Court File and Parties

COURT FILE NO.: CRIMJ(P)995/18 DATE: 2020 03 13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Carson Coughlin & Darilynn Allison, Counsel for the Crown Applicant

- and -

Travis Babbington Monte McGregor and Maurice Mattis Counsel for the Accused Respondent

HEARD: February 5th, 2020

REASONS FOR DECISION

LEMAY J

[1] On February 20th, 2017 Jahsavior Reid was shot to death in his room at the Motel 6 on Steelwell Road in Brampton by four men. The Crown alleges that the accused was one of the four shooters, and he has been charged with first degree murder. As part of the investigation, the Peel Police obtained warrants to tap the phones of the accused. The defence had originally brought a motion pursuant to section 8 of the Charter to have this evidence excluded, but that motion was abandoned.

[2] The parties worked through most of the wiretaps, and agreed on which ones should be put to the jury and which ones should not be put to the jury. They were unable to agree on three excerpts from the wiretaps, and I heard argument on those.

[3] The parties were able to agree that my decisions on these wiretaps should be based on the questions of relevance. More specifically, in assessing whether these three excerpts should be included or excluded, I should consider the potential probative value of the wiretaps versus their prejudicial effect.

[4] The wiretaps as a whole had to be considered in the context that the Peel Police obtained judicial authorization to tap the accused’s phone in late April of 2017. They then approached the accused’s girlfriend, Dejaunte Blake, to have her come and meet with them about a homicide. The police’s goal in contacting Ms. Blake was to stimulate conversations between the accused and other people, including Ms. Blake.

[5] I provided the parties with my rulings in Court on February 18th, 2020, just before the Crown commenced its case. Two of the three passages in dispute were excluded, and the third was included. I also advised the parties that these rulings could be revisited depending on whether the contours of the case changed as it proceeded, and that written reasons would be provided at the end of the case.

[6] Neither of the parties sought to revisit my rulings. What follows are my written reasons for each of the three excerpts. I will set out each excerpt, along with the context necessary to understand my ruling. Excerpts #1 and #2 are part of a call between the accused, an unknown male and a woman named Shanty. Excerpt #3 is from a call between the accused and an unknown male.

Excerpt #1

[7] The excerpt in dispute reads as follows:

UNKNOWN MALE: Yo I even have something for the man too Prezzy (ph) is someone who’d be all over you asking for what you have for him and he’s going to come to check you for it you see BABBINGTON: Yeah (voices overlap) SHANTY: And he hasn’t done that so it’s worrying UNKNOWN MALE: He even used that as an excuse to come to the party the other night asking me yo dawg what’s going on with killer (ph) the mam is like what’s going on BABBINGTON: Really UNKNOWN MALE: You know dawg that’s what is worrying me because there’s a man who has something for Prezzy (ph) and the man is saying yo that’s unlike Prezzie (ph ) you know Prezzie (ph) would SHANTY: (laughs) Come for his things UNKNOWN MALE: I’m telling you dawg Dog knows BABBINGTON: Yeah dawg because I was supposed to give Prezzie (ph) something from some time ago and I have not given it to him dawg because I’m telling something happened and some youths and I had a serious clash with some banging you know fighting and you understand how that goes so since then I haven’t been back there then after that it’s been a lot of things happening to me. (voices overlap) UNKNOWN MALE: I noticed (mumbles) I saw the pict’ I saw how you guys were rolling and it seemed like a high profile thing and he was telling me that he was going to clap someone too you know so I don’t even know what went on yo in a little while when I see you we’ll talk because you know how the phone is you see BABBINGTON: Yeah dada please I’m going to get it still I’m talking to her right right right right right right now brother I’m going to ask her what is the dawg’s correct name UNKNOWN MALE: Yeah man ask for the dawg’s correct name because I (unintelligible) BABBINGTON: Hold on yeah hold on UNKNOWN MALE: I don’t remember the dawg’s correct name you know my youth BABBINGTON: Yeah what’s Prezzy’s (ph) correct name his family is on the phone right now because he doesn’t know if he’s locked up and he wants to known (to background) Papa hold on Papa yeah uhm so (stutters) so he needs the number its urgent so link me ASAP okay yeah (to background) Papa you want your bike why don’t you go on your bike and ride your bike outta’ the garage Papa SHANTY: Oh yeah so maybe they just call someone UNKNOWN MALE: Eh Papa why don’t you go on it sit on it Papa and ride it outta’ the garage (unintelligible child’s voice audible in background) SHANTY: O he missed it BABBINGTON: Yeah hello SHANTY: Yeah (voices overlap) UNKNOWN MALE: Yeah Prezzie (ph) ran from the police (unintelligible) SHANTY: If he missed it then yeah yr’ he just fuckin’ on his ass (voices overlap) UNKNOWN: (unintelligible) I’m not going in dawg BABBINGTON: Eh UNKNOWN MALE: (unintelligible) no man because he could be looking at some time you know so he said he’s not going in he’d rather just go on the run BABBINGTON: Say word SHANTY: That’s fucked UNKNOWN MALE: Yeah when I linked the man and was telling him (voices overlap) SHATNY: So they probably just caught him UNKNOWN MALE: When he came to check me he came and checked me in a whip and I said dawg park the car because he got a car the other day I told him not to drive any car you understand because that would be a wrong move it’s easier for you to get bite when you are in a whip you understand BABBINGTON: Dawg right now brother SHANTY: Or make somebody drive you around

