COURT FILE NO.: CR-18-1309-00
DATE: April 29, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Brian McGuire and Peter Maund for the Crown
- and –
DEVIN BEALS
R. Roots Gadhia for Applicant Devin Beals
HEARD: March 7, 2022
EVIDENTIARY RULING
D.E HARRIS J.
i. Introduction
[1] The Applicant Devin Beals makes application to admit evidence under the aegis of R. v. Scopelliti (1981), 1981 CanLII 1787 (ON CA), 34 O.R. (2d) 524, 63 C.C.C. (2d) 481, 1981 CarswellOnt 814 (Ont.C.A.). The Scopelliti decision contemplates the admission of evidence of a deceased’s propensity and reputation for violence not known to the accused. When admissible, it is open to the jury to infer that the past evidence of propensity makes it more likely that the deceased acted violently on the occasion in question.
[2] There are several areas of evidence in issue, the two primary being the deceased’s habitual possession of a knife and his prior use of the “n-word.” A bottom-line ruling was given soon after argument on these matters. These reasons were written as the trial continues to explain the decisions which were made.
[3] Mr. Beals, Clive Walters and Alexander Buckland are charged with the first degree murder of Heidrah Shraim on November 22, 2017. For Mr. Beals, the main issue that this trial will likely be fought over is self-defence.
[4] There was a confrontation between the Applicant and a group of men which included the deceased, his friend Simar Bitar and several others. Some time later, there was a second confrontation. This time Mr. Beals was accompanied by his co-accused and his cousin Shayne Beals. Both the deceased and Mr. Beals used knives during this second confrontation. The deceased suffered one stab wound to his chest which, tragically, pierced his heart and caused his death. It appears from the material filed on this application that it is admitted that Mr. Beals was the stabber.
[5] Leaving aside questions of the burden of proof, the evidence will likely follow the relatively frequently travelled path between acts of premeditated retaliation--which is the Crown’s position--and the defence position that the stabbing was committed in self-defence.
[6] Besides Scopelliti, the defence in a closely related application seeks to admit evidence of ante-mortem statements of the deceased. In Mr. Maund’s ante-mortem factum he concedes admissibility with respect to virtually everything said on the date of the offence November 22, 2017. See his factum at paras. 3-4. I also agree that the matters in para. 5 are admissible at the behest of the Crown. The defence made no argument of substance to the contrary. The admissibility of this evidence cannot reasonably be disputed.
ii. The Scopelliti Admissibility Issues
[7] Justice Martin wrote in Scopelliti (Carswell):
30 … there is impressive support for the proposition that, where self-defence is raised, evidence of the deceased’s character (i.e. disposition) for violence is admissible to show the probability of the deceased having been the aggressor and to support the accused’s evidence that he was attacked by the deceased.
31 Dean Wigmore says:
- Uncommunicated Character of Deceased in Homicide. When the issue of self-defense is made in a trial for homicide, and thus a controversy arises whether the deceased was the aggressor, one’s persuasion will be more or less affected by the character of the deceased; it may throw much light on the probabilities of the deceased’s action.
(Wigmore on Evidence, 3rd ed., vol. I (1940), at p. 467)
[Emphasis in Original]
a. The Minor Issues
[8] In terms of the Scopelliti issues, the Applicant sought to cross-examine Crown witnesses Mr. Bitar and Daniel Fiseha with respect to an incident in which the deceased and Mr. Bitar attempted to stop a security guard from apprehending Fiseha. In my view, this evidence is inadmissible. It raises more questions than it answers and is of paltry probative value to any legitimate issue at trial. The unknowns pile on top of each other: when did this happen, why was the security guard trying to apprehend Fiseha, were his actions reasonably justified, was Fiseha resisting apprehension and, more generally, what was his role in the incident? This is a quagmire. Its tendency to show prior acts of violence to assist in building a propensity inference, even taken cumulatively with other evidence, is virtually nil. Nor is there a significant credibility issue arising from an inconsistency with respect to this incident. On the other hand, its tendency to distract the jury is substantial.
