WARNING

The court has issued an order prohibiting the “publication” of any information regarding this matter that would identify the young person in this proceeding. This non-publication order relates to a prohibition on the publication of the name of or any other information that would identify P.T. in this proceeding.

This is ordered in accordance with

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…

111. (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person…

112. (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court File and Parties

COURT FILE NO.: CR-18/1358

DATE: 2019-08-01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen v. Muhammad Asif

BEFORE: Stribopoulos J.

COUNSEL: Mr. G. Hendry, for the Crown / Respondent Ms. U. Kancharla, for the Accused / Applicant

HEARD: July 31, 2019

ENDORSEMENT

[1] Under s. 551.1(1) of the Criminal Code, I was appointed the case management judge for this trial.

[2] In that capacity, just yesterday, I heard an application, brought by the Applicant, seeking to exclude some text messages from evidence at his trial. These texts were located on the Applicant’s cellphone, which police searched pursuant to the authority of a warrant.

[3] The Applicant’s trial is scheduled to commence early next week, on August 6, 2019. Accordingly, a decision on this application is time-sensitive; hence, this brief endorsement.

[4] Defence counsel argues that certain texts are inadmissible because their prejudicial effect outweighs their probative value. The Crown concedes that some of the texts are indeed more prejudicial than probative. With these, the Crown takes the position that the contents should be excised and replaced with a notation that reads “vetted out as irrelevant.” With others, which the defence claims are inadmissible, the Crown argues that they are relevant and probative and do not occasion any prejudice. Therefore, the Crown maintains that they are admissible at the Applicant’s trial.

[5] The Applicant is charged with a number of offences relating to four different robberies that took place over two days. The first three robberies occurred on Thursday, January 18, 2018. Late that evening, over a short period, two masked assailants, one of whom was brandishing what appeared to be a firearm, robbed a computer store in Vaughan, a Petro Canada gas station in Toronto, and a Shell gas station in Mississauga. Each of these robberies was captured on video surveillance. That evidence shows similarly clothed assailants perpetrating all three robberies. A white 2008 Audi Q7 SUV, stolen earlier that same evening, was used by the perpetrators in all three robberies. Taken together, this evidence supports a strong inference that the three robberies were all committed by the same two individuals.

[6] The very next day, Friday, January 19, 2018, at 2:15 p.m., two masked assailants also robbed an RBC branch in Brampton. During that robbery, a shotgun was discharged. Thankfully, no one was physically injured. The perpetrators fled the scene in the very same stolen white Audi SUV connected to the three robberies that took place the preceding evening.

[7] About four minutes after the RBC robbery, the stolen Audi SUV was abandoned on a residential street about one kilometre from the bank. Inside that vehicle, police located various items connected to the robberies at the two gas stations and the bank. In a crevice of the front passenger seat of the vehicle, police discovered a piece of a blue latex glove. Subsequent DNA analysis linked that item to P.T.

[8] The critical issue at trial will be identity; whether or not the Crown can establish, beyond a reasonable doubt, that the Applicant was one of the two masked assailants who committed the four robberies charged in the indictment.

[9] The text messages that are the subject of this application establish a connection between the Applicant and P.T. At least some of the texts support a rather irresistible inference that the two men were planning to commit robberies and to steal a vehicle for that purpose. The text exchange took place over four-minutes, commencing at 2:16:40 on January 15, 2018. In chart format, these are the particulars of the texts exchanged between the two men:

