COURT FILE NO.: YC-20-8000000-5-0000

YC-20-8000000-6-0000

DATE: 20210511

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

T.I.

M. Cole and P. Santora, for the Crown

M. Salih and E. Brownscombe, for T.I.

HEARD: 26 February 2021

PUBLICATION BAN:

s.110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED-(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

s. 129. NO SUBSEQUENT DISCLOSURE- No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES - Every person who contravenes subsection 110(1) (identity of offender not to be published), 111 (1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

s.a.Q. akhtar j.

RULING ON PRIOR DISCREDITABLE CONDUCT

FACTUAL BACKGROUND AND OVERVIEW

[1]

Factual Background and Overview

On 30 May 2018, police were called to a shooting at Dundas Square in Toronto. When they arrived, they found an 18-year-old male, Israel Edwards, lying on the ground. Mr. Edwards was transported to hospital where he was pronounced dead on arrival. A subsequent post-mortem examination concluded that Mr. Edwards had died from a single gunshot wound to the chest.

2Police retrieved CCTV camera footage overlooking the area of the shooting. The recordings captured three males who had recently departed a Tim Hortons located at 2 Queen Street East walking northbound on the east side of Yonge Street near Dundas Square. The Crown alleges that these males were the accused, and his friends, M.M. and M.H.

3This group encountered another male, Aaron Stewart, who was accompanying the deceased that day. The CCTV footage recorded the deceased walking towards the group and to the left of Mr. Stewart. An altercation occurred and Mr. Stewart pushed M.M. in the face causing him to stagger backwards. Almost immediately, a tall male wearing a grey hooded jacket and white sneakers, alleged by the Crown to be the applicant, pulled out a gun and began firing at Mr. Stewart - who was grazed by a bullet - and Mr. Edwards who fell to the floor. All the other males including the shooter fled the scene.

4During the course of their investigation, police released a series of internal bulletins in the hope of identifying the shooter from the CCTV footage. A Durham police officer, Detective Constable Van Belleghem, who had previously investigated M.M. on an unrelated shooting, recognised him on the video. Van Belleghem also recalled seeing the shooter in images found in M.M.’s phone that had been seized after the execution of a search warrant (the Durham warrant) to extract data from the device.

5A subsequent police check revealed the accused to be one of M.M.’s known associates. Photos taken from M.M.’s phone were submitted for facial recognition analysis, the results of which returned the accused’s name and date of birth.

6The images included pictures and videos of a male the Crown alleges to be the accused dressed in a grey hoodie and holding a gun.

7The Crown seeks to lead two items of evidence, the admission of which is opposed by the defence.

8First, it wishes to lead evidence that shortly after the shooting M.M. conducted an internet search for details related to the shooting. Secondly, the Crown intends to adduce a video found on M.M.’s phone purportedly showing the accused brandishing a firearm.

9After hearing argument, I indicated that the Crown could not lead evidence of M.M.’s internet search. However, I found that the video evidence was admissible.

10These are my reasons.

THE INTERNET SEARCH

[11]

The Internet Search

This issue can be dealt with in summary fashion. Although the Crown has evidence, extracted from M.M.’s mobile phone, that shortly after the shooting at Dundas Square, M.M. searched the internet for details of the incident, I find that this evidence is of limited probative value which is outweighed by its prejudicial effect.

12The search may, to a limited extent, provide a link to M.M. as being one of the group seen on the Dundas Square video. However, there is no direct evidence that the search took place because M.M. was involved in the shooting as opposed to simply making enquiries out of curiosity.

13I accept the prejudicial effect of the evidence is minimal. However, in my view, it outweighs the probative value of the evidence, which in the broadest sense, is an outlier in terms of relevance.

14Accordingly, it is not admissible.

THE EVIDENCE OF PRIOR DISCREDITABLE CONDUCT IN THE VIDEO

Legal Principles

[15]

The Evidence of Prior Discreditable Conduct in the Video

There is no dispute that the images sought to be led by the Crown constitute evidence of prior discreditable conduct if the jury accepts that the subject is the accused.

16Evidence of prior discreditable conduct is presumptively inadmissible. However, any party seeking to adduce this kind of evidence must demonstrate, on a balance of probabilities, that it is relevant to an issue beyond disposition or character and that its probative value outweighs its prejudicial effect: R. v. B.L. (1997), 1997 CanLII 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.), at para. 8; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 41-42 and 49-55; R. v. Z.W.C., 2021 ONCA 116, at paras. 96-98.

