COURT FILE NO.: CR-20-30000255
DATE: 20210419
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
MOHAMMED ILYAS PATEL and MOHAMMED HAFIS MOHIDEEN HASSAN
Patrick Woods and Alexandra Rowell
for the
Brian Ross and SuJung Lee
for the accused Mohideen Hassan
Marianne Salih and Humza Hussain
for the accused Mohammed Ilyas Patel
HEARD: March 29, 30, 2021
Publication ban under s.648 of the Criminal Code in relation to all portions of the trial where the jury is not present.
G. ROBERTS J.:
[1] Mohammed Ilyas Patel and Mohammed Hafis Mohideen Hassan stand jointly charged with the first degree murder of Dylan Greenaway.
[2] Mr. Greenaway was murdered shortly after midnight on March 16, 2017. On the evening of March 15 into March 16, 2017, he had been hanging out with two friends, Cory Veerapen and Abdul Majroh, relaxing and smoking marijuana, at Mr. Veerapen’s home at 4 Muskox Drive in Toronto. Mr. Greenaway sold marijuana. He received a brief telephone call just after midnight as a result of which he left the home with about half a pound of marijuana in a vacuum package, followed shortly after by Mr. Veerapen. When Mr Veerapen arrived outside the home, he heard Mr. Greenaway call “help” from inside a car in the driveway and saw him struggle – his legs were sticking out of the rear passenger side of the car as if wrestling. Mr. Veerapen approached the car in order to help Mr. Greenaway. As I understand the evidence, there were three men in the car besides Mr. Greenaway. One of the three men got out of the car and threatened Mr. Veerapen with a knife. This man was not either accused. Mr. Veerapen was not deterred. The same man then retrieved a sawed off shot-gun from the trunk of the car. This did scare off Mr. Veerapen. The car left with Mr. Greenaway. Mr. Greenaway was beaten, stabbed, and shot in the chest, which killed him. Less than 10 minutes after he was abducted, his body was dumped in a school yard about 500 metres down the road from 4 Muskox Drive. He was found the following morning when the school buses arrived.
[3] The essential issues at trial are anticipated to be identity and participation. Can the Crown prove beyond a reasonable doubt that the two accused were the other two men in the car when Mr. Greenway was abducted and killed? If so, did they participate in the murder, either as principals or aiders and/or abetters?
[4] Four pre-trial applications were scheduled to be argued the week of March 29 in anticipation of the trial. Counsel provided thoughtful written material in advance of the pre-trial applications, as a result of which two of the pre-trial applications are no longer in issue. I will begin by describing the applications that are effectively conceded, and the bottom line that results from the position of counsel. I will then address the two applications that require a ruling.
[5] There remains a potential issue with respect to the constitutionality of a search of Mr. Patel’s cell phone. Unfortunately, disclosure of the Information to Obtain (ITO) was delayed, preventing defence counsel from analyzing this issue and perfecting an application at this time. I understand that the key disclosure has now been made, and the balance should follow shortly. If need be, this further pre-trial motion will be argued the first week of June, 2021.
The admissibility of antemortem statements of Dylan Greenaway
[6] On the evening of March 15, 2017, Mr. Greenaway, Mr. Veerapen and Mr. Majroh were relaxing and smoking marijuana in Mr. Veerapen’s basement at 4 Muskox Drive in Toronto. They were friends. Mr. Greenaway and Cory Veerapen were particularly close; Mr. Veerapen considered Mr. Greenaway to be “like a brother”. Mr. Majroh considered both men to be his best friends. The Crown seeks to tender the following ante-mortem statements of Mr. Greenaway shortly before his abduction and killing as exceptions to the rule against hearsay:
Cory Veerapen
i. ‘I’m coming outside’ (while Mr. Greenaway was speaking on the telephone during the approximately 7 second call he received shortly after midnight on March 16, 2017.)
ii. (After receiving the 7 second call) Mr. Greenaway said he had to sell some marijuana to a person he did not know and wanted Mr. Veerapen to come with him.
iii. (Cory Veerapen left the basement shortly after Mr. Greenaway. He heard banging and saw Mr. Greenaway’s legs extending out of the rear passenger side of a car as if wrestling.) Mr. Greenaway screamed ‘Help!’
Abdul Majroh
i. Mr. Greenaway had to go upstairs to meet some people.
ii. Mr. Greenaway really did not know these people.
iii. (Mr. Majroh offered to accompany Mr. Greenaway because Mr. Greenaway seemed unsure.) Mr. Greenaway said it was OK
[7] The Crown takes the position that these statements are admissible for the truth of their contents pursuant to the “state of mind” exception to the rule against hearsay, and also based on the principled approach.
[8] Both defence counsel have indicated that they do “not oppose” the Crown’s application to admit the ante-mortem statements of Mr. Greenaway.
[9] In the circumstances of this case, including the positions of counsel, I am satisfied that the above ante-mortem statement are admissible at trial for the truth of their contents, either pursuant to the state of mind or present intention exceptions to the rule against hearsay or as original evidence in the case of the call for help. Very briefly, the requirement of necessity is clearly met. In addition, I am satisfied that the statements were made contemporaneously with the feeling or intention reported and in a natural manner so as to provide a circumstantial probability of trustworthiness. Because the statements fall within traditional hearsay exceptions, and their admission at trial is not opposed, I have not considered their admissibility pursuant to the principled exception to the rule against hearsay.
The admissibility of Sarah Gradt’s evidence that Mr. Mohideen Hassan once texted her that “he made a mistake” and “did something bad”.
