the probative value of an item of evidence outweighs its prejudicial effect requires engaging in a "cost benefit analysis" (R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 21). That is, trial judges must assess "whether [the evidence's] value is worth what it costs" (ibid.). The first step in conducting this exercise, then, is to assess the value of the proposed evidence.

95 How are trial judges to assess the value of evidence? This requires more than asking whether the evidence is logically relevant; it necessitates some weighing of the evidence. After all, probative means "tending to prove an issue" and "questionable evidence will have less of that tendency" (R. v. McIntyre, 1993 CanLII 1488 (ON CA), at p. 2). It would be "artificial" and "self-defeating" for trial judges to ignore defects in the evidence during the assessment of its value (D. M. Paciocco and L. Stuesser, The Law of Evidence (6th ed. 2011, at p.38)). Generally, what this weighing exercise requires will vary depending on the specific inferences sought to be drawn from a piece of evidence.

96 As one example, trial judges are routinely called upon to determine the admissibility of expert evidence. Part of the admissibility inquiry involves taking stock of the probative value of the proposed evidence. This requires weighing the evidence and assessing its reliability:

When one looks to potential probative value, one must consider the reliability of the evidence. Reliability concerns reach not only the subject matter of the evidence, but also the methodology used by the proposed expert in arriving at his or her opinion, the expert's expertise and the extent to which the expert is shown to be impartial and objective.

(R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, 87, per Doherty J.A.)

97 Similarly, in R. v. Humaid (2006), 2006 CanLII 12287 (ON CA), 81 O.R. (3d) 456 (C.A.), Doherty J.A. held that otherwise admissible hearsay evidence may be excluded on the basis that its prejudicial effect outweighs its probative value. This can occur in circumstances where "the credibility or reliability of the narrator of the out-of-court statement is so deficient that it robs the out-of-court statement of any potential probative value" (para. 57). This Court endorsed that approach in R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 51.

98 Undoubtedly, weighing evidence in this way thrusts trial judges into a domain that is typically reserved for the jury. The jury, as the trier of fact, is ultimately responsible for weighing evidence and drawing conclusions from it. The overlap of roles cannot be avoided, but this is not problematic as long as the respective functions of the trial judge, as gatekeeper, and the jury, as finder of fact, are fundamentally respected. In conducting this weighing exercise, the trial judge is only deciding the threshold question of "whether the evidence is worthy of being heard by the jury" and not "the ultimate question of whether the evidence should be accepted and acted upon" (Abbey, at para. 89; see also Paciocco and Stuesser, at p. 38).

99 Returning to Mr. Big confessions, their probative value derives from their reliability. A confession provides powerful evidence of guilt, but only if it is true. A confession of questionable reliability carries less probative force, and in deciding whether the probative value of a Mr. Big confession outweighs the prejudicial effect of the character evidence that accompanies it, trial judges must examine its reliability.

[46] Probative value cannot be assessed in the abstract. The utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact. With respect to the strength of the proposed inference, one must consider the degree of relevance and strength of the inference that can be drawn: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 73, and R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918, at para. 44.

[47] Regarding circumstantial evidence, the line between permissible inference and impermissible speculation can be difficult to draw. I recently indicated in R. v. Barreira et al., 2017 ONSC 2540, the following at para. 47:

47 Regarding the line between proper inference and improper speculation, I indicated in R. v. Morgan, 2013 ONSC 1522 the following suggestions at paras. 9-11:

Reasonable Inferences vs. Speculation

9 The Oxford Canadian dictionary defines 'inference' as an act of inferring; 'inferring' is defined as "deduce or conclude from facts and reasoning". 'Speculation' is defined as "from a theory or conjecture especially without a firm factual basis".

10 Black's Law Dictionary, 9th edition, defines 'inference' as "a conclusion reached by considering other facts and deducing a logical consequence from them." 'Speculation' is defined as "the act or practice of theorizing about matters over which there is no certain knowledge."

11 In R. v. Munoz (2006), 2006 CanLII 3269 (ON SC), 86 O.R. (3d) 134 (S.C.), Justice Ducharme analyzed the difference between inference and speculation:

B. The drawing of inferences

[23] While the jurisprudence is replete with references to the drawing of "reasonable inferences," there is comparatively little discussion about the process involved in drawing inferences from accepted facts. It must be emphasized that this does not involve deductive reasoning which, assuming the premises are accepted, necessarily results in a valid conclusion. This is because the conclusion is inherent in the relationship between the premises. Rather the process of inference drawing involves inductive reasoning which derives conclusions based on the uniformity of prior human experience. The conclusion is not inherent in the offered evidence, or premises, but flows from an interpretation of that evidence derived from experience. Consequently, an inductive conclusion necessarily lacks the same degree of inescapable validity as a deductive conclusion. Therefore, if the premises, or the primary facts, are accepted, the inductive conclusion follows with some degree of probability, but not of necessity. Also, unlike deductive reasoning, inductive reasoning is ampliative as it gives more information than what was contained in the premises themselves.

[24] A good starting point for any discussion of inference drawing is the definition offered by Justice Watt:

An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances.

Equally important is Justice Watt's admonition that, "The boundary which separates permissible inference from impermissible speculation in relation to circumstantial evidence is often a very difficult one to locate."

[25] The process of inference drawing was described by Doherty J.A. in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 209 as follows:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation. As Chipman J.A. put it in R. v. White (1994), 1994 CanLII 4004 (NS CA), 89 C.C.C. (3d) 336 at p.351, 28 C.R. (4th) 160, 3 M.V.R. (3d) 283 (N.S.C.A.):

These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from the whole of the evidence on the other. [Emphasis added]

See also R. v. Powell (2006), 2007 CanLII 45918 (ON SC), 215 C.C.C. (3d) 274 (Ont. S.C.), at paras. 8-9; R. v. Munoz (2006), 2006 CanLII 3269 (ON SC), 205 C.C.C. (3d) 70, at paras. 24-31; and R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193, at para. 52.

[48] There are two types of prejudice: moral prejudice and reasoning prejudice. Moral prejudice arises where evidence suggests that the accused is a bad person. Reasoning prejudice arises where the jury is distracted from their proper focus or where the trial process becomes distorted through the use of evidence for an improper purpose. Prejudice can also arise where the evidence will likely usurp the function of the jury or require an undue consumption of time. Evidence may be prejudicial if it cannot be adequately tested and challenged through cross-examination or other means available in the adversarial process: see Handy, at para. 100, and R. v. Frimpong, 2013 ONCA 243, 1 C.R. (7th) 242, at paras. 18-21.

[49] Regarding expert opinion evidence, Laskin J.A. in R. v. Abbey, 2017 ONCA 640 (Abbey #2), recently outlined the test for the admissibility of opinion evidence at paras. 46-55:

(b) The test for the admissibility of expert evidence

46 The modern Canadian law on the admissibility of expert evidence began with the judgment of Sopinka J. in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. But in the last two decades since Mohan was decided the law on expert evidence has changed significantly. In Abbey #1 itself – on the Crown’s appeal from the acquittal at the first trial – my colleague Doherty J.A. reformulated the Mohan test for admissibility to make it easier to apply. And recently in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, Cromwell J. adopted with “minor adjustments” Doherty J.A.’s reformulation of Mohan.

47 The test in White Burgess is now the governing test for the admissibility of expert evidence. It adopts a two-stage approach, first suggested in Abbey #1: the first stage focuses on threshold requirements of admissibility; the second stage focuses on the trial judge’s discretionary gatekeeper role. Each stage has a specific set of criteria.

48 The test may be summarized as follows: Expert evidence is admissible when:

(1) It meets the threshold requirements of admissibility, which are:

a. The evidence must be logically relevant;

b. The evidence must be necessary to assist the trier of fact;

c. The evidence must not be subject to any other exclusionary rule;

d. The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the expert’s duty to the court to provide evidence that is:

i. Impartial,

ii. Independent, and

iii. Unbiased.

e. For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose,

and

(2) The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as:

a. Legal relevance,

b. Necessity,

c. Reliability, and

d. Absence of bias.