[8] There are small portions of this excerpt that I understand may remain in. However, the main issue is whether the excerpts regarding Prezzie should be put before the jury.

[9] The Crown argues that the references to Prezzie are references to a Mr. Tait and that, in considering whether these excerpts should be included, I should look at them through the lens of Mr. Tait (“Prezzie”) being involved in the killing. Based on that, the Crown argues that this excerpt should be put before the jury. At the time of the telephone call, Mr. Tait was in jail in the Central North Correctional Complex in Sudbury, which is some considerable distance away from Brampton, where the accused was.

[10] The defence argues that there is very little in the record to link Prezzie to Mr. Tait, and very little to link Mr. Tait to the killing. In addition, the prejudicial effect of this excerpt is obvious and significant as it not only talks about someone in jail, it links the accused to the person in jail.

[11] I agree with the defence’s arguments on both points. First, based on what I know of the case at this point, I do not see any significant link between either Prezzie and Mr. Tait or Mr. Tait and the killing. As a result, this excerpt does not have a great deal (if any) probative value.

[12] Ultimately, the wiretaps are a form of post-incident conduct. They could generally be probative to the question of whether the accused was present at the Motel 6 when Mr. Reid was killed. This excerpt does not appear to assist in answering that question in any way as there is insufficient evidence to prove that Mr. Tait is “Prezzie” and insufficient evidence to link Mr. Tait to the killing of Mr. Reid. In that regard, I note that Mr. Tait has not been indicted for the shooting at the Motel 6.

[13] However, even if there was some limited probative value to this excerpt, the prejudicial effect of the excerpt outweighs its probative value. In this case, the excerpt would suggest that the accused was associated with people in prison.

[14] As a result, this excerpt was excluded.

The Second Excerpt

[15] The excerpt in dispute reads as follows:

SHANTY: What somebody else got shot BABBINGTON: Eh SHANTY: The reason why he got shot BABBINGTON: No no no no you are crazy never remember the thing that his son took away I sold him that you know SHANTY: Okay BABBINGTON: Yeah remember the Rastafarian is my bro don’t you remember the Bless the Rastafarian that drives the Honda Civic SHANTY: No who’s that BABBINGTON: He’s my bro he and came and sold family the little thing that youth stole

[16] The Crown argues that this excerpt is linked to the previous discussion in the call, which was about “Chip” watching the accused. I accept that Chip may very well mean the police. Crown counsel acknowledges, however, that there is no evidence about a Honda in this case being the car that the shooters used to flee from the Motel 6.

[17] Defence counsel argues that this excerpt is simply not probative enough of anything that the jury has to decide in this case.

[18] I start by observing that this excerpt is less prejudicial than the first one and, as a result, there are fewer issues with leaving it to the jury. However, this evidence may still have some prejudicial effect, as the trier of fact may assume that the Honda Civic was the getaway car.

[19] In addition, given that there is no evidence that a Honda was the getaway car or that a Rastafarian was involved in the shooting, this excerpt does not seem to have much in the way of probative value either.

[20] Finally, the excerpt does refer to someone getting shot. This may, or may not, be probative of the issues in this case. If it is about the shooting in this case, then it is probative to the issues the trier of fact has to decide, being whether the accused was at the Motel 6 on the night Mr. Reid was shot. However, if this excerpt is not about the shooting in this case, then it is an indication that the accused may be involved in, or know about other gun-related conduct which would be prejudicial.

[21] There is simply not enough evidence on the record before me to determine whether or not this excerpt is relevant to this case. Therefore, it should be excluded.

[22] I acknowledge that this is a closer call than the first excerpt, but I still conclude that this excerpt must be excluded.