[10] As will be described below, Sarah Gradt and Mr. Mohideen Hassan were friends. They never met or spoke in person but, beginning around January 2017 until around May of that year, they texted each other “throughout the day”. They also communicated on other social media platforms including Snapchat and Instagram. Ms. Gradt testified at the preliminary inquiry that at some point during their extensive communications, Mr. Mohideen Hassan told Ms. Gradt that “he made a mistake” and “did something bad”. Defence counsel sought to exclude this utterance on the basis that Ms. Gradt did not know what it was about, could not provide any context for it, and did not recall when it was made, including whether it was even made after the murder in this case.
[11] The Crown does not oppose the defence application to exclude these utterances.
[12] In the circumstances, I agree that Ms. Gradt should not and will not be permitted to testify that Mr. Mohideen Hassan once texted her that “he made a mistake” and “did something bad”. The Crown is to instruct Ms. Gradt accordingly.
The admissibility of Sarah Gradt’s evidence that Mr. Mohideen Hassan told her he was a drug dealer who sold marijuana.
[13] The Crown seeks to lead evidence from Sarah Gradt that Mr. Mohideen Hassan told her that he sold drugs, specifically marijuana. According to Ms. Gradt’s evidence at the preliminary inquiry, she met Mr. Mohideen Hassan on Facebook in December of 2016. After exchanging telephone numbers in January 2017, they began to communicate with each other frequently by text and other social media platforms including Snapchat and Instagram. At some point during their communications, Mr. Mohideen Hassan shared the fact that he sold marijuana. Ms. Gradt also recalled Mr. Mohideen Hassan sharing a video on Snapchat of himself holding a shiny-looking ball of marijuana about the size of his hand. It looked like a loose cluster stuck together in a ball shape. While there is a record of the dates and times Mr. Mohideen Hassan and Ms. Gradt texted each other, the actual text messages and Snapchat videos no longer exist. Ms. Gradt would be testifying about her recollection of their content.
[14] Ms. Gradt also recalled Mr. Mohideen Hassan sharing a video of himself holding cocaine in a ziplock bag, and another video of himself with guns in his bedroom. I do not understand the Crown to seek to lead anything about Mr. Mohideen Hassan selling or possessing cocaine. Or being in possession of guns. Out of an abundance of a caution I note that I see no reason why either should be mentioned, and much prejudice in doing so.
[15] The Crown acknowledges that evidence that Mr. Mohideen Hassan sold marijuana reflects extrinsic misconduct and as a result it is presumptively inadmissible, unless it is relevant to a material issue at trial, and its probative value is greater than its prejudicial effect. The Crown takes the position that the evidence is relevant to understand the relationship between Mr. Mohideen Hassan and the deceased, it is an essential part of the narrative identifying the nature of the transaction, and it helps to establish the identity of Mr. Mohideen Hassan as one of the individuals who arrived and abducted Mr. Greenaway. Further, the potential prejudicial effect of the evidence is minimal, and easily exceeded by its probative value.
[16] Defence counsel argues that he has made significant concessions which effectively strip the evidence of its probative value and thus prohibit its admission at trial. More specifically, the following defence admissions, when combined with other admissible evidence (described in brackets), provide a complete context in terms of relationship, narrative, and identity:
• The antemortem statements by Mr. Greenaway are admissible for the truth of their contents. (Mr. Greenaway’s friends will also testify that Mr. Greenaway received a call from someone shortly after midnight on March 16, 2017, and he left the house with half a pound of marijuana as a result, followed by Cory Veerapen.)
• Mr. Mohideen Hassan is the person who made the call to Mr. Greenaway shortly after midnight. (Mr. Mohideen Hassan’s cell records show he made a 7 second call to Mr. Greenaway shortly after midnight on March 16, 2017; the cell tower records place him in the immediate vicinity of Mr. Greenaway at the time of the call; defence counsel also frankly acknowledges that immediately proximate to this call to Mr. Greenaway, and previous contacts with Mr. Greenaway in the 48 hours before, Mr. Mohideen Hassan’s cell phone was in contact with Sarah Gradt, suggesting Mr. Mohideen Hassan was the person using his cell phone when his cell phone was in contact with Mr. Greenaway’s cell phone.)
• Mr. Mohideen Hassan was in contact with Mr. Greenaway in the couple of days before the murder in order to arrange to buy marijuana from Mr. Greenaway. (The fact that they were in contact is apparent from the cell records.)
[17] In addition, the defence is prepared to admit that Mr. Mohideen Hassan told Ms. Gradt he used marijuana, and in fact smoked it often.
[18] Defence counsel argues that without any probative value, the evidence that Mr. Mohideen Hassan sold marijuana is simply inadmissible at trial. Even if some probative value remains it is minimal, however, and the prejudicial effect of the evidence overwhelmingly tips the scales toward exclusion. Defence counsel cautions that the prejudicial effect of the evidence is significant. Notwithstanding that selling marijuana has since become legal, it was not at the time, and, in any event, Mr. Mohideen Hassan was not engaged in a legal enterprise. When the evidence that Mr. Mohideen Hassan was a drug dealer is combined with the other evidence, including that the people who abducted Dylan Greenaway arrived in a Mercedes Benz which contained a firearm, it is highly prejudicial. It paints a picture of significant “bad personhood” which may affect the jury, even with an instruction on how the evidence can and cannot be used. In addition, there is a danger of reasoning prejudice as defence counsel will be required to attack the credibility of Sarah Gradt, a sympathetic witness who was a teenager and friend of Mr. Mohideen Hassan at the time of events, whose evidence he would not otherwise need to challenge.
