WARNING

The court has issued an order prohibiting the “publication” of any information regarding this matter that would identify the young persons in this proceeding. This non-publication order relates to a prohibition on the publication of the name of or any other information that would identify A.N., J.L, M.S. and "D." in this proceeding. This version of the court’s decision has been edited to comply with that order and may be published.

This is ordered in accordance with

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (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.

111. (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985,

(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.

Court File and Parties

COURT FILE NO.: YCJA (P) 21/739 DATE: 20220214

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Ms. K. Holmes & Mr. T. Sarantis, for the Crown

• and -

A.N. Mr. P.J. Craniotis, for the Accused

HEARD: January 7, 2022, via video conference

Reasons for Decision

(Admissibility of Prior Discreditable Conduct)

Stribopoulos J:

Introduction

[1] The accused, A.N., a young person within the meaning of the Youth Criminal Justice Act, S.C. 2002, c. 1, faces a charge of second degree murder in the stabbing death of Surajdeep Singh on August 13, 2020.

[2] The Crown's case against A.N. relies mainly on the testimony of J.W., who, after pleading guilty to second degree murder in the killing of Mr. Singh, testified for the Crown at A.N.'s preliminary inquiry. J.W. testified that on the date of the homicide, he and A.N., both just 16 years old at the time, agreed to carry out a robbery together and targeted Mr. Singh, who they happened upon in a park in Brampton. According to J.W., he fatally stabbed Mr. Singh in the back when he resisted their efforts to take his cellphone during the robbery.

[3] A.N.'s jury trial is scheduled for May 2022. On this pre-trial application, which I heard in my role as the designated case management judge, the Crown seeks a ruling admitting into evidence certain uncharged discreditable conduct by A.N. Specifically, evidence that A.N. sold marihuana to J.W. the day before and on the day of the homicide. And further, evidence that A.N. and J.W., together with two other teenagers, committed a knifepoint robbery in October or November 2019.

[4] These reasons will proceed in three main parts. The first part will summarize J.W.'s evidence concerning the offence charged and the discreditable conduct evidence at issue on the application. The second part will briefly outline the governing legal principles. Finally, considering the evidence, the governing principles and the parties' respective positions on this application, these reasons will turn to consider whether the discreditable conduct evidence is admissible at A.N.'s trial.

I. J.W.'s Evidence Concerning the Offence Charged and the Uncharged Discreditable Conduct

[5] This summary draws on J.W.'s testimony at A.N.'s preliminary inquiry, the transcript of which formed part of the record on the application.

The relationship between J.W. and A.N.

[6] J.W. testified that he and A.N. met in grade nine while attending the same high school. Although acquainted and on friendly terms, they were not especially close. Nevertheless, the two young men would sometimes hang out together and smoke marihuana.

The meeting on August 12, 2020

[7] J.W. testified that on August 12, 2020, A.N. sent him a video on Snapchat of a pre-rolled marihuana joint. J.W. responded to that video by asking A.N. whether he could purchase it from him, and A.N. agreed. Soon after, they met up to finalize the sale.

[8] J.W. testified that he brought a "Rambo" style knife to their meeting, which he had purchased from Amazon. He explained bringing the knife with him because he had been released from custody a few months before, and that experience made him paranoid, which caused him to worry that A.N. might try to rob him. When they met to finalize the transaction, J.W. testified that he told A.N. about the knife and showed it to him, to which A.N. responded: "Wow, that's a big knife."

The meeting on August 13, 2020, and the plan to commit a robbery

[9] On August 13, 2020, J.W. testified that he messaged A.N. on Snapchat about meeting again that day to purchase another pre-rolled marihuana joint from him. They met, as planned, and finalized their transaction.

[10] During their discussion that day, J.W. testified that A.N. mentioned needing a new cellphone. At that point, they discussed "trying to hit a stain" - slang for committing a robbery - to get A.N. a new phone. After confirming that A.N. was being serious, J.W. agreed to help, and he told A.N. that he had his knife and showed him the sheath for it. According to J.W., A.N. responded by saying he had a switchblade in his pocket, which he said was smaller than J.W.'s knife.

[11] After that discussion, J.W. testified that they set off on their bicycles to search for a potential victim.

The robbery and the stabbing of Mr. Singh

[12] J.W. testified that about ten to fifteen minutes later, he and A.N. saw Mr. Singh walking along a path in a park and talking on his cellphone and they decided to rob him. According to J.W., before they approached Mr. Singh, A.N. asked him, "What should I do?" J.W. testified that he told A.N. to ask Mr. Singh to use his phone to make a call.