49 In short, if the proposed expert evidence does not meet the threshold requirements for admissibility it is excluded. If it does meet the threshold requirements, the trial judge then has a gatekeeper function. The trial judge must be satisfied that the benefits of admitting the evidence outweigh the costs of its admission. If the trial judge is so satisfied then the expert evidence may be admitted; if the trial judge is not so satisfied the evidence will be excluded even though it has met the threshold requirements.

50 On this appeal, of the threshold requirements for admissibility, only the fourth criterion – whether Totten is a properly qualified expert – is in issue. It is not in dispute that Totten’s expert evidence on gang culture was logically relevant to the key issue in the case, the identity of the shooter; that it was necessary to assist the jury in determining who the shooter was, in the sense that the meaning of a teardrop tattoo was beyond the knowledge of the jurors; and that it was not subject to any other exclusionary rule. And it is not in dispute that the fifth criterion, as framed, has no application as Totten’s opinion was not based on novel science or on a novel scientific theory. See Abbey #1, at para. 116.

51 Of the enumerated factors to be considered at the gatekeeper stage, the three that are applicable are legal relevance, reliability and the absence of bias.

52 Before leaving the White Burgess test for the admissibility of expert evidence, I make three additional points, which I will elaborate on when discussing the fresh evidence.

53 First, recent case law, including White Burgess itself, has emphasized the importance of the trial judge’s gatekeeper role. No longer should expert evidence be routinely admitted with only its weight to be determined by the trier of fact. As Cromwell J. said in White Burgess, at para. 20, “[t]he unmistakable overall trend of the jurisprudence, however, has been to tighten the admissibility requirements and to enhance the judge’s gatekeeping role”. Cromwell J.’s observation echoes the point Binnie J. made in the earlier Supreme Court of Canada decision R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 28: “The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility.”

54 Second, case law since Mohan has also emphasized the importance of the reliability of the evidence to its admissibility. See, for example, R. v. J.-L.J. and R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239. In Abbey #1, at para. 87, Doherty J.A. pointed out that at the gatekeeper stage of admissibility the reliability of the proposed expert evidence is central to its probative value and thus to the benefits of admitting it. And as I will discuss, the unreliability of Totten’s opinion evidence on teardrop tattoos, as demonstrated by the fresh evidence, is what disqualifies its admission.

55 The third and final point is that in White Burgess, at para. 45, Cromwell J. resolved a debate in the case law and held that an expert’s lack of impartiality and independence and an expert’s bias go to the admissibility of the expert’s evidence as well as to its weight, if admitted. At the admissibility stage these qualities are relevant to the threshold requirement of a properly qualified expert, and they are again relevant at the gatekeeper stage. Cromwell J., however, did point out at para. 49 of his reasons that rarely will a proposed expert’s evidence be ruled inadmissible for failing to meet this threshold requirement.

APPLICATION OF LAW TO THE FACTS

[50] Counsel suggests that in assessing probative value, three factors are to be considered: (1) identification of the issue in question, (2) the strength of the inference, and (3) the reliability of the evidence.

[51] The issues which this evidence of the lead fragment relates to are:

1. Whether Chambers fired any shots.
2. The credibility of the Crown witness Osunbunmi.
3. The credibility of Chambers.
4. The opinions of the police officers, Sergeant Spencer, Sergeant Giuliani, Inspector Hamilton, and the CFS expert Benjamin Sampson.

[52] Mr. Sampson testified that the two lead fragments recovered from Musgrave and the lead fragment found in the hallway cannot be scientifically identified by Mr. Sampson as being part of a bullet. However, Mr. Sampson, being a scientist, examined the fragments forensically and did not consider the context in which they were found.

[53] Two lead fragments and an identified lead bullet were recovered from the deceased Musgrave. Mr. Sampson testified that bullets can be damaged and fragment upon striking an object.

[54] In the totality of the evidence led at trial, it is a reasonable inference, that a jury may draw, that the lead bullet and the two lead fragments, with a total weight of 56.2 grains, recovered from Musgrave came from a bullet consistent with a 60-grain Aguila bullet as found in the spent and unspent shells in the revolver and the 60-grain Aguila bullets found in a home connected to Chambers.

[55] Regarding the lead fragment found in the hallway by Inspector Hamilton, scientific analysis alone by Mr. Sampson cannot determine whether this lead fragment came from a bullet. However, the Crown witness Osunbunmi testified that Chambers shot at him while he was running down the hallway where the lead fragment was found. Osunbunmi was not struck and did not know where the bullet went. Mr. Hicks, in his able cross-examination of Mr. Sampson, established that if a bullet was fired down that hallway, some mark would have to be left somewhere in the hallway. Further, a bullet cannot change direction on its own but would have to ricochet in order to be found in an area different from the angle of the original shot. Mr. Bains, in his equally effective cross-examination, established that indeed there was a mark on the angled part of the wall in the hallway and that a bullet striking that area could ricochet and change direction to the left or north (the area in which the lead fragment was found). The mark, depicted in the photograph entered as an exhibit in these pre-trial motions, shows a white chalky material being present near that mark on the wall. The lead fragment had white chalky material on it, which Mr. Sampson noted to be drywall but he did not test it. The lead fragment weighed 55.2 grains which is in the range of the .22 calibre lead bullets extracted from the three victims. The three lead bullets extracted from the victims weighed in the range of 55 to 58.1 grains. Further all of these four weights of lead fragments/bullets are consistent with the 60-grain weight (minus the expected ten per cent loss when fired) of the distinctive Aguila bullets found in the recovered revolver and in the home linked to Chambers.

[56] The deficiencies in the police investigation in not realizing the importance of the lead fragment, not taking a photo in situ, and not taking exact measurements or proper documentation regarding the location of the lead fragment do not significantly weaken the reasonable inferences that are available to the jury. These deficiencies go to the weight of the evidence and can be cross-examined upon at the trial.

[57] The lead fragment is a piece of real evidence found at the scene and therefore is a reliable piece of evidence, that in the context of the totality of the evidence at trial, leads to a fairly strong inference that the lead fragment is a damaged remnant of a bullet that struck the angled portion of hallway and ricocheted to its resting place. Should the jury adopt this reasonable inference, this evidence supports the credibility of the Crown witness Osunbunmi that Chambers fired a shot at him. This conclusion contradicts Chambers testimony that he did not fire any bullets.

[58] Regarding prejudice, the admission of the lead fragment into evidence does not qualify as moral prejudice. Regarding reasoning prejudice, there is no distortion of the trial for an improper purpose, no undue consumption of time, and no likelihood that the function of the jury will be usurped. The evidence of the finding and analysis of the lead fragment can be adequately tested and challenged by cross-examination, jury instruction, and any other means available in the trial process.

[59] The probative value of the admission of the lead fragment far exceeds any prejudicial effect and the evidence regarding the lead fragment is admissible at this trial.

[60] Further, the opinion evidence of Mr. Sampson regarding the lead fragment is admissible as he has extensive experience and qualifications in the examination of firearms and ammunition. The same cannot be said of Staff Sergeant Spencer, Sergeant Giuliani and Inspector Hamilton.

[61] Staff Sergeant Spencer’s qualifications are that he is a police officer and former member of the Canadian Armed Forces, and that he has seen shrapnel. His opinion was that the lead fragment was shrapnel that appeared to be a remnant of a bullet. Sergeant Giuliani is a forensic identification officer. His opinion, upon closer inspection of the fragment, was that it looked like a “possible deformed projectile.” Inspector Hamilton believed the lead fragment was a disfigured bullet: see a summary of these opinions in Crown’s factum, Exclusion of Lead Fragment, at paras. 4-7.

[62] Basically, these three officers looked at the lead fragment and came to their conclusions. Staff Sergeant Spencer admitted that he did no tests on the lead fragment and had not taken any courses regarding firearms and ammunition: see Volume 3, p. 1347.

[63] Sergeant Giuliani and Inspector Hamilton came to their opinions based on visual examination of the lead fragment. There was a debate over whether it was a projectile or not: see Volume 4, pp. 1560 and 1726.

[64] The opinions of these officers that the lead fragment was “lead shrapnel that appeared to be “remnants of a bullet,” “a possible deformed projectile,” and “a disfigured bullet” are based on no real expertise. An expert giving an opinion must be properly qualified and the opinion evidence must be evidence that assists the trier of fact: see Abbey #2, at para. 48.

