Case Information

COURT FILE NO.: CR/18/40000444/0000 DATE: 20190305 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: HER MAJESTY THE QUEEN - and - DEON BROWN

Counsel: Tara Brun and Brianne Bovell, for the Crown Nathan Gorham and Breana Vandebeek, for Deon Brown

HEARD: February 4, 6, and 19, 2019

M. Forestell J.

RULING: ADMISSIBILITY OF DISCREDITABLE CONDUCT EVIDENCE

[1] Deon Brown is charged with the second degree murder of Tevone Wright. Mr. Wright was stabbed by the accused on August 22, 2017 during an altercation in a rooming house where they both lived. It is not disputed that the accused caused the death of Mr. Wright. The issues in the trial are the state of mind of the accused and whether he acted in self-defence. The trial began before me on February 4, 2019 with a voir dire into the admissibility of evidence of prior discreditable conduct of the accused.

[2] In the pre-trial application, the Crown applied for a ruling that evidence of two prior incidents was admissible:

1. A confrontation between the accused and the deceased which was witnessed by a co-tenant, Everton McDonald, in the kitchen of the rooming house 3 to 4 days prior to the stabbing in which the accused held a knife during an argument with the deceased over noise the deceased was making in the kitchen; and
2. A confrontation that occurred approximately 2 to 3 weeks prior to the stabbing of the deceased in which it is alleged that the accused chased Everton McDonald and another tenant, Leonard Augustine, out of the backyard of the rooming house with a knife because the two were making too much noise.

[3] The accused conceded the admissibility of the evidence of the prior confrontation between the accused and the deceased.

[4] The accused opposed the application to introduce evidence of the alleged confrontation between the accused and the other two co-tenants. He submitted that the evidence had limited probative value and significant prejudicial effect.

[5] On February 11, 2019 I ruled that the evidence of the confrontation between the accused and Mr. McDonald and Mr. Augustine 2 to 3 weeks before the stabbing of the deceased was not admissible and indicated that reasons would follow.

[6] On February 14, 2019 the Crown indicated that they wished to introduce other discreditable conduct evidence. The Crown sought to introduce evidence through the landlord of the rooming house that:

1. That the landlord gave notice to the accused to leave the unit in early August of 2017 because the landlord had received complaints from other tenants, in particular from Everton McDonald and Leonard Augustine;
2. That the landlord had never received complaints about the deceased;
3. That the landlord heard by text or email from Everton McDonald a few days before the stabbing that the accused had brandished a knife and that Everton McDonald was afraid to go home. As a result, the landlord told the accused to leave immediately and that police had been called; and,
4. That after he told the accused to leave in the days before August 22, 2017, the landlord told Everton McDonald and possibly Leonard Augustine that he had told the accused to leave.

[7] The accused only opposed the application to admit the evidence of the landlord with respect to complaints received prior to the days before the stabbing, including the notice given in early August and the reasons for the notice.

[8] The further application was argued on February 19, 2019, after written submissions were filed. On February 19, 2019 I ruled that the evidence of complaints about the accused prior to August 18, 2017 was not admissible. I indicated that reasons would follow.

[9] These are the reasons for my rulings on both applications.

Evidence

[10] On the original application, the police statements of Kurt Blackson, Leonard Augustine and Everton McDonald were filed. In addition, the video recording of the incident was filed. Everton McDonald gave viva voce evidence on the voir dire.

[11] On the second application, the record from the first application was relied upon. In addition, the Crown filed the preliminary inquiry transcript of Kurt Blackson’s evidence. The accused filed the record of text messages between Mr. Blackson and the accused and he filed the call log from the accused’s phone for the relevant time period. Mr. Blackson gave viva voce evidence on the second application.