Applicable law
[19] The framework for analyzing evidence of extrinsic misconduct is well-established. It was recently reiterated by the Court of Appeal in R. v. JMZ, 2021 ONCA 116. Evidence amounting to extrinsic misconduct is presumptively inadmissible unless the Crown can show both that it is relevant to a material issue, and, that its probative value exceeds its potential for prejudice, both moral prejudice and reasoning prejudice.
[20] The potential probative value of the evidence must be carefully assessed, including the strength of the evidence that the accused performed the extrinsic misconduct (in this case that that he sold marijuana), and the extent to which it supports the inferences sought to be made (that Mr. Mohideen Hassan and Mr. Greenaway had arranged for Mr. Mohideen Hassan to buy marijuana from Mr. Greenaway, and Mr. Mohideen Hassan was one of the men who arrived and abducted Mr. Greenaway), and how significant the inferences are based on the issues in the case, which must take into consideration relevant defence admissions.
[21] The potential for prejudice, both moral and reasoning, must also be carefully assessed. Moral prejudice encompasses the danger of general propensity reasoning, the danger that an accused may be punished because of who he is and not what he has done, and the danger that the jury may be inflamed and distracted from deciding the issues before it in a reasoned way. Reasoning prejudice involves the danger that the jury may be confused, unduly distracted, and/or inflamed. It also considers whether the issue would consume an undue amount of time and effort in the trial process, and/or the risk that the evidence could be given more weight than is logically justified in the circumstances.
Analysis
[22] Defence counsel places great emphasis on the need for probative value, arguing that without it, the analysis comes to an end, and the proposed evidence is inadmissible. I agree. I would also note that probative value is also central to the second part of the analysis. Not only for the obvious reason that this second part involves a comparative weighing of probative value and prejudicial effect, but also because the greater and more obvious the probative value of the evidence, the less likely the jury will stray into improper use. As probative value diminishes, the possibility of misuse increases.
[23] Where I part company with defence counsel is in relation to the effect of the admissions he has made. In the circumstances of this case I do not believe that they have the effect of removing the probative value of the proposed evidence.
[24] The first step in the analysis is to carefully assess what, if any purpose, the proposed evidence serves in the case. This is essential to determine whether the evidence has any probative value and what it is. It is also necessary in order to determine whether the probative value outweighs the prejudicial effect of the evidence in the circumstances of the case. I believe that the proposed evidence continues to serve the purposes identified by the Crown, even with the defence admissions.
[25] As a preliminary matter, the evidence that Mr. Mohideen Hassan was a drug dealer turns on Sarah Gradt’s credibility. Assuming her evidence is accepted, it is reasonably strong evidence of the alleged extrinsic misconduct in so far as it involves an admission by Mr. Mohideen Hassan himself, confirmed to some extent, according to Ms. Gradt, by a video Mr. Mohideen Hassan sent her of him holding a fist-sized ball of shiny marijuana (though the photographs, like the texts, no longer exist). Ms. Gradt will also apparently testify that Mr. Mohideen Hassan told her he used marijuana, which defence counsel is prepared to admit.
[26] Defence counsel very skillfully argues that the evidence that Mr. Mohideen Hassan sold marijuana is not necessary to establish the relationship between him and the victim, the narrative of events, or to help identify Mr. Mohideen Hassan as part of the group that abducted Mr. Greenaway shortly before he was killed. Defence counsel asserts that with the concessions Mr. Mohideen Hassan has made, itemized above, together with the other admissible evidence, the fact that Mr. Mohideen Hassan sold marijuana adds nothing but prejudice to the case. The concessions explain the relationship between Mr. Mohideen Hassan and Mr. Greenaway (Mr. Mohideen Hassan was buying marijuana from Mr. Greenaway) and the essential narrative of events (Mr. Mohideen Hassan arranged the transaction and called Mr. Greenaway prompting Mr. Greenaway to leave the house). The fact that Mr. Mohideen Hassan sold marijuana makes it no more likely he was in the group that showed up at the home and abducted Mr. Greenaway than if he was merely a purchaser of marijuana.
[27] Notwithstanding the skill and force of the defence argument, I do not agree that the defence concessions completely remove the probative value of the proposed evidence. Defence counsel admitted that Mr. Mohideen Hassan arranged the purchase of marijuana from Mr. Greenaway, and made the telephone call which prompted Mr. Greenaway to come outside with the marijuana. Not only do these circumstances appear readily proven by Mr. Mohideen Hassan’s cell records and the cell tower records, given his regular contact with Ms. Gradt, but defence counsel does not admit that Mr. Mohideen Hassan was one of the men who arrived at 4 Muskox Drive to carry out the transaction to purchase the marijuana. That is the crucial issue in this case.
[28] I believe the fact that Mr. Mohideen Hassan is a seller of marijuana, as opposed to simply a buyer for personal use, remains relevant in the circumstances of this case. The amount of marijuana at issue in this case is half a pound worth approximately $2000 at the time according to expected expert evidence. While I do not have the benefit of expert evidence at this point, this amount of marijuana strikes me as closer to a “wholesale” transaction than a “retail” one for personal use; this certainly seems an available inference. Indeed, it seems the most likely inference. This is an amount which it makes more sense would be purchased by a seller of marijuana than a buyer for personal use.