[65] In my opinion, the opinion evidence of these three police officers, is minimally better than any lay person and accordingly their opinions do not meet the threshold requirements expected of expert opinion evidence: see Abbey #2, at para. 49.

[66] Accordingly, the opinions of the three officers regarding the lead fragment are not admissible. In describing the lead fragment, the three police officers are instructed to refer to the lead fragment found in the hallway as a “suspected lead fragment.”

ISSUE #4 – ADMISSIBILITY OF AMMUNITION LOCATED AT 327 QUEEN VICTORIA DRIVE, HAMILTON

[67] Chambers brings a motion to exclude boxes of ammunition located at his girlfriend’s home at 327 Queen Victoria Drive on April 10, 2010.

[68] Chambers again argues that the probative value of the ammunition cache is outweighed by its prejudicial effect. Chambers’ application is opposed by both the Crown and Warner.

ADDITIONAL EVIDENCE

[69] Shortly after the shootings, the police executed a search warrant at the home at 327 Queen Victoria Drive, which was associated with Chambers’ then girlfriend, Yaasmiyn Davidson (Davidson). Police seized several bags of ammunition, including bullets that matched those found at the scene of the shooting. In addition to Aguila S.S.S. bullets, several other brands of ammunition were located, including .357 and .32 calibre ammunition. It is not alleged by the Crown that the .357 or .32 calibre ammunition was used in the commission of the offence: see Chambers’ Applicant Factum, Re Socks and Ammunition at para. 8.

[70] Chambers testified that he had given Warner .22 calibre bullets in March 2010: see Volume 4, pp. 1811-1813.

[71] Chambers further testified that on the night of the shootings, he had a .380 pistol wrapped in a black sock. Chambers said that Warner sold him the pistol: see Volume 4, pp. 1811-1816 and 1821-1822.

[72] Chambers test fired the .380 pistol when it was wrapped in black socks. It was fired twice: once wrapped in two black socks, and the other time it was wrapped in one black sock. Chambers testified that he never fired the pistol again: see Volume 4, pp. 1816-1819.

[73] Counsel for Warner submitted that other than Chambers’ testimony, there was no evidence of a .380 pistol that was used or possessed by Chambers. In the cache of ammunition seized by the police from Queen Victoria Drive, there was no .380 ammunition.

[74] Chambers testified that in 2009, Chambers received the ammunition pursuant to a drug deal in exchange for $20 of crack cocaine. Chambers gave the ammunition to his girlfriend and Davidson kept it at her house: see Volume 4, pp. 1808-1809.

LAW ON ADMISSIBILITY OF AMMUNITION LOCATED AT 327 QUEEN VICTORIA DRIVE, HAMILTON

[75] To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue.” As a consequence, there is no minimum probative value for evidence to be relevant: see R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 38.

[76] Relevance is contextual in that it depends on the facts in issue, the position taken by the parties in respect of those facts and the other evidence adduced in relation to those facts. Because relevance is contextual, a court will often be unable to determine relevance at the time the evidence is proffered, but will receive the evidence conditionally and determine the relevance of the evidence after the evidentiary picture has been fully developed: see R. v. Truscott (2006), 2006 CanLII 60337 (ON CA), 213 C.C.C. (3d) 183 (Ont. C.A.), at para. 23.

[77] The threshold for relevance is not high. Similarly, the test for relevance is not an exacting one and is not dependent upon scientific proof. The standard of proof to be applied is on a balance of probabilities. Evidence will be deemed to be relevant “where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence”: see R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 48; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 46; and R. v. Clarke (1998), 1998 CanLII 14604 (ON CA), 129 C.C.C. (3d) 1 (Ont. C.A.), at para. 27.

[78] Once evidence is found to be relevant, it is generally admissible and the jury is left to decide how much weight to give a particular piece of evidence. Similarly, once evidence is determined to be relevant with respect to a particular live issue, the jury should normally be free to weigh the evidence in drawing their own conclusions about that live issue. This is subject to specific exclusionary rules and the trial judge’s discretion to exclude evidence that is more prejudicial than probative: see R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 54.

[79] Essential to balancing probative value versus prejudicial effect is the need to identify live issues at trial. In R. v. Macdonald, 2017 ONCA 568, Watt J.A. indicated at para. 80:

80 Essential to a determination of probative value, thus to settling the probative value-prejudicial effect balance, is the need to identify the issue to which the evidence of extrinsic misconduct or similar acts relates. Probative value, like relevance, cannot be assessed, much less determined in the abstract. The issues that arise in any given case derive from or are a function of the allegations contained in the indictment and the defences advanced by the person charged: Handy, at paras. 73-75. We reject a category approach to admissibility in favour of a general principle that assesses, then balances, probative value and prejudicial effect: R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at pp. 732-733.

[80] The fact that an accused is negatively impacted by a trial judge’s ruling does not mean that he is prejudiced in the legal sense: see R. v. S.(D.G.), 2013 MBCA 69, 299 C.C.C. (3d) 443, at para. 25.

[81] Prejudice comes in the form of moral prejudice (ie. the accused is a bad person) and reasoning prejudice (including the potential to confuse and distract the jury from the actual charge the accused faces): see Handy, at paras. 100, 139, and 144-146.

[82] This is a joint trial. The test for admissibility of evidence is different if introduced by a co-accused as opposed to the Crown. In R. v. Pollock and Morrisson (2004), 2004 CanLII 16082 (ON CA), 187 C.C.C. (3d) 213 (Ont. C.A.), Rosenberg J.A. held at paras. 107-110:

107 In deciding whether to admit evidence on behalf of one accused of the co-accused’s disposition, the trial judge is required to balance the fair trial-rights of the two accused. In some cases, the trial judge will conclude that a fair balance cannot be struck within the confines of a single trial and the judge will grant severance. In most cases, however, it should be possible to balance the fair trial rights of both accused.

108 In Suzack at para. 111, Doherty J.A. explained the trial judge’s duty to balance the rights of co-accused in a joint trial:

Where accused are tried jointly, each is entitled to the constitutional protections inherent in the right to a fair trial. Those protections include the right to make full answer and defence and the right to be shielded from evidence which unfairly prejudices an accused. An accused's right to a fair trial does not, however, entitle that accused to exactly the same trial when tried jointly as the accused would have had had he been tried alone: R. v. Crawford, supra, at pp. 497-98; R. v. Pelletier (1986), 1986 CanLII 1179 (BC CA), 29 C.C.C. (3d) 533 (B.C.C.A.). In joint trials, one accused may elicit evidence or make submissions in support of his defence that are prejudicial to the other accused and could not have been elicited or made by the Crown. In those cases, the respective rights of each accused must be balanced by the trial judge so as to preserve the overall fairness of the trial. In Crawford, supra, Sopinka J. said, at p. 498:

I have gone to some length to stress that Charter rights are not absolute in the sense that they cannot be applied to their full extent regardless of the context. Application of Charter values must take into account other interests and, in particular, other Charter values which may conflict with their unrestricted and literal enforcement. This approach to Charter values is especially apt in this case, in that the conflicting rights are protected under the same section of the Charter.

[Emphasis added.]

109 One way in which the trial judge will balance the rights of co-accused is by instructing the jury as to limitations on the use of evidence. In Suzack, Doherty J.A. explained how the trial judge was required to instruct the jury that evidence of the propensity of the accused adduced by the co-accused was admissible to raise a reasonable doubt on behalf of that co-accused but could not be used by the Crown to prove the guilt of the accused. A similar solution was adopted in R. v. Crawford (1995), 1995 CanLII 138 (SCC), 96 C.C.C. (3d) 481 (S.C.C.), referred to in the above quotation, where the Supreme Court held that while an accused could lead evidence of the co-accused’s silence upon arrest, the trial judge was required to instruct the jury that the evidence was relevant only to the accused’s credibility (the co-accused’s testimony implicated the accused) and was not evidence of the co-accused’s guilt.

110 Where the Crown seeks to adduce character evidence of an accused, as with similar fact evidence, the probative value of the evidence must outweigh its prejudicial effect. The balancing is different where one accused seeks to introduce character evidence of a co-accused. The power to exclude relevant evidence adduced by an accused is narrower: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577. It would seem that the evidence is admissible unless its prejudicial effect substantially outweighs its probative value.

