COURT FILE NO.: CR-18-1310
DATE: 2019 10 04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
THULANI CHIZANGA and SHAMAR MEREDITH
Respondents
Counsel: R. Alexander Cornelius and Cindy Nadler, for the Applicant Deniz Sarikaya and John Struthers, for the Respondent Thulani Chizanga Joseph Giuliana and Melina Macchia, for the Respondent Shamar Meredith
HEARD: September 23, 24, 2019
DISCREDITABLE CONDUCT RULING
D.E HARRIS J.
INTRODUCTION
[1] The Crown applies on this first-degree murder jury trial to admit into evidence discreditable conduct evidence against both accused. I ruled it admissible in a brief bottom-line ruling prior to the jury being empanelled. These are my more complete reasons.
[2] It can be challenging to gauge with any exactitude the value of proposed discreditable conduct evidence when the live issues at trial remain somewhat obscure. However, when the course of the trial is imagined within the context of what is now known, the evidence sought to be admitted in this case is sufficiently cogent to generate significant probative value. The prejudicial effect, while not insignificant, is eclipsed by the probative value of the evidence.
THE DISCREDITABLE CONDUCT EVIDENCE
[3] The day before the homicide, April 26, 2017, video surveillance showed Meredith and Chizanga along with another man entering a Super 8 Motel at night-time. They took the elevator from the lobby up to one of the guest floors. They stopped at the door of a room. Chizanga knocked on the door. The time was approximately 10:42 p.m. The other two men stood back. While waiting for the occupant to open the door, Meredith pulled out a very large black firearm—what appears to be an assault-type weapon with a long barrel—from his pants. Chizanga continued to wait at the door while Meredith walked right up to the surveillance camera with the firearm in his hands, fully visible. He must not have known he was on camera. About two minutes later, the door not having been opened, the three leave the area.
[4] With some difficulty, Meredith put the firearm back in his pants as he walked by the other two outside the room. I agree with the Crown that there is little possibility that Chizanga did not see the firearm. The three men are then recorded in a stairwell making their way down to the lobby and out of the motel.
[5] The back story is that Meredith had set up a liaison on his cellphone with a sex trade worker in this particular motel room. It is a readily available inference that the men intended to rob her at gunpoint. But she did not open the door. This part of the story may not get to the jury because so far, the Crown has been unable to find the sex trade worker in order to have her testify in court.
THE EVIDENCE OF THE HOMICIDE
[6] The next day at approximately 3:25:51 p.m. the victim Kamar McIntosh was shot dead in the bathroom of a Popeyes restaurant at 2515 Hurontario Street in Mississauga. He died from multiple gunshot wounds, 27 entry and exit wounds being discovered on autopsy.
[7] Meredith and Chizanga are shown on a video from the restaurant. This videotape surveillance plays a major role in the Crown’s case. Not surprisingly, there is no video of the killing in the washroom. Otherwise, most of the goings on in the restaurant were recorded.
[8] For about 30 minutes prior to the homicide, Chizanga, Meredith and a young person, A.D., who has been previously tried, are in the restaurant. For much of the time they are at a west facing window at the front door area of the restaurant. They are conversing amongst themselves and looking out the window, as well as looking several times to their right in a northernly direction.
[9] Chizanga goes into the washroom at 3:11 p.m. and does not emerge until after the victim is killed 15 minutes later, at about 3:26 p.m. Meredith is in and out of the restaurant three times during this time span. Just before the victim arrives at the restaurant, at about 3:24:54, A.D. leaves the washroom. At about 3:25:07 p.m., McIntosh walks into the restaurant and, after a brief hesitation, goes directly to the washroom. About 20 seconds later, at about 3:25:26, A.D. walks back into the washroom.
[10] At this point, the two accused, the young person, and the victim are the only people in the men’s washroom. Very shortly after A.D. goes into the washroom, staff and patrons suddenly appear bewildered and flee the area. One woman blocks her ears, no doubt in response to loud gunfire. The time is approximately 3:25:46.
[11] At 3:25:51, Meredith runs full tilt out of the washroom while concealing something black in the front of his coat. He runs to the back of the restaurant and presumably exits that way. The Crown alleges that the object concealed in his jacket is the same gun as Meredith was in possession of the day before on the Super 8 Motel video. What can be said with certainty is that this object, like the weapon from the day before, appears to be black and have a long barrel.
[12] Chizanga runs out just behind Meredith. He exits in the opposite direction, through the front doors of the restaurant.
IS THE SUPER 8 MOTEL VIDEO OF APRIL 26, 2017 ADMISSIBLE?