[29] Further I agree with the Crown that the fact that Mr. Mohideen Hassan was a marijuana seller makes it more likely that Mr. Mohideen Hassan was one of the men who attended at Mr. Greenaway’s home and abducted him and thus provides some circumstantial evidence tending to establish identity. More specifically, because Mr. Mohideen Hassan was in the business of selling marijuana, and the transaction could be viewed as a wholesale purchase for potential re-sale, it is more likely that Mr. Mohideen Hassan was part of the actual transaction, as opposed to simply arranging it and being in the vicinity. A marijuana seller purchasing a reasonably large and valuable quantity of marijuana as part of a commercial enterprise is likely to be present to look after the transaction and the valuable asset he has purchased. It is his work. He is not a mere recreational smoker. He is a commercial purchaser buying a significant asset. In short, I agree with the Crown that it is an available inference that Mr. Mohideen Hassan was more likely to be present at the transaction as a commercial seller of marijuana than as a mere purchaser for personal use.
[30] In addition, I believe the evidence retains some probative value on the issues of narrative and the relationship between the parties because I do not think the relationship between a buyer of marijuana for personal use and a seller of marijuana, is the same as the relationship between two sellers of marijuana. While this does not appear particularly significant based on the circumstances before me (as far as I am aware there is at present no evidence of motive for example), but if Sarah Gradt’s evidence is accepted, it is the accurate relationship between Mr. Mohideen Hassan and Mr. Greenaway, as opposed to a sanitized or constructed version. I believe this is preferable where possible. As Justice Nordheimer put it in R. v. Skeete, 2012 ONSC 737, at para. 15, aff’d 2017 ONCA 926, 357 C.C.C. (3d) 159, leave to appeal refused, [2018] S.C.C.A. No. 508 in his then role as trial judge:
[A] “criminal trial is, after all, about the search for truth”. A jury ought to be provided with information that will allow them to put the central facts into context including the nature of the relationships between persons connected to the events that might not otherwise be obvious. Jurors should not be placed in a situation where they are attempting to perform their truth-seeking function in what is effectively either a factual vacuum or an artificial one. [emphasis added]
[31] Justice Dambrot earlier made a similar point in R. v. Riley, 2009 ONSC at paras.36-38 (aff’d 2017 ONCA 650):
…Just because a piece of evidence can be labeled [as narrative] does not make it admissible. But I do think that it is of fundamental importance that the Crown be permitted to lead the evidence of an alleged crime in a manner that permits the jury to understand and evaluate what actually transpired. A jury should not be expected to undertake an exercise that still has the search for truth as its goal by searching for that truth without the ability to understand what it is alleged that the accused were actually doing, and why they were actually doing it.
While it is imperative that limits be placed on the bad character evidence sought to be introduced by the Crown, and that strong instruction be given to the jury about how to use the evidence that is admitted, I do not think that the jury should be expected to decide this case on the basis of some artificially crafted, antiseptic version of the case. [emphasis added]
[32] The Court of Appeal recently explicitly affirmed the reasoning of both Justice Dambrot and Justice Nordheimer in R. v. Phan, 2020 ONCA 298 at paras.92-93.
[33] An example of similar bad character evidence being admitted on the basis that it was essential to a coherent and intelligible description of the offence charged can be found in R. v. MacDonald (1990), 1990 CanLII 11021 (ON CA), 54 C.C.C. (3d) 97 at p.106. MacDonald and Gray were jointly charged with the first-degree murder of Benjamin Daniello. An accomplice, Carter, testified that Gray shot Daniello at MacDonald’s instruction during a fishing trip. At trial, the Crown led evidence that MacDonald was involved in drug-trafficking and used a van that belonged to Daniello in his trafficking business. Daniello was putting pressure on the appellant to return the van. Gray, the shooter, was aware that Daniello had been pressuring the appellant and had made comments about taking care of the matter. The admissibility of the evidence that MacDonald was involved in drug trafficking was affirmed on appeal:
The evidence of the appellant's involvement in narcotic trafficking was admissible evidence that provided the context for the homicide. The evidence showed that not only the appellant but all of the Crown witnesses were involved in the business, so that the relative effect on the appellant's character would have been minimal. Moreover, the trial judge did give instructions to the jury that the evidence could not be used to conclude that the appellant was a person of such bad character as to have committed the crime charged.
[34] I am mindful that this is a circumstantial case with no apparent motive. At the end of the day the jury is going to have to think very carefully about what inferences may reasonably be drawn from the evidence. In these circumstances I believe it is particularly important that the jury have as accurate an understanding of the known circumstances as possible.
[35] It remains to assess the prejudicial effect of the proposed evidence that Mr. Mohideen Hassan sold marijuana. Defence counsel made an equally powerful argument that the proposed evidence will give rise to both moral and reasoning prejudice. In the circumstances of this case, however, I do not believe the risk of prejudice is significant, or exceeds the probative value of the evidence, even accepting that the probative value is diminished in light of the defence concessions. Probative value still exists, and permissible uses of the evidence can be explained and distinguished from impermissible uses. At the same time, there is no realistic danger of propensity reasoning here: the fact that Mr. Mohideen Hassan sells marijuana does not give rise to a general propensity to kill, or to abduct, or to aid and abet either thing.
[36] Nor do I think that there is any realistic danger the jury could punish Mr. Mohideen Hassan because of who he is rather than what he did. Defence counsel argues that the evidence that Mr. Mohideen Hassan sold marijuana becomes more prejudicial when combined with the evidence that Mr. Greenaway’s abductors arrived in a Mercedes (a “Car2Go”) containing a sawed-off shot-gun. But this confounds unrelated evidence. The evidence of the car and the gun are part of the circumstances of the offence. The evidence that Mr. Mohideen Hassan sold marijuana is not directly related to the car and the gun – there is no evidence that Mr. Mohideen Hassan sold marijuana out of a car with a gun for example. Even if there were, however, it would still pale in comparison to the allegations actually at issue. This was a horrific murder. It is exponentially more serious than selling marijuana, even selling marijuana out of a car containing a gun (though again there is no evidence before me that this is how Mr. Mohideen Hassan sold marijuana), or being a marijuana dealer in a Mercedes containing a gun. The fact that Mr. Mohideen Hassan sold marijuana cannot logically give rise to any temptation to punish him for the murder in this case.
