Court File No. 17-45

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

TYRONE CHAMBERS and JOSHUA WARNER

Reasons for Ruling

BEFORE THE HONOURABLE A. SKARICA AND A JURY

on November 7, 2017 at HAMILTON Ontario

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER OF JUSTICE A. SKARICA,

SUPERIOR COURT OF JUSTICE

APPEARANCES:

G. Akilie, T. Shuster Counsel for the Crown

C. Hicks, S. Pashang Counsel for Tyrone Chambers

D. Bains, J. Zbarsky Counsel for Joshua Warner

SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER OF JUSTICE A. SKARICA,

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

WITNESSES

WITNESS: Examination In-Chief Cross- Examination Re- Examination

EXHIBITS

EXHIBIT NUMBER ENTERED ON PAGE Reasons for Ruling 1

Transcript Ordered: .................... November 10, 2017 Transcript Completed: .................. November 14, 2017 Ordering Party Notified: ............... November 19, 2017

TUESDAY, NOVEMBER 7, 2017

Reasons for Ruling

SKARICA J. (Orally):

This is a ruling regarding the application by the defence to exclude prior discreditable conduct.

Overview

Tyrone Chambers and Joshua Warner are charged with murder and aggravated assault as a result of three persons being shot at a house party at 53 Dundurn Street. Very shortly before the shootings, there was an alleged assault on Arthur Austin. I'll refer to it as the Austin incident.

It is anticipated that the next Crown witness at this trial, Armel Kamden, will testify that Warner was assaulting Austin and that when he, that's Armel, went to intercede, he was cautioned by Chambers that Chambers would shoot Armel if he attempted to intercede. The defence objects to the introduction of the Austin incident, which includes what I would consider a minor assault plus there's a threat that accompanied it. Again, I'll refer to it as the Austin incident.

Issue

Is the Austin incident prior discreditable conduct, and if so, does its probative value exceed its prejudicial effect?

Facts

This is a second trial. The facts underlying the Crown's case are set out in R. v. Chambers [2016] ONCA 684 at paragraphs 6 through 28. At this trial, Alyssa Stewart testified that someone, possibly Armel Kamden, told Wes Adi that "I don't think it is a good idea to go out with these guys. Those guys have guns." Very shortly later, the two accused pulled out guns and the firing of guns commenced. Kauner Chinambu, who I'll refer to as Kauner, has testified at this trial that when he arrived at the party at about 12:18:09 a.m., there was a commotion just inside the house and a taller black male's face was bleeding.

Mr. Bains, in cross-examination, suggested that Arthur Austin, the young black male whose face was bleeding, pointed out Chambers as the person who inflicted injury on him. Just before Kauner was shot, Chambers stared at him with what was described as an evil look. Kauner testified that he then pushed off the table to go to fight Chambers but was shot. It was suggested by Mr. Bains that the exchange between Chambers and Kauner, that's the evil look exchange, had to do with what happened earlier with Nicole, who was Kauner's girlfriend, and Austin. And "it wasn't just Chambers looking at him".

The Positions of the Defence

The defence contends that the Austin incident is prior discreditable conduct whose probative value does not exceed its prejudicial effect, and accordingly it should be excluded. No objection was made to the Austin incident at the first trial. It was not referred to by the Court of Appeal in its judgment. The Austin incident was not subject to any pre-trial motions. The objection was brought after this second trial has commenced.

The Crown Position

The Crown contends that the Austin incident is not prior discreditable conduct. If it is, the Crown argues that the Austin incident is relevant to knowledge of each accused regarding the other's possession of guns, knowledge that they will back each other up, informs the party-goers of these facts, provides a reason why the party was a non‑party as Alyssa Stewart described it in her testimony, provides an explanation as to why Armel told Wes Adi not to go outside as the accused had guns, and further, that the Austin incident is inextricably intertwined with the night's events and forms part of the same continuing transaction.