[13] J.W. testified that they approached Mr. Singh and implemented their plan. A.N. asked to use Mr. Singh's phone, and he agreed, handing his phone to A.N., who pretended to make a call. However, Mr. Singh soon became suspicious of the young mens' intentions when he noticed J.W. fidgeting with the sheath for the knife concealed in his pants. At that point, Mr. Singh tried to get his phone back from A.N.

[14] According to J.W., A.N. and Mr. Singh then became involved in a physical struggle, with Mr. Singh grabbing A.N.'s collar and hoody and punching him. Although A.N. tried to push Mr. Singh away from him, Mr. Singh was getting the better of A.N. because he was smaller than Mr. Singh. At that point, J.W. testified he decided to come to A.N.'s aid. When J.W. tried to intervene, he testified that Mr. Singh, who by that point was standing between him and A.N., responded by punching him and splitting open his forehead.

[15] At that point, J.W. testified that he removed his knife from where he had it concealed in his pants. He testified that he only intended to brandish the knife, but he became scared, wasn't thinking, and reacted quickly by stabbing Mr. Singh in the back with it. After being stabbed, Mr. Singh screamed, took a couple of steps, and collapsed onto the ground unconscious. At that point, J.W. testified he removed the knife from Mr. Singh's back by twisting and pulling it.

[16] J.W. testified that before the robbery, he and A.N. never discussed what they might do if the victim resisted their efforts to take his cellphone. Asked what A.N. was doing when he approached and stabbed Mr. Singh, J.W. testified: "He just stood there." As the robbery unfolded, J.W. also testified that he and A.N. never said a word to one another.

After the robbery and stabbing

[17] According to J.W., after he removed the knife from Mr. Singh's back, A.N. said, "let's go." At that point, they got back on their bikes and rode away from the area. As they did so, they eventually heard sirens in the distance.

[18] According to J.W., they went back to his house where he realized that A.N. still had Mr. Singh's cellphone. J.W. testified that he had blood on his hands and face. They had a brief conversation, during which A.N. told him to wash up and get rid of the knife. Before they went their separate ways, J.W. testified that A.N. said to him: "Don't worry, you just chinged him" and that "he should live” or "he is not going to die."

[19] Later that day, J.W. told his parents what he had done and turned himself in to the police.

An earlier knifepoint robbery

[20] Asked to explain why A.N. would suggest they commit a robbery together, J.W. testified that he had a reputation for being a "bad kid at school" and hanging out with some older kids who committed robberies. Additionally, without objection, when asked if A.N. had participated in any of those earlier robberies, he testified that they had committed a robbery together before, in October or November 2019, with two other students from their school, M.S. and "D." J.W. testified that he could not remember D.’s surname.

[21] On that prior occasion, which was a school day, J.W. testified that the four young men went to A.N.'s house, where he retrieved a pocketknife that he then gave to D. They then set off in search of a victim.

[22] After about ten minutes, they encountered a "brown kid" and walked up from behind him. According to J.W., D. brandished the knife and demanded the victim's money and phone, which resulted in the victim emptying his pockets and handing eight or nine dollars over to A.N. However, the victim would not surrender his cellphone and began screaming for help, which attracted the attention of a bystander.

[23] J.W. testified that M.S. and D. continued trying to take the victim's phone even after he handed over his money. However, with the victim screaming for help and the bystander looking in their direction, J.W. testified that he told them “to calm down" and said to them "it's not worth it." With that, according to J.W., M.S. and D. stopped trying to get the victim's cellphone.

[24] At that point, J.W. testified the four teenagers ran off. They initially intended to find another victim to rob. However, when unable to do so, they instead stole some bikes and also stole some packages from doorsteps.

III. The Governing Principles

[25] A person charged with a criminal offence is not on trial for their character. Accordingly, the law has long prohibited the Crown from eliciting evidence concerning uncharged acts of misconduct by an accused that only show him to be a person of bad character or the type of person likely to commit the offence(s) charged: see Morris v. The Queen, [1983] 2 S.C.R. 190, at pp. 191, 201-202; R. v. Morin, [1988] 2 S.C.R. 345, at pp. 367-369; R. v. B. (C.R.), [1990] 1 S.C.R. 717, at pp. 734-735; R. v. C.(M.H.), [1991] 1 S.C.R. 763, at p. 771; R. v. B. (F.F.), [1993] 1 S.C.R. 697, at p. 730; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31-36.

[26] Of course, the exclusionary rule does not prevent the Crown from leading evidence to prove that the accused committed the offence(s) charged in the indictment, even though this will invariably reflect negatively on his character. The rule is only concerned with "extrinsic" evidence of an accused's discreditable conduct, meaning "evidence about the accused's behaviour on other occasions or about his general character": David M. Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 66; see also R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at para. 164.

