RULING ON DISCREDITABLE CONDUCT APPLICATION

OVERVIEW

[1] Don Johnson faced two counts of first degree murder. At approximately 4:00 p.m. on February 20, 2012 Justin and Jerome Waterman, brothers aged 19 and 22 years old, were found shot to death near a locked door in the underground parking garage area of an apartment building at 325 Bogert Avenue in Toronto. There are video clips that afternoon that show Don Johnson, Justin, Jerome and a fourth man in a hallway at 325 Bogert walking together towards the area where Justin and Jerome were later found dead. There is a further video clip 20 minutes after the first that shows Don Johnson and the fourth man running away from the area where Justin and Jerome had been shot and killed.

[2] A week before the shooting on February 13, 2012 there are video clips of hallways inside 325 Bogert that show Don Johnson with Justin and Jerome. In one video clip Don Johnson is seen alone in a hallway. He raises both of his arms straight out as if pointing something. He then brings his right arm down by his side. This video clip was one of many shown to the jury as part of the Crown’s case in chief. There was no specific mention by the Crown or a witness called by the Crown as to whether Don Johnson appeared to have anything in his hands in this particular video clip.

[3] Don Johnson was the first witness called by the defence. Cross examination began on January 16, 2018. In the afternoon of that day counsel for Don Johnson raised issues in the absence of the jury related to suggestions by the Crown that Don Johnson had possessed a firearm on dates earlier than February 20, 2012. The jury was excused until 2:00 p.m. the next day to allow time for submissions of counsel and my rulings before cross examination of Don Johnson continued.

[4] Counsel for Don Johnson submitted that two areas of the evidence raised issues related to other discreditable acts that should be excluded. Both related to suggestions by the Crown that Don Johnson had possessed a firearm on dates prior to the date of the homicides. They were the following:

Certain text messages commencing February 11, 2012. These were among a large number of text messages filed by the Crown during its case in chief. In cross examination Crown counsel suggested to Don Johnson that those messages in urban and/or coded language in fact refer to him possessing a firearm on dates before February 20, 2012.
The video clip of February 13, 2012 where Don Johnson is seen alone in a hallway at 325 Bogert Avenue extending his arms straight out and then putting his right arm by his side. The jury had already seen this video clip in the Crown’s case in chief. However, the jury had not yet heard the specific suggestion that Don Johnson was holding a handgun straight out as if pointing it, and then holding it at his side. Counsel for Don Johnson now anticipated that the suggestion would be put to Don Johnson in cross examination. The Crown confirmed that was her intention.

[5] After the completion of submissions of counsel I made the following rulings on January 19, 2018 with reasons to be delivered on a later date:

The Crown was not permitted to suggest to Don Johnson in cross examination or in her final address that inferences could be drawn from the text messages in question that Don Johnson possessed a firearm on a date or dates prior to February 20, 2012.
The jury were to receive a mid-trial instruction that they may not infer from those text messages, or the questions put to Don Johnson in cross examination related to those text messages that Don Johnson possessed a firearm on a date or dates prior to February 20, 2012.
In regard to the video clip of February 13, 2012 the jury were entitled to consider whether Don Johnson was holding a firearm as he held his arms straight out and then put his right arm down by his side. That evidence was admissible for a specific purpose and would be accompanied by a limiting instruction.

[6] The trial has now been completed. These are my reasons:

RELEVANCE OF EVIDENCE THAT DON JOHNSON POSSESSED A FIREARM BEFORE FEBRUARY 20, 2012

[7] There is evidence that Don Johnson possessed a firearm on January 2, 2010. There is also evidence from which the jury could find that he possessed a firearm on February 13, 2012. Each instance is admissible on a different basis and for a different purpose.

A. Possession of a firearm on January 2, 2010

[8] This evidence relates to the issue of motive.

[9] Don Johnson and Justin Waterman were very close friends and engaged in criminal activity together. On January 2, 2010 Don Johnson was driving a stolen car. Justin was in the front passenger seat. After a short police pursuit the car crashed. Don Johnson and Justin fled on foot but were captured by police nearby. Police found a shotgun under the front seat. Both were arrested and taken to the police station. They were interviewed separately. Each denied knowledge of the shotgun and blamed the other for it. Justin provided further information in a video statement. He told the police that Don Johnson was planning to commit an armed robbery of a marijuana grow operator with the shotgun. As a result of that information Don Johnson faced a further charge of conspiracy to commit robbery. Don Johnson was confronted by police at the station with the further information provided by Justin.

