Court File and Parties
COURT FILE NO.: CR- 21-70000-372 DATE: 20220311 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – CONNOR MADISON
Counsel: Simon Heeney, for the Crown Selwyn Pieters, for Connor Madison
HEARD: March 7, 2022
Reasons for Ruling
M. Dambrot J. :
[1] Connor Madison is being tried by me, with a jury, on an indictment in which he is charged with the second degree murder of Stephan Knight-Roberts. Mr. Knight-Roberts was stabbed to death at about 11:30 p.m. on June 25, 2020, in a public park near 280 Wellesley Avenue East in Toronto. Most of the events surrounding the stabbing were captured on video. Mr. Madison’s identity in the video is conceded in this case as is the cause of Mr. Knight-Robert’s death.
[2] The accused has indicated that he intends to raise the defences of provocation, self-defence, and perhaps, intoxication.
[3] This ruling relates to three pre-trial applications relating to the admissibility of evidence. Two of them relate to the admissibility of evidence of discreditable conduct. The third relates to the admissibility of after the fact conduct.
Background
[4] On June 25, 2020, the accused was staying in a fourth-floor apartment at 280 Wellesley Avenue East. The building had video surveillance cameras located in a number of locations, including the elevator lobby of each floor. At approximately 9:20 p.m., the accused can be seen in surveillance video recorded by the fourth-floor camera with what appears to be a large knife tucked into his waist band.
[5] On June 25, 2020, shortly before 11:30 p.m., the accused was involved in an altercation with the deceased and a second man in a secluded location beside a swimming pool in a public park near 280 Wellesley Avenue East. This confrontation was video recorded by a security camera. The Crown alleges that the two men robbed the accused of a firearm.
[6] After the robbery, the accused followed and then confronted Mr. Knight-Roberts and stabbed him repeatedly with a knife. This confrontation was also video recorded by a security camera. The accused can be seen in the video in possession of a large knife, both during the stabbing and in the moments afterwards. During this confrontation, Mr. Madison was overheard by a witness to say, “Hey he took my stick. He took my stick. Motherfucker took my stick”. The witness who overheard this testified that “stick” means “gun” on the street. In addition to the video recording I mentioned, a neighbour video and audio recorded a part of the confrontation between the accused and the deceased on her cellphone from her nearby apartment balcony. A male voice can be heard on the recording saying, “Guy just took my fucking stick”.
[7] Following the stabbing, the accused walked calmly from the scene with the knife in his hand and returned to the apartment at 280 Wellesley Street East. Once again, these events were video recorded. He entered the rear door of the building and proceeded to the fourth floor, where he entered an apartment at 11:36 p.m. He returned to the elevator area of the fourth floor seven minutes later. He had changed his clothes in the interim and was no longer carrying a knife.
[8] At 1:30 a.m. on June 26, 2020, the accused again returned to the fourth-floor apartment, accompanied by another man. Approximately 90 minutes later, the two men left the building carrying a large plastic bag.
[9] The same two men were observed at 280 Wellesley Street East carrying camping equipment the following day. On June 29, 2020, the accused was arrested in Georgina, Ontario, 80 kilometres north of Toronto.
[10] Neither the knife, nor the clothing worn by the accused at the time of the stabbing have ever been recovered by the police.
The Motions
[11] The three applications arising from this evidence are the following:
- An application brought by the Crown for an order permitting the introduction of evidence of prior discreditable conduct of the accused, specifically, his possession of a knife at 9:20 p.m., two hours before the stabbing.
- An application brought by the Crown for an order permitting the introduction of evidence of discreditable conduct of the accused contemporaneous with the stabbing, specifically evidence suggesting that the deceased and a second man had robbed the accused of a gun shortly before the accused stabbed the deceased.
- An application brought by the Crown for an order permitting the introduction of evidence of the actions taken by the accused after the stabbing of the deceased. I will consider each of these applications in turn.
Is Evidence That The Accused Was In Possession Of A Knife Before The Stabbing Admissible?
[12] Undoubtedly evidence that an accused left his apartment and went out in public two hours before the stabbing with a large knife in his waistband can be viewed as bad character evidence. As a result, it is admissible only if it is relevant to a material issue other than propensity to commit the offence alleged and its probative value outweighs its prejudicial effect.
[13] Typically, where evidence of the accused’s prior discreditable conduct is admitted, it is relevant to identity, intent, motive or animus. In this case, the accused admits that he is the person in the video seen stabbing the deceased. As a result, this evidence is unnecessary to the establishing of identity. However, the accused denies having the intent necessary to commit murder and raises the defences of self-defence and provocation. The Crown argues that evidence that the accused left his apartment and went out in public two hours before the stabbing with a large knife in his waistband is relevant to these three issues.