[27] The rule reaches any "discreditable" evidence about the accused, not just evidence of uncharged criminal acts or a criminal proclivity: see R. v. Robertson, [1987] 1 S.C.R. 918, at pp. 942-943; Handy, at para. 34. If a reasonable person would disapprove of the conduct or the character trait, then evidence about it is caught by the exclusionary rule: see R. v. Bos, 2016 ONCA 443, 131 O.R. (3d) 755, at para. 72; R. v. Johnson, 2010 ONCA 646, 267 O.A.C. 201, at para. 90.

[28] The exclusionary rule aims to prevent two potential types of prejudice that such evidence can occasion. "Moral prejudice," that being the risk that the evidence will engender in jurors’ feelings of contempt towards the accused and result in a conviction for the wrong reasons. For example, to punish the accused for other acts of misconduct or to reason that he is the type of person who would commit the offence(s) charged. And "reasoning prejudice" by distracting the jury from what should be its proper focus. The concern is that the evidence will consume valuable court time, redirect attention towards extraneous matters, and impair the jury's ability to engage in the required rational and dispassionate analysis of the relevant evidence: see Handy, at paras. 42, 100, and 139-146; R. v. D. (L.E.), [1989] 2 S.C.R. 111, at pp. 127-128.

[29] Citing concerns about the potential for both moral and reasoning prejudice, the Supreme Court has observed that "the 'poisonous potential' of bad character evidence cannot be doubted": R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 74.

[30] Because of these well-recognized dangers, evidence concerning an accused's uncharged discreditable conduct is presumptively inadmissible: R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 31; R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 17; Handy, at paras. 55 and 101. Of course, there are exceptions, like with most exclusionary rules of evidence.

[31] The Crown may apply to introduce evidence of uncharged acts of misconduct by an accused as part of its case under the "similar fact" exception to the "bad character" evidence rule. However, to succeed on such an application, the Crown must satisfy the trial judge, on a balance of probabilities, that in the context of the specific case, the probative value of the evidence concerning a particular issue outweighs its prejudicial effect: Handy, at para. 55; Perrier, at para. 18; R. v. Arp, [1998] 3 S.C.R. 339, at p. 363. In other words, an accused's uncharged discreditable conduct is "unusually and exceptionally" capable of admission "if it survives the rigours of balancing probative value against prejudice": Handy, at para. 64.

[32] In assessing probative value, it is necessary to consider the degree to which the evidence is relevant to the material issues in the case and the strength of the potential inference(s) that the evidence is logically capable of supporting: see Handy, at para. 26; Robertson, at p. 943. As a result, the assessment of probative value does not take place in a vacuum. Instead, as Paciocco J. explained, to have probative value, "evidence must be relevant to a material issue in the case, and the inference that the evidence invites must be compelling enough to have at least some degree of influence in the case.": R. v. J.M., 2016 ONCJ 397, at para. 22.

[33] In many cases, the similarity between the offence(s) charged and the prior discreditable conduct will be the source of its probative value. The Supreme Court has recognized the connectedness (or nexus) between the prior discreditable conduct and the offence(s) charged as the principal driver of probity in such cases: Handy, at para. 76. In cases of that nature, considerations such as the proximity in time of the similar acts, similarity in detail, the number of occurrences of similar acts, similarities of circumstances, and any distinctive features, are all essential factors to consider when assessing the probative value of the proposed evidence: Handy, at para. 81-83.

[34] The Supreme Court has held that the level of similarity will need to be exceptionally high where the Crown proffers the evidence to prove that the accused is the person who committed the offence(s) charged. That is, where the evidence is said to be probative of identity. For example, the accused's prior act(s) would need to be "so 'peculiar and distinctive' as to amount to a 'signature' or 'fingerprints at the scene of the crime' that would safely differentiate him from other possible assailants" to sufficiently connect him to the offence charged for the evidence to have probative value: Handy, at para. 79; see also Arp, at paras. 45, 50.

[35] In contrast, different considerations will apply where similarity is not the driver of probity: Handy, at paras. 80, 84. For example, the cases recognize that the probative value of the proposed evidence will often outweigh its prejudicial effect when the bad character evidence is necessary to prove an accused had a motive to commit the offence(s) charged or is essential background or narrative to the allegations: see Sidney N. Lederman, Alan W. Bryant, and Michelle K. Fuerst, The Law of Evidence in Canada, 5th ed. (Markham: LexisNexis, 2018), at §10.76 to §10.77 (and the cases cited therein). That said, the admission of uncharged discreditable conduct on these bases carries "the potential for misuse and should be applied with caution": Lederman, Bryant and Fuerst, at §10.77.