[9] Next, the defence argues that Mr. Bitar’s evidence that the deceased was a hothead and would on occasions get upset is subsumed in the evidence with respect to November 22, 2017, itself. That he was a hothead and got upset on that day cannot reasonably be disputed. That he had a temper exhibited on other occasions is vague and adds nothing of real significance. This evidence is too general to be of any real assistance to the jury.
b. Habitual Possession of a Knife
[10] Of more merit, the Applicant seeks admission of evidence that the deceased habitually carried a knife. He had a knife and used it on November 22, 2017, but there is also evidence that he often carried it with him.
[11] Habitual possession of weapons was considered by Justice Doherty in R. v. Watson, (1996) 1996 CanLII 4008 (ON CA), 108 C.C.C. (3d) 310, 30 O.R. (3d) 161 (Ont.C.A.). Mr. McGuire is correct that the use of the habitual possession of a gun evidence in Watson does not tend to demonstrate admissibility in this instance. In Watson, it was held that because the deceased habitually carried a gun, he was likely to have had one and used it at the time he was shot. This would tend to show that the killing was spontaneous and not planned as the Crown alleged.
[12] There is no analogous purpose in this trial. The difficulty for the Crown, however, is that Watson was only a single example of the admissibility of habitual possession of a weapon and does not purport to describe all possible variations. Watson demonstrates how to arrive at an inference of habit and the potential importance of habit evidence but it does not shed any light on the habitual possession evidence in this case.
[13] The evidence is advanced by the defence in this instance to bolster a Scopelliti propensity inference. Although the deceased’s actual use of the knife on the day in question is bound to be the major evidentiary focus, in my view it would be wrong not to allow the defence to go further. This knife was not innocuous; it was not a Swiss-army knife for example. Possessing a knife of this nature was itself indicative, at least to some degree, of a violent tendency. I would not characterize it as particularly compelling evidence in the full context of this trial but nonetheless it has some weight.
[14] There is undoubtably a danger of distracting the jury. The past disposition does not add a great deal to the evidence as to his actions on the day of his death. It could stir up resentments and moral prejudice against the deceased. Admissible evidence can be misused and taken too far in cross-examination or argument. It can cross the line into the inadmissible. I would be wary of putting specific restrictions on the defence use of this evidence in advance, but moderation should be the watchword. If in doubt, counsel might be well advised to vet questions or closing arguments with reference to it beforehand.
c. Admissibility of the Deceased’s Prior Use of the “N-Word”
[15] The other issue is prior use of the “n-word.” Like the knife evidence, there is evidence the deceased used the n-word on November 22, 2017, and on prior occasions as well. The defence seeks to adduce the prior use in evidence; the Crown is opposed.
i. The Crown’s Argument Based on Section 653.1 of the Code
[16] The first issue the Crown raises is that Justice Woollcombe in the course of the trial ending in a mistrial in 2020 ruled that this prior use of the n-word could not be put to Mr. Bitar. This was a very brief oral ruling after Mr. Abbey, acting for Clive Walters, with no prior warning attempted to cross-examine Mr. Bitar on the issue during the Crown’s case.
[17] It is argued that this ruling is binding on me by reason of Section 653.1 of the Code. That section reads,
Mistrial — rulings binding at new trial
653.1 In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are made — or could have been made — before the stage at which the evidence on the merits is presented.
[18] In a subsequent unconnected Crown argument during this trial involving the use of a prior consistent statement to rebut recent fabrication and a s. 9(2) of the Canada Evidence Act cross-examination, Mr. McGuire again relied on s. 653.1. There had been a ruling at the first trial. However, as the provision makes clear, the presumptively binding nature of previous rulings only relates to pre-trial rulings, not rulings during the trial. The section specifically limits its application to “rulings … made —…before the stage at which the evidence on the merits is presented.”