[14] In all the circumstances of this case, it would be open to the jury to conclude that the knife in the accused’s waistband when he left the apartment in which he was staying was the same knife that he used to stab the deceased. The two events are close together both temporally and geographically. In addition, in a still shot taken from the fourth-floor video the knife appears to be at least a foot long and to have a brown handle, and in a statement to the police, one of the eyewitnesses to the stabbing described the knife as being easily fourteen inches long with a silver blade and a brown wooden handle with a rounded nub end.
[15] If the jury concludes that the knife in the accused’s waistband when he left the apartment was the same knife that he used to stab the deceased, then it would be open to them to conclude that the knife did not somehow fall into his hands at the time of his confrontation with the deceased, but rather that he came to the confrontation with it in his possession. This in turn is relevant to his state of mind at the time of the stabbing. It supports an inference that when the accused used the knife to stab the deceased he did not merely strike out with whatever came into his hand, but instead, he used an object that he knew to be lethal, and, in turn, that he meant to cause the death of the deceased or meant to cause him bodily harm that he knew was likely to cause his death and was reckless whether death ensues or not. What is more, in my view, this evidence has significant probative value.
[16] This evidence is also relevant to the defence of self-defence that the accused has indicated he will raise. Section 34(1)(c) of the Criminal Code provides that one of the prerequisites to the defence of self-defence is that the act of self-defence that constitutes an offence must be reasonable in the circumstances. And s. 34(2)(g) provides that one of the circumstances that must be considered in determining if the act committed was reasonable in the circumstances is “the nature and proportionality of the person’s response to the use or threat of force”. If the accused had the knife in his possession hours before the stabbing, then, once again, it is open to the jury to infer that he was aware that it was large and lethal, which in turn is relevant to the nature and proportionality of his response. Moreover, once again, in my view, the evidence has significant probative value.
[17] On the other hand, in the circumstances of this case, the prejudicial effect of the admission of this bad character evidence, if there is any at all, is slight. I say this because the jury will know that the accused not only was in possession of the knife two hours later when he confronted the deceased, but will also know that he used it to kill the deceased. The accused expressed a concern that it might suggest to the jury that he had the knife for an unlawful purpose before the confrontation. But so would his possession of the knife at the time of the killing. This is not a case where the evidence of prior discreditable conduct might show that the accused habitually carries a knife.
[18] I am satisfied that the fact that the accused may have had that knife on his person for more than two hours before the killing has significant probative value but adds little to the prejudice that is inherent in his possessing a knife. The probative value of this evidence outweighs its prejudicial effect. It is admissible.
Is Evidence That The Accused Was Robbed Of A Gun By The Deceased And A Confederate Shortly Before The Accused Stabbed The Deceased Admissible?
[19] This application was brought by the Crown out of an abundance of caution. The accused concedes the admissibility of this evidence. As a result, I will address it only briefly.
[20] Needless to say, evidence that the accused was in possession of a handgun in public is bad character evidence. As a result, it is admissible only if it is relevant to a material issue other than propensity to commit the offence alleged and its probative value outweighs its prejudicial effect.
[21] In this case, the evidence is relevant to a material issue and its probative value is very high. The fact that the deceased and a confederate robbed the accused of a handgun shortly before the stabbing is evidence that the accused had a motive to give chase and do harm to the deceased. It is central to the narrative of the case, is cogent evidence of the mens rea for murder and weighs significantly against a claim of self-defence. If authority is needed for the principle that evidence of motive is always relevant in a criminal case in that it makes it more likely that the accused committed the crime, I refer to R. v. S.G.G., [1997] 2 S.C.R. 716 at para. 64.
[22] While evidence that the accused’s possession of a gun undoubtedly gives rise to the possibility of moral prejudice in particular, the probative value clearly outweighs it. The prejudice can be contained by an appropriate jury instruction.
Is Evidence Of The Actions Taken By The Accused After The Stabbing Of The Deceased Admissible?
[23] Actions taken by an accused person after a crime has been committed, such as flight and the destruction of evidence, may constitute circumstantial evidence of their culpability for that crime. It is permissible for the prosecution to introduce evidence of after the fact conduct in support of an inference that the accused behaved as would a person who is guilty of the offence alleged, provided that its relevance to that inference can be demonstrated. In some cases, the evidence is relevant to the identity of the perpetrator of the crime alleged. In some cases, it is relevant to the intention of the accused when the act constituting the crime was committed. Evidence of after the fact conduct may also be put to a wide variety of other uses. There is no closed list. As with all evidence, the relevance and probative value of post-offence conduct must be assessed on a case-by-case basis.