[12] The deceased, Tevone Wright, was stabbed by the accused, Deon Brown, in the early morning hours of August 22, 2017. The two were renting rooms in a rooming house with five other tenants. The accused recorded a video of his interaction with the deceased just before and at the time of the stabbing. In the video, the accused can be heard asking the deceased about the deceased throwing his things out. The deceased can be heard challenging the accused about why he was still in the house and asserting that the accused was supposed to be gone. The video captures the argument between the deceased and the accused and shows the deceased moving towards the accused and banging against the bedroom door of the accused before he is stabbed. In the moments before he is stabbed, the deceased yells at the accused ‘do something with your knife’ as he moves towards the bedroom door.

[13] The police statement of the landlord, Kurt Blackson, indicates that in the two months of the accused’s tenancy, the accused had complained about other tenants and tenants had complained about the accused. The complaints about the accused included complaints that he played his music too loud, tried to install cameras, cut the electrical cord for the stove and that he brandished a knife against Everton McDonald and Leonard Augustine. The landlord would testify that as a result of conflict between Deon Brown and other tenants, particularly between Everton McDonald and the accused, in early August, he told the accused to leave the residence at the end of the month. Everton McDonald testified on the voir dire and said that approximately 2 to 3 weeks before August 22, 2017, he was part of a confrontation with the accused.

[14] In his evidence-in-chief on the voir dire, Mr. McDonald first testified that the incident occurred when he was in the kitchen and the accused got mad because Leonard Augustine, another tenant, was playing music. The accused became angry at Mr. McDonald because Mr. McDonald said something. Mr. McDonald then corrected himself and testified that the confrontation occurred in the backyard. He said that he and Mr. Augustine were in the yard playing music when the accused came to the patio door and told them to stop playing music. The accused had a knife in his hand that Mr. McDonald described as a “small machete”. He testified that it was a different knife than the one used to stab the deceased. Mr. McDonald testified that the accused tried to chase them off the property.

[15] In his statement to the police on August 22, 2017 Mr. McDonald told the police that the accused did not swing or raise the knife at him or at Mr. Augustine.

[16] In cross-examination on the voir dire, Mr. McDonald testified that the accused tried to “chop” at them and that the accused chopped at the gate door with such force that he broke the door.

[17] Mr. McDonald testified that he did not fully remember the chopping until he mentioned it in cross-examination. He later said that he remembered it after he watched the video of his previous statement in preparation for his testimony. He did not tell the Crown or the police because he did not have time to tell them. He later said that he did not tell the Crown because he forgot and then remembered during cross-examination.

[18] Mr. Leonard Augustine’s statement to the police was filed as part of the record on the application to introduce this evidence. In his statement, Mr. Augustine said that the accused stepped just outside the patio doors with a knife in his right hand. Mr. Augustine will not be a witness because he cannot be located.

[19] Two to three days prior to the stabbing, the landlord said that he received further complaints about the accused from Everton McDonald. Mr. McDonald told Mr. Blackson that the accused was brandishing a knife and that it was not the first time. Mr. Blackson told Mr. McDonald that he had given the accused notice to leave and that if there was an immediate threat he should call the police. Mr. Blackson then told the accused to leave the residence immediately because the police had been called. It was not true that police had been called, but Mr. Blackson was trying to trick the accused into leaving sooner. Mr. Blackson told the police that after he told the accused to leave immediately, he believed that he had told Everton McDonald that the accused had been told to leave immediately.

[20] Mr. McDonald testified that he did not complain to the landlord in the days before the stabbing and he did not hear from the landlord that the accused had been directed to leave. Mr. McDonald would testify that he observed an incident between the deceased and the accused in the days before the stabbing in which the accused held a knife in his hand as he argued with the deceased.

Positions of the Parties

First Application – Early August Knife Incident with McDonald and Augustine

[21] As noted above, it was conceded that the account of the confrontation between the deceased and the accused was admissible. The only issue on the first application is the admissibility of the earlier confrontation between the accused and Mr. McDonald and Mr. Augustine.

