COURT FILE NO.: CR-19-30000281
DATE: 20201030
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TAUFIQ STANLEY
Donna Kellway and Tim Edwards, Counsel for the Crown
Dirk Derstine and Jordyn Cowley, Counsel for the Accused
HEARD: October 14-16 and 19-20, 2020
M.A. CODE J.
REASONS FOR JUDGeMENT
A. OVERVIEW
[1] The accused Taufiq Stanley (hereinafter, Stanley) is charged with committing the first degree murder of Samatar Farah on April 15, 2017. The matter is presently scheduled to proceed to trial in November 2020, provided the Covid-19 pandemic is under sufficient control to allow the empanelling of a jury.
[2] I began hearing pre-trial motions on October 14, 2020. One lengthy and complex motion concerns the admissibility of two separate bodies of evidence that the Crown seeks to tender at trial. Both of these bodies of evidence concern alleged prior possession by the accused of two separate handguns that were both used in the murder of Samatar Farah. The Crown properly characterized this evidence as “prior discreditable conduct” and it was the Crown who took on the burden and initiated the motion seeking a ruling. In both cases, the alleged prior possession of the two handguns used in the homicide is inter-twined with other evidence of extrinsic criminal conduct. The well-known rules relating to the presumptive inadmissibility of this kind of evidence were helpfully reviewed in a recent Court of Appeal decision. See R. v. MRS, 2020 ONCA 667.
[3] Both parties filed substantial evidentiary records at the hearing of the motion. These were comprised of preliminary inquiry transcripts and exhibits, police notes, expert reports, photographs, charts and maps, phone and cell tower records, and extensive video surveillance evidence. No viva voce testimony was called on the motion. After four days spent reviewing this large body of evidence and hearing argument, I reserved judgement. These are my Reasons for Judgement on the motion.
B. FACTS RELATING TO THE HOMICIDE
[4] The deceased Samatar Farah was shot and killed in a parking lot in the north end of Scarborough at about 1:39 am on April 15, 2017. The parking lot is located in a residential housing complex immediately to the west of Chester Le Boulevard. The shooting is captured from a distance on video surveillance cameras. Two figures can be seen following an individual (who was undoubtedly Farah) across the parking lot, running towards him, apparently firing at him, and then running away from the scene.
[5] The postmortem examination of Farah’s body revealed five gunshot wounds, as follows: two gunshot wounds to the face and head, one of which led to the recovery of a bullet; two gunshot wounds to the upper back, one of which led to the recovery of another bullet; and one “graze” wound to the back. The cause of death was determined to be “gunshot wounds to the face and back”. The bullet recovered from the head was “a fatal wound” and the bullet recovered from the back was “a medically significant and potentially fatal wound”. In addition to the two bullets recovered during the postmortem examination, the police found three fired 9 mm Luger cartridge cases near Farah’s body. Forensic testing at the firearms section of the Centre of Forensic Sciences concluded that the two recovered bullets were fired by two different guns. The three cartridge cases found at the crime scene were all fired by the same gun.
[6] The main issue in the case is identification of the two perpetrators, who appear to be co-principals. The Crown relies heavily on video surveillance evidence in order to prove this essential element of identity. In brief summary, the video surveillance evidence from the Chester Le housing complex on the night of the homicide shows two figures moving through different outdoor parts of the complex between 1:15 am and 1:39 am, immediately prior to the shooting. Most of these video surveillance images are in black and white and it is dark outside. However, the final camera images are in colour, showing two individuals fleeing from the scene immediately after the shooting in an area where there is some lighting. These final colour images are somewhat blurred but they provide evidence of a number of relatively detailed and distinctive items of clothing that the two individuals were wearing that night.
[7] Leaving aside the two bodies of evidence that are the subject of the present motion, the Crown relies on circumstantial evidence to identify the above two individuals who fled from the Chester Le crime scene. In particular, the Crown relies on extensive video surveillance from a neighbourhood in south Scarborough known as Parma Court. Numerous cameras in and around Parma Court track various individuals throughout the day and evening of April 14, 2017. From these extensive images, the Crown points to two individuals who appear to be wearing various articles of clothing that are arguably similar to some of the clothing worn by the two fleeing perpetrators depicted in the video images at Chester Le later that night. Based on various bodies of additional direct and circumstantial evidence, including seizures of certain articles of clothing, Leaney and Nikolovski identifications of the persons in some of the video images, telephone records and cell tower records, the Crown seeks to identify the two individuals seen at Parma Court on April 14, 2017 as the accused Stanley and one Alexander Fountain (who has only recently been arrested for the murder of Farah and who has not been joined to the murder Indictment, at present). The telephone and cell tower records relating to two cell phones associated with Stanley and Fountain are important. These records indicate that one or both of these phones were near Parma Court during the day and evening of April 14, 2017. At 12:49 am on April 15, 2017, the phones moved north to the area of a building at 2821 Birchmount Road, then moved to the area of Chester Le between 1:09 and 1:15 am (just before the shooting), then moved away from Chester Le at 1:45 am (just after the shooting), and finally returned to the area of Parma Court. Both Stanley and Fountain are associated with residences at Parma Court.