[10] Justin was released on bail. Later all charges were withdrawn against him. Don Johnson spent 139 days in pretrial custody. He pled guilty to charges, including possession of the shotgun. The charge of conspiracy to commit robbery was withdrawn.

[11] Sgt. Gavin Jansz of Toronto Police Service was qualified and permitted to give opinion evidence as an expert related to urban street language, coded language, the “code of silence” and street weaponry. He described the “code of silence” as a pervasive understanding in the criminal subculture that there may well be retribution and revenge on someone who “rats” or snitches on other members of that subculture. Providing information to the police about something they would otherwise have no knowledge of is a breach of the code. Information provided by a close friend within the subculture is a more egregious breach of the code.

[12] The Crown theory on motive is that Justin had committed a serious breach of the code of silence and Don Johnson sought lethal revenge. There is evidence in text messages and witness testimony that in February 2012 Don Johnson appeared to renew his friendship with Justin and his brother Jerome. The three of them discussed doing robberies of drug dealers together. The Crown submitted that Don Johnson ultimately lured Justin and Jerome to a location for a supposed robbery that was in fact a trap to kill them both. The Crown submitted that Don Johnson knew how close Justin and Jerome were, and that Jerome would likely seek revenge for his brother’s death. This led to the plan to kill them both.

[13] Evidence of motive is relevant and admissible, especially where the evidence on the issues of identity and intention is primarily circumstantial: see R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 60; Lewis v. The Queen, 1979 19 (SCC), [1979] 2 S.C.R. 821, at pp. 834-8; R. v. Salah, 2015 ONCA 23, 319 C.C.C. (3d) 373. Although motive is not an essential element of the alleged offence evidence of motive is relevant because it makes it more likely that the person with a motive committed the offence: see R. v. Roncaiolo, 2011 ONCA 378, 271 C.C.C. (3d) 385, at para. 43.

[14] The reference to the shotgun in the events of January 2, 2010 is an essential part of the narrative related to motive. The jury will be instructed that they may not use the reference to that shotgun as evidence that he is of bad character or that he was more likely to have committed the offences he currently faces. The jury will specifically be instructed that they may not use this evidence to find that he was more likely to have possessed a firearm on the date of the shootings on February 20, 2012.

B. References to possession of a firearm in February 2012 before the date of the shootings on February 20, 2012

[15] This relates to two sets of text messages and a video clip of Don Johnson on February 13, 2012. I will address them in order.

i. Text messages sent by Jerome Waterman on February 11 and 12, 2012. In cross examination of Don Johnson the Crown suggested that Jerome was asking Don Johnson to lend him a firearm. Don Johnson denied this. The defence objected to the questions and I heard submissions in the absence of the jury. The defence submitted that these messages from the now deceased Jerome could not be a basis to suggest Don Johnson possessed a firearm. The Crown submitted that the messages from Jerome were presented in cross examination not as proof of their truth but to test the credibility of Don Johnson. I did not accept the Crown’s rather circular submission. The jury were instructed mid-trial before cross examination proceeded that they may not consider the text messages sent by Jerome as any basis to consider that Don Johnson possessed a firearm before February 20, 2012.

ii. Text message sent by Don Johnson on February 18, 2012. Among the many text messages filed as part of the Crown’s case in chief was this one that referred to “I’m ridin dirty . . .” The Crown proposed to suggest to Don Johnson in cross examination that this referred to Don Johnson being in a vehicle with a firearm. There had been no reference to this interpretation in the Crown’s case, including the evidence of Sgt. Jansz who had been qualified as an expert in the area of coded language. The Crown proposed to recall Sgt. Jansz and lead evidence that “ridin dirty” could refer to being in a vehicle with a firearm. I ruled that this would operate unfairly to the accused. The Crown was not permitted to make the suggestion to the accused or to recall Sgt. Jansz on the issue.

iii. Video clip of Don Johnson allegedly pointing a firearm in the hallway at 325 Bogert on February 13, 2012. On February 13, 2012 there are video clips of Don Johnson with Justin and Jerome in various hallways inside 325 Bogert. In one clip Don Johnson is seen alone looking around and walking in the general direction of where the two victims were shot a week later. The Crown submits this is evidence that he is scouting the location for the homicides. There are text messages that day between the three of them that appear to relate to a robbery. In one video clip that afternoon Don Johnson is seen alone in the lower level looking around. At one point he extends his arms straight out as if pointing something. He then turns and lowers his right arm by his side. The Crown submitted that Don Johnson was holding a gun in his hands and rehearsing what will happen a week later. The Crown also submitted that Don Johnson led Justin and Jerome through various areas at 325 Bogert to gain their confidence by setting up a robbery at that location. None of the video clips at various locations in and around 325 Bogert appear to show Don Johnson, Justin or Jerome meeting a drug dealer. It is unclear whether any robbery actually took place that day.

