Court File and Parties

COURT FILE NO.: CR-18-5-192 DATE: 20181127

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN - and - SHELDON TINGLE - and - JERMAINE DUNKLEY

Counsel: Elizabeth Nadeau and Marco Cuda, for the Crown Scott Reid and Marianne Salih, for the accused, Sheldon Tingle Jeff Hershberg and Brian Ross, for the accused, Jermaine Dunkley

HEARD: September 20-21, 2018

K.L. Campbell J.:

Mid-Trial Ruling: Admissibility of the Evidence of David Griffith

A. Overview

[1] The two accused, Sheldon Tingle and Jermaine Dunkley, are charged with first-degree murder in connection with the November 24, 2013 killing of Neeko Mitchell, which took place just outside the front entrance of the North Kipling Community Centre in Toronto. That night, there were a series of men’s recreational basketball games scheduled to be played in the gymnasium of the Community Centre. Mr. Mitchell attended the Community Centre to watch one of the games. The Crown alleges, essentially, that Mr. Mitchell was, at the request of Jermaine Dunkley, lured from the gymnasium and outside the Community Centre by Sheldon Tingle, where Mr. Mitchell was then promptly shot to death, at close-range, by Reshane Hayles-Wilson. Accordingly, the two accused are alleged to be parties to the murder of the deceased by Mr. Hayles-Wilson.

[2] David Griffith was a long-time friend of the deceased. Mr. Griffith was present at the Community Centre on the night of the killing. He was the player/coach of one of the basketball teams. Indeed, he was seated right next to Mr. Mitchell, on one of the player’s benches in the gymnasium, just moments before Mr. Mitchell was killed. He saw the man who entered the gymnasium and made the gesture which seemingly caused Mr. Mitchell to promptly leave the gymnasium, walk through the lobby of the Community Centre, and exit through the front doors where he was, shortly thereafter, shot to death by Mr. Hayles-Wilson. While Mr. Griffith cannot identify the man who made this gesture, the Crown contends it was Mr. Tingle.

[3] Defence counsel for Mr. Tingle takes issue with the admissibility of the anticipated testimony of Mr. Griffith. Defence counsel argues that his evidence is inadmissible opinion and hearsay evidence that is very prejudicial to Mr. Tingle. The Crown contends that the evidence is admissible lay opinion evidence, not being tendered for any hearsay purpose, and that its probative value greatly exceeds any potential prejudicial impact its admission may have.

[4] After hearing argument from the parties on this issue, I advised them that I had concluded that the anticipated evidence of Mr. Griffith was admissible. I also advised them that I would subsequently provide reasons explaining that conclusion. These are those reasons.

B. The Anticipated Evidence of David Griffith

[5] Based upon (1) his sworn preliminary inquiry testimony in this matter on February 13, 2017, (2) his trial testimony in some related criminal proceedings against other accused individuals on July 10, 2015, and (3) his video recorded interview statement to the police on December 1, 2013, it is anticipated that Mr. Griffith will testify, essentially, as follows.

[6] On the evening of November 24, 2013, Mr. Griffith was in attendance at the North Kipling Community Centre. He was playing in a basketball game in the gymnasium in the Community Centre. He was on the team called the “Hustle Squad.” Their uniforms were a light blue colour. One of the other members of the team was Shomari Giscombe. Mr. Giscombe is one of the deceased’s brothers. Mr. Griffith was friends with both Mr. Giscombe and Mr. Mitchell and had known them both for many years.

[7] According to Mr. Griffith, at one point during the basketball game, as he was sitting on the player’s bench on the far side of the gymnasium, he saw Mr. Mitchell come into the gymnasium. Mr. Mitchell walked over to the player’s bench, where Mr. Griffith was seated, greeted him, and sat down on the bench next to Mr. Griffith. They engaged in a short conversation, the details of which Mr. Griffith is unable to remember.