[8] The building at 2821 Birchmount Road is also important because one Trevor Barnett is associated with that building. It is located relatively near to Chester Le Boulevard. The video surveillance at both Parma Court and at the Birchmount Road building indicates that Barnett was an associate of the two men alleged to be Stanley and Fountain. The latter two men entered a car parked at Parma Court at 12:31 am on April 15, 2017, just over an hour before the homicide. At 12:48 am a car pulled into the Birchmount building parking lot and Barnett emerged from the building and met with the occupants of the car. The phones associated with Fountain and Barnett were in communication as the car entered and parked at the Birchmount building. At 12:54 am, just before the homicide, Barnett returned to the Birchmount building and the car pulled away. During the next day, April 15, 2017, some ten hours after the homicide, the man alleged to be Fountain returned to the Birchmount building at 11:53 am, driving a red Hyundai (arguably the same car that he drove to the same building in order to meet with Barnett just prior to the homicide). Barnett arrived at the building at the same time driving a black Jeep. Later in the afternoon, between 1:09 and 1:14 pm, the two men alleged to be Fountain and Barnett, removed a number of bags and objects from the red Hyundai and placed them in the black Jeep. Some 12 hours later, at 1:06 am on April 16, 2017, the police arrested Barnett seated alone in a car parked at Parma Court. He was in possession of a Taurus .38 special revolver. This firearm was tested and was determined to be one of the two guns used to kill Samatar Farah some 24 hours prior to its seizure. The second gun used in the homicide (which left the three fired cartridge cases at the scene) has never been recovered.
[9] It can be seen that the evidence relied on by the Crown to prove that Stanley and Fountain are the two perpetrators in the murder of Farah is a complex amalgam of video surveillance from three different locations (Parma, Birchmount, and Chester Le), cell tower and telephone records (relating to three separate phones), the alleged distinctiveness of certain articles of clothing, association with Barnett before and after the homicide, ballistics evidence from the postmortem and crime scene, and the seizure of the Taurus revolver from Barnett after the homicide. There is no evidence of motive, such as any known connection between the deceased Farah and the accused Stanley and Fountain or their associate Barnett.
[10] I will now turn to the two bodies of evidence that are the subject of the present motion and that the Crown seeks to rely on in order to strengthen its evidence in relation to the identification of Stanley as one of the two perpetrators.
C. FACTS RELATING TO THE PRESENT MOTION
[11] As noted previously, there are two separate bodies of evidence that are the subject of the present motion. These two bodies of evidence are as follows: Stanley’s alleged possession of the Taurus revolver shortly before the homicide; and Stanley and Fountain’s alleged joint possession or common access to the second gun, also shortly before the homicide.
[12] I will discuss these two bodies of evidence in some further detail in the next section of these Reasons, when analysing their admissibility. In summary, the first body of evidence relates to the Taurus revolver and it emerged from Stanley’s arrest on June 29, 2017, some two and a half months after the homicide. He was found in a bedroom in his mother’s home lying on the bed with his hand on a laptop computer and with a cell phone attached to the computer. It can be inferred that it was Stanley’s bedroom and that it was his cell phone. A forensic search of the cell phone led to the discovery of a series of colour photographs taken on April 2, 2017, that is, less than two weeks before the homicide. The photographs depict a person who the Crown alleges is Stanley. This person is holding large stacks of cash, with his hand on his shoulder, while looking down at two handguns located in his lap. Enlarged images of the right side and the left side of one of the handguns reveal a number of detailed characteristics. This particular gun is a revolver. When the enlarged images of the revolver in the photographs are compared to the Taurus revolver seized from Trevor Barnett shortly after the homicide, there are a number of relatively detailed similarities. The issues on the present motion are whether the person depicted in the photograph is Stanley, whether the revolver on that person’s lap is the seized Taurus revolver used 13 days later in the Farah homicide, and whether the legitimate probative value of this evidence in relation to the issue of identification outweighs any prejudicial effect from the accused’s apparent possession of stacks of cash and two handguns depicted in the photographs while he takes a particular pose.
