ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TAUFIQ STANLEY
Accused
COUNSEL:
Donna Kellway and Joshua Chan, Counsel for the Crown
Dirk Derstine and Laura Remigio, Counsel for the Accused
HEARD: October 1, 2021
BEFORE: M.A. CODE J.
RULING ON POST-OFFENCE CONDUCT
A. OVERVIEW
1The accused Taufiq Stanley is charged with one count of first degree murder relating to the shooting death of Samatar Farah on April 15, 2017 here in Toronto. The trial was originally scheduled to proceed in October and November of 2020 but it was adjourned due to the pandemic. It commenced with jury selection on September 15, 2021. The jury began hearing evidence on September 20, 2021. The jury has now heard evidence for over two weeks. The main issue in the case is the identity of two perpetrators who apparently shot and killed Farah.
2At the end of the second week of evidence, on October 1, 2021, I heard a mid-trial Motion relating to the admissibility of wiretap evidence. That evidence had just been disclosed to the Crown in the preceding week. The wiretaps were part of an unrelated murder investigation in Niagara Region. One Trevor Barnett was intercepted as a named target in the Niagara wiretap authorization.
3Barnett was charged as an accessory after the fact in the Niagara murder on September 3, 2021. Barnett also appears to have been involved to some degree in the Toronto murder for which Stanley is presently being tried. Evidence has been heard that Barnett was arrested on April 16, 2017, the day after the alleged murder of Farah, and he was found in possession of one of the two murder weapons. There has also been surveillance evidence indicating that Barnett had meetings with one or both of the two alleged perpetrators, Stanley and one Fountain, shortly before and then shortly after the shooting of Farah. As a result of this involvement, Barnett would likely have material evidence to give at the present trial, if he was called as a witness by one of the parties.
4At the October 1, 2021 hearing of the mid-trial Motion, in the absence of the jury, I heard the wiretaps that the Crown now seeks to tender as part of its case in-chief. Certain documentary exhibits were also filed, including transcripts of the wiretaps. The wiretaps were all intercepted on Barnett’s phone. They generally involve incoming calls that Barnett received from the accused Taufiq Stanley, from the alleged co-perpetrator Alexander Fountain, and from one Shanika Downey. Ms. Downey is a witness in the present trial who will be called by the Crown in the week of October 4, 2021. Mr. Fountain is in custody and is also charged with the first degree murder of Mr. Farah. The Crown alleges that Fountain and Stanley are the two gunmen who shot and killed Farah. However, Fountain was not arrested until 2020, whereas Stanley was arrested in 2017. As a result, their trials have become separated. Mr. Fountain’s trial is scheduled to proceed in February 2022, by which time Mr. Stanley’s trial will have been completed.
5Mr. Stanley is in custody at the Toronto South Detention Centre and Mr. Fountain is in custody at the Toronto East Detention Centre. It is apparent that they would both have material evidence to give at their respective trials and that they would both be compellable witnesses at each other’s trials.
6At the end of the mid-trial Motion concerning the admissibility of the wiretap intercepts I reserved judgement. These are my Reasons for Judgement.
B. FACTS
7It can be seen that the four parties intercepted in the wiretaps – Barnett, Stanley, Fountain, and Downey – are all material witnesses at the present trial. In brief summary, the wiretaps involved discussions about trial strategy and about the evidence that each of these four potential witnesses could or should give at Mr. Stanley’s trial. In particular, in a July 23, 2021 call Mr. Stanley appears to be urging Mr. Barnett to speak to Mr. Fountain in order to discuss whether Mr. Fountain “takes the stand” at Mr. Stanley’s upcoming trial and “what I want you to say … to say who’s who right.” Mr. Stanley appears to want to know Mr. Fountain’s position, prior to trial, stating “if we know what’s gwanin’ then we can make the plan.”
8One month later, in an August 25, 2021 call, Barnett and Fountain discuss the matter. Fountain states, “he wants you to rat … buddy wants you or me to rat.” Barnett replies, “yeah basically both of us.” Fountain states, “he wants you to go, if you’re not gonna go he wants me to go … are you guys fuckin’ retarded, like doesn’t make any sense.” Barnett appears to agree with Fountain stating, “it doesn’t make sense.”
