COURT FILE NO.: YC-14-613
DATE: 20190207
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
B. McGuire and D. D’Iorio, for the Crown
Respondent
- and -
I.M.
A. Herscovitch and T. Cass, for the Applicant
Applicant
HEARD: February 1, 2019, at Brampton
RULING ON ADMISSIBILITY OF TEXT MESSAGES
This proceeding is governed by publication restrictions under section 110 of the Youth Criminal Justice Act.
André J.
[1] The Crown brings a pre-trial application for an order that a series of text messages between the accused and a co-conspirator, commencing three days before the murder of S.T. on January 24, 2011, are admissible against I.M. because they are probative to a live issue in the trial. The defence does not dispute that the messages have some probative value but maintains that the prejudicial effect of their admission vastly exceeds their limited probative value. To that extent, the application should be denied.
BACKGROUND FACTS
[2] S.T. was fatally stabbed during the evening of January 24, 2011 in an alleyway next to his home during a robbery. The Crown alleges, based on the anticipated evidence from some of those involved in the robbery, that the motive for the robbery was to obtain firearms which S.T. was believed to possess. The Crown submits that the text messages constitute evidence that supports an inference that I.M. knew that the purpose of the robbery was to obtain firearms from the deceased.
MESSAGES
[3] The messages are in the street vernacular used by the co-conspirators. The chronology of the messages and their contents are as follows:
On January 21, 2011 at 11:03 a.m. M.S. calls S.C. S.C. returns the call immediately. The two men spoke for two and a half minutes. It is not disputed that during the conversation, M.S. told S.C. that S.T. was in possession of four shotguns which he was seeking to sell and that S.T. could be a prime target for a robbery.
I.M. called S.C. at 2:09 p.m. The two exchanged messages.
At 2:13 p.m. I.M. texted the following message to S.C.: “I need 2 buy a bitch tomorrow.”
One minute later, S.C. responded by text: “Theres a 357 for 17”.
I.M. then messaged S.C.: “I need sumes 415 my niga dats al manden got. I needs do shit asap.”
S.C. then replied: “I can get u the same one as mine today if u want for 1500 but no grains n those grains i cant even get nethier can he.”
A couple minutes later, I.M. texted S.C.: “K im a cum 2 your place 2 night”. Five minutes later, S.C. replied: “Yes alright.”
At 4:06 p.m. S.C. sent the following text to F.M.: “Yooo i gotta mission for a couple strays. Im trying go tonight.”
F.M. replied: “So lets do it. Where is it.”
S.C. replied: “Ima call u after 6.” “Suga waste youte whit boi.”
Following a couple more text messages, S.C. texted the following message to F.M.: “Nun man.” “We gonna eat him in a link u b4 the mission.”
Between 6:43 p.m. and 6:59 p.m., I.M. and S.C. exchange text messages about what they would be doing that evening.
On January 22, I.M. again texted S.C. about buying a firearm from him. At 11:18 a.m. S.C. texted the following message to I.M.: “Theres a 357 for 1700.” I.M. replied a minute later: “I want the 15 u showed me yestaday.”
The two exchanged text messages. At 11:23 a.m. I.M. asked S.C. “K hola but I can get dat 2 day.”
The two exchanged a series of text messages and on January 23, 2011, agreed to meet at a location in Toronto.
At 5:25 p.m. S.C. texted the following message to F.M.: “Yoo nigga u wanna run that mission tomorrow.”
F.M. replied “yea” a minute later.
At 7:00 p.m. I.M. texted the following message to S.C. “Wadup wat u saying want me to bring sum kush.”
On January 24, 2011, at 11:46 a.m. I.M. sent the following message to S.C.: “My niga im ready dont flop on me this my cum up.”
Between 4:44 p.m. and 10:21 p.m. there was a series of telephone calls and text messages between Mr. Smith, Turelle Turney, S.C., F.M. and W.O. These include an 8:31 p.m. text from I.M. to S.C.: “U no the exact base.”
On January 31, 2011, I.M. sent S.C. a text message indicating that he will be gone in an hour. S.C. replied that when I.M. returns “ill have a thing for u. Like a thingy like mins”. The men then exchange messages about keeping in touch by Facebook when I.M. is away.
The robbery took place after 10:21 p.m. At 10:36 p.m., a call was placed to 9-1-1 by S.T.’s mother who was struck with a gun during the robbery.
[4] S.T. was stabbed in an alleyway next to his home. Blood samples recovered in various locations in the second floor of his residence contained I.M.’s DNA. One blood sample recovered on the second floor of the home contained the DNA of both I.M. and S.T.