[36] As the Court of Appeal has cautioned, “[v]ague terms, such as ‘narrative’, ‘context,’ and ‘background,’ cannot be permitted to serve as a substitute for a careful assessment of how the evidence will assist the jury in understanding other admissible evidence, what inferences the jury may properly draw from the evidence, and how impermissible reasoning can be prevented.”: R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, at para. 122; see also R. v. Borel, 2021 ONCA 16, 153 O.R. (3d) 672, at para. 48 (noting the need for caution when admitting otherwise inadmissible evidence as part of “the narrative.”)

[37] These reasons turn next to applying the governing principles to the circumstances presented by the Crown’s application in this case.

III. Analysis

[38] The Crown seeks a ruling permitting it to elicit evidence at trial: (1) regarding why J.W. met with A.N., first on August 12 and then on August 13, 2020; in particular, that these meetings involved A.N. selling marihuana to J.W.; and (2) about the events preceding and surrounding the alleged robbery in October or November 2019, including that A.N. supplied the knife used in that robbery.

A. Is Evidence Concerning the Alleged Marihuana Sales Admissible?

[39] The Crown and the defence agree that the reason why J.W. and A.N. met the day before and the day of the homicide is admissible. J.W. testified that they met on both days so that A.N. could sell him marihuana. J.W. brought his knife to the first meeting because he was paranoid, having been released from jail recently, and concerned that A.N. might try to rob him during their drug deal. He testified that he showed A.N. the knife that day, and then on the day of the homicide told him he had that knife with him and showed him its sheath.

[40] I agree with counsel that the reason why the two young men came together on both days is unavoidably part of the narrative of the events that will be the focus of this trial. It is essential to explain why J.W. and A.N., who were not especially close, came together two days in a row. Similarly, it helps explain why J.W. had the knife used in the homicide and why A.N. knew about it. Without that evidence, the jury would be left with an incomplete and somewhat misleading picture of the events preceding the homicide.

[41] At the same time, the evidence is not especially prejudicial. To be sure, there would be considerable potential for prejudice if A.N. were on trial for trafficking drugs or possessing drugs for that purpose. However, A.N. faces a charge of murder; he is not charged with a drug offence.

[42] In these circumstances, the sale of small amounts of marihuana by one teenager to another is hardly the sort of conduct likely to engender moral prejudice. Nor will that evidence be unduly time-consuming or risk distracting the jury from what should be its primary focus. In other words, the potential for that evidence to result in reasoning prejudice is, at the very most, marginal.

[43] Finally, if counsel and the trial judge think it necessary, a limiting instruction would undoubtedly eliminate any remote risk of prejudice that the evidence concerning why A.N. met with J.W. could potentially occasion.

[44] Accordingly, evidence that J.W. and A.N. met to buy and sell marihuana, first on August 12 and then on August 13, 2020, is admissible at trial.

B. Is Evidence Concerning the Earlier Robbery J.W. Alleges Admissible?

[45] I next address the admissibility of evidence concerning the knifepoint robbery that J.W. alleges took place in October or November of 2019. The parties disagree about the admissibility of that evidence.

The positions of the parties

[46] On behalf of the Crown, Ms. Holmes submits that evidence about the events preceding and surrounding that earlier robbery, including that A.N. supplied the knife used in that robbery, is admissible. Ms. Holmes argues that the evidence is probative of the mens rea of the offence charged for two reasons. First, it will assist in proving that A.N. and J.W. formed an intention in common to commit a robbery on August 13, 2020. She submits that it will help explain why they did so; after all, they had committed a robbery together before. Second, and even more importantly, Ms. Holmes argues, it will assist the Crown in proving that A.N. subjectively appreciated the likelihood of actual violence being a consequence of a knifepoint robbery. On this latter issue, Ms. Holmes submits that the evidence helps demonstrate that A.N. knew, based on his own prior experience, that the brandishing of a knife during a robbery would not necessarily ensure a compliant victim.

[47] While Ms. Holmes concedes that with an adult accused, common sense would be enough to infer their subjective awareness of the risk of violence inherent in a knifepoint robbery, she emphasizes that A.N. was only 16 years old at the time. As such, the evidence will help ensure that the jury does not erroneously conclude that because he lacked the life experience of an adult, he may not have possessed the maturity to foresee the potential consequences of using a knife to commit a robbery.

[48] Finally, Ms. Holmes argues that, in the circumstances, evidence concerning the prior robbery is not especially prejudicial. She emphasizes that the earlier robbery was comparatively far less serious than the robbery culminating in Mr. Singh's death. After all, Ms. Holmes notes, the victim of the earlier robbery was not stabbed and killed. Given this, she argues, the earlier robbery is unlikely to engender very much, if any, prejudice against A.N.

