COURT FILE NO.: CR-18-870000538-0000
DATE: 20200527
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TRESTAN BROWN
Jay Spare and Michael MacDonald, counsel for the Crown
Jennifer Penman and Kristen Dulysh, counsel for the Accused
HEARD: May 19, 20 and 26, 2020
M.A. CODE J.
endorsement on a motion to edit a confession
[1] The accused Trestan Brown (hereinafter, Brown) is awaiting trial in Toronto on an Indictment alleging first degree murder. He is also awaiting trial in Brampton on a separate Indictment that alleges a different first degree murder. The two murders took place in 2016, about one month apart. Brown was not charged until October 2017, after a lengthy undercover investigation that resulted in tape-recorded confessions to both murders.
[2] I was appointed “case management” judge in October 2019, pursuant to s. 551.7 of the Criminal Code, in order to hear a pre-trial Motion that is common to both the Toronto trial and the Brampton trial. It concerned the admissibility of Brown’s confessions to the two homicides. Those confessions to undercover police officers were subject to the new common law rule of evidence that emerged out of the Supreme Court’s decision in R. v. Hart (2014), 2014 SCC 52, 312 C.C.C. (3d) 250 (S.C.C.). Accordingly, the confessions were presumptively inadmissible and the onus was on the Crown, on a balance of probabilities, to establish that the probative value of the confessions outweighed their prejudicial effect. The abuse of process branch of the Hart test for admissibility was not in issue in this case.
[3] After hearing 15 days of evidence and argument in November 2019, I ruled that the confessions were admissible in written reasons released on December 18, 2019. In brief summary, I held that the confessions were reliable and that any prejudice was not significant. The reliability of the confessions flowed from both the circumstances in which they were made and from the nature of the confessions. The prejudicial effect of the confessions was amenable to editing and jury cautions. See: R. v. Brown, 2019 ONSC 7344.
[4] At the hearing of the above pre-trial Motion, the Crown volunteered some of the more obvious editing of the confessions that would be necessary, and I suggested some further editing. For example, the Crown agreed not to bring out any of the numerous references to Brown’s criminal record, to his past work in drug trafficking and prostitution, and to his outstanding charges and breaches of bail during the undercover operation. I suggested that some of the more violent and unsavoury aspects of the feigned criminal organization, ostensibly operated by the undercover police officers and joined in or approbated by Brown, could also be edited. What would remain necessary to the background narrative, leading up to the eventual confessions, was the fact that the undercover criminal organization was involved in prostitution and had some past success in obstructing justice when one of its members had difficulties with the police, and the fact that the accused Brown was willing to participate in these activities. These forms of necessary or inevitable prejudice would be addressed at trial through jury cautions. See: R. v. Brown, supra at paras. 209-215.
[5] Assuming the parties can successfully tailor the evidence they adduce at trial in a way that carries out the above relatively straightforward means of alleviating unnecessary prejudice to the accused Brown, there is one area of significant prejudice that remains. It was not definitively addressed or resolved on the Hart motion and it concerns the need to disentangle the two separate confessions to two separate murders, in order to ensure that the Toronto jury does not hear evidence about the Brampton homicide, and vice versa. The Crown does not suggest that evidence of one homicide would be admissible at the trial of the other homicide, nor is there any application to join the two homicides together at a single trial. It is conceded in this case that the prejudicial effect of hearing evidence that the accused committed a second different homicide outweighs any legitimate probative value it might have in relation to the first homicide. See. R. v. Millard and Smich, 2017 ONSC 5275 at paras. 20-30 and the authorities cited therein.
[6] I asked the parties to try to reach agreement on a draft edit of the Toronto homicide confession, as that trial was to proceed prior to the trial of the Brampton homicide. The parties were able to reach substantial agreement but a number of disputed areas remained (as set out in Exhibits One and Two, filed by the parties on the present Motion). Accordingly, a further pre-trial motion was heard by me on May 19 and 20, 2020, in order to rule on final editing of the Toronto confession. By this stage, the Covid-19 pandemic had overtaken events and much of the Court’s activities had been truncated. However, motions that do not require viva voce testimony in a court room were proceeding by teleconference or video conference. The parties sensibly agreed to conduct this final editing Motion by teleconference, as no further evidence was required and it was not necessary to visually see anyone in a court room or by video conference. The accused Brown consented to being present only by telephone.