[13] The admissibility of the second body of evidence is more vigorously resisted by the defence. It involves the events of April 13, 2017, some two days prior to the Farah homicide. In summary, video surveillance at Parma Court that day shows a number of young men dancing, drinking, talking and socializing over a number of hours in the paved area around a parked red Hyundai motor vehicle. In particular, it is alleged that Stanley, Fountain, and Barnett are amongst this group of young men. They are wearing some of the same arguably distinctive clothing that the Crown relies on to assist in identifying them on the following days. In addition, there is some suspicious behaviour at certain points. For example, one man appears to adopt a shooting stance on two occasions, including once while talking to the man alleged to be Stanley. More importantly, the man alleged to be Stanley turns his back to the camera on two occasions, while standing in a quiet corner, and he appears to be examining something. Most importantly, the man alleged to be Stanley then gets into the front passenger seat of the red Hyundai at 5:40 pm, while Barnett is in the front driver’s seat, and there is a brief glimpse through the tinted front passenger window of the man alleged to be Stanley holding a bright object in his lap and perhaps showing it to Barnett. The Crown alleges that this object is a handgun. The defence submits that the object is more likely the screen of a cell phone. Shortly after this incident, between 5:49 and 5:53 pm, the man alleged to be Fountain gets into the front passenger seat of the red Hyundai and the man alleged to be Stanley gets into the rear seat on the passenger side. There is then an exchange of certain objects and clothing at the rear passenger side door (where the man alleged to be Stanley is seated). A man standing outside the car passes his jacket and his shoes into the car (together with a second jacket that he has taken out of the trunk) and a different jacket and different shoes are passed out of the car to this man. The red Hyundai then pulls away from Parma Court with the man alleged to be Barnett driving. There is a fourth man in the rear seat on the driver’s side, alleged to be one Shaquan McLean.
[14] The red Hyundai can be seen leaving the Parma Court neighbourhood and heading north on Victoria Park Avenue at 5:53 pm. This is the direction that a car would take in order to get to the Chester Le neighbourhood, which is some distance north of Parma Court and just to the east of Victoria Park Avenue. Most importantly, at 6:18 pm video surveillance at the Chester Le housing complex shows what is arguably the same red Hyundai pulling into a parking lot. This is the same parking lot at the north end of the Chester Le housing complex where the two men are first seen at 1:15 am on April 15, 2017, shortly before the Farah homicide. The red Hyundai then turns around and drives out of the parking lot, without parking. The Crown submits that the man alleged to be Fountain and the man alleged to be Barnett can be seen through the windshield in the front seat of the red Hyundai. Around this time, an eye witness saw a red car parked on a side street just east of Chester Le Boulevard with a man standing outside the car. Shortly afterwards, she saw two men running towards the car, two of the car doors then opened, the two men got into the car, and it pulled away heading north on Chester Le Boulevard.
[15] In an area of the housing complex on the west side of Chester Le Boulevard, opposite the location where the eye witness had seen the red parked car, the police found seven 9 mm Luger shell casings. Three men who were talking in a back yard area to the north of this location heard gunshots. Two of these men were hit and wounded and a woman in a nearby house helped the wounded men and called the police. At 6:21 pm, video surveillance shows a red car heading north on Chester Le Boulevard, consistent with the eye witness’ testimony. At 7:15 pm, video surveillance at Parma Court shows the red Hyundai returning and the two men alleged to be Stanley and McLean getting out of the back seat. The car is then parked and the men alleged to be Fountain and Barnett get out of the front seat. All four men go their separate ways.
[16] Subsequent forensic analysis of the seven fired cartridge cases found that day at the Chester Le housing complex concluded that they were all fired from the same gun. More importantly, forensic comparison to the three fired 9 mm Luger cartridge cases found at the scene of the Farah homicide less than two days later concluded that all ten cartridges from the two crime scenes were fired from the same gun. That gun was not the Taurus revolver seized from Barnett on April 16, 2017.
[17] The Crown submits that the above-summarized events at Parma Court and Chester Le on April 13, 2017 provide legitimately probative evidence concerning the identity of the perpetrators of the murder of Samatar Farah on April 15, 2017 because they infer that Stanley and Fountain had possession of, or access to the second firearm used in the murder. Indeed, Stanley may have been in direct personal possession of this second firearm on April 13, 2017, depending on the inferences drawn from the totality of the evidence that day, including the glimpse of an object in the lap of the man alleged to be Stanley when he was seated in the front passenger seat of the red Hyundai at 5:40 pm. The obvious prejudicial effect of this evidence, on the other hand, is that it implicates Stanley in another shooting at the Chester Le housing complex in which two men were seriously injured.
[18] After his arrest in late June 2017, Stanley was charged with three counts of attempt murder in relation to the April 13, 2017 shooting at the Chester Le housing complex. He was committed for trial, as were Shaquan McLean and Trevor Barnett on various related counts. The murder Indictment was scheduled to proceed to trial before the attempt murder Indictment. However, Stanley changed counsel and, as a result, the murder trial was adjourned. McLean and Barnett entered guilty pleas to being in a motor vehicle, knowing there was a prohibited or restricted firearm in the vehicle (contrary to s. 94 of the Criminal Code). They were sentenced to time served. The attempt murder Indictment was stayed against Stanley with the Crown stating that it intended to call the April 13, 2017 evidence at the murder trial. This procedural history has some relevance to one of the arguments on the present motion.