9The next day, August 26, 2021, Barnett and Stanley have a further discussion about the matter. Barnett appears to tell Stanley that Fountain is not interested in testifying at Stanley’s trial, stating “he’s like niggers want basically either you or me to rat … said either wants me or him to basically … so it’s like I relayed the message.” Stanley responds angrily, stating “does this guy not understand what the fuckin’, what that mean, what the Canada Evidence Act is, is this guy retarded?” In the earlier call, on July 23, 2021, Mr. Stanley had also appeared to refer to s. 5 of the Canada Evidence Act (and s. 13 of the Charter) when he stated, “if he does the act … then they can’t then, they can’t like bring it up at his thing … then it’s like not two man go down for this”, and “like this guy needs to understand … like he’s literally untouchable … if he does the act … he’s literally untouchable.” In the subsequent August 26, 2021 call, Stanley appeared to propose that this use of the Canada Evidence Act would be reciprocal. He stated, “this guy doesn’t understand the kind of opportunity that we could both have, bless each other bro, this guy’s just a fuckin’ idiot … like our ting’s fuckin’ separate … if you were to come and say … dah dah dah dah, whatever … can’t use whatever … both sides are bless, you check for me, I’m checkin’ for you, of course bro … I’m fuckin’ willing to do the exact same fuckin’ thing bro … I’m willing to do more for people than they’re willin’ to do for me”, and “I been tryin’ a do this since my thing was supposed to go on last year … it’s been a whole year that passed … a whole year you been known’ what the, what the game plan is … how much thinkin’ needs to go into this … I know what I’m willin’ to do for people and then … like it’s not reciprocated … it’s just crazy bro … you’re gonna want me to be your bro, well you didn’t wanna be my bro.”
10The next day, August 27, 2021, Barnett and Fountain have what appears to be the last significant discussion about the matter. Barnett appears to state that Stanley is “stressed” because “niggers don’t wanna rat”. Fountain asks, “what the fuck he want me to do”? Barnett replies, “he just wanted you to rat so you’d come rat a rat on for you type shit, he wanted you to rat for him so he can rat for you.” Fountain states, “it doesn’t make sense … that doesn’t make no sense, it doesn’t work.” Barnett again appears to agree with Fountain stating, “I know, I know … I know bro.”
11In a final call on August 28, 2021, Fountain appears to tell Barnett that he is planning to trick or deceive Stanley, stating “this is the swindle … I’m probably not gonna end up … taking the stand … on his boupie, so they’re gonna want you to do it (laughs) … I’m gonna tell them I told you it’s good … but you’re gonna tell them it’s not (laughs), that’s the trick … everybody wants people to fuckin’ rat right … everybody wants you as a rat on them … I’m trying to figure it out without getting ratted on right”. Barnett replies, “I’m not involved in this bro … this is crazy bro.” Fountain concludes by stating, “the best situation is a SD … a self D right … I’m just gonna let them do their boupie and then when my boupie comes they’re gonna understand … why I’m smarter.”
C. ANALYSIS
12The Crown seeks to tender the wiretap intercepts as “after the fact conduct” or “post-offence conduct” during its case in-chief, inferring an awareness or consciousness by Mr. Stanley that he was one of the two alleged perpetrators. As with all circumstantial evidence, the legitimate probative value of “after the fact conduct” must exceed its prejudicial effect. See: R. v. White and Coté (1998), 1998 CanLII 789 (SCC), 125 C.C.C. (3d) 385 at paras. 21 and 33 (S.C.C.); R. v. Calnen (2019), 2019 SCC 6, 374 C.C.C. (3d) 259 at paras. 107-112 (S.C.C.).
13I am satisfied that the above summarized wiretaps have legitimate probative value in relation to the central issue in the trial, namely, the identity of the two alleged perpetrators. As Martin J.A. put it in R. v. Davison, DeRosie, and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 at 428 (Ont. C.A.):
“The fabrication of evidence or the subornation of perjury by a party in support of his case is a circumstance from which a consciousness of guilt may be inferred although it is not conclusive evidence of guilt: R. v. Watt (1905), 20 Cox C.C. 852.”
Similarly, in R. v. Campbell (1998), 1998 CanLII 4266 (BC CA), 122 C.C.C. (3d) 44 at paras. 22-3 (B.C.C.A.), Hall J.A. stated:
It must be recognized that all that evidence of flight, of suborning witnesses, of steps taken to cover up a crime, or of threats made to persuade a witness to testify in a certain way amounts to is circumstantial evidence, in some cases perhaps quite compelling evidence but in other cases rather tenuous evidence.
Where there is evidence of a deliberate effort by an accused to cover up, to mislead investigators or to influence witnesses, then it may be appropriate to instruct the jury about the subject.
It has also been held, in the context of “recent fabrication”, that “a fabrication can include being influenced by outside sources” and “can arise because outside sources have influenced the witnesses.” See: R. v. Ellard (2009), 2009 SCC 27, 245 C.C.C. (3d) 183 at para. 33 (S.C.C.); R. v. T. (J.A.) (2012), 2012 ONCA 177, 288 C.C.C. (3d) 1 at para. 98 (Ont. C.A.).