[7] It is not an easy task to disentangle the two confessions to the two separate murders in this particular case. This is because there is a substantial overlap in the evidence. In addition, Brown and the undercover officer known as “Steph” (who formed a close relationship with Brown over a number of months and eventually received the two confessions in a hotel room in Kingston) often moved back and forth between the events in Brampton and the events in Toronto during the course of their lengthy discussions. See: R. v. Brown, supra at paras. 133-182 where the two confessions made by Brown to “Steph” are set out.
[8] In summary, Brown’s confessions to “Steph” were brought about by police “stimulation” techniques, which caused Brown’s girlfriend to call him some time after 4:04 pm on October 24, 2017, and caused Brown to believe that he was now a target in the two homicide investigations. His confessions emerged slowly, beginning at about 5:25 pm on October 24, 2017 and concluding at about 12:05 am on October 25, 2017. Over this period of some six and a half hours, Brown started out referring somewhat tentatively to the more recent Brampton case. He then hinted that evidence seized at the Brampton crime scene was “link to other stuff.” By some point after 6:15 pm, Brown began to indicate that two important pieces of evidence seized as a result of the Brampton homicide, namely, a gun and a car, were both “connected” to the earlier Toronto homicide. He was concerned that if the police “even place me in the scene for one [murder], this other one is coming”. At this point, Brown began to discuss the Toronto homicide, before returning once again to the Brampton homicide. By 8:24 pm, Brown and “Steph” had discussed both murders and they took a break and went for dinner. At 9:27 pm, they returned to the hotel room and Brown now gave a lengthy and more detailed account of the Toronto homicide, followed by a lengthy and more detailed account of the Brampton homicide, followed by further details about the Toronto homicide. This part of the conversation ended at about 10:35 pm, when Brown’s girlfriend called again and “Steph” left the room. Their conversation resumed at about 11:21 pm with a final discussion about both homicides. Once again, Brown explicitly linked the two cases stating that he drove “the same car…with the same fucking firearm” at the time of both homicides. It can be seen how the two confessions became intertwined, due to the overlap in the evidence and due to the way in which the conversation moved back and forth between two separate but connected events.
[9] The law relating to editing a confession, or any other admissible evidence, is relatively straightforward. The basic principles are that any irrelevant parts, as well as any parts where prejudicial effect outweighs legitimate probative value, should be edited provided that the editing does not distort the meaning of what remains. See: R. v. Beatty (1944), 1944 22 (SCC), 81 C.C.C. 1 (S.C.C.); R. v. Alward and Mooney (1977), 1977 166 (SCC), 35 C.C.C. (2d) 392 at 396 (S.C.C.); R. v. Otis (1978), 1978 2350 (ON CA), 39 C.C.C. (2d) 304 at 307-9 (Ont. C.A.); R. v. C. (F.) (1996), 1996 623 (ON CA), 104 C.C.C. (3d) 461 at 472-3 (Ont. C.A.); R. v. L. (L.) (2009), 2009 ONCA 413, 244 C.C.C. (3d) 149 at 152-5 (Ont. C.A.); R. v. Creary and Creary, 2019 ONSC 4843 at para. 17.
[10] Applying the above principles, I made 38 separate oral rulings during the teleconference hearing, in relation to those edits of the lengthy tape-recorded confession where the parties had not reached agreement prior to the hearing. Many of these edits were minor, or they were not the subject of any serious dispute, after hearing submissions and after suggestions made by the Court. I do not intend to review or discuss all of the 38 edits in this Endorsement. A record was kept by the Court Reporter of the teleconference hearing, including my oral rulings. The Crown produced a final transcript version of the wiretapped confession, after my oral rulings on the edits and after I had corrected an earlier draft of the final edits that contained a number of errors (see Exhibits Three and Four filed on the Motion). I have reviewed the final Exhibit Four version of the transcript and I am satisfied that it accurately reflects the 38 oral rulings that I made concerning editing of the confession. They all involve narrow, detailed, and fact-specific balancing of legitimate probative value and prejudicial effect. The wiretap, of course, will have to be edited in the same manner as it is the original evidence that the jury will hear, while the transcript is only a secondary aid. See: R. v. Rowbotham et al, (1988) 1988 147 (ON CA), 41 C.C.C. (3d) 1 at 47-50 (Ont. C.A.).