I.M’s POSITION
[5] Mr. Herscovitch submits that his client’s position is that he did not know that the purpose of the robbery was to obtain firearms. He maintains that just because I.M. had an interest in purchasing a firearm, does not constitute evidence of motive in wanting a firearm. To that extent, the proffered evidence has little probative value but the prejudicial effect, if the evidence is admitted, would significantly impair trial fairness.
[6] Mr. Herscovitch raises the spectre of two kinds of prejudice if the text messages are held to be admissible, namely: (a) moral prejudice, and (b) reasoning prejudice.
[7] The former includes the following:
(a) The jury may conclude that I.M. is a bad person who has a propensity to commit crime.
(b) The suggestion that I.M. needed a gun “to do shit” exacerbates the risk that the jury would find that I.M was engaged in criminal conduct and therefore committed the offence before the court.
(c) The nature of the language, with its constant use of the word “nigga”, may inflame the jury and make it believe that I.M. is engaged in a “gangsta” lifestyle.
[8] The latter includes the following:
(a) The text message may induce a belief by the jury that I.M. carried a gun during the robbery and used it during the commission of the offence.
ANALYSIS
[9] The sole issue in this application is whether the evidence regarding I.M.’s desire to purchase a firearm from S.C. is probative of a live issue at trial, namely that I.M. knew that the robbery of the deceased was for the purpose of obtaining firearms.
THE LAW
[10] The jurisprudence on the admissibility of what has been termed as “prior discreditable conduct”, “bad character”, “similar fact evidence” set out the following principles relating to the admissibility of such evidence:
Similar fact evidence, unlike most other evidence tendered by the prosecution, is presumptively inadmissible because it carries two types of unfair prejudice: reasoning prejudice (for example, the jury will be confused by the multiplicity of incidents and diverted from the real task of deciding guilt on the charged incident) and moral prejudice (the danger that the jury may convict not for what the accused allegedly did on this occasion, but because they are a bad person). Justice Marc Rosenberg, “Similar Fact Evidence,” in The Law Society of Upper Canada, Special Lectures, The Law of Evidence, 2003, at p. 400.
“Propensity reasoning involves two inferences. First, one infers from conduct on occasions other than the occasion in issue that a person has a certain disposition (state of mind). Second, one infers from the existence of that disposition that a person acted in a certain way on the occasion in issue …” R. v. Batte (2000), 145 2000 5751 (ON CA), 49 O.R. (3d) 321
General propensity or bad character is not a legitimate basis for admitting similar facts, not because propensity or disposition reasoning is impermissible, but because evidence showing nothing more than a tendency to act badly is not sufficiently probative: Rosenberg, at p. 400.
The probative value of propensity evidence that is focused and specific to circumstances similar to the charge may well outweigh the prejudice flowing from the admission of such evidence: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 48.
The distinction between general propensity and specific propensity ultimately turns on the circumstances of the case and the nexus and connectedness of the propensity evidence to the case. The factors relevant in determining the degree of connectedness of specific propensity evidence to a live issue in the trial include the following:
a. The potential for collusion between the similar fact evidence and the evidence relating to the charged incident.
b. The proximity in time of the similar acts.
c. The extent to which the facts are similar in detail to those in the charge incident.
d. The strength of the evidence that the similar facts incident occurred.
see Rosenberg, at p. 401-402.
- Evidence relating to specific propensity may be admissible if its probative value outweighs its prejudicial effect. The prejudicial effect of such evidence may be significantly reduced by a number of factors including the following:
a. Where the jury would hear, in any event, evidence regarding the accused’s conduct before and after the incident: R. v. Johnstone, 2014 ONCA 504, 31 C.C.C (3d) 34, at para. 25.
b. Where evidence of the prior discreditable conduct goes to conduct for less serious than that for which the appellant has been charged: Johnstone, at para. 25.
c. Where the evidence is neither lengthy nor complicated and not seriously challenged by the accused.
d. Where the evidence is uncomplicated and carries minimal risk of distracting the jury.
APPLICATION OF THE LAW TO THE FACTS
[11] The first step to determine the admissibility of the text messages in question is to ascertain whether they can be categorized as general or specific propensity evidence. To be construed as the latter, they must be relevant to a live issue in this trial.
Are the text messages relevant to a live issue in the trial?
[12] In R. v. Cloutier, 1979 25 (SCC), [1979]2 S.C.R. 709, Pratte J. noted at p. 731 that “for one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other.” See also R. v. Watson (1996), 1996 4008 (ON CA), 30 O.R. (3d) 161, at p. 172.