[24] Here, the Crown seeks permission to introduce evidence that after the stabbing, the accused failed to provide assistance to the victim, calmly departed from the scene with the knife in his hand, disposed of the knife used in the stabbing and the clothes he was wearing at the time of the stabbing, and left the city. The Crown argues that the evidence is relevant to several issues, including the intent to commit murder and the defence of self-defence.
[25] The accused argues that the post-offence conduct evidence should not be admitted in this case because it has no probative value. He says that it is unnecessary to establish the identity of the assailant since identity is admitted and since it is equally consistent with the accused being guilty of either murder or manslaughter.
[26] In some cases, the relevance and probative value of post-offence conduct evidence can readily be assessed at the outset of the case, and evidence that is not relevant or has no probative value can be excluded. However, a trial is a dynamic enterprise, and it is often impossible to determine at the outset that an item of post-offence should be excluded. It is often the case that an item of evidence that was initially thought to be admissible must be removed from the jury’s deliberations on some or all the issues at the end of the case and a limiting instruction given. It is particularly difficult to determine the relevance of after the fact conduct to a defence that an accused may or may not raise, and where the evidence that may be adduced in support of that offence is not known to the court. In most cases, the Crown is permitted to adduce the evidence, and the appropriate instruction, sometimes a “no probative value” instruction, is determined only upon consideration of the whole of the evidence.
[27] In my view, it would not be appropriate to exclude the post-offence conduct evidence proffered by the Crown in this case, for several reasons.
[28] First, some of the evidence forms part of the essential narrative of this case. In a case where the actus reus of a murder is video recorded, it is unimaginable that the trier of fact would not be permitted to see it and take it into account in their deliberations. In this case, that inevitably means that the jury will see evidence of the accused’s immediate after the fact conduct, specifically the accused’s failure to provide assistance to the victim and his calm departure from the scene. Precisely what instruction should be given about this evidence will be determined at the end of the case.
[29] Second, in my view, the evidence that after stabbing the deceased, the accused did not hesitate before leaving the scene, and walked away calmly is clearly admissible in the circumstances of this case aside from being essential to the narrative. Such evidence is relevant to the question of whether the accused had the requisite intent for second degree murder despite the fact that he admits to killing the deceased. It is less consistent with killing someone unintentionally than doing so intentionally (see R. v. White, 2011 SCC 13 at para. 70-79).
[30] Third, it is true, as the accused argues, that in some cases, particularly where the accused admits that he committed an unlawful act, post-offence conduct is not relevant to the level of culpability of the accused. But here, the accused does not admit that he committed an unlawful act. He says that he is guilty of neither murder nor manslaughter. As I have noted, he intends to advance the defences of provocation, self-defence and perhaps, intoxication. After the fact conduct may have evidentiary value in relation to those defences.
[31] First, after the fact conduct may have evidentiary value in rebutting defences put forward by an accused that are based on an alleged absence of the required culpable mental state, including self-defence. Evidence of after the fact conduct may be evidence from which, along with other evidence, a jury could infer that that accused was aware that he had committed a culpable act and had not acted in self-defence. After the fact conduct may also be used to support the inference that, despite the appellant's intoxication, he had sufficient awareness to have formed the requisite intent for murder ((see R. v. Peavoy (1997), 117 C.C.C. (3d) 226 (Ont. C.A.) at paras 31-34)). In addition, an accused’s calm departure from the scene of the crime may belie a defence of provocation.
[32] In this case, I do not know what evidence, if any, the accused will adduce in support of those defences, or if there will be an air of reality to any or all of them if he does not. As a result, I simply do not know at this stage of the proceedings what use, if any, I will permit the jury to make of at least some of the after the fact conduct evidence.
Prejudice
[33] The only remaining issue that I must address is prejudice. Relevant post-offence conduct evidence may still be excluded if it is more prejudicial than probative. I must also be concerned that prejudice might arise from permitting after the fact conduct to be adduced that ultimately is withdrawn from the jury’s consideration, which is a possibility here. However, the only prejudice that the accused points to in this case is his assertion that the after the fact conduct proffered here amounts to “needless cumulative evidence” and “forensic piling on of evidence by the acre”, and that its “sheer volume and repetition” is inherently prejudicial to a fair trial. I disagree. The evidence does not involve the commission of an illegal act, and it is of brief duration, flows naturally from the undoubtedly admissible evidence of the commission of the alleged offence and completes the narrative. It will result in neither moral nor reasoning prejudice.
Disposition
[34] For these reasons, I will permit the Crown to adduce the proffered evidence of the accused’s after the fact conduct, and determine at the end of the case, upon consideration of the whole of the evidence, what the appropriate instruction should be. I will decide then whether a “no probative value” instruction, or a limiting instruction should be given to the jury in relation to some of the evidence or some of the issues, and if so, what form it should take.
[35] The three applications brought by the Crown are granted.
M. Dambrot J.