[49] In contrast, on behalf of A.N., defence counsel, Mr. Craniotis, submits that evidence concerning the earlier robbery is inadmissible because it is not especially probative of any of the material issues in the case and is highly prejudicial.

[50] In challenging the probative value of the evidence, Mr. Craniotis makes two principal arguments. First, he questions the probative value of the evidence because he says there are significant concerns with the credibility of J.W.'s evidence. For example, J.W. admits to having mental health issues and hearing voices. In addition, he did not tell the police about that robbery during the statement he gave to them and only mentioned it for the first time during his testimony at the preliminary inquiry. Finally, he could not recall the surnames of everyone who participated in the earlier robbery. As a result, Mr. Craniotis argues that J.W.'s evidence concerning the earlier robbery is not credible and, therefore, not at all probative.

[51] Second, Mr. Craniotis challenges the Crown's claim that evidence concerning the earlier robbery is probative of the mens rea for murder. In that regard, he submits that rather than showing that A.N. knew that potentially fatal violence was a likely consequence of forming a common intention to commit a knifepoint robbery with J.W., the evidence suggests the opposite. After all, according to J.W., he was the person who deescalated things when the victim refused to surrender his cellphone during the earlier robbery.

[52] Mr. Craniotis submits that evidence concerning the earlier robbery does not logically furnish any proof that A.N. knew that J.W. would likely stab the victim of the robbery they allegedly planned to carry out on August 13, 2020. On the contrary, he argues that evidence supports the very opposite inference. Given the earlier robbery, A.N. would have good reason to believe that if their intended victim resisted, J.W. was unlikely to meet such resistance with violence, let alone potentially fatal violence.

[53] Further, Mr. Craniotis submits that the proposed evidence would result in considerable moral and reasoning prejudice. First, it would portray A.N. as a violent "thug" and run the risk of the jury finding him guilty because he is the "type of person" who would commit the offence charged.

[54] Second, he notes that A.N. does not admit involvement in the earlier robbery alleged by J.W. As a result, there is a real risk of reasoning prejudice. Evidence concerning the earlier robbery would be contested, necessitating further evidence from the other alleged perpetrators. Hearing that evidence would unavoidably consume time at trial and only serve to distract the jury from what should be its primary focus; the allegations concerning August 13, 2020. Admitting the evidence would require the jury to spend time hearing and considering evidence that, at its very highest, is only marginally relevant to the issues it will need to decide.

[55] With the positions of the parties now summarized, I turn next to consider the admissibility of the evidence.

Probative value of evidence concerning the earlier robbery

[56] Assessing probative value begins with identifying the material issues in question: Handy, at para. 73. The offence's elements, the facts alleged, and the defence advanced or reasonably anticipated, taken together, all inform the material issues in the case: Handy, at para. 74.

[57] The Crown does not allege that A.N. is the person who stabbed and killed Mr. Singh. Therefore, his alleged role as a party rather than as a principal provides the basis for his potential liability.

[58] According to J.W.'s testimony, A.N. did not do or say anything to assist or encourage him to stab Mr. Singh. Recall that J.W. testified at the preliminary inquiry that when he stabbed Mr. Singh, A.N. was doing nothing more than standing there. Further, according to J.W., he and A.N. did not exchange any words during the robbery. Given that evidence, there would appear to be no basis for the jury to reasonably conclude that A.N. is guilty of either murder or manslaughter as an aider or abettor in the stabbing of Mr. Singh: see Criminal Code, R.S.C., 1985, c. C-46, ss. 21(1)(b) and (c). [1]

[59] Instead, based on J.W.'s account of the events, the Crown's only viable route for establishing A.N.'s liability for second degree murder depends on section 21(2) of the Criminal Code. Under that provision, to secure a conviction, the Crown would need to establish that A.N. and J.W. formed an intention in common to commit a robbery. And that A.N. knew that, during the robbery, J.W. would probably murder the victim, meaning that he would cause the victim's death while possessing one of the intents required for murder under s. 229 (a) of the Criminal Code – either the intent to cause death or the intent to cause bodily harm that he knew would likely cause death while being reckless as to whether death ensued: see R. v. McLellan, 2018 ONCA 510, 362 C.C.C. (3d) 183, at paras. 75-76; R. v. Patel, 2017 ONCA 702, 356 C.C.C. (3d) 187, at para. 42; R. v. Young, 2009 ONCA 549, 246 C.C.C. (3d) 417, at para. 14, leave to appeal refused [2009] S.C.C.A. No. 462; R. v. Logan, [1990] 2 S.C.R. 731, at pp. 744-748.