D. ANALYSIS
(i) Introduction
[19] The two bodies of evidence that are the subject of this pre-trial motion relate to the same factual issue, namely, whether the accused Stanley was in possession of (or had access to) the two murder weapons. The murder of Samatar Farah took place on April 15, 2017. It is an admitted fact that two different handguns were used by the perpetrators. It is also admitted that one of those handguns was the Taurus revolver seized the next day from Trevor Barnett. Finally, it is admitted that the second handgun (which has not been seized) is the one that was used in the earlier April 13, 2017 shooting at Chester Le.
[20] The first body of evidence on the motion – a number of photographs seized from a cell phone – allegedly depict Stanley in possession of the Taurus revolver on April 2, 2017. The second body of evidence – relating to the April 13, 2017 Chester Le shooting – allegedly puts Stanley in possession of (or with access to) the second handgun on April 13, 2017. The main issue on the motion is whether the legitimate probative value of any or all of this evidence outweighs its prejudicial effect.
[21] Evidence that the accused acquired or possessed “instruments, tools or other means of doing the act” has always been admissible to prove the identity of the perpetrator. Martin J.A. (Jessup and Dubin JJ.A. concurring) gave the judgement of the Court in R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C. (2d) 424 at 436-7 (Ont. C.A.). He cited a long line of English and Canadian authority and the leading American text, Wigmore on Evidence, on this point. The accused Davison had been found in possession of two publications titled the Safeman’s Guide and the Locksmith’s Ledger. It could be inferred that the sophisticated bank robbery in that case had been perpetrated “by means of a key” used to open two locked doors leading to the bank’s money counting rooms. As Martin J.A. put it (at p. 445 C.C.C.), “the appellant’s possession of the incriminating material…was relevant and admissible to prove design and on the issue of identity.”
[22] Over twenty years after Davison was decided, the Supreme Court cited it with approval in R. v. G. (S.G.) (1997), 116 C.C.C. (3d) 193 at 217 (S.C.C.). Cory J. gave the unanimous judgement of the Court on this point, stating that “Evidence which incidentally demonstrates bad character can also be directly relevant to a key element of the Crown’s theory of the case, such as motive, opportunity or means” [emphasis added].
[23] There is now a considerable body of authority applying the above principle in murder cases where the “means” used to commit the offence was a knife or a firearm and where the accused was allegedly in possession of that knife or firearm at some point before or after the offence. In particular, in R. v. Backhouse (2005), 194 C.C.C. (3d) 1 at paras. 156-172 (Ont. C.A.), the Court held that the accused’s possession of the murder weapon some nine or ten months after the murder was admissible in relation to the issue of identity. Rosenberg J.A. (Goudge and Borins JJ.A. concurring) reasoned as follows:
This line of reasoning, which flows simply from the fact that the appellant was in possession of the murder weapon at some time after the killings, does not depend on similar fact reasoning from disposition. The appellant’s possession of the murder weapon is nothing more than circumstantial evidence of his involvement in the killings.
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…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 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 that evidence outweighed the prejudicial effect. [Emphasis added].
[24] The Court in Backhouse held that the accused’s “after the fact possession of the murder weapon” was admissible but not the manner in which it was used on the subsequent occasion, for the reasons set out above. It is noteworthy that Rosenberg J.A. was of the view that the legitimate probative value of the accused’s subsequent possession of the murder weapon, on the particular facts of the Backhouse case, was not great. He nevertheless held that this evidence of subsequent possession (but not use) was admissible, a point which experienced appellate counsel had conceded. In regard to the legitimate probative value of the accused’s subsequent possession of the murder weapon, Rosenberg J.A. stated, “evidence that the appellant…was in possession of the gun used in the [subsequent] shootings was some evidence that he was involved in the [charged] shootings. This inference, while available, was not a strong one given the passage of time (eight months), the relative ease with which guns can be passed around in the criminal underworld, and Cadman’s evidence that the appellant was not in continuous possession of the gun following the [charged] shootings.” Also see: R. v. Moore, 2015 ONSC 728 at paras. 28-49; R. v. Brown, 2020 ONSC 3280 at paras. 19-23; R. v. Kinkead (2003), 178 C.C.C. (3d) 534 at paras. 65-84 (Ont. C.A.); R. v. Johnson, 2018 ONSC 1552 at paras. 15-26; R. v. Riley et al, [2009] O.J. No. 1374 at paras. 100-110 (S.C.J.), aff’d (2017), 2017 ONCA 650, 351 C.C.C. (3d) 223 at paras. 149-160 (Ont. C.A.).