Law

The Crown argues that the entire flow of events that evening form a chain of events that are inextricably linked to each other and accordingly, the Austin incident is not "prior discreditable conduct". See, for example, R. v. Rowe [2012] ONSC 2600 at paragraph 12. There's much merit in the Crown position, but I believe that the better approach would be to treat the Austin incident as prior discreditable conduct and analyze the admissibility of this evidence using the roadmap laid down by the Supreme Court of Canada in R. v. Handy [2002] SCC 56, R. v. D.(L.E.) , [1989] 2 SCR 111 and R. v. Arp , [1998] 3 SCR 339.

The principles laid down by those cases are partially summarized in R. v. Stubbs [2013] ONCA 514 at paragraphs 54 and 56 as follows. First, paragraph 54:

First, as a general (but not unyielding) rule, evidence of misconduct beyond that charged in an indictment, which does no more than portray an accused as a person of (general) bad character, is inadmissible.

And I won't refer to the references.

Paragraph 55:

Said in a different way, what the law prohibits as a general rule is the introduction of evidence of bad character (as revealed by evidence of other discreditable conduct) for use as circumstantial evidence or proof of conduct on the occasion charged: Handy , at paragraph 31 [and other cases]. The general exclusionary rule is based on several policy considerations, including the potential for evidence of other discreditable conduct to foster prejudice, to distract the trier of fact from the true focus of the trial, and to waste time: Handy , at paragraph 37. The prejudice this evidence engenders has been characterized as moral prejudice, the danger that a finding of guilt will be grounded on 'bad personhood', and reasoning prejudice, the danger that the evidence will create confusion or distract a lay trier of fact from its true task: Handy , at paragraphs 139 through 146.

Second, the general rule excluding evidence of other discreditable conduct is not unyielding. After all, sometimes this evidence is so relevant and cogent that its probative value exceeds its prejudicial effect: Handy , at paragraph 41 [and other cases]. To engage the exception to the general exclusionary rule, Crown counsel must establish, on a balance of probabilities, that the probative value of the evidence exceeds its prejudicial effect: [see] Handy , at paragraph 55.

The Test: Probative value versus prejudicial effect.

Justice Binnie in Handy indicated as follows at paragraphs 66 through 68 and paragraphs 54 through 55. Paragraph 66:

In R. v. D.(L.E.) ... Sopinka J. further confirmed his approach to propensity evidence at page 120:

Cross on Evidence ... contains a concise statement of the 'similar facts rule' at page 311 with which I agree:

... evidence of the character or of the misconduct of the accused on other occasions ... tendered to show his bad disposition, is inadmissible unless it is so highly probative of the issues in the case as to outweigh the prejudice it may cause.

The acknowledgement that similar fact evidence uses propensity as its mode of reasoning is also supported by Wigmore on Evidence ... and Sopinka, Lederman and Bryant ...

Paragraph 68:

It follows, as stated by Charron J.A. in [they refer to it as] B.(L.) [it's often referred to as L.(B.) [but in any event] at page 57.

... propensity reasoning in and of itself is not prohibited. Indeed, it is usually inevitable, given the nature of the evidence and the reason for its admission ...

It is propensity reasoning that is based solely on the general bad character of the accused, as revealed through this evidence of discreditable conduct, which is prohibited.

See also R. v. Batte ... [a decision of] Doherty J.A.

At paragraph 54:

Cory J. added some observations in Arp at paragraph 80 about the trial judge's instructions to the jury about the use to be made of propensity evidence. These observations should not be taken out of context. Contrary to some commentary, Arp did not qualify the court's endorsement of the general test set out in B.(C.R.) as is evident from Cory J.'s repeated references thereto...

It can be seen that in considering whether similar fact evidence should be admitted the basic and fundamental question that must be determined is whether the probative value of the evidence outweighs its prejudicial effect.

In summary, in considering the admissibility of similar fact evidence, the basic rule is that the trial judge must first determine whether the probative value of the evidence outweighs its prejudicial effect.

The issue in every case is whether the probative value of the evidence outweighs its prejudicial effect.

The B.(C.R.) test can thus be taken as stating the law in Canada.

Paragraph 55:

Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.

This is the test that I will apply.

Identification of the issue in question is an important control. Justice Binnie in Handy paragraph 69, 70 and 73 through 75 outlined the importance of identifying the issue in question.