[37] In addition, the jury will be hearing similar evidence about the deceased: he too sold marijuana, as was the case in MacDonald. Further, even though Mr. Mohideen Hassan was not engaged in a legal enterprise when he sold marijuana, the fact that selling marijuana is now legal reflects the fact that its use and sale is generally accepted by the public and does not give rise to significant moral prejudice.
[38] Nor do I think reasoning prejudice is a significant issue. The evidence is discrete and uncomplicated. While it may require defence counsel to challenge a sympathetic witness, who he could otherwise leave be, I have every confidence he can and will do this with great skill and as surgically and respectfully as possible. The jury will not be confused or misled, nor will undue time taken.
[39] Finally, with the input and assistance of counsel, I will instruct the jury on how they can and how they cannot use the evidence that Mr. Mohideen Hassan sold marijuana, should they accept it. I will instruct the jury that they can use the evidence that Mr. Mohideen Hassan was in the business of selling marijuana (if they accept it) to understand the relationship between Mr. Mohideen Hassan and Mr. Greenaway, as part of the narrative that may help identify the nature of the transaction, and as some circumstantial evidence that may help identify Mr. Mohideen Hassan as one of the individuals who arrived in the car when Mr. Greenaway was abducted. I will instruct the jury that they cannot use the evidence, regardless of whether or not they accept it, to infer that Mr. Mohideen Hassan is more likely to have committed murder because he sold marijuana, or was a drug dealer, and/or a person of general bad character who deserves to be punished.
[40] While the defence concessions make this a close call, based on the circumstances before me at present I am satisfied that the evidence that Mr. Mohideen Hassan sold marijuana has legitimate probative value, and its probative value exceeds its prejudicial effect. In the event of a material change of circumstance, however, I recognize that my conclusion about where the balance lies may be different and may therefore need to be re-visited. I reiterate that any evidence from Ms. Gradt that Mr. Mohideen Hassan sold cocaine and/or was in possession of guns is not admissible.
The admissibility of two of the rap lyrics found on Mr. Patel’s cell phone.
[41] Mr. Patel is linked to the murder because the evidence suggests that he rented the Mercedes Car2Go which was used to abduct Mr. Greenaway, and where he was likely killed. Mr. Greenaway was murdered in the early hours of March 16, 2017. Later that day, Mr. Patel reported to Car2Go that the window of the rear passenger side door of the Mercedes he rented had been broken. (This is the door that Cory Veerapen saw Mr. Greenaway’s legs sticking out of when Mr. Greenaway appeared to be wrestling and calling for help.) Automotive glass was found on the road between 4 Muskox Drive in Toronto and the location where Mr. Patel’s body was found. About a year after the murder, the police found the Mercedes that Mr. Patel rented on March 15-16, 2017. They found glass under the back seat which could not be excluded as coming from the same source as the glass found on the road.
[42] The police seized Mr. Patel’s cell phone on May 3, 2017 in relation to an unrelated matter. They obtained a search warrant and extracted the data from the phone which included two rap lyrics the Crown seeks to tender at trial. (The data also yielded photographs of Mr. Patel and Mr. Mohideen Hassan, and videos of Mr. Mohideen Hassan. (As noted above, once defence counsel has disclosure, the constitutionality of the search of the cell phone is expected to be the subject of challenge.) If the rap lyrics are admitted, the Crown will seek to tender expert evidence interpreting the meaning of some of the language they contain. While it is anticipated that the admissibility of that expert evidence will be challenged (assuming the rap lyrics are admitted), the expert evidence has been put before me on this application for the purpose of understanding the rap lyrics and considering their admissibility.