[16] The video clip was shown to the jury without objection as part of the Crown’s case in chief. There was no specific mention or suggestion in testimony that Don Johnson was alleged to be holding a handgun. The defence sought a ruling before the suggestion was put to Don Johnson in cross examination.

[17] Counsel for Don Johnson submitted the following:

Any suggestion that Don Johnson possessed a firearm on a date before February 20, 2012 was evidence of other discreditable conduct and required an application by the Crown for admission.
This proffered evidence should not be admitted based on a probative/prejudice analysis.
The video clip does not show that Don Johnson had a gun in his hands and the jury could not find that he in fact held a gun.

[18] Evidence that Don Johnson possessed a firearm on a date preceding the date of the homicides is evidence of other discreditable conduct. Character evidence or evidence of other discreditable conduct which shows only that the accused is the type of person likely to have committed the offence in question is inadmissible. However, there are general exceptions under which such evidence can be adduced. One exception is where the evidence is relevant to an issue in the case. Evidence which incidentally demonstrates bad character may also be directly relevant to a key element of the Crown’s case, such as motive, opportunity or means: see R. v. G. (S.G.), 1997 311 (SCC), [1997] 2 S.C.R. 716, at paras. 63-64.

[19] Evidence that is directly relevant to the Crown’s theory of the case is admissible even though it may demonstrate the bad character of the accused as long as its probative value outweighs its prejudicial effect. If such evidence is admissible under this exception it still cannot be used to determine guilt simply on the basis that the accused is the type of person to commit the crime. See G. (S.G.), at para. 65; R. v. Riley, 2009 15451 (ON SC), [2009] O.J. No. 1374 (Ont. Sup. Ct.), at paras. 46-51.

[20] Counsel for Don Johnson referred me to the decision in R v. Powell, [2006] O.J. No. 5440. The accused in that case was charged with several offences involving use of a handgun. He was later arrested for an unrelated offence and denied ownership of a gun. Nine months later he succeeded in procuring a handgun for the police in exchange for consideration on bail. His trial on the original charges proceeded before a judge without a jury. The Crown submitted that the ability of the accused to arrange delivery of a firearm was circumstantial evidence that he could have obtained a handgun similar to that allegedly used by the assailant. The Crown also submitted that his earlier denial of gun ownership was fabricated.

[21] The experienced trial judge in Powell held that the gun evidence was relevant to identity but of little probative weight. The prejudicial effect was substantial. The later procurement of a handgun by the accused did not demonstrate that his earlier denials of gun ownership were fabricated. Thus the gun evidence and statement of the accused were excluded.

[22] I take no issue with the reasoning or result in Powell. However, it is readily distinguishable. The Crown in that case relied on access by the accused to firearms as capable of supporting an inference that he was the assailant who used a handgun more than a year earlier. In the case before me Don Johnson is alleged to have possessed and pointed a handgun in the same building where one week later the two victims were shot by a handgun. The nexus in time and circumstance render the situations very different.

[23] R. v. Donzel Young is a brief unreported decision dated February 12, 1991 of Moldaver J. (as he then was) of the Ontario Court of Justice, General Division. That case related to a double homicide that involved a firearm. The Crown tendered evidence that approximately one month before the shootings the accused was observed in possession of a gun similar to the murder weapon. Justice Moldaver referred with approval to the decision of McIntyre J.A. of the British Columbia Court of Appeal in R. v. Boyko (1975), 28 CCC (2d) 193 and ruled that evidence admissible. At p. 2 of the ruling, Justice Moldaver indicated as follows:

In my opinion, this evidence that the Crown seeks to tender is but a piece of circumstantial evidence which the jury may take into account, along with all of the other evidence, in deciding at the end of the day whether or not the Crown has proved beyond a reasonable doubt that Mr. Young was indeed the shooter.

I have attached a copy of this unreported decision to these reasons.