[22] In the Crown factum on the application to introduce the evidence of the knife incident with Mr. McDonald and Mr. Augustine, the Crown submitted that the probative value of the evidence was derived from its support of the inference that the accused has a history of being the aggressor in his relations with his co-tenants and has a history of becoming irate and violent when other tenants were engaged in normal activities such as playing music and using the kitchen. The Crown further submitted that the evidence would show that the accused resorted to violence and the use of knives in response to conflict with his co-tenants.

[23] In oral argument, the Crown abandoned those arguments and submitted that they did not seek to rely on the evidence as supportive of an inference that the accused had a propensity to use knives or violence, but only sought to rely on the evidence as supportive of the inference that the accused had a propensity to respond unreasonably and disproportionately to conflict with his co-tenants and to explain the rising tension in the house in the days before the stabbing.

[24] Counsel for the accused argued that the evidence was general propensity evidence that has limited probative value on any live issue of self-defence. Further, he argued that the evidence was highly prejudicial, inviting both moral and reasoning prejudice.

Second Application – Landlord’s receipt of complaints and Early August Notice to leave

[25] The Crown argued that the history of complaints about the accused that the landlord received was necessary background for the jury to understand the rising tension in the house. The Crown also argued that the evidence was relevant to the state of mind of the accused because it supported the inference that the accused was aware for some time that he would have to leave the house. The Crown also argued that the evidence was relevant to the state of mind of the deceased because the deceased would have been aware that the accused was supposed to leave.

[26] The accused argued that the alleged knife incident that occurred a few days before the stabbing and the actions taken by the landlord provide the relevant context for the encounter that led to the death of the deceased. The earlier complaints about the accused made by parties other than the deceased have minimal probative value and significant risk of prejudice. The accused would have to respond to the allegations including noise complaints, the alleged cutting of a stove cord and arguments over cleanliness.

Legal Principles

[27] Evidence of extrinsic misconduct of the accused is presumptively inadmissible. Such evidence may be admissible where the evidence has probative value that outweighs its prejudicial effect. The law governing the admissibility of discreditable conduct of the accused is set out in R. v. B.(L). [1]

Because of the inherently prejudicial nature of evidence of discreditable conduct, it is subject to a general exclusionary rule unless the ‘scales tip in favour of probative value.’ The trial judge who is charged with the delicate process of balancing the probative value of the proposed evidence against its prejudicial effect should inquire into the following matters.

1. Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?
2. If so, is the proposed evidence relevant and material?
3. If relevant and material, is the proposed evidence discreditable to the accused?
4. If discreditable, does its probative value outweigh its prejudicial effect?

[28] The probative value of the evidence is assessed in relation to the issues in the trial. In R. v. Handy, [2] Binnie J. explained that the Crown must identify the live issue in the trial to which the evidence of disposition is said to relate. If the issue is not in dispute, the evidence is irrelevant and must be excluded. The relative importance of the issue is also considered in assessing probative value.

[29] In R. v. B.(L.), [3] the Court described the assessment of probative value as follows:

In assessing the probative value of the proposed evidence, consideration should be given to such matters as:

(i) the strength of the evidence; (ii) the extent to which the proposed evidence supports the inference(s) sought to be made from it (this factor will often correspond to the degree of similarity between the prior misconduct and the conduct forming the subject-matter of the charge); and (iii) the extent to which the matters it tends to prove are at issue in the proceedings.

[30] The Court of Appeal in B.(L.) held that the strength of the evidence of the prior conduct is a factor to be taken into account in the assessment of the probative value of the evidence. At paragraph 25 of B.(L.), Charron J.A. wrote: “the more compelling the proof, the greater its probative value will be”.

[31] Some of the other factors to consider in the assessment of the probative value of the evidence are the proximity in time to the alleged offence, the similarity of the other acts, the circumstances surrounding the other acts and the offence, any distinctive features of the other acts and the offence, any intervening events and the possibility of collusion. [4]

[32] The probative value of the evidence must be weighed against the potential for prejudice. As the Supreme Court explained in Handy, prejudice is the “…risk of an unfocussed trial and a wrongful conviction” [Emphasis original].