[43] Just under three hundred rap lyrics were found on Mr. Patel’s cell phone, ranging in dates from March 25, 2014 to May 2, 2017. In addition, 26 undated deleted rap lyrics were found on the cell phone. The Crown seeks to lead the following two lyrics, or excerpts from them (the Crown expert’s understanding of the italicized words and phrases is noted in brackets):
Title: Guns in our whips guns in our whips it's lit he don
Created: 2017-03-19 3:02:14 PM(UTC-4)
Modified: 2017-03-06 1:14:13 PM (UTC-4)
Guns in our whips [cars]
guns in our whips
it's lit he don't want no war
pull up on him with a stick [long gun]
fly him try me got him hit with a fiff [hand gun]
got one shot one in the head
I won't miss test us bless you take you out for a check take you out for a check
go for a check go for his gold
go for the pole [firearm] when a nigga want war
show up at his door roll with my gang
gang gon show talk that shit
you might go niggas don't want no war
I pull on your right showing it's snowing at night with a O [possessing an ounce of cocaine]
Im out on the strip in the O
go to the trap whipping more
then go to the corner serving more
grab backwoods from the store
Dead man Dead man dead man
all in my roll that mans all in my roll all in my roll
that mans all in my roll [smoking marijuana and celebrating after the murder of a rival]
tyrna get up headed to the top
having niggas ship in soft [bring in cocaine]
guns in our whips
it's hot acting up cause you to drop
set up shop right on your block
im going got niggas can't talk
trapped all night born on the block this my life [selling illegal narcotics]
We gon work hard mandem been marved family had to starve but that's alright
Title: Guns in our whips guns in our whips It's Lit
Created: 2017-04-06 1:14:32 PM(UTC-4
Modified: 2017-05-02 3:02:47 PM(UTC-4)
Guns in our whips guns in our whips it's lit
He don't want no war pull up on him with stick
Fly him try me get him hit with a fif
Got one shot one in the head
I won't miss test us bless you take you out for a check
you don't know you'll die for the bread
hammeres cocked back aimed high at yo head act up leave you down with the dead
have some smoke it's all from the tech have
Guns in our whips it's hot acting up cause you to drop
set up shop right on your block im going got niggas
can't talk trapped all night born on the block this my life
We gon work hard mandem been marved family had to starve but that's alright
Mandem don’t want no war nigga I’m from the 4
pull up on you shoot that stick then I’m gone and I’m flying to the 4 off in a 4 door whip off In [shooting a firearm; address of 400 McCowan Road in Toronto]
a 4 door whip
smoking on dead man piff
Dead man piff Told dead man stop talking sick
but it’s too late rn the shooters that shoot
don’t waste no rounds shooters will shoot for pounds
nina won’t make a sound deadman won’t be found free my broski hound
I would do life for my niggas you wouldn’t even ride for your niggas I miss my niggas
Free my fellons free my fellons rnn
bring my fellons right out
Yo bitch on her knees and she swallow kids my bitch out cocked spitting
Hollos quick semi automatic it’ll get you lit burner spark up like a bic [firearm; muzzle flash]
niggas get gone no trick niggas get flipped like the work smoking on loud
it’s your bro niggas can’t do this put you in the dirt your talk wasn’t smart your going on a shirt
Go get backwoods from the store it’s dead man all in my roll dead man all in my roll dead man
all in my roll
[44] The first of these lyrics was created three days after the murder. It is linked to the second lyric by theme and also by modification date: the first lyric was modified at the same time the second was created.
[45] The Crown takes the position that while these lyrics are fiction, and no one feature is distinctive, when the lyrics are considered together there are a number of points of correspondence with the murder such that they provide circumstantial evidence that Mr. Patel was present and involved. In particular:
• The lyrics “guns in our whips”, “pull up on him with a stick”, “show up at his door roll with my gang” are similar to the alleged circumstances of the murder in so far as three men arrived at Mr. Greenaway’s home in a vehicle and armed with a firearm.
• The second version of “Guns in our whips” includes the lyric “pull up on you shoot that stick then I’m gone and I’m flying to the 4 off in a 4 door whip off in a 4 door whip”. The Mercedes GLA Car2Go alleged to be used during the murder is a 4-door car.
• The lyric “it’s lit he don’t want no war” is similar to the alleged circumstances of the murder in so far as Mr. Greenaway was a reluctant combatant, having been apparently dragged into and kept in the car against his will.
• The lyric “fly him try me got him hit with a fiff [handgun] / got one shot one in the head” bears some resemblance to the circumstances of the murder in so far as Mr. Greenaway was shot once, albeit in the chest rather than the head.
• According to the proposed Crown expert, DC Peglar Artinian, the lyric “Dead man dead man dead man / all in my roll that mans all in my roll all in my roll / that mans all in my roll” refers to smoking marijuana after the killing of a rival. There is an available inference that Mr. Greenaway is the dead man and it is his marijuana being consumed. A similar lyric is repeated in the second version of “Guns in our whips”.
[46] The defence takes the position that the lyrics have no relevance and will add nothing to the trial but prejudice and profound unfairness. The lyrics are works of fiction situated within the conventions of rap music and must be considered in that context. The conventions of rap music include first person narratives tending to boast about toughness, particularly through public displays of violence and claims of invulnerability. Just as themes of heartbreak are a convention of country music, for example, themes of criminality are a convention of gangsta rap and hip hop. Further, any points of correspondence with the murder in this case are generic, and remain generic even when considered cumulatively. There is nothing about them, even considered cumulatively, that could suggest actual presence at the murder, let alone participation. Similar points of correspondence can be found both in earlier lyrics by Mr. Patel, and also in popular songs (see “Comparative Rap Lyric Chart” at tab 3 of Mr. Patel’s Amended Application Record relating to the admissibility of the rap lyrics). In addition, there are significant differences between the rap lyrics and the circumstances of the offence, including the following:
• The lyrics refer to being a “nigga” and having problems with “niggas”. The two accused and the third person alleged to have been involved (a young person now deceased) are South Asian. Mr. Greenaway was Caucasian.
• The lyrics refer to being in a “war”, but there is no evidence that either accused even knew the deceased, let alone were involved in any dispute with him.
• The lyrics refer to being in a “gang”. There is no evidence that the accused or the deceased were in a gang.
• The lyrics refer to possessing and selling cocaine. The drug transaction in this case related to marijuana.
• The lyrics refer to a single shot to the head. The deceased in this case died from a shot to the chest. He was also beaten and stabbed multiple times.
• The lyric notes “deadman won’t be found”. The deceased was dumped in a very public location, where he was sure to be quickly found (in a school yard approximately where the school buses park). His body was found first thing the following morning.
• The lyrics suggest people are in custody – “free my broski hound”. But there was no dog involved, and no one was arrested for approximately a year after the murder.