[24] The Boyko case involved an alleged contract killing. The deceased had been shot by a .38 calibre pistol. A Crown witness testified that four weeks before the killing he was present for a conversation between the accused and the deceased. There was a discussion of guns. The accused said he had some he could sell. The accused allegedly said that he had a .32 calibre pistol and a .38 calibre pistol and some rifles. The accused was found guilty of murder. On appeal, one of the grounds related to the alleged admission by the accused four weeks before the homicide that he had access to guns, including the specific calibre used in the killing. At para. 14, Justice McIntyre dismissed that ground of appeal:

The several grounds of appeal will be dealt with separately. The first proposition was that the evidence led by the Crown regarding the conversation some four weeks before the killing about Boyko’s possession of a .38 was inadmissible. It referred to an occurrence several days before the event, it was relevant to no issue in the case, and its effect was highly prejudicial. In my view, this evidence was clearly admissible. I am unable to see any ground upon which the trial Judge should have excluded it. Statements made by a party to a proceeding relevant to the matters in issue are receivable in evidence against him (subject of course to a determination of their voluntary nature where made to police officers or persons in authority) but not generally for him. There are many authorities for this proposition. The statements attributed to Boyko were, in my opinion, clearly relevant. The Crown proposed to adduce and did adduce a body of evidence which connected Boyko with the killing. It produced as well unquestioned evidence that the killing was accomplished with a .38 calibre weapon. It was relevant then to show that Boyko a short time before the killing was in possession of such a weapon. The appellant says this evidence is valueless since the case is replete with evidence of fire-arms and their threatened and actual use and this scrap of evidence amounts to nothing. Whatever its merits, however, it seems to me that this is an argument going to the weight and not the admissibility of the evidence in question. I am unable to give effect to this objection and consider the trial Judge was right in admitting the evidence. [Emphasis added.]

[25] On a murder trial evidence that the accused possessed on other occasions the necessary tool for committing the offence is properly admissible as access to means: see R. v. Kinkead (2003), 2003 52177 (ON CA), 67 O.R. (3d) 57 (Ont. C.A.), at paras. 72-84.

[26] Evidence that Don Johnson possessed a handgun one week before the shootings at the same location is evidence that he had access to the means of committing the crimes alleged. The probative value of this evidence well exceeds the prejudicial aspect in light of the nexus of date and location to the events one week later. The jury will be instructed that there is no onus on Don Johnson to show he did not possess a handgun on that date. They will also be instructed that they may not use that evidence to find that he is of bad character, or that he is the type of person who would commit the alleged crimes.

IS THE QUALITY OF THE VIDEO CLIP SUCH THAT THE JURY COULD REASONABLY FIND THAT DON JOHNSON WAS HOLDING A HANDGUN?

[27] There is no dispute as to the date and location shown in the video clip. The parties agreed that the time shown on all video clips at 325 Bogert are four minutes fast. There is no dispute that Don Johnson is seen in the contentious video clip. The defence submits that there are issues related to the video that potentially distort what in fact is depicted. The defence concerns were set out as follows in their written submissions on this application:

Surveillance video of February 13, 2012

The Crown submits that the surveillance video on camera 15 at 17:00:23 depicts Mr. Johnson going around the corner, returning in the hallway of camera 15 and then extending his arms forward and holding what appears to be a firearm (camera 15 at 17:00:48). The Crown also suggests that this so-called firearm is concealed in the sleeve of Mr. Johnson’s coat. The Crown suggests that we see the barrel of the gun that has slid from Mr. Johnson’s sleeve at 17:00:51.

It is the defence’s respectful submission that at no point in time during this video clip could the jury conclude that Mr. Johnson is in possession of a firearm.

It is the defence submission that the video clearly shows Mr. Johnson with empty hands right before and after the particular time where the Crown is alleging that Mr. Johnson extends his arms and points a firearm. When we play the video frame by frame from 17:00:23 to 17:00:58, it is clear in the defence’s submission, that Mr. Johnson does not have a firearm in his hands and even more, what is shown in the video is that Mr. Johnson does not have anything at all in his hands.

Furthermore, it is also the defence submission that what is seen at 17:00:51 is simply a different angle of Mr. Johnson’s hand. What is depicted in the video is Mr. Johnson’s finger and not the barrel of a firearm. Similarly to the surveillance video at 17:00:51, at 17:00:27, the exact same observation can be made where you clearly see Mr. Johnson’s hand and a finger extended. It is also of note that when you play the video frame by frame, there are sometimes three frames before the time elapses one second. As such when we play the video frame by frame, it is even clearer that those two particular frames show Mr. Johnson’s finger since in the other two frames, you clearly see Mr. Johnson’s empty hand. For example, at 17:00:27, the first frame is the frame where you can observe Mr. Johnson’s finger extended. In the very next frame (still at 17:00:27), you can clearly see Mr. Johnson’s open and empty hand. Similarly for the time of 17:00:51, the first frame with this time clearly shows Mr. Johnson’s open and empty hand. The next frame with the same time depicts Mr. Johnson’s finger extended. It is the defence submission that was is observed at 17:00:51 is the exact same situation as depicted at 17:00:27 and it is nothing more than Mr. Johnson’s finger.