[33] The proposed evidence must be assessed to determine the risk of moral or reasoning prejudice. Moral prejudice is the risk of the jury inferring guilt from a general disposition or propensity. Reasoning prejudice is the distraction of the jury from their proper focus, the consumption of time in dealing with multiple incidents and unfairness to the accused because of his limited opportunity to respond to the other incidents.

[34] The proper approach to the assessment of prejudice was described in R. v. B.(L.) as follows: [5]

In assessing the prejudicial effect of the proposed evidence, consideration should be given to such matters as:

(i) how discreditable it is; (ii) the extent to which it may support an inference of guilt based solely on bad character; (iii) the extent to which it may confuse issues; and (iv) the accused's ability to respond to it.

Application of the Principles

Application #1 – Early August Knife Incident with Mr. McDonald and Mr. Augustine

Identification of the Issues to which the Evidence Relates

[35] Self-defence is the central issue in this trial. The Crown argued that the evidence is relevant to this issue because it supports the inference that the accused tends to react disproportionately and unreasonably when in conflict with co-tenants and it supports the inference that there was a rising tension in the house that was caused, at least in part, by the prior conduct of the accused. The Crown argued that the accused’s past unreasonable reaction supports the inference that he overreacted and used unreasonable force in his interaction with the deceased on August 22, 2017.

The extent to which the evidence supports the inferences sought to be made from it

[36] If the jury concluded that the accused chased two co-tenants with a knife and violently chopped at and broke a gate approximately 2 to 3 weeks prior to the stabbing of the deceased and that he did so in response only to the co-tenants making noise, the jury could infer that the accused had a propensity to respond disproportionately and unreasonably to conflict with his co-tenants. The evidence therefore has some probative value on the issue of self-defence and the assessment of the reasonableness of the response of the accused when he was in conflict with the deceased.

[37] The previous incident is supportive of the inference only by reasoning that the accused has a propensity to respond violently and unreasonably.

[38] The evidence is also capable of supporting the other inference advanced in argument: that there was tension between the accused and other tenants and that the tension was caused by the accused’s conduct. The inference of tension, however, is only an inference of tension between the accused and two tenants other than Mr. Wright, the deceased.

The strength of the evidence

[39] The evidence that the accused conducted himself in the manner described is not strong. Mr. McDonald’s version of events has been extremely inconsistent. The description by Mr. McDonald of the accused’s conduct is not consistent with the description by Leonard Augustine, a witness who is no longer available to testify.

The extent to which the matters that the evidence tends to prove are in issue

[40] There are two inferences that the evidence is argued to support: the accused’s tendency to act unreasonably with co-tenants and the tension within the house.

[41] Self-defence is in issue and the reasonableness of the accused’s response to the deceased is in issue. Insofar as the evidence supports the inference that the accused had a propensity to conduct himself unreasonably, that matter is in issue.

[42] The tension within the house is not seriously in issue. The jury will hear evidence that the accused had been given notice to leave the house as a result of recent conflict involving his use of a knife in a confrontation with the deceased. They will hear evidence of tension and conflict between the accused and the deceased on August 22, 2017. The video of the incident provides clear evidence of tension between the two men. The existence of tension between the accused and tenants in the house, other than Tevone Wright, is not an issue that the jury needs to determine.

Conclusions on Probative Value

[43] I find that the evidence of the early August knife incident with Mr. McDonald and Mr. Augustine has minimal probative value.

[44] It is capable of supporting an inference that the accused has a propensity to respond unreasonably to conflict with co-tenants. This inference involves propensity reasoning. The probative value of the evidence is diminished by the weakness of its support of the inference and by the weakness of the evidence. Mr. McDonald’s inconsistent versions of events and the inconsistency with Mr. Augustine’s account make the evidence less than compelling.

