Court File and Parties

COURT FILE NO.: CR-18-1255-00 DATE: 20200806

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Jordan O’Maly

BEFORE: D. E. Harris J.

COUNSEL: S. Yu for the Crown Applicant R. Chu for the Defendant Respondent

E N D O R S E M E N T

[1] The applicant Crown applies on this pre-trial motion to have admitted into evidence at trial photographs of the defendant while in police stations on matters unrelated to the charges in this case.

[2] The underlying allegation against the defendant is that in the early morning hours of July 29, 2016, a man was sleeping in his car outside of his residence in Brampton. An assailant opened the car door and begun stabbing him. The victim suffered multiple wounds including puncture wounds to his upper body, to his hands and to other parts of his body. The assailant, alleged to be the defendant, fled. The victim was unable to identify him.

[3] Blood trails were found in the area. Blood DNA was later found to match the victim and the defendant respondent. The next day, July 30, 2016, the Barrie Police found a pile of burning clothing near a motel. Blood samples from the clothing were later analyzed and there was a match to both the victim and the defendant. Also located near the burning clothes was a jerry can which contained gasoline. It was suspected by the police that the gasoline was used to accelerate the burning of the clothing.

[4] About 200 meters from the motel, there was a gas station. The police canvassed video from the gas station and found video from the night before, July 29, 2016, showing a man purchasing a jerry can and lighter and then pumping gasoline into the can. The man was wearing a black athletic jacket with three stripes down both arms. He had on a white belt with a circular metallic belt buckle. Both of his hands were bandaged, possibly consistent with a person who had attacked another person with a knife the day before and had injured himself in the process.

[5] The evidence the Crown seeks to tender is: 1. Stills of the defendant on August 4, 2016, a few days after the alleged assault, in an interview room at 21 Division of Peel Regional Police. He was wearing a dark athletic jacket with three stripes, a white belt with a circular buckle and his left hand was bandaged and in a brace, features the Crown says correspond with the man at the gas station on July 29, 2016; and 2. Photographs of scars on the defendant’s hands taken November 16, 2016 at a police station after his arrest by Durham Regional Police for sex-trafficking, robbery and drug possession charges. The Crown says that these injuries, in all the circumstances, tie the defendant to the stabbing.

THE LAW

[6] The evidence tendered is outside the ambit of the indictment charging the defendant with the stabbing. It shows him in the company of the police. A reasonable jury member would assume that being in a police station was an indication that the defendant, at the least, was suspected of criminal offences. Therefore, the evidence tendered is of discreditable conduct outside of the trial allegations and is presumptively inadmissible: R. v. R. (J.D.), [1987] 1 S.C.R. 918 at paras. 46-49; R. v. Handy, [2002] 2 S.C.R. 908, at paras. 31-36.

[7] Does the probative value of this evidence outweigh the prejudicial effect? What is the live issue upon which the evidence is relevant and tends to prove in the Crown’s favour? Handy at paras. 69-75. In reference to the burning of the clothes, if the Crown can show that it was the defendant trying to dispose of his own clothes, this would serve as a significant contribution to their case. A consciousness of guilt inference could connect the defendant directly to the stabbing. To get there, proving the defendant purchased the jerry can, gasoline and the lighter would be a helpful intermediate step.

[8] If the defendant wore clothing matching the gas station person soon afterwards, this will be a substantial evidentiary assist. The uniqueness of the clothing is what invests it with value as a means of identification. The more unique, the more probative value. The dark three-stripe jacket is not terribly unique. Jackets like this are quite common. The belt and the belt buckle, however, is virtually one of a kind. Together, the combination of the jacket and the belt and belt buckle worn by the same man are of high probative value towards the proposition that the person at the police station and at the gas station were identical.

[9] There is another point of similarity: the man at the gas station and the defendant on August 4, 2016 both had bandaged hands although the defendant had only one bandaged hand at the police station. That the assailant damaged his hands during the assault on the victim is a logical possibility. It is confirmed by the defendant’s blood DNA at the scene.

[10] The jacket and the belt, taken together with the bandages, weave a compelling case that, working backwards from the known to the unknown, the police station man on August 4, 2016 known to be the defendant, and the gas station man from July 30, 2016, are the same man.

[11] Looking at the November 16, 2016 evidence, injuries to the hands are consistent with stabbing a man in the circumstances alleged by the Crown. It is confirmed by the blood DNA of the victim and the defendant at the scene and, at the least, by the defendant’s bandaged hand at the police station on August 4, 2016. In total, the web of circumstantial evidence is compelling.

[12] Turning to prejudicial effect, it is the association with the police that is the concern. It is unlikely the jury would suffer significantly from moral prejudice (prejudice from “bad personhood”: Handy at paras. 31-36; R. v. Batte, 34 C.R. (5th) 197, 2000 CarswellOnt 2113 (Ont. C.A.) at (Carswell) para. 100) or reasoning prejudice (prejudice arising from the distraction of the jury). Any prejudice would be quite peripheral and can to a great extent be suppressed. The jury can be told, subject to the trial judge’s discretion, something along the lines that the defendant was not being charged with any offences, he was asked to come into the police station to check in with them but not as a suspect, and there is nothing they should draw adverse to the defendant. Alternatively, it may be possible to edit the police presence out of the evidence completely. In any case, the trial judge would of course outline the precise use of the evidence towards the Crown’s case and give the appropriate limiting instruction in consultation with counsel.

[13] With respect to the photographs of the hands, there is no need to explain to the jury that the defendant was under arrest for serious offences. In fact, again subject to the trial judge, the police presence could potentially be filtered out completely or at the least diluted. The jury could be informed that they ought not to speculate with respect to the circumstances under which the pictures were taken and then told the circumstantial use to which they could be put, together with the bandaged hands seen at the gas station and at the police station August 4, 2016.

[14] The prejudicial effect will not be substantial if measures are taken at trial to minimize it and if the trial judge gives the proper limiting instructions to mitigate any remaining risk of prejudice. Meanwhile, as elucidated above, the probative value of the evidence towards the ultimate purpose of identifying the defendant as the man who committed the stabbing is substantial. Balancing probative value and prejudicial effect, the probative value of the evidence exceeds its prejudicial effect. Both sets of evidence which were the subject matter of this motion are admissible at trial.

D.E. Harris, J. DATE: August 6, 2020