(ii) Stanley’s alleged possession of the Taurus revolver
[25] Applying the above principles to the present case, Mr. Derstine did not strenuously oppose admission of the first body of evidence. Indeed, he made no submission in oral argument in relation to the admissibility of the photographs seized from the cell phone. All of his oral argument was focused on the admissibility of the second body of evidence relating to the April 13, 2017 shooting at the Chester Le housing complex.
[26] In my view, the photographs seized from the cell phone are clearly admissible (subject to comments I will make about potential admissions and editing that may usefully limit this evidence). There is a compelling body of circumstantial evidence inferring that the cell phone in question belonged to Stanley and that the person depicted in the colour photographs is Stanley. There are also a number of distinctive similarities between the revolver in the person’s lap in the photographs and the Taurus revolver seized from Trevor Barnett on April 16, 2017. In addition, there is evidence that the photographs were taken on April 2, 2017, which is proximate to the date on which the gun was used (April 15, 2017), and the date on which it was seized (April 16, 2017). Finally, there is evidence of an apparently close association between Barnett and Stanley on April 13, 2017 (and arguably on April 15, 2017, depending on the inferences drawn from all the evidence relating to that date). In all these circumstances, it will be open to the jury to infer that Stanley was in possession of the Taurus revolver used in the murder of Samatar Farah. Indeed, this inference is stronger on the facts of the present case, than it was on the facts of Backhouse, as explained above.
[27] In R. v. Brown (2018), 2018 ONCA 481, 361 C.C.C. (3d) 510 (Ont. C.A.) the Court held that photographs seized from the accused’s cell phone were admissible at his trial for possession of a loaded prohibited firearm (contrary to s. 95 of the Criminal Code). Unlike the present case, the photographs in the Brown case did not depict the accused actually in possession of a gun. They merely depicted a gun. Furthermore, the gun depicted was said to only “resemble” the seized gun on the basis that it was “at least probably the same make or model” as the seized gun (see paras. 6 and 27 of the Court of Appeal’s reasons), whereas in the present case there are detailed similarities between the two guns. Finally, there is no indication in the Brown case of the date when the photograph was taken, unlike in the present case, and whether it was proximate to the date of the alleged offence. On this weaker set of facts, the Court of Appeal agreed with the trial judge (at paras. 31, 35 and 42 of their reasons) that “the photographs were circumstantial evidence that connected the appellant to the gun…It was common ground that it was open to the jury to find that the images in the appellant’s cell phone were of the gun. In such a case, they would be highly probative to the issue of possession…In such a circumstance the photographs would not be extrinsic character evidence – they would be relevant circumstantial evidence of possession.”
[28] The Court in Brown went on to hold that if the jury was not satisfied that the photographs depicted the seized gun, and concluded that the photographs only inferred a general “interest in guns similar to the one found”, then a strong limiting instruction was required prohibiting the jury from using the evidence at all. Needless to say, such an instruction can be given in the present case, if warranted, in order to warn the jury against the above “general propensity reasoning”, as the Court of Appeal described it in Brown, supra at paras. 28, 35, 42, and 45. I should add that such an instruction may or may not be warranted in a case like the present one where the photographs depict the accused Stanley in actual possession of the gun and, therefore at a minimum, as having access to the kind of firearm used in the murder. Even if it is not the exact same gun as the one used in the Farah homicide, the Kinkead, Johnson, and Riley line of authority cited above holds that prior possession of a weapon that is “similar to the murder weapon” is legitimately probative of “access to the means” to commit the murder. It must be remembered that the accused in Brown was not alleged to have used the gun (he was charged only with s. 95 possession of the gun) and the photograph was simply of a gun (and not of the accused in possession of a gun). Accordingly, the risk of prejudice that concerned the Court of Appeal in that case was that the jury could reason that “the type of person who has a picture of a gun on his phone, would be more likely to possess a gun.” At this early stage, I need not decide this issue relating to the appropriate jury instruction at the end of the case. I simply note that an appropriate limiting instruction can and will be given.
[29] The one aspect of the cell phone photographs in the present case that concerns me is that they depict more than the accused Stanley’s alleged possession of the Taurus handgun on April 2, 2017. As noted previously, they also depict the person alleged to be Stanley in possession of a large amount of cash and a second handgun. There are at least three possible ways of removing these prejudicial aspects of the images. First, the parties should explore the device suggested by defence counsel at trial and adopted by the Court of Appeal in R. v. Backhouse, supra at paras. 162 and 172, namely, an admission that Stanley was in possession of the Taurus revolver on April 2, 2017. Such an admission would remove the main reason for tendering the photographs found in the cell phone. Alternatively, the parties should see whether the images can be edited by way of “photo shopping”, in order to remove the images of cash and the second gun. This may be difficult, without giving rise to suspicion in the jury that the images have been altered and are not reliable. Nevertheless, it should be attempted if the Backhouse admission is not forthcoming. Finally, it may be possible to structure a more limited admission that simply attaches cropped images of the revolver and admits that it was in Stanley’s possession on April 2, 2017, together with cropped images and an admission of certain identifying details seen in the photographs that day (such as a ring, chains and a bracelet). It should be noted that these identifying details are not discreditable and are independently admissible.