[60] Should the jury accept that A.N. agreed to carry out a robbery with J.W. but have a reasonable doubt that he knew that J.W. would probably murder their victim, then it would be required to find A.N. not guilty of murder. However, the jury would still need to consider A.N.’s potential liability for manslaughter, a lesser and included offence to murder: see R. v. Jackson, [1993] 4 S.C.R. 573, at p. 586.

[61] To prove that A.N. is guilty of manslaughter, relying again on section 21(2) of the Criminal Code, the Crown must prove he formed an intention in common with J.W. to rob Mr. Singh. It must also prove that a reasonable person, in the same circumstances, would have foreseen that a probable consequence of carrying out that robbery was the commission of another offence that could occasion bodily harm to Mr. Singh that was neither trivial nor transitory and that resulted in his death: Jackson, at pp. 586-587; R v. Portillo (2003), 176 C.C.C. (3d) 467 (Ont. C.A.), at para. 73; Patel, at para. 42; see also R. v. Creighton, [1993] 3 S.C.R. 3, at pp. 44-45.

[62] To be sure, if the jury concludes that A.N. formed an intention in common to commit a knifepoint robbery with J.W., his conviction for manslaughter would appear somewhat unavoidable. After all, no reasonable person would fail to appreciate that a knifepoint robbery could result in the victim suffering bodily harm that was more than trivial or transitory. Notably, the governing standard is objective and permits no variation for an accused's circumstances, including their age, absent an incapacity to appreciate the risk: Creighton, at pp. 60-62.

[63] Finally, it is important to note that although defence counsel advises that A.N. admits that he was present when J.W. stabbed Mr. Singh, he denies forming an intention in common with him to commit robbery. As a result, he contests his potential liability for either murder or manslaughter in the death of Mr. Singh.

[64] Given the elements of the offence charged, including for the lesser included offence of manslaughter, the facts, and A.N.'s position, the material issues, in this case, appear to be:

(1) Did A.N. and J.W. form an intention in common to commit robbery?

(2) If they formed an intention in common to commit robbery, did A.N. know that J.W. would probably murder the victim of the robbery they planned to commit?

(3) Alternatively, if they formed an intention in common to commit a robbery, would a reasonable person, in the same circumstances, have foreseen that a probable consequence of the robbery they planned to commit was the commission of another offence that could occasion bodily harm to the victim that was neither trivial nor transitory?

[65] I begin by considering whether the evidence concerning the earlier robbery that J.W. alleges is probative of the first material issue. To be sure, a common intention "is seldom expressed and rarely reduced to writing and must, therefore, in general, be found from conduct of the parties. That which takes place at the scene of the offence is material, but also relevant is the conduct of the parties leading up to and subsequent thereto": R. v. Suchan and Jackson (1952), 104 C.C.C. 193 (S.C.C.), at p. 197, per Estey J. Unlike most cases involving section 21(2), this is one of those rare cases where, because J.W. has pleaded guilty and agreed to testify for the Crown, there is direct evidence that J.W. and A.N. formed an intention in common to carry out a robbery on August 13, 2020.

[66] Evidence that J.W. and A.N. committed a knifepoint robbery together in October or November 2019 is undoubtedly relevant to the first material issue - whether they formed an intention in common to commit a robbery on August 13, 2020. As a matter of logic and human experience, if the young men had agreed to commit robbery together before, it makes it slightly more probable that they would agree to do so again: see R. v. J-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at pp. 622-623; R. v. McDonald, 2017 ONCA 568, 351 C.C.C. (3d) 486, at para. 66-67; R. v. Watson (1996), 108 C.C.C. (3d) 310 (Ont. C.A.), at para. 33. In that regard, the evidence helps explain why A.N. might suggest that J.W. join him in committing a robbery on August 13, 2020.

[67] That said, evidence concerning the earlier robbery is far from essential to the narrative in this case. After all, in explaining why A.N. might ask him to commit a robbery, J.W. first referenced his reputation at their school and being known for hanging out with older students who committed robberies. Moreover, he only mentioned the earlier robbery involving A.N. when the Crown specifically asked him if A.N. was involved with any of the earlier robberies. As a result, there is no reason J.W. could not explain why A.N. asked him to commit a robbery without referring to the earlier robbery he alleges involved A.N. In other words, testimony concerning the knifepoint robbery in October or November 2019 is not an unavoidable and necessary part of the narrative in this case.

[68] The earlier robbery J.W. alleges would not appear relevant to the second material issue in this case, at least not in the way the Crown suggests. I am hard-pressed to understand how that evidence would help prove that A.N. knew that J.W. would probably murder the victim of the robbery they allegedly planned on August 13, 2020. After all, according to J.W., he was the person who deescalated things when the victim of the earlier robbery refused to surrender his cellphone. Given this, the earlier robbery does not logically support an inference that A.N. would have reason to think that J.W. would probably murder the victim of the robbery they planned on August 13, 2020. In fact, as a matter of logic and common sense, it tends to support the very opposite conclusion.