[13] The evidence tendered being discreditable conduct outside the time frame of the indictment, it is presumptively inadmissible. The Crown has the obligation to demonstrate that the probative value outweighs the prejudicial effect in order to gain admission: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. The first task is to measure the probative value of the evidence.
THE IMPORTANCE OF DISTILLING THE LIVE ISSUES AT TRIAL
[14] In measuring probative value, it is vital to determine what the live issues are on the trial. If the issue the evidence is tendered upon is not contentious than the evidence is bereft of probative value. Consequently, the prejudicial effect would inevitably prevail over the probative value. The evidence would be inadmissible: see Handy at paras. 69-75 and particularly para 74.
[15] This case illustrates the occasional difficulty in ascertaining the live issues at trial. Justice Binnie in Handy says that the live issues,
74 …derive from the facts alleged in the charge and the defences advanced or reasonably anticipated. It is therefore incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate. If the issue has ceased to be in dispute, as for example when the fact is admitted by the accused, then the evidence is irrelevant and it must be excluded.
[16] The trial judge, from a point before the jury starts to hear evidence, must imagine the course the trial will take. This is an inherently provisional and imperfect process.
[17] In some situations—and this is one—there is a cloud of uncertainty looming over the trial. This is true even though there are limited factual alternatives available on the known evidence. Part of the reason is that a trial is a dynamic organism. Although the Crown’s case will likely not change significantly, there are no assurances what the defences will be. One unknown arises out of the accused’s absolute right to testify or not. Trial counsel can give advice, but the decision is the accused’s, not his lawyers. The trial can turn 180 degrees depending on the accused’s choice. The issues pertinent to the discreditable conduct evidence can drastically shift on the sudden.
[18] Of course, under the law, the defence is perfectly entitled to remain silent throughout the Crown’s case. The element of surprise is perfectly legitimate. Sometimes the defence tack can be deduced from questions of Crown witnesses in cross-examination, but this trial has not even got to the evidence yet.
[19] Another complicating factor is that there are two accused in this case. Antagonistic defences may be raised. There could be direct opposition in the accuseds’ evidence or disagreement on only certain discrete factual aspects. Furthermore, whether this occurs or not, an extra layer of complexity is added when there are two or more accused persons.
THE PERTINENT CONTEXT FROM WHICH TO ASCERTAIN THE LIVE ISSUES
[20] The full context from which to anticipate where this trial is going must be based on the evidence the Crown has said will be adduced and, in addition, from counsel’s submissions.
[21] The Crown’s theory of the case is that the accused lay in wait at the Popeyes for the victim. The Crown argues that this evidence is indicative of a planned and deliberate first-degree murder. Allegedly, the firearm from the Super 8 video was used. In that video, the firearm is clearly visible from close-up, unlike the image on the Popeyes’ video.
[22] As well, according to expert ballistics evidence to be introduced, a second firearm was also used to shoot at least one bullet into the deceased.
[23] The Crown says that the tendered evidence is important to identify the weapon used in the shooting, to explain by pattern of reasoning how the firearm was concealed, to show the nature of the relationship between Chizanga and Meredith in order to negate innocent association and, lastly, to demonstrate joint intention to use the firearm and joint intention to kill. In oral submissions, the joint enterprise feature of the two videos was emphasized.
[24] The main elements the Crown must prove against both accused are: 1. To go from manslaughter to murder, an act of killing or aiding or abetting a killing and intention or recklessness towards death; and 2. To go from murder to first degree murder, planning and deliberation of the killing or knowledge of and participation in planning and deliberation of the killing.
[25] There have been inklings from the defence of what might be coming from them. I gather, although this could be incorrect, that there is no realistic contention that Meredith is not the individual it is alleged he is on the Popeyes video. The same is true with respect to Chizanga. If that be the case, both were present well before the victim arrived. Both were with the victim in the bathroom area at the time he was shot multiple times. Both fled immediately afterwards. Meredith secreted a firearm in his jacket as he made his escape although the video quality is mediocre and is blurred because he is moving quickly.
[26] There has been a suggestion in submissions that drugs were involved in the killing. Chizanga might have been preparing for a drug deal while in the bathroom. I infer that there may have been an argument that ensued between Chizanga and\or Meredith and the victim soon after the victim entered.
[27] Counsel for Chizanga state that there will be no issue that their client was an associate of Meredith’s. This was already evident from the Popeyes video in which the two are seen arriving together, conversing together and fleeing together. The further concession is made that there will be no question raised that Chizanga knew that Meredith was armed.
[28] Chizanga also argues in his factum that it defies common sense that anyone would plan to use a firearm with intent to kill at a fast food restaurant with video surveillance and patrons present. It was “far more likely than not that the shooting … was an unexpected incident.”