[11] There was one area that was particularly contentious, as between the parties, and it requires some elaboration in this Endorsement. It concerned the extent to which the Crown could elicit parts of the confession that referred to the events surrounding the Brampton homicide. Explicit references to the shooting incident itself were easily edited out, with the consent of both parties, but there was dispute as to the admissibility of what happened before and after the shooting. The references to these surrounding events sometimes suggested or implied that a serious criminal incident of some kind had occurred or was about to occur and that it involved Brown. From the Crown’s perspective, it is relevant and necessary to prove that Brown was driving a white car and was in possession or joint possession of a particular Ruger handgun, both seized in connection with the Brampton homicide, because the same car and same gun were used less than a month earlier in the Toronto homicide. From the defence perspective, the more evidence that the Crown is allowed to elicit about the events before and after the Brampton homicide, the more likely it is that the jury will infer or speculate that there was some further serious criminal incident in Brampton (such as a shooting) and that it was associated with Brown.
[12] The detailed circumstantial evidence about the two homicides that emerged from the Toronto and Brampton police investigations, is set out in my Reasons on the Hart Motion. See: R. v. Brown, supra at paras. 10-34. In brief summary, the Toronto homicide was a “drive-by” shooting of a person who was standing near the north sidewalk on Danforth Avenue in the early morning hours of April 17, 2016. The only real issue in the case is the identity of the perpetrator or perpetrators. The shooting incident is captured on surveillance video, showing a white sedan passing the scene four times during a four minute period. The shooting appears to have been carried out from the car during its fourth pass. The white sedan then accelerated away from the area. Three 9mm Luger shell casings were left behind at the scene. The car’s license plate was not obtained but the police were able to identify it, with help from the manufacturer, as a Pontiac G5 made between 2007 and 2010.
[13] Less than a month later, on May 13, 2016, the Brampton homicide occurred in a parking lot outside the All Stars bar. Video surveillance, and evidence from a taxi driver, showed a white Pontiac G5 sedan arriving at the parking lot together with a taxi. Three men emerged from these two cars. The front seat passenger in the white Pontiac and the passenger in the taxi both entered the All Stars bar. They have been identified as Stephen Brown, a close friend of the accused Brown, and Ronald Thomas, a cousin of the accused Brown. The driver of the white Pontiac was not identified and can only be identified through circumstantial evidence and through the accused Brown’s eventual confession. It is this driver of the white Pontiac who proceeded to become involved in an altercation in the parking lot, which quickly escalated into a gun fight. The incident is captured on video surveillance. The driver of the white Pontiac fired a single .22 calibre gunshot and then fled the scene, leaving his car in the parking lot. This single gunshot killed the other gunman involved in the altercation, who had also drawn a handgun and fired several shots at the fleeing driver of the white Pontiac. The accused Brown was clearly in the vicinity of the Brampton shooting as he was stopped nearby (and then released) when a police perimeter was set up around the crime scene.
[14] The police executed search warrants on the white Pontiac sedan left in the parking lot and on a nearby Lisa Street apartment that Stephen Brown and Ronald Thomas had been seen entering immediately after the shooting. Video surveillance at the apartment building showed a bag being passed by Ronald Thomas to an occupant of the Lisa Street apartment. The police seized two firearms at the Lisa Street apartment. One was a 9mm Luger handgun. Forensic testing of this gun established that it was used in the earlier “drive-by” shooting in Toronto. The police also seized one live round of 9mm Luger ammunition from the white Pontiac sedan. It was manufactured by the same company that manufactured the 9mm shell casings left at the Danforth Avenue crime scene in Toronto. There was also a document in the white Pontiac sedan in the accused Brown’s name. The car was owned by his mother, Zya Brown. She told the police that both her son Trestan Brown and his friend Stephen Brown would borrow the car. Finally, the police seized an inactive cell phone from the car. Text messages in that phone, contact information in Ronald Thomas’ phone, and evidence from the accused Brown’s employer all led the police to believe that the accused Brown was using a certain phone number at the time of the two homicides. Cell tower analysis of that phone number’s activity established that it was in the vicinity of the Danforth Avenue shooting on April 17, 2016 and in the vicinity of the All Stars bar shooting on May 13, 2016. In addition, this phone number made calls to both Stephen Brown and Ronald Thomas shortly after the Brampton shooting.
[15] It can be seen that there is a body of circumstantial evidence that connects both the white Pontiac sedan parked at the All Stars bar and the 9mm Luger seized from the Lisa Street apartment to the earlier Toronto homicide. In particular, the C.F.S. testing of the Luger handgun, the live round of ammunition found in the car, the three shell casings left at the Danforth Avenue crime scene, the make and model and colour of the car, and the connections between the occupants of the car and the seizure of the handgun all give rise to a reasonable inference that it was this Luger handgun that was fired from this white Pontiac G5 sedan at the time of the earlier Toronto homicide.