[13] While an accused may not have a motive for committing an offence, an accused’s motive to do so may be a very relevant fact in a trial: see R. v. Barbour, 1938 29 (SCC), [1938] S.C.R. 465, at p. 19-20.
[14] The live issue in the trial is whether I.M. knew the object of the robbery. This issue may have relevance to his intent insofar as S.T.’s death is concerned. The question of I.M.’s knowledge of the object of the robbery is a live issue because he is not conceding, as is his right, that he knew that the object of the robbery was to obtain firearms.
[15] The text messages therefore relate to I.M.’s specific propensity to be involved in the offence before this court for the following reasons:
Mr. Smith, a co-conspirator, advised S.C. that S.T. had a number of guns and may be a good target for a robbery.
I.M. contacted S.C. to purchase a gun for $1,500.
S.C. met I.M. in person on the same day that Mr. Smith spoke to S.C.
I.M. agreed to participate in the robbery.
[16] A sample of blood obtained in the upstairs part of S.T.’s home had the presence of the DNA of both I.M. and S.T.. I.M.’s blood was also found in other parts of the upstairs of the residence. This evidence raises a reasonable inference that following the stabbing, I.M. went to the second floor of S.T.’s residence, presumably in search of something.
Does the probative value of the test messages outweigh the prejudicial effect?
[17] The prejudicial effect of bad character evidence can be either reasoning prejudice or moral prejudice.
Reasoning Prejudice
[18] Such prejudice may serve to distract the jury from focusing on the issues and import an unnecessary layer of complication in the trial. The accused’s counsel also contends that admission of the text messages may spawn a belief by the jury that I.M. carried a gun during the robbery and used it during the commission of the offence.
[19] For the following reasons, I conclude that the potential for reasoning prejudice, if the text messages are held to be admissible, is inconsequential or non-existent. The messages will neither distract the jury from the live issues at trial nor complicate the trial, given that they relate only to I.M.’s desire to purchase a firearm and his decision to be involved in the robbery. Furthermore, the Crown is not leading any evidence that I.M. carried a gun during the trial, let alone used it during the robbery.
Moral Prejudice
[20] In my view, the admission of the text messages raises the risk of moral prejudice; however, this prejudice can be significantly attenuated by the steps noted below.
[21] The nature of the language in the messages, with their frequent reference to a derogatory term and another related to the colour of the deceased, creates the danger of moral prejudice. However, this prejudice could be significantly attenuated by the following:
a) A limiting instruction to the effect that race is not an issue in this trial and should play no part in the jury’s deliberations. Neither should I.M.’s use of the derogatory term be relied upon to support a conclusion that he is a bad person who is likely to commit the offence with which he is charged. There is no evidence that S.T. was targeted because of his race.
[22] To the extent that there is any residual moral prejudice arising from the admission of the text messages, such prejudice does not outweigh its probative value. I arrive at this conclusion for the following reasons:
i) The proximity of the text messages to the incident in issue.
ii) The fact that in any event, the jury is expected to hear evidence from a witness that I.M. told him, after the incident, that the object of the robbery was to obtain firearms.
iii) The evidence of the prior discreditable conduct, i.e. the desire to obtain a firearm, is far less serious than the murder of S.T.
iv) The evidence is neither lengthy nor complicated and its veracity as opposed to its meaning, is not being seriously challenged. There is no dispute concerning the authenticity of the text messages.
v) The evidence carries minimal risk of distracting the jury.
CASELAW
[23] Mr. Herscovitch relies on a few cases including Handy, Cloutier and R. v. Abbey, [2006] O.J. No. 4985 (Ont. S.C.) in support of his position.
[24] In Cloutier, the accused was charged with importing 20 pounds of marijuana in a false bottom of a dresser which was shipped from South America to Canada.
[25] Following his acquittal by a jury, the Crown appealed the verdict alleging that the trial judge erred in failing to admit in evidence certificates of analysis to establish that items seized at the accused’s home, such as a marijuana cigarette, a pipe and a green substance, indicated that the accused was a user of marijuana. The Court of Appeal ruled that the trial judge erred in his refusal to admit the evidence. The respondent appealed to the Supreme Court. In allowing the appeal, Pratte J., writing for the majority, held that the question to be resolved was whether the fact that the accused was a marijuana user created a logical inference that he knew or ought to have know that the dresser contained a narcotic. He concluded that the use of marijuana had “no probative value in relation to the guilty knowledge which must be proven by the prosecution”: p. 734. He further noted that: “I do not think it can be said that the use of marijuana is, in itself, a ‘fact seriously tending, when reasonably viewed, to establish motive for the commission’ of the importation…”: p. 736.