[29] Importantly, there is no admission from Meredith that he was armed and was hiding the weapon in the time period before McIntosh entered the Popeyes. In their factum, counsel for Meredith question the need for the Super 8 video because they say the Crown alleges that on the video from the Popeyes, it was a long barrel gun Meredith was in the act of concealing as he fled the scene. In their view, this alleged fact presumably obviates the need to show that Meredith was in possession of a gun before the victim was killed. Counsel for Meredith seem to dispute that the gun on the Super 8 Motel video was the same as in the Popeyes’ video, arguing in their factum that there is no confirmation that the firearm was the same.
ARTICULATING THE LIVE ISSUES IN THIS CASE AND ASSESSING PROBATIVE VALUE
[30] Both accused have pleaded not guilty to first degree murder or any other form of culpable homicide. The defence by their plea of not guilty, dispute not only a planned and deliberate killing but indeed, any intention or recklessness to kill which would constitute second degree murder.
[31] In context, the possibilities that would respond to the first-degree murder allegation are limited. One possibility is that the defence position will be that an argument broke out in the washroom during which the victim was shot. It occurred in the spur of the moment. Accident, a lack of intention or at least the absence of premeditation may be raised. It will likely be argued that Chizanga was not wielding a firearm and did not foresee that Meredith would shoot McIntosh. Lastly, although it seems exceedingly remote, a plea of self-defence could potentially be argued.
[32] These possibilities appear to exhaust the factual scenarios which can be reasonably anticipated. The question to be asked then is what is the probative value of evidence that Meredith, to Chizanga’s knowledge, possessed the concealed, long barrelled firearm the day before and, it seems, was prepared to use it at least to threaten the occupant of the Super 8 Motel room?
[33] I would put the probative value of the Super 8 video somewhat differently than has the Crown in written and oral submissions. I would frame it more broadly.
[34] It can be phrased this way: The Super 8 evidence renders it more likely that in the minutes before McIntosh arrived at the Popeyes, Meredith was concealing the long- barrelled firearm down his pants in the same way demonstrated by the Super 8 video of the day before. Possession, concealment and previous handling of what was likely the homicide weapon, given the evidentiary vacuum of what occurred in the Popeyes bathroom area, is bound almost by default to be pertinent to the intention to kill and planning and deliberation.
[35] The prior possession and concealment could, in other words, rebut accident or lack of intention. It may augment the case on planning and deliberation. It could show familiarity with the weapon and experience and comfort with its use. From a survey of the ground upon which this trial will be fought, it is difficult to see how prior concealing, possessing and handling of the alleged homicide weapon could not generate probative value, whatever the precise factual issues turn out to be.
[36] With respect to Chizanga, the Super 8 evidence demonstrates that he knew about the gun, the concealment of it and that Meredith was prepared to use it, at the very least, for the purpose of threatening a person.
[37] A factor which enhances the probative value of the discreditable conduct evidence is its close temporal proximity to the homicide. This is a well accepted generator of probative value: see Handy at para. 82 and the cases cited there.
[38] Only about 17 hours transpired between the two events here. Counsel for Chizanga and Meredith both argued on the application that there was no proof that the gun was the same. However, there is evidence that both guns were long-barrelled. The Super 8 gun is clearly shown in the Super 8 Motel video. The gun clutched by Meredith as he fled the scene of Popeyes was black and had a long barrel as well. Furthermore, circumstantially, the possession of a gun 17 hours before leads to a moderately persuasive inference that the same gun was possessed the next day. In light of that, the general resemblance and the short time span between the two events, make it more likely that the two were the same. This is a conclusion open to the jury.
[39] There have been no concessions which have been clear or conclusive enough to deflate the bolstering inferences which might be drawn from the Super 8 video. There have been no admissions under Section 655 of the Code.
[40] By its very nature, the Super 8 video leads to a focussed and contained connection with the events at the Popeyes the next day. It is principally physical acts which are the focal point of the Super 8 video: the concealing and wielding of a gun that may well be the gun used in the homicide. In this sense, the intrinsic value of the evidence is not entangled with forbidden bad character reasoning or general disposition inferences. It is an act to act connection, not one that implicates character directly.
[41] Meredith’s position that the evidence is unnecessary because the Crown already alleges that he ran from the scene as he was concealing the firearm cannot be accepted. The Crown is well within its rights to attempt to strengthen inferences which have a direct and critical bearing on the elements of the offences of murder and first degree murder.