Applicable law
[47] There is no special test for the admission of a rap song/video or lyrics as an admission against interest. However, courts have required a threshold consideration of what inferences may reasonably be drawn from rap lyrics before they may be admitted as evidence. While probative value (tendency to prove a material fact or issue) is ultimately a question for the trier of fact, a threshold assessment is necessary because rap lyrics are a form of artistic expression, often celebrating toughness, thus it may not be reasonable to conclude they are true, let alone the views of the lyricist or an admission that the lyricist acted in accordance with the lyrics: R. v. Mills, 2019 ONCA 940; R. v. Skeete, 2017 ONCA 926; R. v. Millard, 2017 ONSC 5275; R. v. Campbell 2014 ONSC 6199. See also R. v. Malone (1984), 1984 CanLII 3480 (ON CA), 11 C.C.C. (3d) 34 (Ont.C.A.) regarding the admissibility of “jottings” for a novel as evidence of motive; and R. v. Terry, 1996 CanLII 199 (SCC), 1996, 106 C.C.C. (3d) 508 (S.C.C.) regarding the fairness of an undated unsigned poem found in the accused’s room having been admitted at trial as circumstantial evidence of guilt.
[48] The fact that rap lyrics may give rise to different or competing reasonable inferences is not a reason to exclude the lyrics as lacking probative value: Skeete, para.145. But the fact that rap lyrics are a form of artistic expression, with particular conventions celebrating violence, affects their potential probative value and what may be a reasonable inference.
[49] It is also essential to assess the probative value of the lyrics in the context of the case. Only then can the probative value of the lyrics be both properly understood and measured against the risk of prejudice they pose to the trial: R. v. Skeete; R. v. Handy, 2002 SCC 56; R. v. Hart, 2014 SCC 52; R. v. Calnen, 2019 SCC 6. Probative value is highly context specific. Assessing it requires considering how the rap lyrics are relevant in the case. What fact or issue do they advance? What chain of reasoning links the rap lyrics to the fact or issue to be proved? For example, do they demonstrate animus or motive? Do they simply show association with or between individuals and/or a gang? Do they suggest involvement in the offence?
[50] The caselaw shows that rap lyrics have been found to have probative value on issues of animus or motive (see for example R. v. Skeete; R. v. Mill; R. v. Dunkley, 2018 ONSC 2741; see also R. v. Malone dealing with “jottings” for a novel ), and to show the existence of a gang and/or the relationship between individuals and the gang or other gang members (see for example R. v. Mills; and R. v. Dunkley), and also as circumstantial evidence of participation in the offence (see for example R. v. Millard and Smich; see also R. v. Terry).
[51] In Skeete the Court of Appeal considered afresh the admissibility of a rap lyric that had been admitted at Mr. Skeete’s murder trial. The theory of the Crown was that the motive for the murder was to retaliate against the victim, who had previously identified Mr. Skeete as being involved in an attack on him. The prosecution in relation to that prior attack was not successful, and the victim was subsequently murdered. The Crown argued that the motive was to retaliate because the victim broke the code of silence in relation to Mr. Skeete. The Crown tendered a single lyric from a rap song Mr. Skeete wrote in custody after the preliminary inquiry and while awaiting trial on the murder as relevant to motive: “Real niggaz don’t crack to the coppers, muthafucka”. After considering probative value and prejudicial effect afresh, including the fact that the lyric was a particular form of artistic expression, the Court of Appeal concluded that there was “a significant nexus” between the lyric and the offence, and the lyric had been properly admitted at trial.
[52] In practice, judges of this court have been particularly careful when asked to admit rap lyrics as circumstantial evidence of participation in an offence, as opposed to showing animus, motive or association with an individual or gang. In Millard and Smich, for example, Justice Code found that not only did the rap lyrics contain specific detail similar to the circumstances of the deceased’s disappearance and cremation, but there were also strong temporal and contextual circumstantial connections to the offence as the lyrics were composed on the deceased’s iPad after her disappearance, beginning the night the Crown alleged she was cremated, and the iPad was found in Smich’s possession when he was arrested.
[53] In Campbell, Justice Nordheimer concluded that the correspondence between the lyrics of a rap video posted four months after the offence and the circumstances of the offence was not sufficiently cogent to permit the lyrics to be admitted as an admission against interest. There was no evidence as to when the lyrics were composed and the rap video actually recorded. The motive suggested in the lyrics appeared different than that in the case. The points of correspondence between the circumstances of the offence and the lyrics (excerpts in brackets) included the following:
• the victim wore Nikes (“One shot, leave your brains on your Nikes”);
• the killing occurred during the day (“Broad day anywhere”);
• a witness described the victim as turning or twisting when shot (“One shot, make you flip like gymnastics”);
• one of the victim’s street names was “Rain” (No stacks Nigga, the way I make it rain”);
• the victim was shot multiple times (You got your shots Nigga, like you Max Payne”).
[54] Where rap lyrics are asserted to be relevant as evidence of participation in an offence, I accept that they should not be analyzed in isolation as if a free-standing confession but instead as a piece of circumstantial evidence: R. v. Terry; R. v. Millard and Smich. Nonetheless I believe that, in general, the probative value of rap lyrics tendered for this purpose must be significant in order to be admitted. This is because such lyrics will almost invariably also pose a significant danger of general propensity reasoning based on the kind of bad character and criminality often celebrated in the lyrics, as is this case here (see paragraph 59 below). I believe that, as a general rule of thumb, in order for the probative value of such lyrics to be significant, there must be a significant connection or nexus between the lyrics and the offence when all the circumstances are considered, including the subject matter, and any temporal and/or contextual connections. In assessing the strength of the connection, it is also necessary to consider possible explanations for the connections other than participation (as principal or aider/abetter), such as being an observer or narrator, or coincidence.