APPLICATION OF LAW TO THE FACTS

[83] Given the evidence that .22 calibre bullets were recovered from the victims’ bodies, that these bullets were consistent with the size of relatively uncommon Aguilar bullets, and that Aguilar bullets were found in the recovered revolver, the accused Chambers being in possession of .22 calibre bullets including uncommon .22 calibre Aguilar bullets is relevant to the identity of the shooter, the credibility of Chambers’ testimony regarding giving Warner .22 calibre bullets for the recovered revolver and is relevant to the issue of whether Chambers was a principal in the shooting or an aider or abettor to the shooting.

[84] However, the evidence that Chambers was in possession or had access to a host of non .22 calibre ammunition (none of which was .380 ammunition) which was not used at the crime scene has significant moral prejudice that exceeds any probative value. This evidence is not admissible at the instance of the Crown.

[85] This is a joint trial. As I understand it, Mr. Bains’ position is that the only evidence that Chambers was in possession of a .380 pistol comes from Chambers. Mr. Bains’ position at trial is that while Warner shot one of the victims, Chambers shot the others. Given that two of the cartridges did not fire due to possible interference from a cloth substance (i.e. socks) and that Chambers carried his gun in a sock, Warner will argue that the recovered revolver belonged to and was used by Chambers. Chambers being in possession of .22 calibre ammunition and not of any .380 ammunition makes it less likely that Chambers had a .380 pistol and accordingly the composition of all the ammunition in possession of Chambers is a live issue for Warner.

[86] I cannot say that, per R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, the prejudicial effect of this evidence on Chambers substantially outweighs its probative value to Warner. In other words, per R. v. Seaboyer, the prejudicial effect of this evidence on Chambers does not substantially outweigh the probative value it has to Warner and therefore this evidence is admissible. Accordingly, the composition of the entire ammunition cache seized at Chambers’ girlfriend’s home is admissible at the instance of Warner.

[87] The Crown argues that should it introduce evidence of the ammunition cache, but is only allowed to introduce evidence of the .22 calibre bullets and then Warner introduces evidence of other types of ammunition, the jury may conclude that the Crown is suppressing evidence. The Crown argues this would render the trial unfair to the Crown: see R. v. Savojipour (2006), 2006 CanLII 3458 (ON CA), 79 O.R. (3d) 418 (C.A.), at paras. 7-17.

[88] There is considerable force in the Crown’s position. I believe that this issue can be resolved at the time of the introduction of the ammunition evidence taken from 327 Queen Victoria Drive. Counsel for Warner will be asked before the Crown introduces this evidence, if Warner continues to intend to introduce evidence of the entire composition of the seized ammunition cache. If the answer is yes, the Crown will be permitted to lead evidence of the entire composition of the seized ammunition from the Queen Victoria address. If the answer is no, the Crown will be limited to adducing evidence of the seized .22 calibre bullets only.

[89] The evidence given by Chambers that he obtained the ammunition pursuant to a drug deal is prejudicial evidence that substantially outweighs any probative value. This evidence cannot be introduced by either the Crown or Warner. Should Chambers wish to introduce this evidence in his examination in chief or otherwise, he is free to do so but that could open avenues for cross-examination that need not be explored at this time.

ISSUE #5A – ADMISSIBILITY OF BLACK SOCKS LOCATED AT 181 HERKIMER, HAMILTON

[90] The accused Chambers seeks to exclude evidence of three black socks with holes and gunshot residue (GSR) on them arguing (1) at common law, that the probative value is exceeded by the prejudicial effect, and (2) that the socks were seized in violation of Chambers’ Charter rights and should be excluded pursuant to section 24(2) of the Charter.

[91] The Crown opposes both branches of Chambers’ application to exclude the socks. Warner opposes Chambers’ application to exclude based on common law principles but takes no position on the Charter motion.

ADDITIONAL FACTS

[92] Shortly after the shootings on March 13, 2010, police executed a search warrant at 181 Herkimer Street on March 19, 2010. They seized three black socks with holes and GSR on them.

[93] Elspeth Lindsay, a forensic chemist, examined the three black socks. Her forensic report dated May 7, 2012, indicated that all three socks had GSR particles in or on them. The GSR she found contained the conventional three elements of GSR – lead, barium and antimony.

[94] Ms. Lindsay examined the five spent cartridges that were in the recovered revolver and found only lead and barium. There was no antimony. Accordingly, she concluded that the cartridges in the recovered revolver could be excluded as the source of the GSR detected on the black socks: see Elspeth Lindsay’s Forensic Report and Volume 4, pp. 1699-1701.

[95] The evidence of the civilians at the party on March 13, 2010 is that Chambers held a gun housed in a sock: see Chambers’ Notice to Exclude Evidence, Ground 14, and Crown’s Factum – Exclusion of Socks and Ammunition, at para. 12.

[96] Throughout the trial, counsel for Chambers cross-examined witnesses as to whether they had seen a gun or merely a sock or something benign in the sock (i.e. a cell phone): see Crown’s Factum, at paras. 12-14. – Exclusion of Socks and Ammunition.

[97] As previously reviewed, the recovered revolver did not fire on two occasions. As pointed out by Mr. Bains in his cross-examination of Mr. Sampson, a piece of fabric could have prevented the hammer from firing the bullet.

COMMON LAW ON ADMISSIBILITY OF THE BLACK SOCKS

[98] The law as previously reviewed pursuant to issues #3 (lead fragment) and #4 (ammunition seized from 327 Queen Victoria) regarding the balancing of probative value and prejudicial effect apply to issue #5 as well.

APPLICATION OF LAW TO FACTS

[99] The three black socks found at 181 Herkimer Street are relevant and significantly probative to the issue of the partygoers’ credibility that Chambers was carrying a gun in a sock.

[100] The black socks are further relevant as to who fired the recovered revolver. It is clear from Mr. Bains’ cross-examination of Mr. Sampson that a fabric (such as a sock) could have been responsible for the two misfired cartridges in the revolver. It can be anticipated that Mr. Bains will argue that it was Chambers who fired the recovered revolver. The fact that none of the three black socks contain GSR from the ammunition fired from the revolver in fact assists the jury who might have fired that revolver. Based on the evidence of the black socks and the forensic examination results, the jury could make an inference that Chambers, while carrying a gun in a black sock, either fired a conventional firearm or did not fire at all (the GSR being deposited on a prior occasion during the discharge of a weapon or the GSR being transferred to the socks by an object with GSR on it like a bullet) or that Chambers did not fire the recovered revolver (the inference being that Warner fired it): see Volume 4, pp. 1687, 1691, 1697, and 1708.

[101] Accordingly, the black socks have relevance to a variety of issues. The black socks and the GSR on them are pieces of real evidence and the probative value is significant. Given the varying possible sources of the GSR on the socks and the ability of the defence to cross-examine the forensic expert, I find that there is relatively little moral or reasoning prejudice associated with this evidence.

[102] In conclusion, subject to the Charter application for exclusion, the probative value of the black socks exceeds any prejudicial effect and the black socks are admissible in evidence.

ISSUE #5B – CHARTER APPLICATION – ADMISSIBILITY OF BLACK SOCKS LOCATED AT 181 HERKIMER, HAMILTON

[103] Chambers brings a motion under sections 8 and 24(2) of the Charter to exclude the black socks seized from 181 Herkimer Street from evidence at this trial.

[104] On March 19, 2010, six days after the shootings occurred on March 13, 2010, the police searched 181 Herkimer pursuant to a search warrant. Several items were located including black socks that eventually tested positive for GSR, as previously discussed.

[105] Chambers argues that there was insufficient information in the information to obtain (ITO) to identify the residence at 181 Herkimer as a place where evidence was likely to be located or that evidence in relation to the offences was likely to be found.

[106] Accordingly, Chambers argues that a search warrant could not issue due to want of reasonable grounds and therefore a section 8 violation occurred. Chambers argues that the evidence obtained during the search of 181 Herkimer Street, including the black socks, should be excluded pursuant to section 24(2) of the Charter.