Media File Compression

It is also important to note that on those types of surveillance videos, what appears to be a straight line on the camera may in fact be a pixelation artifact from compression.

If necessary the defence will try to get an expert to testify that surveillance videos of this nature are rife with compression artifacts and macroblocking. In a nutshell when the video footage is stored it is compressed and looses much of the information that was resorded. This is the reason for much of the poor quality of the video. All through such videos you can see distortions where round surfaces “stair” or look like pixelated stairs instead of diagonal lines. Similarly, a bent finger can look as straight as a ruler. Many of these effects can be seen clearly in almost all the very low quality video footage that is being used in this case. It becomes like a Rorschach test – you see what you want to see.

It is therefore the defence submission that there is absolutely nothing depicted in the video clip that even remotely suggests that Mr. Johnson was in possession of a firearm at that time.

[28] The defence filed copies of two short articles on this application entitled as follows:

Macroblocking and Pixelation – Video Artifacts – What are all those squares and jagged edges I sometime see on my TV screen?
What is Media File Compression? How File Compression Affects Picture and Sound Quality?

[29] The Crown submitted that the defence should call a qualified witness to testify as to the concerns raised as to the alleged distortion of what is shown on the video. The defence did not request time to consult and retain such a witness.

[30] In R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197 the robbery of a convenience store was captured on video. The victim was shown the video as he testified. He confirmed that it showed all of the robbery. However, he could not say that the person who robbed him was in court. The Crown closed its case and the defence called no evidence. The trial judge cautioned herself as to the frailties of eyewitness identification. However, she was satisfied beyond a reasonable doubt based on her review of the video that the accused was the culprit. The conviction was overturned on appeal. A further appeal to the Supreme Court of Canada was allowed and the conviction was restored. At paras. 28-31 inclusive the Court set out the uses that can be made of photographs or videotape at trials:

28 Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but it is to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilty of the accused.

29 The weight to be accorded that evidence can be assessed from a viewing of the videotape. The degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence. The time of depiction may not be significant for even if there are but a few frames which clearly show the perpetrator that may be sufficient to identify the accused. Particularly will this be true if the trier of fact has reviewed the tape on several occasions and stopped it to study the pertinent frames.

30 Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. For example, when a jury is asked to identify an accused in this manner, it is essential that clear directions be given to them as to how they are to approach this task. They should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this. Further, they should be told once again of the importance that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt that it identifies the accused.

31 The jury or trial judge sitting alone must be able to review the videotape during their deliberations. However, the viewing equipment used at that time should be the same or similar to that used during the trial. I would think that very often triers of fact will want to review the tape on more than one occasion.

[31] There is no suggestion here that the video has been altered or changed in any way. The question of whether Don Johnson is holding and pointing a firearm is a factual matter for the jury. It is for them to consider in all the circumstances including the clear image of Don Johnson holding his two arms straight out as if pointing something. Issues relating to possible distortion of the images related to pixelation go to weight as opposed to admissibility. The defence were offered time to consult and retain a qualified expert to testify as to possible distortion of images on video. Counsel for Crown and defence played and replayed the video several times in the course of this voir dire. In my view it cannot be said that there is no basis on which the jury could reasonably find he was holding a gun.

[32] The jury will be instructed that there is no onus on the defence to prove that Don Johnson was not holding a gun in the video. The jury will also be instructed that they may view the video evidence as often as they feel necessary to decide what is or is not depicted on the video.

B. P. O’Marra J.

Released: March 13, 2018

COURT FILE NO.: CR-14-40000523-000

DATE: 20180313

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DON JOHNSON

Ruling on DISCREDITABLE

conduct application

B. P. O’Marra, J.

Released: March 13, 2018

R. v. Johnson, 2018 ONSC 1552

Case Summary

RULING ON DISCREDITABLE CONDUCT APPLICATION

OVERVIEW

RELEVANCE OF EVIDENCE THAT DON JOHNSON POSSESSED A FIREARM BEFORE FEBRUARY 20, 2012

A. Possession of a firearm on January 2, 2010

B. References to possession of a firearm in February 2012 before the date of the shootings on February 20, 2012

IS THE QUALITY OF THE VIDEO CLIP SUCH THAT THE JURY COULD REASONABLY FIND THAT DON JOHNSON WAS HOLDING A HANDGUN?

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Legal Tests 2