Court File and Parties
COURT FILE NO.: CR-20-307-00 DATE: 20220324
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN C. Coughlin and P. Maund, for the Crown
- and -
PHILIP FITZPATRICK and EVAN WRIGHT S. Caramanna and C. Laperriere, for Mr. Fitzpatrick J. Goldlist and M. Bavaro, for Mr. Wright
HEARD: December 13, 2021
Ruling on Motions Re: Admissibility of Antemortem Statements and Bad Character Evidence
Justice André
[1] Mr. Caramanna on behalf of Philip Fitzpatrick, brings an application for the admissibility of antemortem statements while Ms. Goldlist, on behalf of Evan Wright, brings an application for leave to cross-examine a Crown’s witness regarding activities of the deceased related to drug trafficking. The Crown opposes both applications based on the issue of relevancy of the proposed evidence and its prejudicial effects.
Background
[2] In November 2018, members of the Peel Regional Police Force charged both applicants in the murder of Brandon Hall on June 21, 2018. The trial evidence has established that at approximately 4:30 a.m. on June 21, 2018, a person or persons kicked down the front door of Mr. Hall’s basement apartment and gunned him down. Mr. Hall’s mother was the only eye-witness to the incident.
Crown’s Evidence
[3] The Crown has called evidence that Evan Wright and Mr. Hall were involved in selling guns and that Mr. Hall had stolen two guns from Mr. Wright. The Crown’s evidence includes testimony from Mr. Hall’s mother that the shooter was a short stocky black man while both accused are white. Video surveillance evidence showed two persons who, according to Mr. Fitzpatrick’s father and stepmother, could be the applicants. Another witness who is on the stand, Mr. Grant-Mentis, has testified that Evan Wright and Brandon Hall were involved in selling guns and that Mr. Wright told him that Mr. Hall had stolen two guns from him and owed him $300. Mr. Grant-Mentis also testified that Mr. Hall was involved “in the streets.” Defence counsel seeks to cross-examine Mr. Grant-Mentis on antemortem statements made to him by Mr. Hall and on his testimony that Mr. Hall was “in the streets.”
Positions of the Applicants
Position of Mr. Caramanna
[4] Prior to the trial, Mr. Caramanna successfully brought an alternate suspect application for leave to cross-examine Mr. Grant-Mentis on the ground that he was the black shooter who, Ms. Hall told the police, was responsible for her son’s death.
[5] In his statements to the police, Mr. Grant-Mentis indicated that Mr. Hall had told him that a male nicknamed “Chief” had ripped him off by failing to give him $1,000 worth of counterfeit money after Mr. Hall had paid him the asking price of $300. Mr. Grant-Mentis advised the police that Mr. Hall told him that he needed to get his money back from Chief and needed the guns he co-owned with Mr. Wright “just in case.” Mr. Grant-Mentis testified that Mr. Wright told him that Mr. Hall had stolen the guns from him and wanted them back. He also testified that he offered Mr. Wright $300 to settle the issue between Mr. Wright and Mr. Hall, but that Mr. Wright did not accept the offer.
[6] Mr. Caramanna submits that Mr. Grant-Mentis could have sorted out the dispute between Mr. Wright and Mr. Hall, but he did not. He submits further that Mr. Grant-Mentis failed to do so because, contrary to his testimony, he was involved in Mr. Hall’s murder.
[7] Mr. Caramanna seeks leave to question Mr. Grant-Mentis about what Mr. Hall told him regarding a) Mr. Hall’s transactions with Chief; and b) Mr. Hall’s reason for taking the two guns from Mr. Wright to help him recover the money which Chief owed to him. He submits that this evidence is relevant to:
a) Mr. Grant-Mentis’ state of mind rather than that of Mr. Hall; and b) Narrative to explain the context of the incident.
[8] Mr. Caramanna submits that Mr. Grant-Mentis’ statements regarding what Mr. Hall told him are inextricably entwined with Mr. Grant-Mentis’ statement and therefore is relevant to the issue of his credibility.
Ms. Goldlist’s Position
[9] Ms. Goldlist submits that she should be permitted to question Mr. Grant-Mentis about his evidence that Mr. Hall was involved “in the streets” or in street crimes – including drug trafficking. Specifically, she seeks to show the witness images of Mr. Hall on SnapChat posing with bags of marijuana and with what appeared to be thousands of dollars. She insists that this evidence is “part of the narrative” and does not constitute bad character evidence in that she does not intent to elicit evidence regarding specific acts of violence by Mr. Hall.
Analysis
[10] This application raises the following issues:
a) Is Mr. Hall’s statements to Mr. Grant-Mentis regarding his transactions with Chief and his reason for taking the two guns from Mr. Wright admissible as evidence of Mr. Grant-Mentis’ state of mind or the narrative exception to the rule regarding the inadmissibility of hearsay evidence? b) Should Ms. Goldlist be allowed to elicit evidence that Mr. Hall was a drug trafficker, as part of the narrative exception to the hearsay rule?