[45] The evidence has minimal probative value on the issue of the tension between the accused and the deceased on August 22, 2017 because that issue is not seriously in dispute.

Prejudicial Effect

[46] I find that the proposed evidence is highly prejudicial. It risks both moral and reasoning prejudice. Although the alleged conduct is not as serious as the conduct that is charged in this case, it is violent criminal conduct. There is a real risk that the jury will engage in general propensity reasoning.

[47] There is also a significant risk of reasoning prejudice for several reasons. First, there is a risk of unfairness to the accused because he is limited in his ability to respond to the allegations. Mr. Augustine, who was interviewed by the police at the time, can no longer be located. Secondly, the reasonableness of the accused’s response in the incident with Mr. McDonald and Mr. Augustine could only be determined by examining the history of interactions between those parties. The jury can only assess the reasonableness or unreasonableness of the accused’s response by considering the full context. This would distract the jury and consume undue time on an issue that is of little assistance in the central determination of the reasonableness of the accused’s response on August 22, 2017 in different circumstances and with a different party.

Weighing of Probative Value and Prejudicial Effect

[48] I find that the very limited probative value of the evidence of the alleged interaction between the accused and Mr. McDonald and Mr. Augustine is far outweighed by the prejudicial effect. The evidence is weak and the challenge to the allegations risks consuming undue time and distracting the jury. The probative value is contingent on the context and history of the relationship between the parties which also entails a distracting inquiry. Additionally, there is a real risk of the jury engaging in general propensity reasoning.

Conclusion on the Evidence of the Early August Knife Incident with Mr. McDonald and Mr. Augustine

[49] I find that the evidence of the interaction between the accused and Everton McDonald and Leonard Augustine in early August 2017 is not admissible.

Application #2 – Landlord’s receipt of complaints and Early August Notice to leave

[50] The evidence of Kurt Blackson was argued to be relevant to the narrative and background, including the tension in the house, and to be relevant to the state of mind of the accused and the deceased.

[51] As I observed above, the tension between the deceased and the accused is readily apparent in the video of the interaction immediately preceding the stabbing. The existence of tension between the accused and other tenants is not relevant to any matter in issue in the trial. The majority of the complaints against the accused, according to Mr. Blackson, came from Everton McDonald. Mr. McDonald will testify that he complained only once about the accused to Mr. Blackson.

[52] The evidence of complaints weeks before the incident by tenants other than the deceased does not support the inference that the accused was aware of or angry about complaints made by the deceased. It does not support any inference about the state of mind of the deceased.

[53] Mr. Blackson’s reasons for wishing to evict the accused, apart from the recent complaint involving the accused and a knife are not necessary for the narrative and background of the dispute between the accused and the deceased.

[54] The evidence of minor complaints such as noise does not risk moral prejudice, but does risk distracting the jury and confusing the issues. Whether the landlord was justified in trying to evict the accused earlier in the month is not relevant. The Crown has argued that the jury need not be told the nature of the complaints against the accused, only that there were complaints and a request to leave. In that way, the Crown argued that the jury would not be distracted by the litigation of the validity of the complaints. It would invite speculation if evidence was led of unspecified complaints. If the complaints were explained, the accused would have to have an opportunity to respond. The prejudice in terms of confusing and distracting the jury far outweighs the very limited probative value of the evidence.

Conclusion

[55] The evidence of the knife incident in early August of 2017 between the accused and two co-tenants is not admissible. The evidence of the landlord, Kurt Blackson, with respect to the reasons for the attempt to evict the accused is restricted to the request immediately before the stabbing, the complaint that led to that request and the communication of the request to other tenants.

[56] My conclusions on both of these applications were based on the identification of the issues at an early stage of the trial. I was made clear that if the issues changed over the course of the trial and in particular, if the accused puts his relationship and history with the landlord and the co-tenants in issue, the ruling could be revisited.

M. Forestell J. Released: March 5, 2019