[8] Mr. Griffith is expected to testify that, as they sat on the bench together, Mr. Griffith saw a man “call” Mr. Mitchell outside. At the preliminary inquiry, while Mr. Mitchell initially testified that he may have heard the man call Mr. Mitchell by his name, after refreshing his memory from his earlier testimony at another related criminal proceeding, he agreed that he did not actually hear the man call his name. Mr. Griffith has always maintained, however, in all three available versions of his evidence, that the man called Mr. Mitchell outside by the manner in which he raised and waved his hand, gesturing toward Mr. Mitchell. In his earlier testimony Mr. Griffith could not describe, more specifically, precisely how the man raised his arm in making this observed gesture, but he maintained that the man had “called [Mr. Mitchell] over” by the gesture that he made. Further, at one point in his video recorded police interview statement, Mr. Griffith briefly demonstrated the gesture as he saw it – raising his left arm in the air, slightly over his head, with his palm forward (facing toward Mr. Mitchell), and as he dropped his arm somewhat, curling his fingers toward his body.

[9] According to Mr. Griffith, the man that made this gesture did so while he was standing by the gymnasium doors – one of the set of doors connecting the gymnasium to the interior of the Community Centre. Mr. Griffith is not able to describe more specifically where precisely the man was standing when he made the gesture, nor is Mr. Griffith able to identify the man, or describe the physical characteristics or clothing of the man who made this observed gesture.

[10] It is anticipated that Mr. Griffith will testify that, when the man made this gesture “calling” Mr. Mitchell outside, Mr. Mitchell got up from the bench and left the gymnasium. Mr. Griffith remained in the gymnasium watching the ongoing basketball game.

[11] Within a few minutes, Mr. Griffith heard shots fired, and he left the gymnasium and ran outside. He was worried about his friend. He found Mr. Mitchell outside on the ground, and tried to help him – to no avail.

[12] This summary is simply the anticipated testimony of David Griffith based upon the evidence that he has provided prior to trial, when questioned by the police, or when giving testimony in court. His actual trial testimony may vary somewhat from this summary, or it may remain consistent.

C. The Potential Significance of the Evidence

[13] The Crown’s position, as I understand it, regarding the potential significance of this evidence, is that it was the accused, Sheldon Tingle, who summoned Mr. Mitchell outside with this gesture. The Crown alleges that Mr. Tingle had a friendly relationship with Mr. Mitchell and relied upon that friendly relationship in luring Mr. Mitchell outside of the Community Centre so that he could be shot to death by Mr. Hayles-Wilson. This is an aspect of the “planned and deliberate” murder of Mr. Mitchell, according to the Crown’s theory of this case.

[14] The position of defence counsel for Mr. Tingle, as I understand it, regarding the potential significance of this evidence, is that Mr. Tingle did not make any gesture toward Mr. Mitchell, or anyone else. Rather, if there was any such gesture, it was made by another man, namely, Kuame Layne. Alternatively, the gesture was made by some other unidentified man in the gymnasium. The video surveillance evidence reveals that both Mr. Tingle and Mr. Layne entered the gymnasium, and then left again shortly thereafter. Mr. Mitchell then left the gymnasium and walked outside to the canopy-covered area at the front doors of the Community Centre, where he was killed by Mr. Hayles-Wilson. Accordingly, the defence argues that this evidence does not in any way implicate Mr. Tingle in this alleged “planned and deliberate” murder, as it was not him who summoned Mr. Mitchell outside.

D. The Positions of the Parties Regarding the Admissibility of the Evidence

[15] In advancing the position that the anticipated testimony of Mr. Griffith is inadmissible, defence counsel contends, first, that it is categorically inadmissible as opinion evidence, as Mr. Griffith is being called to provide the jury with his opinion as to the meaning of the hand gesture that was made by the man standing by the door. Defence counsel argues that the jury is perfectly positioned to draw their own conclusions as to the nature and meaning of the gesture to the extent that it may have been captured in the surveillance video recording evidence. Second, defence counsel argues that this anticipated evidence of Mr. Griffith is inadmissible hearsay evidence as it is an implied assertion that the man making the gesture intended to call out Mr. Mitchell. Further, since the Crown cannot establish that the gesture was made by Mr. Tingle, the gesture cannot be admitted as a potential admission by the accused. Third, defence counsel argues that this evidence is very prejudicial to the accused and potentially misleading for the jury.