ADDITIONAL FACTS

[107] After the shootings occurred at a house party at 53 Dundurn Street South on March 13, 2010, a police investigation ensued. Approximately one month later, Chambers was arrested in Halifax, Nova Scotia.

[108] Justice of the Peace Stevely granted on March 19, 2010 a search warrant for the residence at 181 Herkimer Street, which was associated with Chambers and his girlfriend, Davidson.

[109] The residence at 181 Herkimer Street was searched on March 19, 2010. A number of items were seized, including three black socks that were later tested and showed positive for GSR. Forensic examination concluded that the GSR on the socks could not have come from the cartridges discharged in the recovered revolver.

[110] The ITO was prepared by the affiant Kelly Rees.

[111] The affiant reviewed the notes from the interview with Davidson done by Detective Pacey on March 17, 2010. Detective Pacey’s notes, included at Chambers’ Charter Application Record, Tab 7, indicate that Davidson reported she dated Chambers for about a month in March the previous year. They had a rocky relationship. Davidson indicated she got Chambers an apartment at 132 Ontario Avenue. She rented the apartment in May of last year. She did not know where Chambers was living. Davidson went with Chambers to the Yorkdale Mall on March 15, 2010, two days after the shooting. Much of this information was incorporated in the ITO, at para. 39.

[112] The affiant reviewed the March 16, 2010 notes of Constable Lee. Lee reviewed a NICHE report regarding 181 Herkimer Street and nothing was revealed. Lee assisted in the surveillance of 181 Herkimer Street. Lee’s notes indicate that she spoke to a tenant at 181 Herkimer Street, a Janice Carter, who said a black female had just moved in. Lee has a note that she checked mailbox #4 and the note indicates, “01 – Yaasmiyn Davidson.” There was no answer. Lee looked into the rear garage and saw that the apartment was in disarray. She observed through the window a male’s black parka and large shoes.

[113] In the ITO, there is evidence that a number of witnesses identified Chambers and Warner as the individuals involved in the shootings: see for example Appendix A to the ITO, at paras. 25-27.

[114] In February 2006, Chambers supplied 86 Strawberry Drive as his home address: see Appendix B to the ITO, at para. 31.

[115] In the ITO, Addendum B, the affiant Rees indicates that Detective Pacey received information from an anonymous tip from “Source C” on March 16, 2010. This was a Crimestoppers tip, but Detective Pacey does not reveal that information. Detective Pacey indicated that he could not comment on the reliability of the source: see Addendum B to the ITO, at para. 63.

[116] Source C indicated that Chambers was living in a two-storey red brick house at the corner of Herkimer and Queen.

[117] On March 16, 2010, Detective Pacey attended at the corner of Queen and Herkimer. The only house that matched the description was 181 Herkimer.

[118] Detective Pacey interviewed the owner of 181 Herkimer who indicated that Davidson was the tenant in the coach house at the rear of the property. She became the tenant on March 1, 2010, but was given the keys on February 15, 2010. Davidson was supposed to be living alone. One of the tenants told the owner that a black male named Mark helped her move in and that he was moving in as well. The landlord spoke to Davidson, who assured him that Mark was not moving in. The couch house is also referred to by the landlord as apartment #4.

[119] The Crown substantially agreed with Chambers’ summary of the relevant evidence as outlined above.

LAW ON STANDING TO BRING THE CHARTER APPLICATION

[120] The Crown argues that Chambers does not have standing to bring this Charter motion.

[121] The Crown relies on the classic case on standing, R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, where Cory J. holds at paras. 45-46:

45 A review of the recent decisions of this Court and those of the U.S. Supreme Court, which I find convincing and properly applicable to the situation presented in the case at bar, indicates that certain principles pertaining to the nature of the s. 8 right to be secure against unreasonable search or seizure can be derived. In my view, they may be summarized in the following manner:

1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at p. 619.

2. Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter, supra.

3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated. See Pugliese, supra.

4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings, supra.

5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, at p. 54, and Wong, supra, at p. 62.

6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

(i) presence at the time of the search;

(ii) possession or control of the property or place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

See United States v. Gomez, 16 F.3d 254 (8th Cir. 1994), at p. 256.

7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.

46 Taking all the circumstances of this case into account, it is my view that the appellant has not demonstrated that he had an expectation of privacy in Ms. Evers' apartment. While the factors set out in Gomez, supra, are helpful, they are certainly not exhaustive and indeed other factors may be determinative in a particular case. Nonetheless, it is significant that, apart from a history of use of Ms. Evers' apartment, the appellant cannot comply with any of the other factors listed in Gomez, supra.

[122] Fairburn J. recently summarized the relevant considerations in R. v. Moulton, 2015 ONSC 1047, 19 C.R. (7th) 112, at paras. 105-107:

The law related to standing to assert a s. 8 claim

105 Before an unreasonable search and seizure can be found, the court must be satisfied that the individual has standing to assert the claim. To determine standing, the court must inquire into whether the accused -- not some other individual -- had a reasonable expectation of privacy in respect to the location, thing or information searched. The classic criteria for consideration are set out in Edwards at para 45, and focus on the totality of circumstances: (i) the presence of the accused at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place searched; (iv) the historical use of the property or place; (v) ability to regulate access to the property or place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of that expectation. In order to determine a privacy interest, the totality of circumstances must be assessed: R v Tessling, 2004 SCC 67 at para 19; Edwards at para 45; R v Patrick, 2009 SCC 17 at paras 26-7.

106 At the subjective stage of the test, the question is whether the individual had or, as Binnie J. put it in Patrick, "is presumed to have had, an expectation of privacy": at para 37. This is a low hurdle to get over and the individual need not testify in order to meet the test. The reasonableness of an individual's belief that they had an expectation of privacy in a location, thing or information searched, is to be tested at the second stage of the standing analysis and not to be conflated with the subjective test: Patrick at para 37; Nolet at paras 30-1; R v Gomboc, 2010 SCC 55 at paras 24-7.

107 A person may have a reasonable expectation of privacy in a hotel room. This is despite the fact that cleaning staff will enter the room at some point: R v Buhay, 2003 SCC 30 at para 22; R v Kenny, (1992), 1992 CanLII 7729 (ON CA), 52 OAC 70 at para 14. I did not hear the Crown dispute the fact that hotel rooms are privacy-protected zones. While the privacy in them may not rise to the level of a private home, s. 8 does cloak them in protection.

[123] The Crown also argues that by fleeing the jurisdiction days after the shootings, Chambers abandoned 181 Herkimer Street and dissolved his interest in it.

[124] Chambers left Hamilton on March 15, 2010 to evade detection and apprehension. Text messages obtained through production orders indicate Chambers gifted items of value (i.e. a TV) to Davidson. The Crown argues that this supports a finding that Chambers abandoned 181 Herkimer Street. Further, Davidson made efforts to dispose of items inside 181 Herkimer Street. Chambers was arrested in April in Halifax, Nova Scotia: see Crown’s Respondent’s Factum – Section 8, at paras. 11-14.

[125] The Crown relies on R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at paras. 54-64, where Binnie J. indicates:

54 Clearly, the appellant intended to abandon his proprietary interest in the physical objects themselves. The question is whether he had a reasonable continuing privacy interest in the information which the contents revealed to the police. There was some discussion at the bar that a privacy interest does not cease until garbage becomes “anonymous”, but as Conrad J.A. noted, much garbage never becomes anonymous, e.g. addressed envelopes, personal letters and so on. In this case, the garbage included invoices for the purchase of chemicals used in the preparation of the drug Ecstasy. The idea that s. 8 protects an individuals’s privacy in garbage until the last unpaid bill rots into dust, or the incriminating letters turn into muck and are no longer decipherable, is to my mind too extravagant to contemplate. It would require the entire municipal disposal system to be regarded as an extension, in terms of privacy, of the dwelling-house. Yet if there is to be a reasonable cut-off point, where is it to be located? The line must be easily intelligible to both police and homeowners. Logically, because abandonment is a conclusion inferred from the conduct of the individual claiming the s. 8 right, the reasonableness line must relate to the conduct of that individual and not to anything done or not done by the garbage collectors, the police or anyone else involved in the subsequent collection and treatment of the “bag of information”.