	Date	Time	Sender	Receiver	Text Message
1	15-Jan-18	2:16:40	ASIF	T.	But yo man get a hoptiy up needa make dllas
2	15-Jan-18	2:17:27	T.	ASIF	fuck u im not swing my hoes to u :) :)
3	15-Jan-18	2:17:40	T.	ASIF	yeah tommo
4	15-Jan-18	2:17:52	T.	ASIF	fawad with me
5	15-Jan-18	2:17:52	T.	ASIF	lets get a beamer
6	15-Jan-18	2:18:03	T.	ASIF	or something nice
7	15-Jan-18	2:18:03	T.	ASIF	ima call simon
8	15-Jan-18	2:18:08	ASIF	T.	Ya u r we puttin these hoes ina circle n pass in em
9	15-Jan-18	2:18:48	T.	ASIF	okok
10	15-Jan-18	2:19:02	T.	ASIF	im cutting to india Friday fam
11	15-Jan-18	2:19:11	T.	ASIF	should I bring h back LOL
12	15-Jan-18	2:19:49	T.	ASIF	tbh I can super wrap it
13	15-Jan-18	2:20:02	T.	ASIF	fly at least 3 bounces
14	15-Jan-18	2:20:10	ASIF	T.	Ya don't get caught
15	15-Jan-18	2:20:12	ASIF	T.	Jess so we Gota hit this
16	15-Jan-18	2:20:14	ASIF	T.	Yo let's hit one jewl tommorrow then the bnk Friday
17	15-Jan-18	2:20:22	T.	ASIF	how
18	15-Jan-18	2:20:35	ASIF	T.	get a hoptiy tdy

[10] The content of text messages 10 through 14 are capable of being read as referencing the importation of narcotics into Canada from India (with “h” being either hashish or heroin). The indictment does not charge the Applicant with any drug-related offences. Given this, the parties agree that when it comes to these four text messages, the contents should be excised and replaced with “vetted out as irrelevant.”

[11] In my view, this is a sensible approach. It allows the jury to know that there were other texts between the two men, helping to establish the link between the Applicant and P.T. At the same time, it accords with the rule that evidence of misconduct beyond what is alleged in the indictment that does no more than blacken the accused’s character is generally inadmissible: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31.

[12] The Crown submits that the contents of text messages 1, 3, 5, and 6 are all relevant. Text 1 can be understood as the Applicant expressing an interest in locating a vehicle (“hoptiy”) because he needed to make money (“dllas”). Text 3 can be read as P.T. agreeing to the suggestion (“yeah tommow”), and then suggesting in text 5 that they get a BMW (“lets get a beamer”), “or something nice” (text 6). Ultimately, a stolen Audi Q7 SUV, a more premium vehicle, was used in committing the robberies.

[13] During argument, the court expressed concern regarding the potential bad character implications of texts 2 and 8. In these texts, the two men use the term “hoes.” This is a pejorative term for women. Unfortunately, it has become a rather entrenched part of the vernacular amongst some portions of the population. It can be heard routinely in certain forms of contemporary music. No doubt, for many, its use is contemptible. It suggests a misogynistic mindset. Many jurors will rightly find the use of that term offensive because it objectifies and dehumanizes women. Accordingly, its use by the Applicant reflects negatively on his character. Therefore, it qualifies as bad character evidence subject to a presumption of inadmissibility.

[14] The Crown concedes that the contents of texts 2 and 8 reflect negatively on the Applicant’s character. As a result, the Crown is agreeable to substituting for the content of these texts “vetted out as irrelevant.” However, Ms. Kancharla, on behalf of the Applicant, takes the position that if texts 1, 3, 5 and 6 remain, texts 2 and 8 should not be excised. She maintains that when these texts are read together and in context, they provide an alternative interpretation to that which the Crown will urge for texts 1, 3, 5 and 6. At trial, Ms. Kancharla advises that she wants to be in a position to argue that the reference by the Applicant to getting a “hoptiy” and needing to make “dllas” relates to the references to “hoes” and not a plan to commit robberies.

[15] Given the interpretation that the Applicant wishes to advance regarding texts 1, 2, 3, 5, 6 and 8, the content of these texts should remain unredacted. To the extent that the contents of texts 2 and 8 reflect negatively on the Applicant’s character, a limiting instruction will effectively neutralize any potential prejudicial impact. Accordingly, texts 1, 2, 3, 5, 6 and 8 should be before the jury in an unredacted form, subject to a clear limiting instruction.