[30] At present, I am satisfied that the evidence of Stanley’s possession of the Taurus handgun on April 2, 2017 is “highly probative”, as the Court of Appeal put it in Brown, on the central issue of identity. Indeed, the evidence of the photographs is more compelling in the present case than it was in Brown, as explained above. There are means available to attenuate or remove any prejudice arising from the images of cash and a second handgun. I appreciate that these more extraneous parts of the photographic images are useful in identifying Stanley as the person depicted with the revolver because they are part of a series of similar photographs showing a number of identifying details such as a ring on one finger, particular clothing, particular jewelry or chains around the person’s wrist and neck, and particular facial hair, all in association with a particular kind of pose while holding guns and money. The prejudice associated with possession of large amounts of cash and a second handgun can be controlled to some degree with a strong limiting caution to the jury, such that the prejudice would be unlikely to outweigh the high probative value of Stanley’s alleged possession of the Taurus revolver shortly before the homicide. However, I will await the parties’ efforts to arrive at a satisfactory admission, like the one in Backhouse, or some more limited admissions and potential editing, cropping, or “photo shopping” of the images. The parties can ask me to re-visit this issue once they have addressed the possibility of such admissions, editing, cropping, or “photo shopping”.
(iii) Stanley’s alleged possession of or access to the second handgun on April 13, 2017
[31] The second body of evidence on the pre-trial motion is more lengthy and complex. It concerns the separate shooting that occurred in the Chester Le housing complex at about 6:30 pm on April 13, 2017, that is, about 30 hours prior to the murder of Samatar Farah at about 1:40 am on April 15, 2017. The two shootings were closely proximate in time and they took place in the same housing complex located just to the west of Chester Le Boulevard. The same handgun was used in both shootings, ejecting three fired shell casings at the scene of the Farah homicide and ejecting seven fired shell casings at the scene of the April 13, 2017 shooting.
[32] The legitimate probative value of the April 13, 2017 incident is that it is capable of inferring that Stanley (and his alleged co-perpetrator Fountain) had possession of, or access to the handgun that left three shell casings at the Farah homicide crime scene on April 15, 2017. The same Backhouse line of authority, already summarized above, makes it clear that the properly admissible scope of this evidence is to prove possession of the murder weapon. The fact that the gun was used to shoot at three people, seriously injuring two of them, does not “appreciably” add to the legitimate probative value of the evidence and it does “dramatically” increase the prejudicial effect of the evidence, as the Court put it in R. v. Backhouse, supra at para. 164. Accordingly, the challenge with this second body of evidence relating to the April 13, 2017 incident is to extricate evidence of possession of the gun from evidence of use of the gun.
[33] It is important to note at the outset that much of this second body of evidence is properly relevant and admissible and does not involve “prior discreditable conduct.” In particular, the events of April 13, 2017 disclose the following:
• association between the persons alleged to be Stanley, Fountain and Barnett and the degree of closeness of that association around the time of the homicide;
• the shoes, clothing, and jewelry worn by the persons alleged to be Stanley, Fountain and Barnett on April 13, 2017, some of which is distinctive and can arguably be seen again on April 14/15, 2017 (as well as in the April 2, 2017 cell phone photographs);
• the visual images of these persons on the April 13, 2017 Parma Court video surveillance, which is generally of better quality than the April 14/15, 2017 video surveillance and which allows more reliable Leaney and Nikolovski identifications of these persons;
• some significant connection can be inferred as between the persons alleged to be Stanley, Fountain and Barnett and the red Hyundai car which was involved in the events of both April 13 and April 14/15, 2017;
• some degree of connection, interest, and familiarity can be inferred as between the persons alleged to be Stanley, Fountain and Barnett and the housing complex located immediately to the west of Chester Le Boulevard, which figures in the events of both April 13 and April 14/15, 2017; and
• the cell tower locations used by the phones associated with Stanley, Fountain, and Barnett can be demonstrated when those persons are alleged to be moving between the Parma Court and Chester Le neighbourhoods on April 13 and on April 14/15, 2017, which assists in drawing inferences as to the identity of the persons in the red Hyundai.
[34] The above six uses of the April 13, 2017 body of evidence will be admissible at the murder trial, regardless of the evidence concerning possession of the particular handgun that left ten shell casings at the two crime scenes. None of the above six uses of this body of evidence involve discreditable conduct. It can be seen that the additional evidence relating to possession of a handgun on April 13, 2017 is only one part of this entire body of evidence, much of which will be heard in any event at the murder trial. As will be explained below, this is a relevant consideration when assessing any reasoning prejudice associated with the evidence.