A) Is Mr. Hall’s statements to Mr. Grant-Mentis admissible under the state of mind or narrative exceptions to the hearsay rule?
The Law
[11] In R. v. Smith, [1992] 2 S.C.R. 915, at para. 22, the Supreme Court of Canada noted that the exception applies when the declarant’s statement is adduced to demonstrate the intentions, or state of mind of the declarant at the time when the statement was made. The Court further noted at para. 23 that where the intentions or state of mind of the declarant are relevant to a fact in issue, hearsay evidence is admissible, and, indeed, may be the best evidence to prove this.
[12] In R. v. Starr, 2000 SCC 40, [2000] 2 SCR 144, at para. 168, Justice Iacobucci endorsed a statement in Wigmore on Evidence, Vol. 6 (1976) at p. 129 that this exception “must appear to have been made in a natural manner and not under circumstances of suspicion”.
[13] Further, in Starr, at para. 169, Justice Iacobucci referred to Lamer C.J.’s decision in Starr where he quoted from the judgment of Doherty J. in R. v. P.(K.), at pp. 343-44 that:
The evidence is not however, admissible to show the state of mind of persons other than the deceased (unless they were aware of the statements) or to show that the deceased acted in accordance with the deceased’s stated intentions, save perhaps cases where the act was a joint one involving the deceased and another person.
[14] To be admissible as a state of mind exception to the hearsay rule, a hearsay statement must:
a) be of a present existing state of mind; b) must have been made in a natural manner; c) must not be made under circumstances of suspicion; d) such statements can be used to support an inference that the declarant followed through with a particular course of action; and, e) the statements are confined to inferring the declarant’s state of mind only.
Application of the Law to the Facts
[15] Are the statements in question admissible under the state of mind exception to the hearsay rule? In my view they are not. I say so for the following reasons:
a) They are admissible to show the state of mind of Mr. Hall rather than that of Mr. Grant-Mentis; b) There is no evidence that Mr. Hall followed through with a course of action contemplated in the statement; and, c) The statements attributed to Mr. Hall, regarding his intention to settle his “beef” with the person called “Chief” are not relevant to a fact in issue in this trial, whether the identify of the shooter or self defence. Indeed Mr. Caramanna has stated that he will not be identifying Chief as Mr. Hall’s shooter.
B) The Narrative Exception to the Hearsay Rule
[16] Are the statements in question admissible under the narrative exception to the hearsay rule?
The Law
[17] In F.(J.E.) (1993), 85 C.C.C. (3d) 457 (Ont. C.A.), the court noted that such evidence “must be a part of the narrative in the sense that it advances the story from offence to prosecution or explains why so little was done to terminate the abuse or bring the perpetrator to justice.”
[18] In The Law of Evidence: 5th Edition (Irwin Law), 2008, page 45, Paciocco and Stuesser described narrative evidence as “harmless background material that, while frequently not meeting the admissibility prerequisite of relevance and materiality, is often tolerated “because it improves comprehension by presenting a total picture and makes it easier for the witness to recount the evidence.”
[19] In R. v. Edwards, 2009 ONSC 4300, [2009] O.J. No. 3724 (S.C.), at para. 23, Justice Boswell noted, relying on Paciocco and Stuesser, that, “where narrative constitutes prejudicial information, it should only be allowed ‘where significant testimony can not be recounted meaningfully and fairly without its disclosure’”. Justice Boswell further noted at para. 24 that “narrative […] is really akin to connective tissue. It binds together other elements of significant and admissible testimony and makes that evidence more comprehensible.”
Application of the Law to the Facts
[20] Can evidence of the fatal shooting of Brandon Hall be recounted meaningfully and fairly without evidence relating to the hearsay statements being attributed to Mr. Hall?
[21] Mr. Caramanna submits that it cannot. He points to the following factors which justify admission of the statements:
a) The defence will not seek to use this evidence to bolster i. a claim of self defence; ii. to suggest that Mr. Hall was of bad character and was deserving of what happened to him; iii. to suggest that Chief could have committed the homicide; and, iv. for any impermissible purpose. b) He submits that: i. The utterances of Brandon Hall alleged by Mr. Grant-Mentis are needed to undermine the credibility of Mr. Grant-Mentis’ entire account because: a. It is internally incoherent; b. It borders on the absurd at various times; c. There are inconsistencies in the various renditions of his account; and, d. It exposes his own motive to have committed the homicide. ii. The utterances are not admissible for the truth of their contents, but only for the fact of existence. In these circumstances, the utterances are being adduced only because they are necessary for the jury to assess Mr. Grant-Mentis’ credibility through cross-examination on the account(s) he has given. The fact that the accounts contains utterances of the deceased is ancillary to the exercise and task. Unfortunately, like the evidence of Evan Wright selling guns, there is no way to assess the veracity of what Mr. Grant-Mentis said without delving into the specifics of his entire story, out of court statements and all. The out of court utterances are essential to understanding the unfolding of events as recounted by Mr. Grant-Mentis. iii. The out of court utterances inform the jury about the steps that Mr. Grant-Mentis did and did not take. For example, and without trying to be exhaustive on the issue, if Mr. Grant-Mentis is believed about the utterances he claims Mr. Hall made, then it could be argued that Mr. Grant-Mentis’ actions: a. should have been other than what he claims; b. show he is lying; or, c. provide his own motive to commit the homicide.