55 Stillman (at para. 62) and Tessling (at paras. 40-41) identified garbage as a “classic” instance of abandonment. Here, I believe, abandonment occurred when the appellant placed his garbage bags for collection in the open container at the back of his property adjacent to the lot line. He had done everything required of him to commit his rubbish to the municipal collection system. The bags were unprotected and within easy reach of anyone walking by in a public alleyway, including street people, bottle pickers, urban foragers, nosey neighbours and mischievous children, not to mention dogs and assorted wildlife, as well as the garbage collectors and the police. This conclusion is in general accord with the jurisprudence.

56 In R. v. Krist (1995), 1995 CanLII 948 (BC CA), 100 C.C.C. (3d) 58 (B.C.C.A.), three garbage bags were placed on the side of the road in front of the appellant’s home ready for garbage pickup. As the garbage truck approached, the police grabbed two of the bags. The Crown acknowledged that without the material found in the garbage search, the police would not have had the reasonable grounds to obtain a search warrant of the appellant’s house and van. The court observed:

The question here is whether the important values which s. 8 protects in relation to privacy within the home reasonably extends to that which has been discarded from the home and put out for collection as garbage. I think not.

We are not concerned in this case with a search which invaded the sanctity of the home. What we are concerned with is whether there is a reasonable expectation of privacy in relation to information that may be gleaned from trash which has been abandoned by a householder to the vagaries of municipal garbage disposal. [paras. 25 and 27]

57 In Kennedy, following a homicide, a police officer in the company of a city employee took all of the bags set out for collection by the apartment building where both appellants resided. The officer then went through the garbage and was able to tie some of the contents to the appellant Kennedy, including empty envelopes and handwritten notes which were linked to the robbery. No warrant was obtained. The trial judge found that the appellant Kennedy, having discarded the contents of the garbage, had no reasonable expectation of privacy. His admission of the evidence was upheld by the Ontario Court of Appeal.

58 In the earlier case of R. v. Taylor, [1984] B.C.J. No. 176 (QL) (S.C.), police took garbage left for pickup by the accused at the rear of his property adjacent to the back alley. In concluding that the accused did not enjoy privacy rights over the garbage, Toy J. observed at para. 49: “I am unable to characterize the removal of garbage apparently abandoned for delivery to the garbage disposal area as an unreasonable seizure.”

59 In R. v. Tam, [1993] B.C.J. No. 781 (QL) (S.C.), police took garbage bags left lying on the pavement for garbage collectors. To reach the bags, the police officer stepped across the property line. The trial judge considered this to be a trespass in only “the most technical, trivial and insignificant sense” (para. 3), and concluded that the contents were abandoned items that were left to garbage collectors to do with as they liked and there was no reasonable expectation of privacy in those contents.

60 In R. v. Allard, 2006 QCCQ 3080, [2006] J.Q. no 3377 (QL), a police officer stood on public property and reached beside a receptacle on private property to retrieve garbage bags. Toupin J.C.Q. held that Allard had abandoned the garbage and his constitutional rights were not violated. See also R. v. Barrelet, 2008 QCCS 3765, [2008] J.Q. no 7991 (QL). In R. v. Andrews, [2005] J.Q. no 8595 (QL) (C.Q.), on the other hand, the court was persuaded by the testimony of the accused to reach a contrary result on the facts.

61 In California v. Greenwood, 486 U.S. 35 (1988), the United States Supreme Court held that by placing the garbage in opaque bags at the curbside for pickup by a trash collector, residents of a house retained no reasonable expectation of privacy in the inculpatory items which they discarded. Some State courts have reached a contrary conclusion: People v. Krivda, 486 P.2d 1262 (Cal. 1971), at p. 1268; State v. Morris, 680 A.2d 90 (Vt. 1996).

62 Nevertheless, until the garbage is placed at or within reach of the lot line, the householder retains an element of control over its disposition and cannot be said to have unequivocally abandoned it, particularly if it is placed on a porch or in a garage or within the immediate vicinity of the dwelling where the principles set out in the “perimeter” cases such as Kokesch, Grant and Wiley apply.

63 In municipalities (if there are any left) where garbage collectors come to the garage or porch and carry the garbage to the street, they are operating under (at least) an implied licence from the householder to come onto the property. The licence does not extend to the police. However, when the garbage is placed at the lot line for collection, I believe the householder has sufficiently abandoned his interest and control to eliminate any objectively reasonable privacy interest.

64 Given the “totality of the circumstances” test, little would be gained by an essay on different variations of garbage disposal. To take a few common examples, however, the rural people who take their garbage to a dump and abandon it to the pickers and the seagulls, the apartment dweller who unloads garbage down a chute to the potential scrutiny of a curious building superintendent, and the householder who takes surreptitious advantage of a conveniently located dumpster to rid himself or herself of the “bag of information” are all acting in a manner inconsistent with the reasonable assertion of a continuing privacy interest, in my view.

BRIEF OVERVIEW OF GENERAL PRINCIPLES RELATING TO JUDICIAL REVIEW OF SEARCH WARRANTS

[126] It is trite law that before a search warrant may issue, the police must provide “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and there is evidence to be found at the place of the search”: see Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 168, and R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81.

[127] The reviewing judge does not substitute his or her own view for that of the authorizing judge. The reviewing court considers whether there is sufficient credible and reliable evidence to permit the justice to find reasonable and probable grounds that an offence has been committed and further, that evidence of the offence will be found at the specified time and place to be searched: see R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at para. 56; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R 253, at para. 40; and Sadikov, at paras. 83-89.

[128] Since the application for a search warrant proceeds ex parte, the affiant has an obligation to set out the information to the issuing justice fully and frankly. The affidavit should avoid boilerplate language and take care not to mislead the issuing justice or exaggerate facts. If any such erroneous information is found in the ITO, it should be excised on review. However, review is not an exercise focusing on minor errors or omissions: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 46-47; Morelli, at para. 102; and R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, at para. 57.

[129] The standard of proof in order to establish reasonable grounds is one of “reasonable probability” rather than proof beyond a reasonable doubt or a prima facie case. The phrase “reasonable belief” also approximates the requisite standard. In the case of an anonymous tip or untried informant, where the informer’s credibility cannot be assessed, the level of verification or corroboration required by the police will be higher. “In such circumstances, the quality of the information and corroborative evidence may have to be such as to compensate for the inability to assess the credibility of the source”: see R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R 1140, at paras. 57-59.

[130] Absent confirmation of details other than those which describe innocent and commonplace conduct, information supplied by an untested, anonymous source cannot, standing alone, provide reasonable grounds for an arrest or search: see R. v. Lewis (1998), 1998 CanLII 7116 (ON CA), 38 O.R. (3d) 540 (Ont. C.A.), at para. 19.

[131] The reliability of a tip is to be assessed by recourse to the “totality of circumstances”: see Garofoli, at para. 82.

[132] Regarding section 24(2) considerations, the leading case of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, sets out the three avenues of enquiry necessary to determine whether or not evidence obtained by a Charter breach should be admitted or excluded. The balancing of the three factors is not capable of mathematical precision, but must be a reasoned decision: see R. v. Paterson, 2017 SCC 15, 409 D.L.R. (4th) 420, at paras. 53-57.

APPLICATION OF LAW TO FACTS - THE STANDING ISSUE

[133] I have reviewed carefully the ITO and the trial evidence of Davidson and Chambers. I have related that evidence to the “totality of circumstances” criteria enumerated in Edwards. I propose to consider each of the factors outlined in Edwards, at para. 45 of that case.

[134] Regarding factor (i) – presence at the time of the search – The shootings took place on March 13, 2010. The evidence of Davidson is that on March 15, 2010, she took Chambers to Yorkdale and they bought cell phones under assumed names. Chambers then fled to Nova Scotia. Davidson returned to Hamilton alone. She wanted to get rid of the apartment and get it out of her name. It was her decision at that time to return to Herkimer to empty it out because as she explained, she was scared. Davidson testified that she rented Herkimer on March 1, 2010 and resided there only two weeks. On March 17, 2010, Chambers advised her not to text for a while. On March 19, 2010, Chambers texted Davidson to keep his TV and stereo: see Volume 3, pp. 1378 and 1384-1388, and Volume 4, pp. 1426-1427 and 1466.