[16] In response, the Crown contends, first, that the anticipated evidence of Mr. Griffith is admissible because it falls within the exception to the general exclusionary rule regarding opinion evidence from non-expert witnesses. The Crown argues that this exception permits Mr. Griffith to more accurately express the facts surrounding the nature of the physical gesture he observed by the man in the gymnasium, by means of a common-sense inference from the compendium of facts he observed. Second, the Crown argues that this evidence is not hearsay evidence. The physical characterization and potential description of the physical gesture seen by Mr. Griffith are simply not being tendered to prove anything more than that the gesture was made, and to explain why Mr. Mitchell left the gymnasium and went outside. According to the Crown, this evidence is simply not being tendered to prove the truth of its contents – to the extent that a gesture can have any apparent “truth.” The Crown argued, however, that to the extent that the gesture might potentially be viewed as an implied assertion, it was an assertion by the accused, Mr. Tingle, and would be admissible as an admission in any event. Finally, the Crown argues that this evidence is very probative and not at all misleading.

E. Analysis

1. Admissible as Non-Expert Opinion Evidence

[17] The general rule regarding non-expert opinion evidence is an exclusionary one. Usually, the rule insists that witnesses give evidence of facts (i.e. things that they personally saw or heard), and not provide their opinions or their inferences from those facts. Generally speaking, such opinions are inadmissible because they are unhelpful to the trier of fact and are potentially misleading. See, for example, R. v. Vassell, 2018 ONCA 721, at para. 85; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, at para. 14.

[18] This rule, however, is not absolute. There are exceptions. In some circumstances non-expert witnesses may properly express their opinions in relation to facts that they observed. In R. v. Gratt, [1982] 2 S.C.R. 819, affirming, (1980), 55 C.C.C. (2d) 429 (Ont.C.A.), the Supreme Court of Canada concluded, at pp. 824-825, 835-837 and 839-840, that a non-expert witness may provide his or her testimony in the form of an opinion if, by doing so, the witness is able to more accurately express the facts that he or she observed. In such circumstances, the opinion evidence is, essentially, a common-sense inference drawn from a compendium of observed facts about which an ordinary, non-expert, lay witness can testify. See also R. v. Lee, 2010 ABCA 1, at paras. 29-31, affirmed, 2010 SCC 52, [2010] 3 S.C.R. 99, at para. 6; R. v. Ilina, 2003 MBCA 20, at paras. 72-80, leave denied, [2003] S.C.C.A. No. 134; R. v. Bell, 2001 BCCA 99, at para. 10, leave denied, (2001), 155 C.C.C. (3d) vi (S.C.C,).

[19] Textbook authors S.N. Lederman, A.W. Bryant and M.K. Fuerst, helpfully discuss the practical operation of the opinion rule in their authoritative work, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (2018, 5th ed.), in §§ 12.2-12.15, at pp. 815-821. The authors begin by outlining the general exclusionary rule and the exception, permitting non-expert witnesses to provide an opinion “where it constitutes a compendious statement of facts which are too subtle and too complicated to be narrated separately and distinctly.” The authors note that the general rule excluding opinion evidence was characterized by Wigmore as “an historical blunder.” They suggest that its justifications “appear to be mere afterthought to support a rule which is neither sensible nor workable” if strictly applied to exclude inferences rationally based on “the witness’ perceptions and without which the witness could not accurately, adequately and with reasonable facility describe the underlying facts upon which her or his testimony is based.” Further, the authors observe that, in R. v. Gratt, the Supreme Court of Canada “all but did away with the illogical distinction between so-called fact and opinion where the witness’ testimony was founded on personal knowledge.” They further describe how the Supreme Court moved the law in this area away from the requirement of “necessity” regarding the opinion evidence of the lay witnesses, to a “helpfulness” standard. Ultimately, the authors drew the following conclusions, in §§ 12.12 and 12.14, at pp. 819-820:

Couched in these terms, the modern opinion rule for lay witnesses should pose few exclusionary difficulties when based on the witness’ perceptions. The real issue will be the assessment and weight to be given to such evidence after it is admitted.

Courts now have greater freedom to receive lay witnesses’ opinions if: (l) the witness has personal knowledge of observed facts; (2) the witness is in a better position than the trier of fact to draw the inference; (3) the witness has the necessary experiential capacity to draw the inference, that is, form the opinion; and (4) the opinion is a compendious mode of speaking and the witness could not as accurately, adequately and with reasonable facility describe the facts she or he is testifying about. [citations omitted]

[20] In my view, the anticipated testimony of Mr. Griffith falls well within the scope of this recognized exception to the general exclusionary rule regarding the admissibility of non-expert opinion evidence.