[22] I am not persuaded that the evidence surrounding Mr. Hall’s murder can not be recounted meaningfully and fairly without evidence which the applicant seeks to adduce. In my view, the evidence that Mr. Hall told Mr. Grant-Mentis that Chief had ripped him off over a deal to buy counterfeit money is not probative of any issue in this trial. Neither is the statement that Mr. Hall had taken the guns to settle his beef with Chief. Both of those statements are highly prejudicial and constitute evidence of bad character that, despite a limiting instruction, could prompt the jury to think that Mr. Hall was a bad person who deserved his fate.
[23] Mr. Caramanna submits that the defence consented to the Crown’s request to call evidence of prior discreditable conduct that Mr. Hall and Mr. Wright were selling guns and that Mr. Hall had stolen two guns from Mr. Wright. This evidence, however, was highly probative of the issue of identity and motive of the individual involved in Mr. Hall’s fatal shooting. The same thing cannot be said for the statements which Mr. Caramanna seeks to adduce.
[24] That said, Mr. Caramanna, in my view, should be permitted to put to Mr. Grant-Mentis that Mr. Hall had told him he had been ripped off by someone and that was the reason why he had taken the guns in question. He is allowed to question Mr. Grant-Mentis about why he had not relayed this information to Mr. Wright and whether his failure to do so was partly the result of his involvement in Mr. Hall’s murder. However, Mr. Caramanna is not permitted to put to the witness that Mr. Hall had paid Chief for counterfeit money and after failing to receive what he had purchased, had taken the guns to “settle his beef” with Chief.
Should Ms. Goldlist be allowed to elicit evidence that Mr. Hall was a drug trafficker as part of the narrative?
[25] Ms. Goldlist submits that evidence that Mr. Hall was a drug dealer is part of the narrative and is relevant to enable the jury to understand how the parties interacted with the shooter and to the state of mind of the shooter. She relies on paras. 41 and 49 of R. v. Diu (2000), 144 C.C.C. (3d) 481 (Ont. C.A.), for the proposition that “there is no rule excluding evidence of the disposition of the deceased or a third party where such evidence is relevant, provided the trial judge concludes that the probative value of such evidence is not outweighed by its prejudicial effect.”
[26] I fail to see how evidence based on snapshots of Mr. Hall displaying thousands of dollars and bags of marijuana are relevant to any issue in this trial. There is no evidence that Mr. Hall’s drug activities were related in any way to any animus between Mr. Wright and himself. Second, the jury does not need to have additional evidence concerning the interactions between the parties because they have already heard about the relationship between Mr. Wright and Mr. Hall and the fact that Mr. Grant-Mentis and Mr. Hall smoked weed.
[27] Further, there is a concern that eliciting evidence that Mr. Hall was a drug trafficker may prompt the jury to conclude that Mr. Hall had a propensity for violence: see R. v. Tuck, 2007 ONCA 556, 223 C.C.C. (3d) 331, at para. 41. This line of questioning carries the real risk in this case that eliciting evidence that the deceased had a propensity for violence may open the door for the Crown to call evidence that the accused himself had a similar propensity: see Tuck, at para. 14. This, in my view, would be an unwelcome development in this trial which carries the risk of propensity reasoning.
[28] Ms. Goldlist submits that the prejudicial effect of the proffered evidence is minimal given that the Crown has also led evidence that the police found knives, money, and Halloween masks at Mr. Hall’s residence all of which collectively create an inference that Mr. Hall was engaged in crimes involving violence. However, the Crown submits that this evidence was adduced by Ms. Goldlist while she cross-examined Ms. Hall.
[29] Ms. Goldlist submits that failing to elicit this evidence from Mr. Grant-Mentis will result in the jury being presented with a sanitized version of Mr. Hall. In my view, however, there is no chance of this in this trial. The jury has already been told that guns were found in his residence along with knives, money, and masks. Mr. Grant-Mentis has testified that Mr. Hall sold guns with Mr. Wright. There has also been evidence that he smoked weed regularly. Based on the above, it simply cannot be said that the jury has been presented with a sanitized version of Mr. Hall.
[30] The Crown also submits that his failure to object to the admission of this evidence was an oversight and that this evidence may also have already opened the door for him to lead evidence of Mr. Wright’s bad character.
[31] In my view, that is not the case. A limiting instruction can caution the jury about the limited use of this evidence in their deliberations. In any event, inadvertently allowing Ms. Goldlist to lead evidence of prior discreditable conduct does not justify allowing her to do so again.
[32] For all these reasons, Ms. Goldlist will not be permitted to adduce snapshots showing Mr. Hall with thousands of dollars and bags of weed. This evidence is highly prejudicial and has little to no probative value. To that extent, the application is dismissed.
André J. Released: March 24, 2022