[42] There is no doubt that the probative value and potential jury use of the Super 8 video will evolve as the trial unfolds. But for now, based on what has been presented on this application, it appears the evidence holds substantial probative value “other than its tendency to lead to the conclusion that the accused is guilty because of the disposition to commit certain types of wrongful acts.”: R. v. D. (L.E.) 1989 74 (SCC), 1989 CarswellBC 165, [1989] 2 S.C.R. 111 at para. 54 (Carswell).
WHAT IS THE PREJUDICIAL EFFECT OF THE SUPER 8 VIDEO EVIDENCE?
[43] The prejudicial effect of the evidence on both accused is not minimal. The main problem is that it stigmatizes the two accused as criminals willing to use a frightening looking firearm to commit a serious criminal offence the day before the alleged murder. The jury, theoretically, could downgrade the presumption of innocence and the right to a fair trial, reasoning that such bad criminals do not deserve the full protection of the law.
[44] In this trial, properly limited, prejudice can be kept to a manageable level. Moral prejudice as the term is used in the similar fact caselaw tempts the jury to convict because a person of bad criminal character is more likely to have committed the offence charged: Handy at paras. 31-36. An inference of general disposition or “bad personhood” derived from criminal acts is pernicious and is destructive of an accused’s fair trial rights: R. v. Batte, (2000) 2000 5751 (ON CA), 34 C.R. (5th) 197, 2000 CarswellOnt 2113 (Ont. C.A.) at (Carswell) para. 100.
[45] However, to a substantial degree, the prejudice arising from the Super 8 video is swallowed up by the evidence of the Popeyes homicide. The accused possessed and concealed the firearm the day before; there is circumstantial evidence that he possessed and concealed the same firearm on the day of the homicide. The two accused were together the day before; the video shows that they were together at the Popeyes restaurant both in the bathroom and outside of the bathroom. In this sense, the evidence from the Super 8 video is co-extensive. It overlaps. The prejudice of the Super 8 Motel video does not extend much beyond the evidence with respect to the homicide itself.
[46] The events at the Popeyes are on a totally different level of seriousness. This has implications for both moral and reasoning prejudice. The jury will already know from the Popeyes and the after-the-fact conduct that the accused associated with each other and that one or both possessed a firearm. The major effect of the Super 8 video is to reinforce these observations and contextualize them more fully.
[47] The Supreme Court has accepted that if the tendered evidence is not as serious as the conduct charged in the indictment, this mitigates the prejudice which is injected into the trial: R. v. D. (L.E.) at para. 61 (Carswell).
[48] With respect to reasoning prejudice, the distraction and confusion produced by the Super 8 video is minimal. It does not raise any credibility issues to speak of nor any reliability issues. It seems there might be an issue of whether the man with the gun in the Super 8 Motel video is properly identified as Meredith. This was argued on the pre-trial voir dire but the evidence of Officer Douglas, based on his previous dealings with Meredith, seems at least on the surface to be reasonably well-founded. It should not consume much court time nor detract from the main issues on this trial.
[49] Mid-trial and final limiting instructions will go a long way to neutralizing any potential prejudice. The law assumes the jury can follow such instructions unless the character inferences are too great and will prove overwhelming: R. v. Puddicombe 2013 ONCA 506, 299 C.C.C. (3d) 534 at para. 93, leave refused [2013] S.C.C.A. No. 496.
[50] From the Popeyes video, the jury will know that the accused are involved in extremely serious misconduct. The Super 8 video adds some degree of prejudice but not substantially. It pales in comparison.
[51] In the final analysis, there is little natural tendency for the Super 8 video to lure the jury into using the forbidden reasoning, concluding that because the accused were guilty of misconduct with a firearm the day before, they hade disposition to have committed the elements of murder or first degree murder the next day. With the proper limiting directions, this is not a substantial risk.
[52] The probative value outweighs the prejudicial effect. The evidence is admissible.
[53] It is open to debate whether the sex trade worker evidence ought to be admitted, as opposed to the Super 8 video alone. Depending on the views of counsel, this aspect, even if she is found by the police, could be edited out. Subject to submissions by counsel, it appears that the story that the accused set up a gunpoint robbery of a sex trade worker in a motel room carries additional prejudice beyond what is inherent in the Super 8 video itself.
[54] I will hear counsel on the issue of whether there is any probative value added by the sex trade worker evidence. If this aspect of the evidence is not admitted, a careful limiting instruction will have to be crafted to ensure as best as can be done that the jury does not embark on a journey of speculation to determine what the accused were up to at the guest room door of the motel.
D.E HARRIS J.
Released: October 4, 2019
COURT FILE NO.: CR-18-1310
DATE: 2019 10 04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
THULANI CHIZANGA and SHAMAR MEREDITH
Respondents
DISCREDITABLE CONDUCT RULING
D.E HARRIS J.
Released: October 4, 2019