[69] Finally, I am far from persuaded that the earlier robbery is relevant to the third material issue in this case, which concerns the mens rea for manslaughter. The governing standard is uniformly objective. A.N.'s age and resulting lack of maturity are not at all relevant unless he can raise a reasonable doubt concerning his capacity to appreciate that a knifepoint robbery could occasion bodily harm that was more than trivial or transitory. Nothing in the record on this application suggests that A.N. suffers from the kind of profound cognitive deficit that would be necessary to impact his capacity to foresee the readily apparent risks associated with a knifepoint robbery.

[70] No doubt, the Crown is correct that the earlier robbery J.W. alleges would fix A.N. with firsthand knowledge that brandishing a knife will not ensure compliance by the victim of a robbery. However, proving that which would be entirely self-evident, even to a 16-year-old, can hardly be said to bear upon a material issue. In that regard, I must disagree with the Crown that the Court of Appeal's decision in R. v. S.K., 2019 ONCA 776, 148 O.R. (3d) 1, is relevant in the circumstances of this case. That decision involved a young person who faced a charge of murder as a principal. The Court of Appeal found the trial judge erred by instructing the jury on the common sense inference without cautioning them "that 15-year-olds do not have the same life experience as adults and that, as a result, a 15-year-old may not have the level of maturity to foresee the consequences of a particular course of action.": S.K, at para. 84. Given that A.N. is not the person who stabbed Mr. Singh, such an instruction would seem unnecessary and inappropriate in the circumstances of this case.

[71] Ultimately, in my view, evidence concerning the earlier robbery J.W. alleges is relevant and somewhat probative of the first material issue in this case; whether J.W. and A.N. formed an intention in common to commit a robbery on August 13, 2020. That said, it is far from an essential and unavoidable part of the narrative in this case. And while relevant to the second material issue, it tends to support the defence’s rather than the Crown’s case. Finally, absent some suggestion at trial by A.N. that he lacked the capacity to appreciate the potential risks of a knifepoint robbery, evidence concerning the earlier robbery J.W. alleges is not relevant to the third material issue in the case.

[72] The jurisprudence has now recognized that when assessing the probative value of proffered evidence, the credibility and reliability of the evidence is a relevant consideration: Paciocco, Paciocco and Stuesser, at pp. 49-52 (and the cases cited therein). As Binnie J. explained in Handy, at para. 134:

In the usual course, frailties in the evidence would be left to the trier of fact, in this case the jury. However, where admissibility is bound up with, and dependent upon, probative value, the credibility of the similar fact evidence is a factor that the trial judge, exercising his or her gatekeeper function is, in my view, entitled to take into consideration. Where the ultimate assessment of credibility was for the jury and not the judge to make, this evidence was potentially too prejudicial to be admitted unless the judge was of the view that it met the threshold of being reasonably capable of belief.

[Underlining in original]

[73] In opposing the admissibility of the evidence concerning the earlier robbery, Mr. Craniotis argued the evidence was devoid of probative value because J.W. is not a credible witness. However, I am far from satisfied that J.W.'s evidence is not reasonably capable of belief. Simply because he has mental health issues, sometimes hears voices, did not mention the earlier robbery in his police statement, and could not remember the surnames of everyone involved, would not foreclose the jury from believing him. Therefore, his potential evidence concerning the earlier robbery he alleges undoubtedly has some probative value.

[74] In summary, J.W.'s evidence concerning the earlier knifepoint robbery is relevant to whether he and A.N. formed an intention in common to carry out a robbery on August 13, 2020. That said, the evidence is far from essential to the narrative of the relevant events, as it is not the primary reason J.W. cites for why A.N. would ask him to commit a robbery. Further, its probative value as it concerns that issue seems, at best, redundant, given J.W.’s direct evidence that he and A.N. agreed to commit a robbery on the day in question.

Prejudicial effect of evidence concerning the earlier robbery

[75] In my view, evidence concerning the earlier knifepoint robbery alleged by J.W. will occasion considerable moral and reasoning prejudice.

[76] Regarding the danger of moral prejudice, its potential impact is readily apparent. Evidence concerning the earlier robbery, if accepted, portrays A.N. as anti-social and violent. In the eyes of the jury, it would paint him with a very dark brush, as the very type of person who would commit the offence charged. In that regard, the evidence risks the sort of moral prejudice that has caused the Supreme Court to repeatedly recognize that discreditable conduct evidence is only admissible on an exceptional basis: B. (C.R.), at p. 732; Arp, at para. 41; Handy, at para. 64.