[16] There is also a body of circumstantial evidence connecting the accused Brown to the white Pontiac sedan and to the 9mm Luger handgun. In particular, the car’s registered owner was his mother, she lent the car to both the accused Brown and to his friend Stephen Brown, his friend Stephen Brown emerged from the front passenger seat of the car after it was parked at the All Stars bar, a document in the accused Brown’s name was found in the car, the accused Brown was stopped at the police perimeter in the vicinity of the parked car, a phone number that can be connected to the accused Brown was in the vicinity of the route taken by a white Pontiac G5 sedan at the time of the relevant events in both Toronto and Brampton, Stephen Brown ran to the Lisa Street apartment where the Ruger handgun was seized, and the phone number connected to the accused Brown made a phone call to Stephen Brown shortly after they both ran away from the All Stars bar parking lot.
[17] In his confessions to “Steph”, Brown made admissions that he was the driver of the white sedan at the time of the Toronto homicide and that he was firing the Ruger handgun out of the driver’s side window. He also admitted that a few weeks later he drove the same white sedan to the All Stars bar while following his cousin who was in a taxi, that his friend Stephen Brown was his front seat passenger, that Stephen Brown was “holding” or “holding…down” the same Ruger handgun that the accused Brown had used in the earlier Toronto homicide, that he was stopped by the police when everyone fled the area, that he left the white sedan in the parking lot, that he phoned his cousin and Stephen Brown who both ran to a nearby apartment where a bag was passed, and that the police seized the Ruger handgun at the apartment and seized the white sedan from the parking lot. In other words, Brown’s confession and his admissions about the related events in Brampton fit with the known circumstantial evidence.
[18] In my view, the substantial body of circumstantial evidence summarized above corroborates Brown’s confession in numerous detailed ways. This corroboration enhances the ultimate credibility and reliability of the confession. See, e.g. R. v. Bradshaw (2017), 2017 SCC 35, 349 C.C.C. (3d) 429 at paras. 33-44 (S.C.C.); R. v. Khelawon (2006), 2006 SCC 57, 215 C.C.C. (3d) 161 at paras. 3-4 and 93-100 (S.C.C.); R. v. Blackman (2008), 2008 SCC 37, 232 C.C.C. (3d) 233 at paras. 53-57 (S.C.C.); R. v. G. (M.) (1994), 1994 8733 (ON CA), 93 C.C.C. (3d) 347 at 355-6 (Ont. C.A.), citing Faryna v. Chorney, 1951 252 (BC CA), [1952] 2 D.L.R. 354 at 356-7 (B.C.C.A.)
[19] Counsel for the accused, Ms. Penman, conceded that the Crown is entitled to introduce its body of circumstantial evidence derived from the Brampton investigation concerning the seizure of the white Pontiac car, the seizure of the Ruger handgun, and the seizures of various items found inside the car. All of these items of evidence are linked to the earlier Toronto homicide and so they are relevant and admissible, even though they were seized as part of a separate and subsequent police investigation. However, there is no admission from the defence that any of these items were in the accused Brown’s possession or joint possession at the time of their seizure in Brampton, nor is there an admission that Brown was the person who emerged from the driver’s seat of the white Pontiac sedan when it parked at the All Stars bar. In order to advance the Crown’s case on the central issue of identity, concerning the perpetrator or perpetrators of the Toronto homicide, the Crown must link these Brampton seizures to the accused Brown. The admissions made by Brown about the events in Brampton are capable of establishing that link, as he admits to driving and parking the car used in the Toronto homicide and he admits that his passenger Stephen Brown was “holding” the Ruger handgun used in the earlier Toronto homicide. However, the jury will have to conclude that these admissions are both credible and reliable, in order to use them in relation to the issue of identity in the Toronto homicide. Brown’s defence at trial will, of necessity, require that he challenge the credibility and reliability of both the Toronto homicide confession and these related admissions concerning events in Brampton.