[135] The search warrant for 181 Herkimer Street was granted on March 19, 2010 and the search took place that same day.

[136] I believe that the trial evidence establishes that Chambers was not present at the time of the search and was a fugitive in Nova Scotia. It is obvious that Davidson was no longer staying at 181 Herkimer Street and had made the decision to empty out the apartment. Further, given the disposition of Chambers’ TV, stereo and clothes, it is clear he was not planning to return to the Herkimer apartment.

[137] Regarding factor (ii) – possession or control of the property or place searched – It is clear that Chambers fled to Nova Scotia on March 15, 2010 with no plan to return to the Herkimer address. It was Davidson’s decision to get rid of the apartment, empty it out and get it out of her name. Accordingly, at the time of the March 19, 2010 search, Chambers was not in possession or control of the property searched.

[138] Regarding factor (iii) – ownership of the property or place – The tenancy agreement for Herkimer was between Lesley and Eduardo Cordero as landlords and Davidson as tenant. The next of kin on the agreement is referred to as Marcus Thompson, whom Davidson testified is a person that she does not know. Davidson told the police that Chambers used names like Marcus and Jevon and did not like to use his own name. In Addendum B to the ITO, the landlord reported that Davidson denied that any one named Mark was living there (as reported by another tenant). According to the landlord, Davidson was supposed to live there alone. Accordingly, there is no documentation or written agreement that gives Chambers any possessory rights, either as owner or renter, to the Herkimer apartment: see Volume 3, pp. 1400-1402; Volume 4, pp. 1456-1457; and Addendum B to ITO included at Chambers’ Application Record on the Charter Motion, Tab 4.

[139] Regarding factor (iv) – the historical use of the property – Davidson testified that she only lived at 181 Herkimer Street for two weeks. After two weeks, she decided on her own to get rid of the apartment and empty it out. This all occurred before the police executed the search warrant. At the time of the search, Chambers was a fugitive from justice. Photos from the Herkimer search show many items in boxes and it is obvious that either the boxes were never unpacked or were packed for removal. The apartment was very messy and had an abandoned feel.

[140] Regarding factor (v) – the ability to regulate access, including the right to admit or exclude others from the place – and factor (vi) – the existence of a subjective expectation of privacy – In Moulton, Fairburn J. pointed out, at para. 106, that meeting the test of a subjective expectation of privacy is a low hurdle and an individual need not testify in order to meet the test. However, Chambers did testify at the trial and I agree with the Crown that the applicant has adduced no evidence regarding these factors. While it is true that Davidson testified that he contributed to the rent (see Volume 4, pp. 1421-1422), the evidence of Davidson, as previously discussed, is that it was her name on the apartment; the landlord understood from Davidson that she was living there alone and Chambers had no written agreement giving him any legal entitlement to the property. In fact, on the day of the search Chambers was a fugitive in another far-off province and had no physical ability to regulate access to the apartment and no apparent enforceable legal right to admit or exclude others from the apartment. Chambers deliberately used assumed names so that his name could not be connected to 181 Herkimer Street or any other address. Chambers testified that he was a crack cocaine trafficker and that he would move and switch locations to start selling again: see Volume 4, pp. 1805-1808.

[141] Regarding factor (vii) – objective reasonableness of expectation of privacy – The evidence at the trial indicates that Chambers’ livelihood was as a drug trafficker selling of crack cocaine. In order to facilitate this “career,” Chambers moved from place to place and used assumed names such as Mark, Marcus, and Jevon. After Chambers left the jurisdiction to become a fugitive in Nova Scotia, Davidson made the decision on her own to no longer live at the apartment, empty it of its contents, and get her name off of it. Objectively, a person who is constantly moving, using assumed false names, and getting others to sign the legal papers necessary to obtain an apartment in order to pursue a lifestyle of committing crimes such as drug trafficking in crack cocaine is hardly consistent with a citizen who has a reasonable expectation of privacy that demands Charter protection. In addition to this background, Chambers was a fugitive from justice a number of provinces away when the police executed the search warrant on March 19, 2010.

[142] In the totality of the circumstances as described in Edwards, I conclude that Chambers has not demonstrated that he had an expectation of privacy in 181 Herkimer Street when the police executed their search warrant: see Edwards, at para. 46, and R. v. Nolet, 2010 SCC 24 at para. 30.

[143] Given this conclusion, I do not need to proceed to consider whether the police search was reasonable or section 24(2) concerns. In the result, Chambers’ Charter motion, pursuant to section 8 and section 24(2) is dismissed.

[144] In the result, the socks seized by the police on March 19, 2010 are admissible at this trial.

ISSUE #6 – APPLICATION BY BOTH ACCUSED TO SIT OUTSIDE THE PRISONER’S DOCK DURING THE TRIAL

[145] Both of the accused bring an application to sit at a designated table outside of the prisoner’s dock during the trial.

ADDITIONAL FACTS

[146] The applicant Chambers has been in custody since the date of his arrest on April 10, 2010.

[147] The applicant Warner has been in custody since the date of his arrest on April 15, 2011.

[148] Chambers has a significant youth and criminal record. The youth record includes violence, breach of court orders, robbery, and escape lawful custody amongst other convictions. His adult record includes drug trafficking, breach of court orders and firearms convictions: see Chambers’ Application Record on this issue, Tab 3.

[149] Warner also has a significant youth and criminal record. The youth record includes robbery, flight while pursued by a police officer, breach of court orders, drug trafficking, and firearm convictions. His adult record also includes drug trafficking and breach of court order convictions: see Crown’s Application Record on this issue, Tab 13.

[150] The Crown called evidence regarding Chambers’ and Warner’s jail records. These records do not reflect favourably on either accused.

[151] Regarding Chambers, from July 22, 2005 to September 25, 2013, Chambers accumulated 34 institutional misconducts. In 2013, Chambers was found with two shanks on his person: a metal rod and scissors sharpened to a sharp edge concealed with elastic hair tie around genitals. In February and March 2017, Chambers was found guilty of committing or threatening to commit an assault on another person: see Hamilton-Wentworth Detention Centre Records, Crown’s Supplemental Record, Tabs 1 and 2.

[152] Warner’s jail history is similarly unenviable. From May 7, 2007 to November 6, 2017, Warner accumulated 25 institutional misconducts. In April 2017, Warner was found guilty of committing or threatening an assault. On June 6, 2017, Warner was found guilty of bring contraband (i.e. a weapon) into an institution. The weapon was a comb with a razor blade taped onto it: see Exhibit 1 on this application. Apparently Warner just laughed when confronted with evidence of the Exhibit 1 discovery: see also Hamilton-Wentworth Detention Centre Records, Crown’s Supplemental Record, Tabs 1 and 3.

[153] The Crown filed police records as well.

[154] Regarding Chambers, the records reveal that Chambers has both been a victim and a perpetrator of assaultive behaviour. Regardless of whether Chambers is an alleged victim or an accused, Chambers consistently refuses to volunteer any information to the police regarding investigations into these alleged assaults.

[155] Regarding Warner, he has also been involved in assaultive behaviour. Similar to Chambers, the police records reveal that Warner has little or nothing to say to police and I infer that Warner does not co-operate with police investigations.

[156] At the prior trial, after Chambers testified and blamed Warner for the shootings, a memo was sent out to court security that Chambers’ and Warner’s relationship had become volatile: see Exhibit 2 filed at this application. Few details were provided at this motion as to what exactly that volatility involved or the nature of it.

[157] It is clear from the evidence and submissions presented by counsel at these pre-trial motions that Chambers and Warner will take legal positions that are, at a minimum, antagonistic to the interests of the other.