[21] The substantive nature of the anticipated evidence of Mr. Griffith is to describe a physical gesture or motion by a man, who Mr. Griffith personally observed, that in effect summoned, or called, or invited Mr. Mitchell outside the gymnasium. Mr. Griffith can, of course, be asked by the parties about all of the specific details and physical mechanics of that observed gesture or motion, and Mr. Griffith may be able to provide some further specifics as to the nature of the wave or gesture that he observed by the nameless, unidentified man from across the gymnasium. But, his descriptive characterization of that gesture or motion, in my view, falls within the exception to the general exclusionary rule. Mr. Griffith personally observed the facts; he was in a better position than the jury to draw the inference as to the meaning of the gesture; he had the necessary experiential capacity to form the opinion; and his characterization of that gesture more accurately expresses the collective facts that he personally observed. In short, Mr. Griffith’s characterization of the nature of the gesture is simply a common-sense inference that he drew from a compendium of observed facts about which an ordinary, non-expert, lay witness can properly testify.

[22] Moreover, Mr. Griffith was better placed that the jury to observe the intricacies of this gesture. Perhaps Mr. Griffith will be able to provide some details about how the man moved his arm or his hand; which arm or hand was used; how the hand was held; how far up in the air the arm was raised; how many fingers were held out and how they may have been moved; how the fingers were moved in conjunction with the arm; the degree of angle that the arm may have been held out from the body; and whether the arm was bent at the elbow, and at what degree. Perhaps Mr. Griffith can, again, demonstrate physically what motion the man made in the gymnasium so as to better communicate to the jury what he saw that night.

[23] These and other details may properly be the subject of full inquiry by the parties, as they wish, in examination-in-chief and in cross-examination. To the extent that Mr. Griffith is not able to describe, with greater specificity, the details of the mechanics of this gesture, the weight of his testimony may be undermined. But, by describing this gesture or motion as one that effectively called Mr. Griffith outside of the gymnasium, Mr. Griffith can provide the jury with a type of short-form description or characterization of what Mr. Griffith observed that, in an easily understandable and common-sense way, more accurately describe the compendium of those observed facts. Such a characterization of the observed physical gesture will be neither unhelpful nor misleading to the jury. Indeed, permitting Mr. Griffith to give the jury his non-expert opinion evidence regarding the observed gesture will provide great assistance to the jury, without in any way misleading them.

[24] The law has long recognized that non-expert witnesses may give opinion evidence about such matters as the apparent age of a person, their bodily condition, their emotional state, the condition or objects and their value, and estimates of speed and distance – without necessarily providing detailed evidence of all of the factual minutiae that ultimately led the witnesses to their opinion. See Sherrard v. Jacob, [1965] N.I.L.R. 151 (C.A.); R. v. Gratt, at pp. 830, 835-837; R. v. B.(H.), 2016 ONCA 953, at paras. 68-75. I see no basis upon which to conclude that such opinions are in any way distinguishable, as a matter of principle, from the opinion of Mr. Griffith. Mr. Griffith’s opinion that the observed gesture to Mr. Mitchell was one that, in effect, called Mr. Mitchell out of the gymnasium, does not require Mr. Griffith being able to exhaustively detail all of the biomechanical nuances of that gesture.

[25] It is important to appreciate in this regard that the nature of the physical gesture that is at the center of this controversy between the parties is something that has been employed and/or observed by virtually everyone. Such gestures are a remarkably common, if not every-day occurrence, in typical human interactions and communications. To paraphrase the language used by Doherty J.A. in R. v. Abbey, 2009 ONCA 624, at para. 125, with respect to expert evidence of a much more sophisticated nature, this is “not rocket science,” and this evidence can be easily “critically evaluated and independently assessed” by the jury.

2. Not Inadmissible Hearsay Evidence

[26] As the Supreme Court of Canada succinctly noted, in a unanimous judgment by Dickson J. (as he then was) in R. v. O’Brien, [1978] 1 S.C.R. 591, at pp. 593-594, it is “settled law” that evidence of a “statement” made to a witness by a person who is not himself called as a witness is “hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement, but that “it is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.” See also R. v. Khelawon, 2006 SCC 57, at paras. 35-36; R. v. Youvarajah, 2013 SCC 41, at para. 18; R. v. Baldree, 2013 SCC 35, at para. 1-7; R. v. Badgerow, 2014 ONCA 272, at paras. 99-100, 106-135; R. v. Bradshaw, 2017 SCC 35, at paras. 1, 20.

