Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. RHYAN ALEXANDER MOORE
BEFORE: Justice Kevin B. Phillips
COUNSEL: Malcolm Savage, for the Crown
Jenny McKnight, for the Accused
HEARD: January 17, 2020
Pre-trial Ruling
1Rhyan Alexander Moore is charged with second degree murder. He seeks a pre-trial ruling to allow him to tender evidence before the jury that may directly or indirectly suggest bad character or even propensity for violence on the part of the deceased.
2The Crown opposes the application, arguing that the proposed evidence is irrelevant.
Overview of the Facts:
3On November 27, 2017, Zkaria Iqbal and his three friends Junior Kinzonzi, Hassan Zahran and Eamran Abdi, went to an apartment on Montreal Road to smoke marijuana. When they arrived the tenant, Shannon Blaquiere, as well as Suzan Anastasopoulos, Fred Thibault and Rhyan Moore were all there.
4After some events that are not important, Mr. Moore asked Mr. Iqbal and his friends to leave. Mr. Iqbal is said to have been somewhat resistant to being told what to do by Mr. Moore. Before leaving, Mr. Iqbal told Mr. Moore, “see you later”. An exchange took place between the two men as to the meaning of those words. During this interaction, Mr. Moore pulled out a pocket knife, at first keeping it closed and facing down but eventually opening it up. In the face of this, Mr. Iqbal challenged Mr. Moore to come outside and fight.
5The visiting group of four exited the apartment building through the rear door. Mr. Iqbal chose to wait for Mr. Moore to exit. Mr. Iqbal made utterances to the effect that he was going to beat Mr. Moore up. When Mr. Moore exited the rear door, Mr. Iqbal hit him from behind. As Mr. Moore fought back, Mr. Iqbal told Eamran Abdi to go get the gun from the car. There is some evidence that Mr. Abdi also independently voiced the idea to go get the gun from the car, also within earshot of Mr. Moore.
6Mr. Moore ran after Mr. Abdi, who was by the car, apparently trying to get something from the trunk, and started fist-fighting him. Mr. Moore would later tell others that he was doing this to prevent Mr. Abdi from opening the trunk given that it had been announced that a gun was to be retrieved from the car. Mr. Iqbal and his friends joined the Moore/Abdi fight. Mr. Moore and Mr. Iqbal ended up holding each other and appeared to be slipping on the icy ground. During this struggle, as they both went to the ground, Mr. Moore stabbed Mr. Iqbal once in the chest and cut Mr. Zahran’s arm.
7Zkaria Iqbal collapsed. As he lay dying, everyone ran away.
8Mr. Iqbal’s friends, including Mr. Abdi, are expected to testify that there in fact was no gun in the car. They say the communications and efforts to get the gun from the car were a ruse.
The Proposed Evidence:
9The accused submits that he should be able to tender evidence suggesting that the deceased did indeed possess a handgun at the material time and furthermore that he was involved in dealing both cocaine and crack. The evidence is said to come from text messages taken from Mr. Iqbal’s phone which arguably show him communicating with Mr. Abdi about their shared possession of a 9mm handgun, as well as various texts arguably showing Mr. Iqbal to be involved in the drug trade (including a reference to a drug-dealing confederate named “Hassan”).
10As mentioned, the Crown opposes Mr. Moore’s proposal. In the Crown’s submission, the evidence serves only to malign the deceased, a result that amounts to prejudicial effect. It matters not, argues the Crown, whether Mr. Iqbal actually possessed a handgun. The utterances to the effect that a handgun was to be fetched have full probative value in respect of Mr. Moore’s state of mind regarding self-defence whether one was there to be fetched or not.
11The Crown submits that Mr. Iqbal’s propensity to have acted one way or another is not an issue that requires prior bad conduct evidence to resolve. This is so because there is other evidence suggesting that the deceased was an enthusiastic participant in the violence preceding the stabbing, rendering any evidence of any propensity for violence on his part superfluous and unnecessary.