LAW ON APPLICATIONS TO SIT OUTSIDE THE PRISONER’S DOCK DURING THE TRIAL

[158] In a recent case, R. v. Barreira et al., 2017 ONSC 948, I set out the law regarding these types of applications at paras. 24-27:

24 The basic principle of law regarding “sitting at counsel table” applications brought by the accused is set out in R. v. Lalande, 1999 CanLII 2388 (ON CA), [1999] O.J. No. 3267 (C.A.) where Justice Borins held, at para. 19:

Where an accused person sits during his or her trial is within the discretion of the presiding judge, to be determined in the interests of a fair trial and courtroom security: R. v. Levogiannis (1993), 1993 CanLII 47 (SCC), 85 C.C.C. (3d) 327 (S.C.C.). I am aware that Commissioner Kaufman has made recommendations concerning where an accused person may sit during his or her trial: Report of the Commission on Proceedings Involving Guy Paul Morin, 1998, Vol. 2, 1167-68. Counsel for the respondent informed the court that in light of Commissioner Kaufman's recommendations, the Ministry of the Attorney General has adopted the policy with respect to accused persons who are not in custody and who present no security concerns, that while the ultimate decision rests with the presiding judge, the Crown should normally consent to the accused person being permitted to sit at the counsel table should he or she request to do so.

25 Justice Campbell in R. v. Gervais, 2001 CanLII 28428 (ON SC), [2001] O.J. No. 4942 (S.C.J.) set out the traditional approach regarding the seating location of accused persons at a criminal trial, at paras. 8-10, as follows:

Although the Criminal Code is silent on this issue, the following principles emerge:

1. The customary position of the accused in the courtroom is in the dock

2. The trial judge has discretion as to the position of the accused in the courtroom in individual cases

3. The presence of the accused in the dock does not violate his or her Charter rights.

Exceptions may arise where the presence of the accused in the dock manifestly precludes him from making full answer and defence.

One example is the hearing-impaired accused who cannot hear from the dock. Other examples can arise with unrepresented accused. Some judges take the view that the accused in complex commercial fraud cases should be able to sit at the counsel table to assist counsel with voluminous documents, but others find that this direct participation by the accused tends to distract both counsel and jury.

26 Justice Fuerst in R. v. Wills, [2006] O.J. No. 3662 (S.C.J.), observed, at paras. 30-34:

Regardless of the practice in the United States, accused persons appearing in Canadian courtrooms traditionally sit in the prisoner’s box.

The Morin Commission Report recommended that absent the existence of a proven security risk, the accused should be entitled to sit at counsel table. This recommendation is deserving of respect, but it is not binding on me.

Indeed, the Ontario Court of Appeal held in R. v. Lalande, 1999 CanLII 2388 (ON CA), [1999] O.J. No. 3267 that where an accused person sits during his or her trial is a decision within the discretion of the trial judge. The governing factors are the interests of a fair trial, and courtroom security.

There is no evidence before me that the right to be presumed innocent and/or the right to a fair trial would be infringed because of jurors’ perceptions, if Mr. Wills remains in the prisoner’s box. No evidence was adduced that jurors would be negatively influenced because Mr. Wills is seated there, particularly if they are instructed that they must presume him innocent and draw no adverse inference from his position in the courtroom.

It is speculative to conclude that Mr. Wills would be prejudiced if he is required to remain in the prisoner’s box.

27 Security, maintaining order in the courtroom and management problems are matters to be considered by this court in exercising its discretion: see Wills at paras. 39-41.

[159] The defence contends that, although traditionally the accused has been seated in the prisoner’s dock, in recent years, the courts have permitted the accused to sit at counsel table or a designated table outside the prisoner’s dock: see R. v. Smith, 2007 O.J. No. 2579 (Ont. S.C.); R. v. Ramanathan, [2009] O.J. No. 6233 (Ont. S.C.); and R. v. Davis, 2011 ONSC 5567.

[160] Campbell J., also in a recent case, in R. v. Browne, 2014 ONSC 2519, considered the criminal record of the accused, an earlier attempt to escape custody, and a variety of security concerns. Campbell J. concluded at paras. 13-17:

13 I have no doubt that, from his location in the prisoner’s dock, the accused will be able to fully participate in the trial in a meaningful fashion, and speak regularly – and certainly as frequently as necessary – to his counsel. Again, the courtroom is a small one. From the prisoner’s box, the accused will be no further away from defence counsel than he would be if he were seated at the end of counsel table. Defence counsel and the accused should have no difficulty discretely communicating as necessary throughout the course of the trial proceedings.

14 I am also satisfied that, by instructing the jury fully and carefully at the outset of the trial about the importance of the presumption of innocence and the burden of proof upon the Crown to establish the alleged guilt of the accused beyond a reasonable doubt, and explaining to the jury that they must draw no adverse inference from the physical location of the accused in the courtroom during the trial, the accused will not be in any way prejudiced by remaining in the prisoner’s dock. Our system of criminal justice is premised upon the entrenched and well-justified belief that jurors can, and do, follow the legal instructions of judges as is their duty. See: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at pp. 692-696; R. v. Vermette, 1988 CanLII 87 (SCC), [1988] 1 S.C.R. 985, at pp. 992-994.

15 Relatively recently, in dealing with this same issue in R. v. C.(G.), B.P. O’Marra J. concluded, at para. 16, after considering the “divergent judicial views” on the issue, that the accused should remain seated in the prisoner’s dock, explaining:

Juries are instructed early and often about the presumption of innocence and the burden of proof in criminal cases. I do not accept that the position of the accused in the dock during the trial undermines these fundamental principles in any way. It is critically important that we trust in the integrity and ability of jurors to follow these instructions as well as more complex ones …

D. Conclusion

16 In the result, the application by the accused to be permitted to sit at counsel table is dismissed. The accused shall remain in the prisoner’s dock during the course of the trial proceedings.

17 I will seek the assistance of counsel in crafting the appropriate instruction to the jury to best ensure that the accused receives a fair trial and is not in any way prejudiced by his physical location in the prisoner’s dock during the trial proceedings.

APPLICATION OF THE LAW TO FACTS

[161] These two accused are career criminals with lengthy and serious youth and adult records.

[162] The evidence before me, including the jail and police records, establishes that both Chambers and Warner have been involved in numerous jail misconducts that continued until earlier this year. Most concerning is that approximately two and a half months ago, Warner was found with a razor blade shank and laughed when it was discovered.

[163] This is a trial with anticipated antagonistic defences which resulted in some undefined animosity at the last trial.

[164] Given this background and history, I am of the opinion that the accused present significant security concerns at this upcoming joint trial. Accordingly, I order that they remain in the prisoner’s dock for the duration of the trial.

[165] I agree with defence counsel’s complaint that given the anticipated antagonistic defences, concerns arise when counsel wish to confer with their clients and because the other accused is seated next to the client, both accused can hear the other’s conversation with counsel. In Barreira, the accused were ordered to be seated in separate prisoner docks with leg belts that were not visible to the jury. I make the same order here.

[166] The two accused are ordered to sit in two separate prisoner docks with leg belts that are not visible to the jury.

ORDER

[167] Based on the written reasons outlined in this ruling, the following orders are made:

1. The post-offence conduct described at paras. 11-17 is admissible with appropriate jury instructions to be delivered.
2. The photograph of the deceased, proposed to be entered by the Crown, is admissible in evidence at this trial.
3. The lead fragment and the evidence surrounding its discovery is admissible at this trial. The opinions expressed by Benjamin Sampson regarding the lead fragment are admissible. The opinions of Sergeant Spencer, Sergeant Giuliani, and Inspector Hamilton regarding the lead fragment are not admissible. Those three officers will be instructed to refer to the lead fragment found in the hallway as a “suspected lead fragment.”
4. The Crown will be restricted to leading evidence regarding the discovery of the .22 calibre bullets including the .22 calibre Aguilar bullets at the 327 Queen Victoria Drive address. The Crown will not be permitted to refer to the discovery of any other ammunition unless Warner, before the search evidence is called by the Crown, indicates that he wishes evidence to be called regarding all the ammunition seized at 327 Queen Victoria Drive. Neither the Crown nor Warner will introduce evidence regarding the drug transaction in which Chambers obtained the ammunition unless Chambers introduces that evidence himself.
5. The evidence of the discovery of the black socks at 181 Herkimer Street and the forensic examination conducted on those socks is admissible at this trial.
6. The two accused will be seated at separate prisoner docks with leg belts not visible to the jury. The distance between the two prisoner docks must ensure that conversations between counsel and client cannot be heard by the other accused.

Justice Skarica

Released: September 7, 2017