The Third Excerpt

[23] The excerpt in dispute reads as follows:

BABBINGTON: Yeah so just make her she knows where I’m at but so she (stutters) she just has to because I don’t know what it is dawg if it’s the drugs thing but dawg whatever it if it’s the drugs thing it must me the drugs thing fam’ see what I’m saying but anyways just tell her don’t even talk about that play dumb and she doesn’t have to answer any question from anybody my lawyer already told her that he said she doesn’t haven’t to answer any question from anybody and make sure she’s not wearing a wire fam ‘like take her in the house dawg and let her take off her clothes fam’ UNKNOWN MALE: Dawg you’ll have to do that she’s your woman fam’ BABBINGTON: Dawg I don’t want to see her I don’t want anybody to see me with her what do you mean bro’ I’m not doing that fam’ you let Keisha tell her right now dawg ask her if she’s wearing a wire dawg right there now dawg go call her now fam’ (voices overlap) UNKNOWN MALE: A your wife dat BABBINGTON: HUH UNKNOWN MALE: I told you from day one (1) guy you cannot let your woman known everything guy do you ever see me letting Keisha into everything BABBINGTON: Yeah but that’s like that though fam’ she doesn’t what’s going fam’ she doesn’t even know what’s going on that what I’m trying to tell you she’s just you know what I’m saying UNKNOWN MALE: When pressure strikes (voices overlap) BABBINGTON: Just let her eh UNKNOWN MALE: When pressure strikes they quickly crack under the pressure BABBINGTON: No but dawg what I’m saying is she just has to be dawg she doesn’t know anything about the drugs thing in H she doesn’t know anything about my work fam’ that I’m saying none of my work (voices overlap) UNKNOWN MALE: Less talk (stutters)less talking dawg whenever you come you come BABBINGTON: Yeah man but you have to make sure though fam’ tell them don’t talk about that shit at all my nigger you have to tell your wife that fam’ don’t talk about it fam’ period play dumb delete my things from her phone fam’ that’s what you have to tell her and don’t call them either because she already spoke to my lawyer too my lawyer said don’t call them let them call you know what I’m saying she doesn’t have anything and (stutters) man my lawyer knows they’re not looking for me they’re just looking for a missing person and a homicide that’s what they’re looking for not not me not Q fam’ they’re not looking for Q they didn’t say they’re looking Q they don’t even have any picture because she said they don’t have any picture okay so that’s what I’m trying to tell you because if that were the case they would have come for me already because if that were the case they would have come for me already because auntie hasn’t called me nobody’s called me everybody’s talking to me nothing out of the norm everybody’s still over there if you know what I mean so I don’t know I don’t I haven’t seen any warrant or anything. UNKNOWN MALE: Yeah but less talking on the phone man BABBINGTON Yeah man but I know what I’m saying dawg it’s just that you have to be smart I wasn’t selling any drugs in Hamilton yeah I can talk about it because I didn’t sell any drugs.

[24] This excerpt was a little bit more complicated. There are some bolded parts that the parties agreed could be excluded from the excerpt as they specifically mention drug dealing. Those excerpts, which I have included in the quotation above, were not put to the jury as the parties agreed that they would have had a significant prejudicial effect and were not particularly probative.

[25] The Crown argues that this wiretap shows the accused discussing how to manage the knowledge that his girlfriend, Dejaunte Blake, has about the shooting at the Motel 6. In addition, the passage in the middle of the excerpt clearly speaks to a homicide. The Crown argues that this is clearly probative, and should be heard by the jury.

[26] Defence counsel argues that this excerpt is prejudicial. I disagree. This excerpt may be prejudicial in that it specifically references a homicide and that adverse inferences about the accused’s involvement in the shooting at the Motel 6 may be drawn from this excerpt. However, the prejudicial effect that this excerpt may have on the accused’s case is not the prejudicial effect that arises from improper or irrelevant evidence.

[27] The case before the Court is a homicide case. In the excerpt above, the accused is speaking about the fact that his girlfriend may know something about a homicide, and that the police are asking questions about a missing person and a homicide. This is evidence that is clearly relevant to one of the questions that the trier of fact will have to decide, which is whether the accused was at the Motel 6 the night that Mr. Reid was shot.

[28] In other words, this evidence could arguably be viewed by the trier of fact as post-incident conduct showing that the accused had participated (at least to some extent) in the shooting. It is relevant, and will therefore be heard by the jury.

[29] In making this ruling, I provided the defence with the option of either including the bolded parts in order to provide further context or excluding them because of the previous agreement to exclude them. From the excerpts that were filed with the jury, it appears to me that the bolded parts were excluded.

Conclusion

[30] For the foregoing reasons, the first two challenged excerpts were excluded. The third excerpt was included in the evidence to be put to the jury, and counsel were left to agree on edits to the excerpts. Based on this ruling, the parties were subsequently able to agree on the recordings and transcripts of the wiretaps to be put to the jury.

[31] I left it open for either party to revisit my ruling in this matter during the course of the trial if anything changed. No one sought to revisit the ruling and it stood.

LEMAY J Released: March 13th, 2020