[20] In my view, the body of circumstantial evidence implicating the accused Brown in the Brampton events is highly probative in relation to the issue of identity in the Toronto homicide because it independently links Brown to the white car and to the Ruger handgun and thereby corroborates his confession to the Toronto homicide. In addition, it corroborates and confirms Brown’s admissions about the related events in Brampton. Provided that any reference to the Brampton homicide itself is edited out, the evidence of the accused Brown’s links to the seized car and to the seized gun is not improperly prejudicial. The jury will inevitably know that there was some kind of incident at the All Stars bar, because the police were called, they established a perimeter and investigated persons leaving the scene, and they executed search warrants. The jury will also know that Ronald Thomas and Stephen Brown were arrested for possession of the two handguns seized at the Lisa Street apartment. Finally, the jury will know that the accused Brown was outside the bar in the parking lot and that he left the area when everyone ran from inside and outside the bar. The jury will not know that the accused Brown was in possession of another different gun and that he was implicated in another different homicide at the time of these events in Brampton. The jury will, of course, be instructed not to speculate about the nature of the incident at the All Stars bar that caused everyone to run and that caused someone to call the police.
[21] Based on the above reasoning, I admitted Brown’s detailed admissions about various aspects of the Crown’s circumstantial evidence surrounding the Brampton events, including the following: that he was driving his mother’s white sedan to the All Stars bar together with Ronald Thomas’ taxi; that his passenger Stephen Brown was “holding” or “holding…down” the Ruger handgun that the accused Brown had used in the earlier Toronto homicide; that he remained outside in the parking lot while Stephen Brown and Ronald Thomas went into the bar; that he was stopped by the police and did not return to the car when everyone left the area; and that there were a number of phone call connections with Stephen Brown and Ronald Thomas, both before and after he parked the white car at the All Stars bar. In my view, all this evidence is highly probative in relation to the issue of identity in the Toronto homicide because it credibly and reliably connects the accused Brown to the seized Pontiac sedan and the seized Ruger handgun. In addition, its improperly prejudicial aspects have been edited out. In particular, I edited out any parts of these admissions that contained implied suggestions to the effect that the accused Brown had some kind of criminal purpose when he attended at the All Stars bar or that he committed any kind of criminal act at the All Stars bar (aside from the inference that he was in joint possession of the Ruger handgun that Stephen Brown was “holding” on that day).
[22] I have been guided to a considerable degree by the decision of the Court of Appeal in R. v. Backhouse (2005)), 2005 4937 (ON CA), 194 C.C.C. (3d) 1 at paras. 23-6 and 156-172 (Ont. C.A.). In that case, the Court held that evidence of the accused’s possession of the murder weapon almost ten months after the murder (of one Steptoe) was admissible but that evidence of his use of the murder weapon at that time in a second shooting (of one Croft) was not admissible. In this regard, Rosenberg J.A. (Goudge and Borins JJ.A. concurring) stated the following:
As I have stated above, the fact that the appellant was in possession of the murder weapon some ten months after the killings was some evidence of his involvement in the Steptoe shooting. But, it is the fact of possession that gives the evidence its probative value. The manner in which the appellant used the gun on the second occasion did not appreciably increase its probative value in considering the inferences to be drawn from possession. However, the manner in which the appellant used the gun dramatically increased the prejudicial effect. The evidence of the circumstances of the Croft shooting, of the motive for the shooting and of the fact that the appellant and his brother had previously attacked Croft, carried all of the classic dangers associated with evidence of discreditable conduct – the so-called reasoning and moral prejudice…
The mere fact that the appellant had possession of a restricted weapon was itself discreditable conduct and did carry some prejudicial effect. However, the probative value of the evidence outweighed the prejudicial effect. To determine whether all of the evidence of the Croft incident was admissible, the trial judge had to apply the test for admission of similar fact evidence. If that evidence showed nothing more than a general propensity for violence it was inadmissible. Unfortunately, the trial judge did not address this issue.
Also see: R. v. Moore, 2015 ONSC 728.
[23] In the present case, the accused Brown was arguably in possession or joint possession of both the car and the gun used in the Toronto homicide, and it was less than one month later when he was in possession of these items during the events in Brampton. Accordingly, the evidence relating to the subsequent events in Brampton has much greater probative value in this case than the evidence relating to the subsequent events in the Backhouse case. Consistent with the reasoning in Backhouse, I have edited out any evidence suggesting that the accused Brown had a criminal purpose or committed some further criminal act at the time of the subsequent events in Brampton (aside from the inference of ongoing possession or joint possession of the Ruger handgun).
M.A. Code J.
Released: May 27, 2020
COURT FILE NO.: CR-18-870000538-0000
DATE: 20200527
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TRESTAN BROWN
ENDORSEMENT ON A MOTION TO EDIT A CONFESSION
M.A. Code J.
Released: May 27, 2020