[35] The circumstantial inference that Stanley was in possession of, or had access to the second firearm used in the Farah murder emerges from a number of primary facts including the following: the suspicious behaviour, already summarized above, during the afternoon of April 13, 2017 as the group of young men interacted in the area around the red Hyundai that was parked at the Parma Court complex; a glimpse of an alleged firearm in the lap of the man alleged to be Stanley after he and Barnett sat in the front passenger and driver seats of the red Hyundai; the departure of the red Hyundai from Parma Court with four occupants and its arrival at the Chester Le housing complex; the related movement of the cell phones associated with Stanley and Fountain; the sound of gunshots in a certain area of the Chester Le complex; the discovery of seven shell casings, after the police were called, in an area immediately to the west of Chester Le Boulevard; the two men seen running to a red car parked immediately to the east of Chester Le Boulevard; and the return of the red Hyundai to Parma Court with the same four occupants. The inference that the man alleged to be Stanley was in the rear passenger side seat, while the red Hyundai drove to Chester Le and then returned to Parma Court, is compelling. The inference that the four occupants of the car were responsible for the gunshots and shell casings left at the Chester Le housing complex at about 6:30 pm that day is also compelling. Finally, the inference that the four occupants of the car must have been in joint possession of, or had access to the gun that was discharged, is equally compelling. The entire course of conduct summarized above, including the timing and sequence of each event, has all the hallmarks of a planned and coordinated joint venture.
[36] A great deal of time and attention was devoted, during the hearing of the motion, to the brief glimpse of a shiny object that can be seen through the front passenger side window of the red Hyundai. Although this is the most dramatic and direct piece of evidence, arguably putting the man alleged to be Stanley in direct personal possession of a handgun shortly before the shooting, it should not be assessed in isolation. It is situated in the midst of a number of other surrounding circumstances, summarized above, which strengthen the inference that the shiny object was a handgun. Given the significant attention devoted to this one circumstance by counsel, I will briefly address it. I was satisfied, after repeated viewing using frame by frame, slow motion, and magnification tools, that the shiny object resembles a handgun being held by the man in the front passenger seat (whose apparently gloved thumb is visible holding the top of the handgun). Of course, that will be an issue for the jury to decide, after repeated viewing and after hearing the careful analysis of the images provided by both Ms. Kellway and Mr. Derstine.
[37] Mr. Derstine submitted that the proposed use of the April 13, 2017 body of evidence, to infer possession of the second handgun used on April 15, 2017, involves “circular reasoning”. See: R. v. Portillo (2003), 176 C.C.C. (3d) 467 (Ont. C.A.); R. v. Hall, 2018 ONCA 185. As I understand the argument, Mr. Derstine submits that the April 13, 2017 body evidence, standing on its own, is insufficient to prove possession by Stanley of the second handgun and it requires strengthening by adding proof that the same handgun was used again at the Chester Le complex on April 15, 2017. This argument is tied in, to some degree, with a submission about procedural unfairness, namely, that Stanley was deprived of the opportunity to prove the insufficiency of the April 13, 2017 evidence when the Crown entered a stay to the attempt murder Indictment, after Stanley had changed counsel and adjourned the murder trial and after McLean and Barnett had pleaded guilty to reduced charges.
[38] I do not accept these arguments. As can be seen from the analysis of the April 13, 2017 evidence set out above, the inference that Stanley was in possession of, or had access to the second handgun, is compelling. This inference is based on an analysis of the April 13, 2017 evidence standing on its own, without regard to the April 15, 2017 evidence. Furthermore, once the fact of possession or access to the gun on April 13, 2017 is inferred, it is an admitted fact that the same gun was used on April 15, 2017 because of the uncontested ballistics evidence. There is no “circularity” in any of this reasoning.
[39] I also do not accept the suggestion of procedural unfairness, as a result of losing the opportunity to proceed first on the attempt murder Indictment (and, hopefully, to secure an acquittal). It was initially understood that the murder trial would proceed first. Furthermore, it is normal to give precedence to a murder Indictment because it is more serious than any other Indictment. It was only because Stanley changed counsel that the order of the two trials temporarily changed. Mr. Derstine fairly conceded that there was nothing unethical or improper in the Crown’s decision to take guilty pleas from McLean and Barnett and to enter a stay on the attempt murder Indictment. In my view, the procedural history simply discloses that the normal order of proceeding with the two Indictments has been restored.