14Although much of the language used in the above summarized wiretaps was guarded, it is reasonably open to the construction that Stanley was attempting to influence and persuade two potential witnesses – Barnett and Fountain – to testify at his trial and provide evidence that either or both were the perpetrator or perpetrators who shot Farah, that they would give this testimony under the protection of the Canada Evidence Act, and that he would “reciprocate” at Fountain’s subsequent trial. As Barnett explained “the game plan” to Fountain, “he wanted you to rat for him so he can rat for you.” The jury could infer from the totality of the intercepts that Stanley was attempting to obstruct justice and suborn perjury.
15However, I am also satisfied that there is considerable prejudicial effect that emerges from the wiretap intercepts. First of all, the above incriminating inferences only emerge with clarity from the totality of all the intercepts, including the intercepts to which Stanley is not a party. The Crown seeks to tender the intercepts between Barnett and Fountain pursuant to the co-conspirator’s exception to the hearsay rule. However, it is far from clear whether Barnett or Fountain ever agreed to Stanley’s proposed “plan”. Indeed, it appears that they did not agree. Furthermore, Barnett agreed to speak to Fountain on Stanley’s behalf, but his actual statements to Fountain do not appear to have been made in furtherance of a common unlawful agreement that he had reached with Stanley. Rather, a number of Barnett’s statements to Fountain appear to be statements “about the conspiracy … not in the furtherance of it,” as the Court of Appeal explained in McNamara. At best, the jury would have to be given the complex instructions required by the co-conspirator’s exception to the hearsay rule in a case where its application is tenuous. See: R. v. Carter (1982), 1982 CanLII 35 (SCC), 67 C.C.C. (2d) 568 (S.C.C.); R. v. Puddicombe (2013), 299 C.C.C. (3d) 534 at paras. 115-117 (Ont. C.A.); R. v. McNamara et al (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 at 486-491 (Ont. C.A.); R. v. Lynch, Malone, and King (1978), 1978 CanLII 2347 (ON CA), 40 C.C.C. (2d) 7 at 23-4 (Ont. C.A.).
16The second source of prejudice is that much of the probative value of the evidence depends on an understanding of s. 5 of the Canada Evidence Act and s. 13 of the Charter of Rights and Freedoms. This is one of the most difficult areas of evidence law and it would have to be explained to the jury in yet another complex instruction. Furthermore, Stanley’s apparently simplistic and erroneous understanding as to how these provisions operate (“he’s literally untouchable”) is another source of potential prejudice. As Major J. explained, in a slightly different context in R. v. Jabarianha (2001), 2001 SCC 75, 159 C.C.C. (3d) 1 at para. 22 (S.C.C.):
Given that the protection of s. 13 is limited, and the witness’s knowledge of the protection may be incorrect, the jury might wonder, and perhaps need instruction, about the inferences it should draw from a witness’s potentially imperfect knowledge of s. 13 of the Charter, as well as the extent to which a witness felt immune from prosecution. Such a process could shift the jury’s focus from the accused’s innocence or guilt to the witness’s understanding of the consequences of testifying under the limited protection of the Charter. There is also a real risk that a jury would give improper emphasis to the application of the limited protection of s. 13 of the Charter: see R. v. Swick (1997), 1997 CanLII 1294 (ON CA), 118 C.C.C. (3d) 33 (Ont. C.A.), per Rosenberg J.A. These types of questions before a judge and jury have serious potential to be prejudicial.
Also see: R. v. Graham, 2020 ONCA 692 at para.13.
17The third source of prejudice is that Mr. Stanley refers on occasion in the wiretap intercepts, to discussions about his proposed “plan” that he claims to have had with counsel. The specific references are not privileged because Mr. Stanley is speaking to Mr. Barnett and disclosing the discussions with counsel. Nevertheless, Mr. Stanley’s understanding of the privilege against self-incrimination and its resulting use immunity, is undoubtedly derived to some extent from discussions with counsel. It would have to be explained to the jury that these kinds of discussions between solicitor and client are normal. There is a risk, absent a strong caution not to concern themselves with the solicitor and client relationship, that counsel’s position before the jury could be affected. This is yet another unusual and difficult instruction that could sidetrack the jury. See: R. v. Swick (1997), 1997 CanLII 1294 (ON CA), 118 C.C.C. (3d) 33 at para. 16 (Ont. C.A.); R. v. Jabarianha, supra at para. 23.
18The fourth source of prejudice is that the language used in the intercepts is coarse street slang that is associated with the criminal sub-culture. In particular, the repeated references to “rats” and “ratting” could not be edited out because it is central to the probative value of the evidence. Once again, a limiting instruction would be required, this time about prohibited reasoning based on bad character or criminal disposition.
