Court File and Parties
COURT FILE NO.: CR-18-1310 DATE: 2020 07 31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN R. Alexander Cornelius and Cindy Nadler, for the Crown
- and –
THULANI CHIZANGA and SHAMAR MEREDITH Deniz Sarikaya and John Struthers, for Thulani Chizanga Melina Macchia, for Shamar Meredith
HEARD: October 7, 2019
DISCREDITABLE CONDUCT RULING No. 2
D.E HARRIS J.
[1] I ruled after pretrial motions that the Super 8 video from the day before the alleged murder in this case, that is from April 26, 2017, was admissible on behalf of the Crown: R v. Chizanga and Meredith, 2019 ONSC 5737. The weekend after the written ruling was released and before the Super 8 video was played for the jury, defence counsel applied to re-open and re-consider the issue. While at the time of the first ruling no evidence had yet been heard, by the time of the application to re-open, the bulk of the quite brief Crown’s case had already been adduced. The basis for the re-opening request was that the defence would make admissions of fact under Section 650 of the Code that would obviate the need for the video to be played. The Crown was strongly opposed. I dismissed the application to re-consider with these reasons to follow.
[2] The circumstances are discussed in my earlier ruling and will not be repeated here. This ruling should be read with that one. The concessions offered by the defence upon this application to re-consider were that it would be admitted that Mr. Meredith possessed the same firearm at the Super 8 motel on April 26, 2017 and at the Popeyes the next day, April 27, 2017 and that he concealed it down his pants in both instances. For Mr. Chizanga, it was conceded that he knew Mr. Meredith had the weapon and was prepared to use it. This admission had already been made, in effect.
[3] The charge to the jury had been supplied to counsel in rough draft before the application to re-open. In its final version, it instructed the jury with respect to the probative value of the video evidence of the Super 8 incident. These instructions encapsulated my view of the probative value of this evidence. The jury was told, subject to their views and attempting to give the defence position at the same time as a counterbalance:
- Paragraphs 160 and 189: The video could be used to show Mr. Meredith’s familiarity with the firearm;
- Paragraph 163: The Super 8 video could be used to show partnership by Mr. Chizanga with Mr. Meredith at the Super 8 motel and, therefore, in the Popeyes’ killing. Also it could show whether Mr. Chizanga knew what type of weapon Mr. Meredith was concealing;
- Paragraphs 191 and 192: Similarly, the Super 8 video could be used to rebut evidence of innocent association at the Popeyes and to demonstrate joint enterprise between the two men to kill Mr. McIntosh;
- Paragraph 193: The Super 8 video, could be used to contradict the suggestion by the defence that the defendants would not plan a killing in a public place. They had planned a criminal offence the day before in the semi-public hallway of a motel although it was pointed out that the context and the potential offence committed there was very different.
[4] Some of the probative value of the evidence would have been impossible to generate for the jury without the viewing of the actual videotape. Mr. Meredith’s handling of the gun, for one. There was some suggestion that the shooting might have been accidental which Mr. Meredith’s aptitude with the weapon could also have contradicted. Mr. Chizanga’s knowledge of the firearm as well as evidence of concerted action with Mr. Meredith are other areas, as the video depicts this visually in a way that a simple concession could not convey. Further, the physical nature of the murder firearm and its very large size, had probative value in and of itself.
[5] Based on these observations, the probative value of the video extended well beyond that of the concessions offered. Furthermore, there is general value in the visual depictions of what really happened versus a cold written account. As the idiom goes, a picture can be worth a thousand words. The impact on a jury member of the video would likely be deeper and allow a fuller appreciation of the Super 8 motel incident and its significance to the killing the next day at the Popeyes.
[6] Finally, although for the same reasons the visual record in this case would likely engender somewhat more prejudice than a written description, the difference in prejudice would not have been enormous. For the defence to have succeeded with their application to re-consider, it was their burden to show that there would be a significant disparity in the relative prejudicial effect. However, the reasoning and moral prejudice were not all that much different between a written description incorporating the proposed defence concessions and the video itself, in my view. The extra probative value from the video fully justified the additional prejudicial effect.
[7] These are the reasons the application to re-open and reverse the discreditable ruling was dismissed.
D.E HARRIS J. Released: July 31, 2020
COURT FILE NO.: CR-18-1310 DATE: 2020 07 31 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Applicant
- and – THULANI CHIZANGA and SHAMAR MEREDITH Respondents REASONS FOR JUDGMENT D.E HARRIS J. Released: July 31, 2020