[19] In that prior instance, the prior ruling was not within the scope of s. 653.1. It was not a pre-trial ruling but came up as a result of cross-examination conducted during “evidence on the merits” i.e. in front of the jury. It makes considerable sense that presumptively binding rulings be restricted to pre-trial motions such as voluntariness, Charter motions and similar act evidence, for example. The Criminal Rules (Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7) require that these matters be litigated prior to the trial (see e.g. Rule 30.04). They are for the most part much more time consuming and are discrete from the usual issues that come up organically in the midst of a jury trial. Mid-trial issues are more dynamic. There are contextual variations which make equating the prior ruling with the present situation quite challenging.
[20] The deceased’s use of the n-word at the last trial was not argued in a pre-trial motion. It might be thought, for this reason, that it is not caught by s. 653.1. However, in restricting the rulings made during “evidence on the merits,” Section 653.1 also refers to rulings that “could have been made” before the evidence on the merits. That is the case here. Indeed, on this second trial, the issue was presented as a pre-trial motion. This demonstrates that at the last trial the issue could have been raised and ruled on before the evidence in front of the jury began. For this reason, s. 653.1 most likely applies and the prior ruling is presumptively binding.
[21] Yet I do not think the ruling should be followed. The issue arose on the fly at the last trial when Mr. Abbey, acting for co-accused Clive Walters, began to cross-examine Mr. Bitar with respect to the deceased’s use of the n-word. There was no formal application and no forewarning. It came out of the blue. The ruling was undoubtably the correct ruling at the time on the record as it then existed. But the circumstances have now changed.
[22] The purpose of s. 653.1 is to promote economic use of court time, efficiency, judicial comity and to protect interests akin to the rule against collateral attack. In a post-Jordan world, those goals have taken on renewed urgency. Re-litigation can be very time consuming and often is of little or no benefit.
[23] However, to make a prior ruling binding in every case would be infeasible. To borrow a phrase from the distantly related doctrine of stare decisis “[it] is not a straitjacket that condemns the law to stasis” Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 (S.C.C.) at para. 44. That is particularly important in the context of specific evidentiary points during a trial where there are often interlocking and shifting contextual pieces.
[24] The dynamics are often altered in a second trial. It is a common axiom that a retrial is generally very different than a first trial. That seems to be holding true in this instance. Contextual and other factors may well shift and make the slavish following of a prior ruling ill-advised.
[25] Section 653.1 permits a judge to depart from a prior ruling if the judge is “satisfied that it would not be in the interests of justice” to follow the earlier ruling. The “interests of justice” exception recognizes that the demands of justice and fairness must ultimately prevail over efficiency and finality. This is similar to the state of the law with respect to the admissibility of fresh evidence on appeal: R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579, [1998] S.C.J. No. 91 (S.C.C.) at para. 56.
[26] In R. v. Bernardo, (1997), 1997 CanLII 2240 (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.), Doherty J.A. commented on the breadth of "the interests of justice" clause in s. 684(1) which gives the Court of Appeal authority to appoint counsel on an appeal. He said,
The phrase "interests of justice" is used throughout the Criminal Code. It takes its meaning from the context in which it is used and signals the existence of a judicial discretion to be exercised on a case by case basis. The interests of justice encompass broad based societal concerns and the more specific interests of a particular accused.
[Emphasis Added]
[27] The “interests of justice” phrase in s. 653.1 was a deliberate choice by Parliament to give a trial judge the broadest possible judicial discretion. The reasons to depart from the prior ruling, by virtue of the wide umbrella of the “interests of justice” phrase, cannot be fully catalogued. Of course, as ever, the discretion must be exercised judicially.