[26] Mr. Herscovitch similarly submits that a desire to purchase a firearm does not reasonably establish a motive for the commission of a robbery to obtain firearms.
[27] The facts in this case however, are different from thodr in Cloutier. Essential to the Supreme Court of Canada’s decision in Cloutier is the court’s conclusion that the assumption that a marijuana user is more likely to import marijuana than a non-user, is a faulty one.
[28] In the instant case, not only did I.M. express a desire to acquire a firearm, he exchanged text conversations with S.C. who had been told about someone who had guns and who could be the target of a robbery. I.M. later met this person and then agreed to participate in the robbery. In my view, the constellation of these facts seriously tend, when reasonably viewed, to raise an inference that I.M. knew that the object of the robbery was to acquire firearms.
[29] The Supreme Court of Canada’s decision in a subsequent case involving a conspiracy to import heroin from Hong Kong is applicable to this case. In R. v. Morris, 1983 28 (SCC), [1983] 2 S.C.R. 190, the trial judge admitted into evidence a newspaper clipping found in the accused’s home dealing with the heroin trade in Pakistan. The accused appealed his conviction, on a number of grounds, one of which was that the trial judge erred in admitting the newspaper clipping into evidence. The British Columbia Court of Appeal dismissed the accused’s appeal of his conviction on the charges, with one dissenting opinion. The Supreme Court of Canada similarly dismissed the appeal launched by the accused. McIntyre J. noted at page 19 that:
In my view, an inference could be drawn from the unexplained presence of the newspaper clipping among the possessions of the appellant, that he had an interest in and had informed himself on the question of sources of supply of heroin, necessarily a subject of vital interest to one concerned with the importing of the narcotic. It is this feature which distinguishes the case at bar from Cloutier v. The Queen, 1979 25 (SCC), [1979] 2 S.C.R. 709, where the purpose of the impugned evidence was to show that the accused was a user of marijuana and had the necessary mens rea for the offence of importing.
[30] McIntyre J. further noted that “the connection of nexus, absent in the Cloutier case, was clearly present. Depending on the view of the trier of fact and the existence of other evidence, an inference could possibly have been drawn or could have been supported to the effect that preparatory steps in respect of importing narcotics had been taken or were contemplated”: p. 192.
[31] In my view, a similar conclusion is warranted in this case. I.M.’s text messages to S.C., his later meeting with him, and decision to participate in a robbery three days later, the object of which was the acquisition of firearms, support an inference that I.M. knew the object of the robbery.
[32] In R. v. Abbey, the accused was charged with first degree murder following a shooting. The Crown theorized that the shooting was the result of conflict between two warring street gangs. There were admissions relating to the existence of the gangs and their internecine conflict. The parties however, could not agree on whether the accused was a member in one of the gangs and whether gang members carried guns or had access to them.
[33] In a voir dire to determine the admissibility of the two admissions, Archibald J. admitted the first but excluded the second. He held that membership in one of the rival gangs had substantial probative value because it was relevant to motive. He held the second admission to be inadmissible because of its tenuous probative value. Archibald J. noted at para. 35 that “[e]vidence of the accessibility of guns by gang members in general, does not necessarily lead to the conclusion that Mr. Abbey had access to a gun on that particular day.”
[34] In my view, Abbey is distinguishable from this case. The evidence which the Crown seeks to rely upon relates to I.M.’s efforts to acquire a gun a few days before his involvement in a robbery to obtain guns. The extent to which the proposed evidence supports the inference sought to be drawn by the Crown (i.e. that I.M. knew the object of the robbery), is significant rather than tenuous.
CONCLUSION
[35] The text messages are admissible subject to the following:
The reference in the messages from I.M. that he wished to buy a firearm because “I needa do shit asap” must be redacted because it supports an inference that I.M. is someone of bad character who is likely to have had knowledge of the object of the robbery.
The reference at the end of the messages concerning the fact that I.M. was leaving the country must be redacted because it may be improperly viewed as circumstantial evidence of his guilt.
A strong caution will be issued to the jury regarding the language used in the messages and the need not to draw any adverse inferences against I.M. on account of its use.
André J.
Released: February 7, 2019
COURT FILE NO.: YC-14-613
DATE: 20190207
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
I.M.
RULING ON ADMISSIBILITY OF TEXT MESSAGES
André J.
Released: February 7, 2019