17The threshold for relevance and materiality is not high and is met when the evidence “has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely that that proposition would appear to be in the absence of that evidence”: R. v. McDonald (2000), 2000 CanLII 16871 (ON CA), 148 C.C.C. (3d) 273, at para. 24.

18However, the Crown “must be prepared to establish exactly what inferences it will be asking the jury to draw from the evidence, and the extent to which the evidence tends to permit those inferences”: Z.W.C., at para. 99.

19Prior discreditable conduct is especially important in the context of identity and motive, as well as for providing the jury with essential details related to the unfolding of the offence so that they can understand matters in a fashion that properly allows them to render a true verdict: R. v. Skeete, 2017 ONCA 926, 357 C.C.C. (3d) 159, at para. 82; R. v. Brissard, 2017 ONCA 891, 356 C.C.C. (3d) 494, at para. 17.

20Prejudice is not measured by its incriminating impact but by its improper use by the trier of fact: L.B., at para. 22. The real danger of prior discreditable conduct is that an accused is convicted not of the offences with which he is charged but of past bad acts: Handy, at para. 139.

21In Z.W.C., at paras. 102-103, the court identified two forms of prejudice: moral and reasoning. Moral prejudice arises from the prospect that a trier of fact will convict an accused not on the evidence but on the basis of their prior bad acts or for being a “bad person”. Reasoning prejudice derives from the potential that a trier of fact might be diverted from its proper task and give the evidence more weight than it deserves.

22The court set out the following factors, at para. 104, as among those to be considered:

• The seriousness of the discreditable conduct

• The extent to which it may support an inference of guilt solely on bad character

• The extent to which it may confuse the trier of fact

• The ability of the accused to respond

23In R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, the Court of Appeal for Ontario, at para. 227, set out the following series of questions to be asked before balancing probative value and prejudicial effect:

• Is the conduct that of the accused?

• Is the evidence relevant?

• Is the evidence material?

• Is the conduct discreditable to the accused?

Is the Prior Discreditable Conduct Admissible?

[24]

Is the Prior Discreditable Conduct Admissible?

The Crown seeks to lead a video depicting a young male, alleged to be the applicant, wearing a grey hooded jacket and brandishing a firearm. This video was recorded 11 days prior to Mr. Edwards’ murder.

25The central question in this case is identity: is the applicant the person who shot Mr. Edwards at Dundas Square? Since identify is in issue, the accused’s possession of a firearm a short period of time prior to the event is both relevant and material.

26If the jury accepts that the person on the mobile phone video is the accused, this would constitute highly probative evidence that the accused owned and wore very similar clothing to the shooter on the Dundas Square video. It would also show that, on a date relatively close to the murder, the accused had access to a firearm or was in possession of an item resembling the weapon used to shoot the deceased. This, in addition to the accused’s association with M.M. and the similarity in clothing to that worn by the shooter in the Dundas Square video, injects a high probative value to the evidence: R. v. Cain, 2015 ONCA 815, 330 C.C.C. (3d) 478, at para. 67; R. v. Kinkead (2003), 2003 CanLII 52177 (ON CA), 178 C.C.C. (3d) 534 (Ont. C.A.), at para. 76; R. v. Riley, 2009 CanLII 15451 (ON SC), [2009] O.J. No. 1374 (S.C.), at paras. 100-109: R. v. Palmer, 2021 ONSC 3066, at para. 39.

27I also reject the defence argument that the Crown cannot show, from the video, that the gun is the same as that used in the shooting. This argument is more suited to submissions made before the jury rather than a justification for not allowing its consideration when determining guilt.

28I agree that this type of evidence carries a high degree of prejudice. However, that prejudice can be attenuated by a strong mid-trial instruction as well as detailed instructions in the final charge to the jury. Those instructions would ensure the jury’s use of the evidence would be limited to the single issue of identity.

29Nor is the evidence so wide ranging and inflammatory that it runs the risk of distracting the jury from their task to decide the issue of guilt.

30In my view, the mobile phone video has significant probative value which outweigh its prejudicial effect. The evidence is accordingly admissible.

S.A.Q. Akhtar J.