Paragraph 69:

McLachlin J. speaks in B.(C.R.) ... of the 'value of the evidence in relation to an issue in question' ... McIntyre J., in Sweitzer ... emphasized that whether or not probative value exceeds prejudicial effect can only be determined in light of the purpose for which the evidence is proffered ... The importance of issue identification was also emphasized in D.(L.E.) [and a number of other cases].

Paragraph 70:

An indication of the importance of identifying 'the issue in question' is that the trial judge is required to instruct the jury that they may use the evidence in relation to that issue and not otherwise.

Paragraph 73:

The requirement to identify the material issue 'in question' (...the purpose for which the similar fact evidence is proffered) does not detract from the probative value/prejudice balance, but is in fact essential to it. 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.

The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated. It is therefore incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate. If the issue has ceased to be in dispute, as for example when the fact is admitted by the accused, then the evidence is irrelevant and it must be excluded ... The relative importance of the issue in the particular trial may also have a bearing on the weighing up of factors for and against admissibility. Similar fact evidence that is virtually conclusive of a minor issue may still be excluded for reasons of overall prejudice.

The 'issues in question' are not, it should be emphasized, categories of admissibility. Their identification is simply an element of the admissibility analysis which, as stated, turns on weighing probative value against prejudice.

The issues identified, that the Austin incident is relevant to issues in this trial, include the following:

1. Knowledge of each accused person that the other has a gun.
2. Knowledge of each accused that they will each back each other up.
3. Knowledge of each accused that the guns will be used regarding trivial matters.
4. Knowledge that the accused are prepared to shoot a gun and that murder is a probable consequence.
5. Armel was aware of the Austin incident and this was the reason for the party becoming a non-party as described by Alyssa Stewart.
6. The Austin incident explains why Armel stated that the accused had guns and why he told Adi not to go outside.
7. The Austin incident supports the credibility of Armel, Alyssa Stewart and Adi when they testified that Chambers said, "I could end this party now," and Warner said, "You don't know us."
8. The Austin incident is useful to rebut Chambers' defence that he did not fire any shots and only acted in self-defence when drawing his guns.

That's taken from paragraph 26 of the Court of Appeal judgment in Chambers.

Most of the above issues relate to the Crown's Section 21(2) contention that the two accused were acting in concert to carry out an unlawful purpose and committed an offence that they knew or ought to have known would be a probable consequence of carrying out that common purpose.

Relevant factors connecting the prior discreditable conduct to the offences charged are set out at paragraphs 82 of Handy and include as follows, paragraph 82 of Handy:

The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves. Factors connecting the similar facts to the circumstances set out in the charge include:

(1) proximity in time of the similar acts ... (2) extent to which the other acts are similar in detail to the charged conduct ... (3) number of occurrences of the similar acts ... (4) circumstances surrounding or relating to the similar acts ... (5) any distinctive feature(s) unifying the incidents ... (6) intervening events ... (7) any other factor which would tend to support or rebut the underlying unity of the similar acts.

Applying these factors to the present case I find:

1. Proximity of time - the two accused initially arrived at the party at about 11:00 p.m. and the shooting occurred at 1:12 a.m., approximately two hours later. There was close proximity of time between the Austin incident and the shootings, accordingly.
2. Extent to which the Austin incident is similar to the shootings incident - the Austin incident involves the same two accused at the same address at the same party as the shootings.

They both involve possible threats of shootings over trivial matters. The circumstances already outlined permit inferences that both accused were prepared to engage in intimidating behaviour and were prepared to use guns to suppress any opposition to their aggression. The only intervening event was a brief interval where both accused left the party but returned. Armel Kamden was present during both events and appeared to act as a peacemaker on both occasions to protect party-goers. The close proximity in time, place, the same two accused acting aggressively at the same party with some of the same party-goers such as Armel supports the underlying unity of the events. The Austin incident provides explanations why the accused and the party-goers reacted as they did just prior to the shootings.

In my opinion, the Austin incident is highly probative of a number of live issues in this case, which would include narrative, the knowledge and state of mind of both accused, and is highly relevant to the issues of Section 21 party liability and the issue of self-defence.

