COURT FILE NO.: CR-38/21 DATE: 20220503

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – K.A. and A.S.A.

Ms. A. Stevenson, for the Crown Ms. D. Lafleur, for K.A., Accused

HEARD: April 29, 2022

REASONS FOR DECISION

CROWN’S DISCREDITABLE CONDUCT APPLICATION

CONLAN J.

I. Introduction

The Charges and the Upcoming Jury Trial

[1] The two accused persons, K.A. and A.S.A., are charged with serious offences under sections 279.01(1), 286.3(1), 286.4, 279.011, and 286.2(1) of the Criminal Code. The general subject matter of the charges is alleged human trafficking. The accused are to be tried by a court composed of a judge and jury, with the trial scheduled to start in mid-May 2022.

The Crown’s Application

[2] This application by the Crown concerns only K.A. It was heard at Court in Milton, in-person, on April 29, 2022. No viva voce evidence was called by either side. One exhibit was filed, tendered by the Crown. Submissions were made by both sides. The hearing lasted one-half day.

[3] In terms of the background, after K.A. was arrested by the police, he was searched. One of the items seized from his person was a cellular telephone. That telephone was later examined by the police under the authority of a search warrant. Data and images were extracted from the telephone.

[4] This Court dismissed a prior Charter application brought by K.A. to exclude the content of his cellular telephone.

[5] The within application by the Crown concerns two items found on the telephone: (i) a photograph of alleged ammunition and a handwritten note, and (ii) a video of K.A. loading and firing a black handgun at a shooting range. The Crown applies to have those two items ruled admissible at trial.

[6] K.A. opposes the application in its entirety.

The Nature of the Evidence that is the Subject of the Within Application

[7] There is no dispute by the defence that the man in the said video is K.A. There is also no dispute that the said handwritten note, placed beside a black gun magazine and an unfired cartridge, is in French, but translated to English it says “you see these photos don’t belong to you if you don’t take them live pam ye blows your brains out to you and your booker”. In addition, it is not disputed that metadata shows that the photograph of the ammunition and the handwritten note was taken by the same cellular telephone that was seized from the person of K.A. upon his arrest, and the photograph was taken in Burlington, Ontario, at a location quite close to where K.A. was arrested and where some of the alleged human trafficking was taking place, and the photograph was taken on September 27, 2018 at 4:14:12 p.m. It should be noted that the arrest date was less than two months later, on November 11, 2018.

[8] Regarding the video, there is no dispute that it shows K.A. loading a black magazine into a black handgun and then firing the gun several times at a target.

The Relevance of the Evidence that is the Subject of the Within Application

[9] Finally, in terms of the undisputed facts, it is acknowledged by the defence that the complainant spoke about a handgun in her audio-video statement to the police, given on November 11, 2018.

[10] Starting at page 48 of the transcript of that statement, the complainant referred to a black handgun, similar to the police officer’s. She indicated that she did not know if it was real or not. She also stated that K.A. is “crazy”, and he did not do anything with the gun but showed it to her, and one time he came over to her and her client with the gun, and he said or did something threatening while holding the gun (the transcript is unclear about what exactly is alleged to have happened when K.A. was holding the gun in the company of the complainant and her client, possibly due to the complainant’s words being translated from French to English by a French-speaking police officer during the course of the interview). According to the complainant, K.A. said to her “take the money and if there’s a problem, call me and I’ll come up. I don’t care. I’ll put a bullet in his head” (referring to the client). The complainant indicated further to the police that she saw the gun once, and she could not remember when it was that she saw it.

The Positions of the Crown and the Defence

[11] The Crown submits that its application is grounded in the expectation that the complainant will be challenged at trial on the evidence that she gave to the police about the gun and about K.A.’s use of the gun. Thus, the evidence sought to be admitted in this application serves to corroborate the information supplied by the complainant, argues the Crown. In other words, in the submission of the Crown, this evidence extracted from K.A.’s cellular telephone makes it more likely that the complainant is telling the truth about K.A. having shown her a gun and about K.A. having threatened a client with the gun.

[12] The defence submits that the evidence that is the subject of the within application is highly prejudicial and ought to be excluded on that basis alone. Further, it is not sufficient for the Crown to say that the issue that the impugned evidence goes to is simply the credibility of the complainant, submits the defence. Ms. Lafleur argues that it is “really a stretch” for the Crown to say that the challenged evidence makes it more likely that K.A. showed a gun to the complainant and that he threatened to shoot a client.

II. Analysis

Short Conclusion

[13] For the following reasons, despite the able submissions of Ms. Stevenson on behalf of the Crown, the application by the prosecution is dismissed.

[14] The (i) photograph of the note and the ammunition and (ii) the video of K.A. at the shooting range are not admissible at trial.

[15] The defence needs to be cautioned, however, that it must be careful not to do anything at trial that may cause the trial judge to reconsider the matter. Counsel for K.A. needs to tread delicately when cross-examining the complainant. For example, a question like “how do you explain that there is no evidence of my client ever being in possession of a handgun” would be highly improper and would potentially open the door to a reconsideration of the within ruling.

The Legal Test Regarding the Admissibility of Prior Discreditable Conduct Evidence

[16] Just last week, the Court of Appeal for Ontario released its decision in R. v. Houle, 2022 ONCA 325. The background facts of that case are set out at paragraphs 1 through 11, reproduced below.

