SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-17-0549-0000

DATE: 2018 05 17

RE: HER MAJESTY THE QUEEN v. DAVID KAWAL, TYREL NICHOLSON and DEVONTE ROWE

BEFORE: D. E. Harris J.

COUNSEL: A. Calsavara and D. Maylor, for the Crown

L. Galway and A. Alibhai, for the Defendant (David Kawal)

S. Hinkson, for the Defendant (Tyrel Nicholson)

R. Mwangi, for the defendant (Devonte Rowe)

ENDORSEMENT

[1] The Crown applies to admit evidence against David Kawal on his joint trial with Tyrel Nicholson and Devonte Rowe upon a multi-count indictment charging him with kidnapping, attempt murder, robbery and possession of a restricted\prohibited firearm.

[2] The Crown seeks to adduce evidence of the phone number of the cell phone Kawal was allegedly using at the time of the offences, and his girlfriend’s name, phone number and address. The complicating factor is that this information finds its source in Kawal’s parole records. At the time of these alleged offences on October 16, 2105, Kawal was on parole and living at the Harbour Light half-way house in Toronto.

[3] There are two will-says from employees of the half-way house who identify this cell number as his and say, in addition, that he was supposed to have his cell with him at all times for spot checks. He filled out an itinerary everyday in his own handwriting saying where he was going and providing this cell number where he could be reached.

[4] Another employee confirms this information and says that Kawal called in on the date of the offence from a payphone. Kawal said he was calling in from Yorkdale mall. He said he was going to his girlfriend’s for the rest of the night. Video footage captures a man alleged to be Kawal at the Yorkdale mall. There is video footage as well of Kawal in a VW Jetta associated with the offences.

[5] The cell phone in question was using the cell tower closest to the address from which the two kidnapping victims were abducted in Toronto at the time of the abduction. Not long afterwards, the cell phone is accessing the tower servicing the area where the victims were taken, 10 Stokes Road in Brampton. After the shooting, the phone calls Mr. Kawal’s girlfriend. Later, the phone is near her residence in Scarborough.

[6] The Crown says that the cell phone evidence and the biographical and surveillance evidence is essential to their case against Kawal. While Nicholson was swiftly apprehended in the area of 10 Stokes and Rowe lived at the Stokes address, Kawal was not apprehended until two months later. It is considerably more difficult to put Kawal at the abduction site and the site of the shooting. The VW Jetta and the cell phone evidence are key.

[7] Much of this evidence can and should be the subject of an agreed statement of fact (ASF) under Section 655 of the Criminal Code. Ms. Galway concedes as much. An ASF could launder out the fact that Kawal was on parole. The main sticking point is the parole obligation on Kawal to carry the subject phone at all times. It is difficult to convey his obligation to carry this phone without explaining that the obligation was set by those who had authority over his parole status. Although perhaps he could not have had his parole revoked for not having the phone, parole records show that there could be significant consequences. It is a much more significant obligation than imposed by a spouse, for example, as the consequences of non-compliance, at least in most instances, were likely to be much more serious.

[8] The Crown says this is highly probative evidence in their case against Kawal. The Crown says that Kawal’s admission that he was generally using the cell phone, a concession he is willing to make, is not enough. The Crown also wants the evidence that he was supposed to carry it at all times. This, in their view, would significantly strengthen the inference that he was carrying it when it bounced signals off both the abduction and shooting site towers, thereby implicating him in these crimes.

[9] I think this evidence is admissible. I accept that the cell tower evidence is a major pillar of the case against Kawal. The likely possession of the subject cell phone is a key link in the circumstantial chain of this evidence. Its probative value is high. The prejudice caused, although unfortunate, is significantly outweighed by the probative weight.

[10] There is relatively minimal reasoning prejudice. Reasoning prejudice relies on a relationship between the charged offence or offences and the offence sought to be admitted. Here, the fact that Kawal was on parole demonstrates that he was convicted of a criminal offence. But the jury will not be told what the underlying offence or offences were. The inference that because he committed an offence in the past, it is more likely he committed these offences will be blunted. The distraction will be minimal.

[11] There will no doubt be some moral prejudice: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 (S.C.C.) at para. 100. But this too will be diminished by the lack of a label being put on the underlying offences. The jury will not know whether it was provincial or federal parole or any details of the parole. Of course, a limiting instruction will have to be given.

[12] The Crown argues that because there will be a “character assassination” attack on the male kidnapping victim by the defence, it is only fair that evidence against Kawal which shows his bad character should be admitted.

[13] This reasoning is flawed. This is not a situation like R. v. Corbett 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670. In Corbett, the appellant was being tried for murder. The question for the court was whether he could be cross-examined by the Crown on a previous murder conviction for the purpose of impugning his credibility. The jury would have to be instructed on the limited use of the evidence and that it was for the purpose of credibility only.

[14] Chief Justice Dickson said it was only fair that Corbett be cross-examined on the murder conviction as there had been a strong attack made against the Crown witnesses’ credibility based on their criminal records. He said,

Had Corbett’s record been excluded, the jury, as I have earlier indicated, would have been left with the entirely mistaken impression that, while the Crown witnesses were hardened criminals, Corbett had an unblemished record. The problem could not be solved, in my view, by admitting into evidence all the convictions save that for murder. Apart from the murder conviction in 1971, the earlier convictions dated back over 30 years, to 1954. I am not at all persuaded that the imbalance between the Crown and the accused would have been avoided by admitting only evidence of convictions for offences committed in the accused’s youth. It is my view, therefore, that the jury would have been misled rather than aided by the exclusion of the evidence, and that in the circumstances it cannot be said that admission of the evidence was unfairly prejudicial.

[15] As can be seen, the issue in Corbett was the probative value of the criminal record towards credibility versus the prejudicial effect of the criminal record in the form of bad character inferences. Justice LaForest in dissent thought the Crown should be prohibited from the cross-examination on the murder conviction because of the prejudice; Chief Justice Dickson for the majority was of the opinion, as the quote above demonstrates, that prohibiting the cross-examination would mislead the jury and lead to an unfair imbalance between the Crown and defence on the respective credibility of their witnesses.

[16] In the case of this application, the issue is not balancing the credibility attack on the accused against the credibility attack on the complainants. The issue on this application is the frequently argued issue of substantive probative value towards guilt against the prejudicial effect from bad character aspects of this evidence.

[17] It can never be said, at least outside the putting character in issue area, that allowing some bad character evidence of the defendant into the trial is permitted to balance out the bad character of the complainants adduced by defence counsel. Bad character of the accused is always forbidden territory unless outweighed by probative value. Only probative value justifies the admission of bad character evidence, nothing else.

[18] The issue in Corbett is unrelated to the issue in this case. I conclude that the likely credibility attack on the complainants is irrelevant to the question I have been asked to decide in this ruling.

[19] Nonetheless, in my view, the evidence sought to be admitted by the Crown is admissible.

Counsel should put their heads together to come up with an ASF for the purpose of minimizing to the degree possible the prejudice to the defendant Kawal.

David E. Harris J.

DATE: May 17, 2018

COURT FILE NO.: CR-17-0549-0000

DATE: 2018 05 17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN v. DAVID KAWAL

BEFORE: D. E. Harris J.

COUNSEL: A. Calsavara and D. Maylor, for the Crown

L. Galway and A. Alibhai, for the Defendant (David Kawal)

S. Hinkson, for the Defendant (Tyrel Nicholson)

R. Mwangi, for the defendant (Devonte Rowe)

ENDORSEMENT

David E. Harris J.

DATE: May 17, 2018