[27] In the present case, even assuming that the physical gesture that was observed by Mr. Griffith could be viewed as amounting to some type of statement, or factual assertion, or even an implied assertion of fact, this evidence is not being tendered for the truth of its contents, but simply for the fact that the gesture was made. The Crown was very clear on this issue in oral argument – the evidence is not being tendered or relied upon for the truth of its contents. Indeed, the Crown suggested that it was difficult to discern what the “truth” of the gesture might be. Accordingly, I agree that this evidence is not hearsay, as it is not being admitted for the truth of its contents.

[28] The fact that the gesture was made by the man seen by Mr. Griffith may well explain why Mr. Mitchell promptly left his seat beside Mr. Griffith, exited the gymnasium, and went outside the Community Centre just before he was killed. But the gesture is simply one piece of circumstantial evidence surrounding the murder of Mr. Mitchell. It helps to explain the movements of Mr. Mitchell in the moments just prior to this death. Similarly, in R. v. B.(H.), demeanor evidence was not being adduced for its truth but rather for its relevance to the narrative and chronology in that case, and the court concluded, at para. 84, that simply because the Crown may have asked the jury to draw an inference from the demeanour evidence does not render the evidence an “implied statement of belief adduced for the truth of its contents.”

[29] As stated by Garton J. in R. v. Weir, 2018 ONSC 780, at para. 206, in discussing the admissibility of non-assertive conduct, “the Crown is entitled to submit, and the trier of fact is entitled to accept, that evidence which has multiple interpretations when evaluated in isolation has only one interpretation when evaluated along with all of the other circumstantial evidence.” In the present case the Crown may well argue, based upon this and other evidence, that it was Mr. Tingle who made this gesture effectively calling out Mr. Mitchell. The video surveillance evidence shows that Mr. Tingle entered the gymnasium for a short period of time, and then left the gymnasium, walked through the lobby of the Community Centre and went outside the front doors and stood under the canopy. Within seconds, Mr. Mitchell followed the same general path, out of the gymnasium, through the lobby, and outside the front doors of the Community Centre, where he immediately greeted Mr. Tingle in the area under the canopy. Mr. Mitchell was then shot to death shortly thereafter by Mr. Hayles-Wilson.

[30] Aspects of that video recording evidence reasonably support the suggestion that it was Mr. Tingle who invited Mr. Mitchell outside with the gesture seen inside the gymnasium – but that does not mean that the gesture itself is inevitably going to be used by the Crown, in an impermissible hearsay fashion. I reject the argument of defence counsel to the contrary. The evidence in question (i.e. the observed gesture inside the gymnasium) is not being tendered or admitted for the truth of its contents, if there are any, but only for the fact that it was made. Therefore, that evidence is simply not inadmissible hearsay.

3. An Additional Note – Evidence Would Have Been Admissible as an Admission

[31] While this resolves the question of the admissibility of the tendered evidence of Mr. Griffiths from a hearsay perspective, there is one additional point that should be addressed.

[32] Defence counsel for Mr. Tingle argued that, since the observed gesture was effectively an assertion or statement by the man who made the gesture, the Crown was obliged to establish, at least on a balance of probabilities, as one of the pre-conditions to its admissibility, that the gesture was made by Mr. Tingle. Defence counsel based this argument upon his reading of the Supreme Court of Canada decision in R. v. Evans, [1993] 3 S.C.R. 653. I reject this argument.

[33] As I have already indicated, this gesture is simply not being tendered for the “truth” of any statement or factual assertion that might be viewed as inherently contained within the gesture. However, even if it was, it would be admissible under the “admissions” exception to the rule against hearsay, as the gesture would be viewed as a statement or factual assertion by an accused. This is one of the long-standing exceptions to the rule against hearsay evidence. See R. v. Evans, at p. 664; R. v. Foreman (2002), 62 O.R. (3d) 204 (C.A.), at para. 37, leave denied, [2003] 2 S.C.R. vii; R. v. Osmar, 2007 ONCA 50, at para. 53, leave denied, [2007] 2 S.C.R. vii; R. v. Hart, 2014 SCC 52, at para. 63; R. v. D.(D.), 2015 ONSC 3667, at para. 19.