12The Crown further disagrees that the texts “establish” what the accused says they suggest. In this regard, the Crown says the gun possession texts are unclear, making only indirect references to a handgun. Similarly, the Crown disagrees that the reference to “Hassan” in the alleged drug-dealing texts “establishes” that Mr. Hassan Zahran is the man involved in such disreputable conduct.
13The bottom line for the Crown is that the prejudicial effect of the evidence outweighs any probative value. The evidence will be a time-consuming distraction from the actual issues, giving rise to risk that the jury will act on the idea that the deceased was a bad man who deserved his fate.
Analysis:
14There is no rule prohibiting evidence that has the effect of sullying the memory of a deceased in a murder trial. In other words, nothing necessarily prevents the submission of bad character evidence on the part of a deceased. To the extent that such evidence is ordinarily not allowed, it is because ordinarily it has no relevance.
15Evidence need not “establish” anything to be relevant and admissible. It need only be probative, meaning that the proposition for which it is advanced is more likely than it would be in the absence of that evidence. Of course, that probative value must outweigh any prejudicial effect.
16For reasons I will develop below, I see relevance here.
17The accused’s anticipated position at trial is self-defence. He is expected to argue that when he stabbed, he was acting with the belief that a gun was being extracted from the trunk of the car immediately adjacent to the men he was grappling with. A key issue for the jury, therefore, will be whether Mr. Moore’s evidence in that regard is credible and whether his state of mind in light of what was unfolding before him was reasonable in all the circumstances. To determine this, the jury will have to essentially put themselves into Mr. Moore’s shoes and assess what he was perceiving, feeling and thinking.
18In my view, when considering whether Mr. Moore came to his state of mind honestly and legitimately, it could matter whether Mr. Iqbal and his group were play-acting or actually acting in accordance with reality. I see legitimacy to the argument that the tenor of the communications about the gun and the nature and quality of the acts performed in search of it might have appeared more real if they were in fact reality-based instead of a spontaneous pantomime. While I suppose it could be argued that Mr. Iqbal and his friends were so adept at acting that no one could discern the made-up nature of their communications and conduct, it is equally arguable that their conduct would have more likely seemed real if in fact it was real.
19The evidence of the gun being non-existent comes from Mr. Iqbal’s friends. The credibility of the members of that group will be an important issue for the jury. It is worth noting here that there is disagreement in the anticipated evidence from the Iqbal group about how exactly the gun ruse was being performed. For instance, Mr. Abdi is expected to say that all he did was to pretend to look in the car windows as if looking for a gun. At least one of his friends has him at the back of the car actively trying to open the trunk. The jury may have to wrestle with this inconsistency, and it may have bearing on both Mr. Abdi and Mr. Moore’s credibility. If Mr. Abdi is telling the truth about merely looking through the windows, one might wonder about the believability and/or reasonableness of Mr. Moore falling for such an amateurishly executed ruse. One might have difficulty saying he thought a gun was going to materialize because someone was gazing through a window. It seems to me that the likelihood that Mr. Abdi was no mere window-looker could be said to increase if one considers that he was a co-possessor of a gun that he was intent on actually getting out of the car.
20The question of whether Mr. Abdi and Mr. Iqbal actually possessed a real gun also has relevance in respect of Mr. Abdi’s credibility more generally. The gun-related texts in question are communications between Mr. Abdi and Mr. Iqbal, arguably about a handgun they possess together. The texts are mostly cryptic, referring to a gun in slang terms (“the habit”, said to relate to the word habid, the Somali word for gun, and also “the 9”, a possible reference to a 9mm handgun). In my view, it could be argued that the texts on the whole show that the pair consider their gun to be an item of great usefulness and value. Certainly, they go to considerable troubles in exchanging it between themselves and to keep its existence secret from others whom they know. This is important because Mr. Abdi has testified that the gun-related texts in question relate to a broken pellet pistol. It could fairly be suggested that this is simply unbelievable. The jury might be persuaded that the high value and importance the pair put on the gun as shown through their text communications is out of line with possession of just a broken pellet pistol - an item that can be purchased at Canadian Tire without a permit for the price of a hockey stick. Mr. Abdi’s credibility could suffer as a result.