Assessment of Prejudice

Justice Binnie in Handy indicates that prejudice falls into two categories, moral prejudice and reasoning prejudice. They are outlined at paragraph 139 and 144 and 145 of Handy. Moral prejudice paragraph 139:

It is frequently mentioned that 'prejudice' in this context is not the risk of conviction. It is, more properly, the risk of an unfocussed trial and a wrongful conviction. The forbidden chain of reasoning is to infer guilt from general disposition or propensity. The evidence, if believed, shows that an accused has discreditable tendencies. In the end, the verdict may be based on prejudice rather than proof, thereby undermining the presumption of innocence enshrined in Sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms.

Reasoning Prejudice, paragraph 144:

The major issue here is the distraction of members of the jury from their proper focus on the charge itself aggravated by the consumption of time in dealing with allegations of multiple incidents involving two victims in divergent circumstances rather than the single offence charged.

Distraction can take different forms. In R. v. D.(L.E.) ... McLachlin J.A. ... [was] observed at page 399 that the similar facts may induce in the minds of the jury sentiments of revulsion and condemnation which might well deflect them from the rational, dispassionate analysis upon which the criminal process should rest.

In my opinion, the risk of moral prejudice and reasoning prejudice in this case is very limited. The comments of the Ontario Court of Appeal in R. v. Johnstone [2014] ONCA 504 at paragraphs 24 through 26 are largely appropriate and apply here. Paragraph 24:

Contrary to the appellant's submission, there is no requirement of a direct connection between the evidence of discreditable conduct and the appellant's motive to kill Ms Wolfe. The evidence of the appellant's prior misdeeds must simply be relevant to a live issue at trial: Handy , at paragraph 73.

Moving on to paragraph 25:

The risk of prejudice was very limited. The prior discreditable conduct was akin to the evidence the jury would hear in any event regarding the appellant's conduct leading up to and after the murder. The risk of prejudice is further reduced by the fact that the evidence of other discreditable conduct goes to conduct far less serious than that for which the appellant stood charged.

Finally, the evidence was neither lengthy nor complicated and was not seriously challenged by the appellant.

The Austin incident describes a minor assault combined with the threat to shoot a gun. These circumstances are far less serious than the counts on the indictment. The Austin incident involves mainly the same witnesses required to testify at this trial and the evidence regarding it is not lengthy or complicated.

Accordingly, there is minimum moral and/or reasoning prejudice.

Conclusion

The probative value of the Austin incident greatly outweighs any prejudicial effect that may occur. I believe that any objective analysis using the Handy guidelines makes this obvious. I suspect that is why counsel for Chambers and Warner, who I find are exceptionally knowledgeable, skilled and experienced, have not brought this application before and it is why the Court of Appeal makes no mention of it. As indicated in R. v. D.(L.E.) at paragraph 66, the Supreme Court of Canada indicated as follows:

I agree with the following statement of the Appeal Division ... with respect to the duty of a trial judge:

In a criminal trial there is a duty on the trial judge to exclude inadmissible evidence even though adduced by counsel for the accused or not objected to, and should inadmissible evidence be adduced, the trial judge should either instruct the jury immediately to disregard it or, if it is of so prejudicial a nature that the jury would not have the capability of disregarding it, he should discharge the jury and order a new trial ...

If the trial judge was of the view that an immediate caution to the jury to disregard the evidence was insufficient to ensure a fair trial, then his course was to direct a mistrial rather than admit the evidence of similar acts which had previously been excluded.

I am confident the Court of Appeal, having reviewed these facts very thoroughly, would have made note of this evidence if it had been improperly tendered, and made no such note.

Accordingly, the evidence of the Austin incident is admissible at this trial.

...END OF EXCERPT

FORM 2 Certificate of Transcript Evidence Act, Subsection 5(2)

I, Leanne Osborne, certify that this document is a true and accurate transcription of the recording of R. v. Tyrone Chambers and Joshua Warner in the Superior Court of Justice held at 45 Main Street East, Hamilton, Ontario taken from Recording(s) No. 4799-600-20171107-095231-30-SKARICT which has been certified in Form 1.

November 19, 2017

(Date) (Signature of authorized person)

This certification does not apply to Reasons for Ruling which were judicially edited.