Analysis
[55] It is not clear to me that it is reasonable to infer from the lyrics that Mr. Patel participated in the murder of Mr. Greenaway, either as a principal or aider/abetter. But assuming this is a reasonable inference to draw in the circumstances, I believe the prejudicial effect of the lyrics outweighs any probative value they may have.
[56] The fact that the rap lyrics were initially composed within days of the murder, apparently on Mr. Patel’s cell phone or device, provides a strong temporal connection to the murder. In addition, certain excerpts from the lyrics resonate with the circumstances of the murder. The first version of “Guns in our whips”, written three days after the killing, included the words “when a nigga want war show up at his door roll with my gang gang gon show talk that shit you might go niggas don’t want no war”. This line is similar to the circumstances of the murder in so far as the deceased was abducted against his will from his friend’s home as he simply sought to uphold his end of a marijuana sale. But the words of a previous line include details that are different from the circumstances of the murder: “Guns in our whips guns in our whips it’s lit he don’t want no war pull up on him with a stick fly him try me got him hit with a fiff got one shot one in the head….” The deceased was abducted, beaten, stabbed, and shot in the chest.
[57] I presume the half pound of marijuana the deceased brought outside with him intending to sell was taken by the men who abducted him. When Mr. Patel writes three days later “Dead man Dead man dead man all in my roll that mans all in my roll all in my roll that mans all in my roll” I initially thought this might refer to smoking the deceased’s marijuana. However, the Crown’s expert opines that this line refers to “smoking marijuana once an opposing or rival gang has been murdered”. In light of this, the line does not appear similar to the circumstances of the murder, but in fact suggests a significant difference in so far as there is no evidence that the deceased was a gang member or even any kind of rival.
[58] In addition, the lyrics are general, even when considered cumulatively, and bear only a general resemblance to the circumstances of the murder. They are similar to other lyrics on Mr. Patel’s cell phone composed before the offence. They also convey similar meaning to lyrics in popular gangsta rap songs. Both kinds of similarities are described in the “Rap Lyrics Comparative Chart” contained at tab 3 of Mr. Patel’s application record in relation to the admissibility of the rap lyrics. There are also numerous differences between the lyrics and the circumstances of the offence, as noted above in the review of the defence position.
[59] At the same time, the lyrics pose considerable moral and reasoning prejudice. Beginning with moral prejudice, the lyrics, even if edited further, not only glorify a lifestyle involving guns, drugs, gangs and extreme violence, but they suggest Mr. Patel identified with such a lifestyle. They pose a significant danger that the jury could engage in general propensity reasoning and conclude that Mr. Patel, being a person apparently enamored of the concept of killing people with guns, is thus more likely to have participated in the murder in this case, either as principal or aider and abetter. There is also a danger of the jury concluding that the lyrics reveal Mr. Patel to be a bad person, someone posing a significant danger to society for whom prison is the right place without the need to trouble about exactly why.
[60] Further, the lyrics give rise to significant concern about reasoning prejudice. Whatever probative value the lyrics provide is relatively slight. However, I expect they will consume a significant amount of time and energy during the actual trial, and also in terms of the issues the jury will have to work through and decide. The Crown must lead expert evidence just to make portions of the lyrics understandable. The admissibility of this expert evidence is expected to be contested. In addition, defence counsel may need to respond by tendering all the other rap lyrics on Mr. Patel’s phone, as they have done before me, in order to contextualize the lyrics selected by the Crown as relevant. The defence will also likely need their own expert. The jury must then be carefully instructed on how to consider the rap lyrics and their role in the trial, something that is not clear or obvious. In general, the less obvious the probative value of a piece of evidence, the greater the risk of improper use.
[61] In considering the potential prejudice posed by the rap lyrics in this case I am also mindful that, based on the information before me, this appears to be a circumstantial case. It is also horrific. Horrific not only because of the extreme violence inflicted on the victim while he was held confined against his will, but also because, at least at present based on the record before me, the violence appears to be utterly senseless and without motive or meaning. It is the human condition to search for meaning as we navigate the world. I am concerned that even with a careful and repeated R. v. Villaroman 2016 SCC 33 warning to be cautious not to “fill in the blanks”, or close the reasoning gap, when assessing what inferences may be reasonably drawn in the circumstances, it may be all but impossible for the jury to confine these lyrics to their role of providing some limited circumstantial evidence that Mr. Patel was present and involved in the murder. Instead, I fear that the lyrics may seep into and poison the jury’s general assessment of what inferences may reasonably be drawn from the evidence.
[62] In short, the rap lyrics have very limited if any potential probative value. At the same time, they give rise to significant moral prejudice (both general propensity and bad personhood). They also give rise to significant reasoning prejudice, as considerable time and effort will be involved in properly explaining and contextualizing the lyrics, both during the actual trial, and as the jury reasons through what if any significance they can place on the lyrics. Based on the information before me, they are not admissible.
[63] I do not view the admissibility of the rap lyrics as a close call based on the circumstances before me. Nonetheless I recognize that it is a decision that turns on the particular circumstances of the case. To the extent the circumstances change in a material way, the ruling may need to be re-visited.
GILLIAN ROBERTS J.
RELEASED: April 19, 2021
COURT FILE NO.: CR-20-30000255
DATE: 20210419
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
MOHAMMED ILYAS PATEL and MOHAMMED HAFIS MOHIDEEN HASSAN
REASONS FOR JUDGMENT
G.ROBERTS J.
RELEASED: April 19, 2021