[28] The Court of Appeal in R. v. Victoria 2018 ONCA 69, 359 C.C.C. (3d) 179 (Ont. C.A.) while noting the breadth of the phrase “the interests of justice” listed some common situations justifying exceptions from the general rule in s. 653.1. One situation is particularly pertinent to the case at hand (at para. 55),
vi. the nature of the evidentiary record on the basis of which the prior ruling was made, as for example, viva voce testimony; agreed statement of facts; transcripts of testimony given elsewhere and any differences in the record proposed for relitigation
[29] At the last trial, the ruling was as much as anything a consequence of the defence giving no warning before diving into this sensitive and potentially inflammatory topic. Stopping and arguing the issue in mid-stream would have disrupted the trial before the jury. Justice Woollcombe, quite understandably, was less than impressed that there had been no notice of any kind. It appears from her very brief oral reasons that there was a pattern of this type of conduct at the last trial. Justice Woollcombe never got to the merits of the proposed cross-examination because of the concern relating to the lack of proper notice.
[30] In contrast, the application in this case was carefully thought out and made pre-trial. The element of surprise criticized by Justice Woollcombe was not used against the Crown. Everything was done above board. The reason for dismissing the application at the last trial, the lack of notice, has now been rectified. The “nature of the evidentiary record” referred to in Victoria has materially changed. It is in the interests of justice to reconsider the matter on the record which has now been put forward.
ii. Is the Prior Use of the N-Word Admissible?
[31] On the merits, the Crown argues that the inference that the deceased was probably a racist on the day in question is all that matters. His past use of the n-word is irrelevant. There is considerable merit to this position. The significance of the evidence from November 22, 2017, far eclipses any previous use.
[32] But ultimately, I reject this position. The knife evidence, as mentioned earlier, is vulnerable to this same criticism. But it must be remembered that accumulations of evidence can be important. The defence ought not to be restricted to adducing only the one dimensional November 22, 2017 evidence in order to bolster their position that the deceased was aggressive on the occasion in question.
[33] The n-word is probably the most poisonous word in our culture at this point in history. It taps into what is sadly a vast reservoir of anti-Black racism documented over many years, including in the Ontario jurisprudence stretching from R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 24 C.R. (4th) 81, 15 O.R. (3d) 324 (Ont. C.A.) to R. v. Morris, 2021 ONCA 680, [2021] O.J. No. 5108 (Ont.C.A.). The word is so noxious that it is anathema to even speak it as a repetition of what someone else said.[^1]
[34] It is a fighting word, a word seething with anger. The history, including very recent history, in the United States and elsewhere demonstrates the virulence of racial hatred. The n-word is a potent linguistic expression of that hatred.
[35] The use of the racist n-word on one particularly bad day is one thing. The use of it habitually is quite another. In demonstrating the anger of the deceased against Mr. Beals, a Black man, the defence must have some leeway for the purpose of sketching circumstantial inferences relating to the deceased’s conduct. The past use of the n-word could be of some importance to the jury.
[36] Again, the defence is cautioned that this is not a licence to cross-examine or to make closing submissions with reckless abandon. At some point, perhaps relatively early on in the evidentiary progression, probative value will be overtaken by inflammatory prejudicial effect. Or, to put it more bluntly, the n-word and the knife evidence could both be used to commit character assassination upon the deceased. That will not be allowed. As Justice Doherty said in R. v. Varga, 2001 CanLII 8610 (ON CA), [2001] O.J. No. 4262, 159 C.C.C. (3d) 502 (Ont.C.A.) at para. 71,
Attacks on the character of the deceased are often easy to make and risk the conclusion that it is a defence to a murder charge to show that the deceased’s demise was a civic improvement.
[37] These are the reasons for my rulings given earlier in the trial.
D.E HARRIS J.
Released: July 26, 2022
COURT FILE NO.: CR-18-1309-00
DATE: April 29, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Appellant
- and –
DEVIN BEALS
Respondent
D.E HARRIS J.
Released: April 29, 2022
[^1]: See “Can I Utter a Racial Slur in My Classroom?” The New York Times Magazine, By Kwame Anthony Appiah, April 5, 2022