19The fifth source of prejudice is that the jury would have to be told that Fountain has been separately charged, that he will be separately tried next year, that he is a compellable witness at the present trial, and that Mr. Stanley will be a compellable witness at Mr. Fountain’s subsequent trial. There has been no reference in the trial to date, about Fountain’s status, and I do not anticipate that it will come up, unless this new wiretap evidence is introduced. Once again, the jury would have to be instructed that they are not to speculate about why Fountain was charged separately and why he is being tried separately and why he has not been called as a witness at this trial (assuming neither party does call him to testify).
20There is one final source of prejudice that might arise and that is Stanley’s and Fountain’s custodial status. In order to prove the identity of Stanley and Fountain as the callers on the wiretaps, their location and access to the phones at their respective jails would have to be introduced in evidence. However, this form of prejudice does not concern me as it could be overcome by an admission and by editing.
21It can be seen that the introduction of the wiretap intercepts would give rise to a potentially difficult collateral inquiry into obstruction of justice. That inquiry would include the five distinct and somewhat complex instructions set out above, as well as the standard instruction concerning “after the fact conduct.” The five forms of prejudice summarized above involve both reasoning prejudice and moral prejudice. To some degree, they all involve “venturing into side issues that would divert the jury from the real issues in the case,” as Rosenberg J.A. put it in R. v. Swick, supra at para. 17. Although it is a close judgement call, I am satisfied that the legitimate probative value of this evidence is outweighed by its prejudicial effect.
22I should make it clear that this ruling only addresses the admissibility of the wiretap intercept evidence as “after the fact conduct”, during the Crown’s case in-chief. Its potential use in cross-examination, in relation to the credibility of a witness, is an entirely different matter which I have not addressed. Indeed, Mr. Derstine fairly conceded that the probative value of the evidence could be greater if a witness was to give exculpatory evidence and was then cross-examined on a prior statement made in one or more of the above-summarized wiretaps. The fact that a witness has attempted to communicate or collude with other witnesses, or has attempted to influence other witnesses, has often been held to be relevant to the reliability and credibility of the witness. See, for example: R. v. C.B. (2003), 2003 CanLII 32894 (ON CA), 171 C.C.C. (3d) 159 at paras. 36-45 (Ont. C.A.); R. v. Burke (1996), 1996 CanLII 229 (SCC), 105 C.C.C. (3d) 205 at paras. 35-46 (S.C.C.); R. v. Dobberthien (1974), 1974 CanLII 184 (SCC), 18 C.C.C. (2d) 449 (S.C.C.); R. v. Maxwell (1979), 1979 CanLII 47 (SCC), 47 C.C.C. 2d) 65 at 85 and 89-90 (S.C.C.). It has also been held that a witness’ knowledge concerning the effect of s. 13 of the Charter and s. 5 of the Canada Evidence Act, including cross-examination on that issue, may be permissible in certain cases where there is extrinsic evidence relating to these issues. In R. v. Swick, supra at paras. 13 and 15, Rosenberg J.A. stated:
Together with other evidence, proof that a witness is aware of the legal effect of s. 13 of the Charter may have some probative value as possibly leading to an inference that the witness has a motive for testifying falsely. However, standing alone, such evidence probably has no probative value …
In sum, there was no direct evidence before the jury that Forester knew of the effect of s. 13 of the Charter and no real basis for the allegation that this was the reason for his testimony. [Emphasis added].
Most importantly, in R. v. Jabarianha, supra at para. 27, Major J. gave the judgement of the Supreme Court and stated:
In rare circumstances, cross-examination of a witness’s knowledge of s. 13 of the Charter may be permitted. If the Crown provided some evidence of a plot to lie or to obtain favours, the probative value of a witness’s knowledge of s. 13 of the Charter could outweigh its prejudicial effect whereas evidence of mere friendship between the accused and witness will not (see Swick, supra, at p. 477). With evidence of a plot to lie or to obtain some benefit, the scale might tip in favour of the possibility that the witness’s knowledge of s. 13 of the Charter would affect the truthfulness of that testimony. That determination would generally lie in the discretion of the trial judge. [Emphasis added].
23This latter issue concerning potential use of the wiretap intercepts in cross-examination of a witness can be revisited, if and when it arises.
24For all these reasons, the Crown’s mid-trial Motion seeking to admit the wiretap intercepts during its case in-chief is denied. I would like to thank all counsel for their excellent work in preparing, filing, and arguing this complex motion on short notice in the middle of a serious trial.
M.A. Code J.
Released Orally: October 6, 2021
COURT FILE NO.: CR-19-30000281
DATE: 20211006
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TAUFIQ STANLEY
ruling on post-offence conduct
M.A. Code J.
Released Orally: October 6, 2021