[77] With respect, I cannot accede to the Crown's submission that the evidence is not especially prejudicial because the victim of the earlier knifepoint robbery was not stabbed or otherwise injured. Merely because the circumstances surrounding the earlier robbery could be far worse does not, in my view, eliminate the moral prejudice that evidence would unavoidably occasion.

[78] Evidence about the earlier knifepoint robbery would also necessarily entail a fair degree of reasoning prejudice. A.N. was never prosecuted and convicted of any offence concerning the earlier robbery J.W. alleges. Moreover, he denies participating in it. Accordingly, if J.W. were permitted to testify about it, the jury would be required to adjudicate whether the earlier knifepoint robbery ever occurred. That would potentially involve evidence from the two other young men that J.W. names as participants in that robbery, and possibly, should he choose to testify, evidence from A.N. All of that would take time and redirect the jury's attention away from what should be its primary focus; the events of August 13, 2020.

[79] In short, in my view, the admission of evidence concerning the earlier knifepoint robbery that J.W. alleges would occasion considerable moral and reasoning prejudice.

Weighing Probative Value and Prejudicial Effect

[80] Ultimately, the court must determine whether the probative value of the evidence concerning the earlier knifepoint robbery J.W. alleges outweighs its prejudicial effect. In the circumstances, I am far from convinced that it does.

[81] First, although relevant to the first material issue in this case, whether J.W. and A.N. formed an intention in common to commit a robbery on August 13, 2020, the evidence is only somewhat probative of that issue. Comparatively, it is far less probative than J.W.'s direct evidence that they formed just such a plan.

[82] Second, concerning the next material issue, whether A.N. knew that J.W. would probably murder the victim of the robbery they allegedly planned on August 13, 2020, the earlier robbery furnishes exculpatory rather than incriminating evidence. Although the defence acknowledges this, it still opposes its admission because of understandable concerns about the prejudice that evidence would occasion.

[83] Third, the evidence does not appear to be relevant to the final material issue in this case. To be sure, that could change if A.N. were to claim a lack of capacity to appreciate the readily apparent risks of carrying out a knifepoint robbery. However, there is no basis, at this point, to suggest he will take that position at trial. Of course, the trial judge could determine that the calculus for admissibility has changed should A.N. attempt to advance such a defence.

[84] Finally, as explained, evidence concerning the earlier knifepoint robbery alleged by J.W. has the real potential to engender moral prejudice while also occasioning reasoning prejudice.

[85] The Crown has failed to satisfy me that evidence concerning the earlier knifepoint robbery is more probative than prejudicial in all the circumstances. Ultimately, in my view, evidence concerning the earlier robbery would tend to add “more heat than light”: Director of Public Prosecutions v. Boardman, [1975] A.C. 421 (H.L.), at p. 454 per Hailsham L.J. As such, evidence concerning the earlier robbery that J.W. alleges is inadmissible.

Conclusion

[86] For all these reasons, evidence that J.W. and A.N. met on August 12 and then on August 13, 2020, to buy and sell marihuana is admissible at trial. In contrast, evidence concerning the robbery in October or November 2019 that J.W. alleges is ruled inadmissible.

“James Stribopoulos J.”

COURT FILE NO.: YCJA (P) 21/739 DATE: 2022 02 14 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN

• and - A.N. REASONS FOR DECISION Stribopoulos J. Released: February 14, 2022

[1] I recognize that the preliminary inquiry judge committed A.N. to stand trial for second degree murder based on both s. 21(1) (b) (as an aider), and under s. 21(2) (common intention). With respect, I must disagree that the evidence furnishes a basis upon which a jury could reasonably conclude that A.N. is guilty of second degree murder or manslaughter as an aider under s. 21(1) (b). In committing A.N. to stand trial on that basis, the preliminary inquiry judge noted that: (1) A.N. agreed to participate in a robbery; (2) both he and J.W. were armed with knives; (3) that he was involved in a struggle with Mr. Singh shortly before the stabbing; (4) he was nearby when the stabbing occurred; and (5) at the time of the stabbing, he still had Mr. Singh's cellphone. Although the combined effect of that evidence, if accepted, undoubtedly makes A.N. guilty of robbery (and very likely manslaughter based on s. 21(2) ), it falls short of providing the foundation for a reasonable inference that he aided J.W. in carrying out the fatal stabbing. To be sure, the situation would be very different if the evidence suggested that A.N. provided J.W. with the knife used to stab Mr. Singh, held Mr. Singh as J.W. stabbed him, or tried to block Mr. Singh's escape as J.W. approached him with the uplifted knife. However, based on the evidence, there is no reasonable basis for concluding that A.N. did anything for the purpose of aiding J.W. to stab Mr. Singh.