[40] In light of the above analysis, I am satisfied that it will be open to the jury to infer from the April 13, 2017 body of evidence that Stanley was in possession of, or had access to the second handgun used in the murder of Samatar Farah. That evidence has significant probative value in relation to the central issue of identification. Mr. Derstine submitted that once the cell phone photographs of the revolver have been admitted, proving possession of a handgun that is the same or very similar to one of the murder weapons, the Crown’s need to prove possession of or access to the second murder weapon becomes much diminished. This argument depends on the inferences that the jury ultimately draws from the cell phone photographs. At present, there is no admission that the person depicted in the photographs is Stanley or that the gun depicted is the Taurus revolver used in the Farah homicide. In any event, the Crown’s proof of identity is significantly strengthened by evidence linking Stanley to both murder weapons in a case involving two co-principals who were closely associating with each order and with a third associate (Barnett) in the period immediately before and after the homicide, and where one of the guns was seized from Barnett. In these circumstances, proof of Stanley’s possession or access to both murder weapons has significant probative value in relation to the issue of identity.
[41] The obvious prejudicial effect of this body of evidence is that it infers that there was a second shooting at the Chester Le complex, shortly before the Farah homicide, and that Stanley was implicated in that earlier shooting. In my view, there are a number of ways to limit and attenuate the prejudice from this body of evidence, in particular, through admissions and editing. Unlike the trial Crown in Backhouse, Ms. Kellway responsibly takes the position that the Crown seeks to prove only the fact of possession or access to the second handgun on April 13, 2017 when the red Hyundai drove to the Chester Le complex. The Crown does not seek to prove that the gun was discharged at Chester Le on that date. This evidence of use or discharge of the gun becomes necessary only if possession or access to the second gun is disputed (it is the discharged shell casings that identify the gun). Accordingly, if the Backhouse admission is forthcoming, there would be no need to adduce evidence that the second handgun was ever discharged at Chester Le on April 13, 2017. Alternatively, if the full Backhouse admission of possession is not forthcoming, Ms. Kellway agrees that the Crown could nevertheless edit the evidence substantially with the assistance of some more limited admissions. For example, an admission that gunshots were heard at Chester Le, the police were called at a certain time, and the seven shell casings were found would mean that the Crown had no need to call any of the three alleged targets of the gunshots or the neighbour who assisted the two wounded men and called the police. Finally, if there are no admissions, two of the alleged targets of the shooting who testified at the preliminary inquiry and who the Crown seeks to call at trial, could be instructed by the Crown and the Court to curtail their testimony such that they describe only the fact that they heard gunshots and ducked for cover, without describing the fact that two of the alleged targets were struck and were seriously wounded. Neither of these two witnesses saw the person who discharged the gun.
[42] If one of the above three approaches to the April 13, 2017 body of evidence is adopted by the parties, then the prejudice associated with the shooting will be reduced. I concede that the moral prejudice will not be entirely removed. The reasoning prejudice is minimal because much of the April 13, 2017 evidence is relevant to other issues, does not involve extrinsic misconduct, and will have to be called in any event, as explained above. If one of the above three approaches is adopted, the evidence related to the events of April 13, 2017 will be focused on the fact of possession of the second gun and not on its use that day. The jury can be instructed that this is the only legitimate or permissible use of the evidence and the jury can also be instructed not to engage in other impermissible uses related to bad character or disposition. The inference that the second gun was not possessed for lawful purposes on April 13, 2017 is inherent in the fact of possession, and will cause some moral prejudice, as Rosenberg J.A. acknowledged in R. v. Backhouse, supra at para. 166, while holding that the fact of possession was nevertheless admissible. It is within the control of the parties and the Court to attenuate any further prejudice, through admissions and editing, such that the use of the gun to fire at three alleged targets need not emerge. Indeed, the jury need not learn that the gun was discharged at all, and at worst, will learn only that it was fired but not that anyone was hit. It must be remembered that the strong prejudicial effect of the evidence related to the subsequent shooting in Backhouse (referred to as the “Croft shooting”) derived from “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.” All of these surrounding prejudicial details were what “carried…the classic dangers associated with evidence of discreditable conduct,” as Rosenberg J.A. put it. See R. v. Backhouse, supra at paras. 23-6, 162, and 164. In the present case, none of these surrounding details need be admitted at trial.
[43] I am satisfied that the legitimate probative value of this body of evidence, to prove possession or access to the second handgun, is significant in relation to the central issue of identity. It is not outweighed by the potential moral or reasoning prejudice which can be controlled and limited in the various ways outlined above.
[44] For all these reasons, the second body of evidence is admissible. Once again, counsel can re-visit this issue with me once they have had an opportunity to discuss the alternative approaches to admissions and editing suggested above.
E. CONCLUSION
[45] In conclusion, the two bodies of evidence tendered by the Crown on the motion are both admissible, subject to my granting leave to re-visit the balance of probative value and prejudicial effect after the parties have discussed the suggested admissions and edits.
[46] I would like to thank counsel for their thoroughness and skill in preparing and arguing this relatively complex motion.
M.A. Code J.
Released: October 30, 2020
COURT FILE NO.: CR-19-30000281
DATE: 20201030
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TAUFIQ STANLEY
REASONS FOR JUDGeMENT
M.A. Code J.
Released: October 30, 2020