[34] According to the decision in R. v. Evans, at pp. 664-669, the Crown need only lead “some evidence” that a statement was made by the accused in order to properly authenticate the statement and render it admissible. Once admissible, it is for the trier of fact (in this case the jury) to determine, as a preliminary matter, whether the Crown has established, on the balance of probabilities, that the accused made the statement. Provided that this threshold is met, the trier of fact would then go on to consider the contents of the statement, along with all of the other evidence, in determining the weight to attach to the statement and the issue of the guilt or innocence of the accused. See D. Watt, Watt’s Manual of Criminal Evidence (2018), at § 27.10, at p. 407.

[35] In the circumstances of this case there is, in my view, at least some evidence that it was Mr. Tingle who made the gesture in the gymnasium (i.e. the alleged hearsay assertion or statement). As I have already indicated, the video recording evidence from the Community Centre shows Mr. Tingle enter the gymnasium and leave shortly thereafter. Seconds later, Mr. Mitchell leaves the gymnasium and, ultimately, greets Mr. Tingle under a canopy as soon as he passes through the front doors of the Community Centre. While Mr. Layne also entered and exited the gymnasium with Mr. Tingle, it was Mr. Tingle who had an existing friendly relationship with Mr. Mitchell (not Mr. Layne), and it was Mr. Tingle who Mr. Mitchell immediately greeted upon exiting the Community Centre (not Mr. Layne). Given this supporting evidence, I am satisfied that there is some evidence upon which the jury could reasonably conclude that it was Mr. Tingle who made the gesture which is the subject of Mr. Mitchell’s anticipated evidence. Accordingly, even if, contrary to the conclusion I have reached, the gesture observed by Mr. Griffith amounts to hearsay evidence, the anticipated evidence of Mr. Mitchell would have been admissible in any event. It would have been admissible under the “admissions” exception to the hearsay rule.

4. Weighing the Probative Value of the Evidence Against its Potential Prejudicial Effect

[36] I am also satisfied that the probative value of the tendered testimony of David Griffith significantly exceeds any potential prejudicial impact of the evidence.

[37] On the one hand, the evidence of the observed gesture explains why Neeko Mitchell left the gymnasium and walked outside the Community Centre to the canopy area, just seconds before he was shot to death. It is, accordingly, an important piece of circumstantial evidence surrounding the murder. Further, to the extent that the Crown may reasonably contend, based upon this and other evidence, that it was Mr. Tingle who made the gesture that prompted Mr. Mitchell to come outside, it may be an important piece of evidence in the entire chain of circumstantial evidence that potentially implicates Mr. Tingle in the killing of Mr. Mitchell. It is also important to recall that the gesture observed by Mr. Griffith appears to be different than any physical gesture or movement that can be seen on any of the video recordings. As there were no surveillance cameras located inside the gymnasium, the testimony of Mr. Griffith, accordingly, provides the only evidence of this particular gesture. In my view, this tendered evidence has significant probative value.

[38] On the other hand, the evidence of the observed gesture creates little potential for prejudice to the accused, Mr. Tingle. Contrary to the submission of defence counsel, the evidence of the gesture does not go to the “ultimate issue” for the jury’s determination. As I have already observed, the evidence of the gesture is being tendered and admitted only for the fact that it was made – not for any inadmissible hearsay purpose. Further, even if the jury were to accept that Mr. Tingle made this gesture, and that Mr. Mitchell left the gymnasium and the Community Centre because of it, that would not automatically lead the jury to the conclusion that Mr. Tingle was necessarily aware of, and party to, any plan to deliberately kill Mr. Mitchell. In addition, in my view, the jury should have no difficulty whatsoever understanding and assessing this quite simple piece of evidence. Indeed, it is difficult to imagine how the jury might be in any way misled or confused by this evidence.

F. Conclusion

[39] In the result, as I have already advised the parties, for these reasons, the anticipated evidence of David Griffith was held to be admissible.

Kenneth L. Campbell J.

Released: November 27, 2018