21It is also the case that as a mere witness, Mr. Abdi is subject to cross-examination in respect to prior disreputable conduct. Illegal handgun possession would qualify.
22This prior disreputable conduct element also applies in respect of the alleged drug-dealing texts written by Mr. Iqbal. As mentioned, one of the texts, arguably referencing a drug deal, refers to “Hassan” as one of those involved. Hassan Zahran was one of Mr. Iqbal’s friends there that night and is an anticipated witness. Of course, the similarity in respect of first names might be mere coincidence. On the other hand, I see it as fair for the defence to suggest that Hassan Zahran is involved in the drug trade on the back of the texts in question and his known association to Mr. Iqbal. That potential fact could be disreputable conduct bearing on Mr. Zahran’s credibility.
23Mr. Iqbal’s apparent drug-dealing texts also have application to the gun possession issue. While I would never claim this is an ironclad rule, gun possession and drug-dealing often go hand in hand. Accordingly, the drug-dealing texts could have probative value in respect of the likelihood that Mr. Iqbal indeed possessed a real handgun proximate to the material time, the probative value of which I have already discussed.
24Finally, I see it as important that Mr. Moore’s anticipated evidence is that he took Mr. Iqbal’s parting words of “see you later” as a threat. There is evidence that Mr. Moore immediately inquired of Mr. Iqbal quite firmly about what he meant by those words. I dare say that to most people, those words are innocuous. Mr. Moore took them as a threat because, according to him, on “the street” those words indeed can be threats. In giving this interpretation Mr. Moore is revealing himself to live by a sort of street code. This is not a good look. Arguably, this whole interaction became violent because Mr. Moore is a street-tough, full of posturing bravado, over-concerned with reputation and motivated to respond to the slightest slight.
25The jury will have to determine whether they accept Mr. Moore’s evidence that he perceived himself as receiving a threat when Mr. Iqbal said, “see you later”. In my view, the likelihood that his words were conveyed in a threatening manner increases if he indeed meant them to be threatening. The likelihood that Mr. Iqbal meant “see you later” to be a threat increases if he lived by the same street code as Mr. Moore. The likelihood that he lived by that same street code increases if he in fact possessed a handgun at the material time and was involved in the community’s drug sub-culture.
26It is worth pointing out that when I weigh the prejudicial effect of the evidence suggesting that Mr. Iqbal both possessed a handgun and dealt hard drugs, I do so considering that it is not as if Mr. Moore is going to come across as some sort of angel. It seems unfair to have Mr. Moore present himself as an unsavory sort who interprets regular words as threats while depriving the jury of the ability to assess whether the words more reasonably came off as threatening because they were indeed meant that way – a proposition that is rendered more likely in light of evidence that Mr. Iqbal also lived according to criminal lifestyle rules.
Conclusion:
27The probative value of the proposed evidence outweighs any prejudicial effect. While there will be some time consumption arising from the gun possession and drug dealing evidence that time would have to be expended in any event, due to the relevance the evidence has as disreputable conduct relating to important witnesses, Mr. Abdi and Mr. Hassan.
28There is one caveat. I am allowing the gun-related texts and the drug-dealing texts that were identified and referred to in argument. Counsel shall redact all the texts that do not touch on those two subjects. I will instruct the jury that they are not to speculate about those redacted texts. I do not want them distracted by that irrelevant information.
29That said, the accused’s application is allowed.
Justice Kevin B. Phillips
Date: January 27, 2020
COURT FILE NO.: 18-7905
DATE: 2020/01/27
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty the Queen
AND
Rhyan Alexander Moore, Accused
BEFORE: Justice Kevin B. Phillips
COUNSEL: Malcolm Savage, for the Crown
Jenny McKnight, for the Accused
pre-trial ruling
PHILLIPS J.
Released: January 27, 2020