[16] Text 15 was the main focus of Ms. Kancharla’s submissions on behalf of the Applicant. In it, the Applicant writes: “Yo let's hit one jewl tommorrow then the bnk Friday”. On this application, Ms. Kancharla argued that this text should be ruled inadmissible because its prejudicial effect outweighs its probative value. Ms. Kancharla notes that the Applicant faces no charge relating to a jewellery store robbery. As a result, she submits that this particular text has limited probative value as it does not bear on any offence charged in the indictment. In terms of prejudice, she argues that there is a danger that the jury will give this text undue weight and find the Applicant guilty because of it.

[17] In contrast, the Crown argues that text 15 is extremely probative. It establishes that just a few days before the robberies charged in the indictment, the Applicant and P.T. were making plans to commit robbery. The text specifically references “the bnk Friday”. Recall that the robbery at the RBC occurred only four days later, on Friday, January 19, 2018. In short, the Crown submits this evidence is relevant, extremely probative, and in no way prejudicial.

[18] It is now well settled that a trial judge has the discretion to exclude relevant evidence where its prejudicial effect outweighs its probative value: see R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670 at pp. 697-698, and at pp. 729-746 (per La Forest J. dissenting); R. v. Seaboyer; R. v. Gayme, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at pp. 610-612; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-21; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 40.

[19] The cases make clear that the starting point for considering whether or not to exclude relevant evidence on this basis is an analysis of its probity. This requires the court to engage in a threshold evaluation of the credibility and reliability of the challenged evidence: see David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed, (Irwin Law: Toronto) at pp. 41-42.

[20] In the overall context of this case, text 15 is extremely probative. The text memorializes an electronic communication sent by the Applicant to P.T. Given its form, there are no credibility or reliability concerns that could serve to undermine the text’s probative value. To be sure, aspects of the text are somewhat incongruent with the offences charged.

[21] The Applicant appears to express a desire to “hit” a jewellery store, whereas the robberies charged in the indictment involve a computer store, two gas stations and a bank. Nevertheless, the Applicant also writes, “then the bnk Friday.” Critically, the RBC bank robbery took place on the Friday of that same week. It would be open to the jury to conclude that although the Applicant originally contemplated robbing a jewellery store and then a bank, the plan changed. That there was no robbery involving a jewellery store does not meaningfully detract from the probative value of the text.

[22] The texts furnish compelling evidence implicating the Applicant in the offences charged in the indictment. First, they demonstrate a clear connection between the Applicant and P.T., whom DNA evidence links to an item found in the vehicle used in the robberies. Second, the content of the texts establishes that their association was far from innocent. In the days preceding the robberies, the two men were exchanging text messages about getting a car, needing money, and committing robberies, particularly a bank that Friday. Taken together, the texts, especially text 15, furnish powerful evidence implicating the Applicant in the crimes charged in the indictment.

[23] At the same time, I am unable to conceive of any potential prejudicial effect that could result from the admission of this evidence. With respect, the Applicant’s claim of prejudice misunderstands the meaning of that concept in this context. As Justice Paciocco and Professor Stuesser explain in their text, at p. 42:

Evidence is not “prejudicial” simply because it works against the interests of a party or increases the risk of conviction in a criminal case. Evidence is “prejudicial” only where it operates improperly or where it produces problematic collateral costs.

[24] In conclusion, text 15 has significant probative value. At the same time, it lacks any apparent potential to distort the fact-finding process. In other words, there is no identifiable prejudice associated with its admission. Accordingly, text 15 is ruled admissible at the Applicant’s trial.

[25] In summary, the texts exchanged between the Applicant and P.T. on January 15, 2018, are ruled admissible, subject to replacement of the content of texts 10 through 14 with a notation indicating “vetted out as irrelevant”. Further, texts 2 and 8 will not be redacted but will be subject to a limiting instruction to protect against any potential prejudice that they might otherwise occasion.

Signed: Justice James Stribopoulos

Released: August 1, 2019