[1] This is a Crown appeal of the acquittals of the respondent, Tiffany Dale Houle, on two counts of criminal negligence causing bodily harm, contrary to s. 221 of the Criminal Code, R.S.C. 1985, c. C-46. Those charges arose from an incident in which the respondent’s dogs attacked a toddler and his teenaged babysitter, grievously injuring the child. The Crown appeal focuses exclusively on the trial judge’s ruling excluding evidence of prior incidents involving the dogs. The prosecution depended on that evidence. The respondent concedes, appropriately, that if the trial judge erred by excluding this evidence, the error had a material bearing on the acquittals, thereby meeting the rule in R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14, permitting the acquittals to be set aside. For the reasons that follow, I would allow the appeal, set aside the acquittals, and order a new trial.

[2] On February 5, 2018, two dogs belonging to the respondent escaped from her property, crossed the road to the neighbourhood park, mauled a three-year-old boy and attacked his teenaged babysitter. An adult bystander sought to protect the three-year-old by holding him over his head, but the dogs continued their attack. The three-year-old sustained life-threatening injuries and the babysitter incurred injuries to her hand.

[3] As a result of this incident, the respondent was charged with two counts of criminal negligence causing bodily harm on the theory that she had acted with wanton and reckless disregard for the lives and safety of others by failing to take sufficient care to ensure that the dogs would not escape, despite knowing that the dogs were dangerous.

[4] The Crown intended to establish the respondent’s knowledge that the dogs were dangerous by presenting evidence that focused on three prior incidents that occurred within the previous five months. The Crown also sought to rely on these three incidents as proof that the respondent failed to exercise sufficient care, arguing that the evidence of these incidents shows that the attack was not a “one‑off” and that “there was a pattern of conduct here”.

[5] The first of the three incidents happened on September 27, 2017. On that date, the respondent’s dogs escaped from her property and attacked a small dog while it was being walked by its teenaged owner. The small dog sustained a puncture wound and the owner sustained an injury to her finger and scrapes to her stomach as she was attempting to hold her dog during the attack. The police spoke to the respondent about the incident, and she admitted that the dogs had escaped by jumping the gate, saying that the latch broke.

[6] In the second incident, which occurred on October 20, 2017, a couple and their daughter were playing with their small dog in a nearby park when their small dog was attacked by the respondent’s dogs. The attack continued after the father attempted to lift their small dog, and to block the respondent’s dogs with his body. The small dog sustained grave injuries that contributed to its death approximately three weeks later. When the police spoke to the respondent about this incident, she blamed her son for leaving the gate open. A charge was laid under the municipal Responsible Animal Ownership By-Law.

[7] In the third incident, which occurred in December 2017, the respondent’s next-door neighbour complained to the respondent that her dogs were coming into his yard and baring their teeth after escaping from under her fence.

[8] Since the Crown was relying on these incidents to show the respondent’s failure to take reasonable care in ensuring that her dangerous animals would not harm others, it recognized that this evidence was discreditable conduct evidence that had to satisfy the rule in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. It therefore brought an application to have this “prior discreditable conduct” evidence admitted. Given the issues in this appeal, it is convenient to refer to this evidence as “prior incident” evidence.

[9] On March 16, 2020, the trial judge denied the Crown’s application to admit the prior incident evidence but did not give meaningful reasons. He effectively recorded that he based his decision on the arguments and evidence. He reserved the option of providing a more comprehensive oral decision during the trial.

[10] On the next return date, August 31, 2020, the Crown conceded that without the excluded prior incident evidence, it could not prove its case and invited the trial judge to dismiss the charges. The trial judge did so.

[11] On December 10, 2020, the trial judge released a brief endorsement as “further reasons” for the exclusion of the prior incident evidence.

[17] The appeal was allowed and a new trial ordered. Paragraph 15 of the judgment is set out below.

[15] In my view, the trial judge erred in law by excluding the prior incident evidence “because it does not disclose evidence of ‘prior discreditable conduct’”. The fact that prior conduct evidence is not discreditable is not a legally appropriate basis for exclusion. As Charron J.A. explained in R. v. B. (L.) (1997), 35 O.R. (3d) 35 (C.A.), at pp. 45-46, leave to appeal refused, [1997] S.C.C.A. No. 524, the inquiry into whether prior conduct evidence is discreditable does not determine admissibility. Instead, it points the way to the admissibility rules that govern. If the prior conduct evidence is found to be discreditable and may thereby prejudice the accused, this will trigger the application of the similar fact evidence rule expressed in Handy, at p. 932. If, on the other hand, prior conduct evidence is not discreditable, the Handy rule will not have to be considered further, and the prior conduct evidence, if relevant, will be prima facie admissible.

[18] For our purposes, the Houle, supra decision is important because (i) it reaffirms the precedential value and binding authority of the Court of Appeal’s prior judgment in R. v. B.(L.), and (ii) it reminds us that prior conduct evidence that is found to be discreditable will trigger the application of the similar fact evidence rule and is presumptively inadmissible.

[19] First, is the conduct which forms the subject-matter of the proposed evidence that of the accused? Second, if so, is the proposed evidence relevant and material? Third, if so, is the proposed evidence discreditable to the accused? And fourth, if so, does its probative value outweigh its prejudicial effect? These are the four key questions that govern the within application by the Crown. B.(L.), supra.

The Legal Test as Applied in our Case

[20] Both sides agree, and I concur, that the first three questions ought to be answered in the affirmative, though the defence disputes the strength of the impugned evidence’s relevance and materiality, and the Crown queries just how discreditable the video at the shooting range actually is.

[21] On the former, that is the strength of the challenged evidence’s relevance and materiality, this Court deals with that below, in terms of the probative value versus prejudicial effect analysis.

[22] On the latter, in my view, the video is highly discreditable to K.A., just as much so as the handwritten note and the threatening remark contained therein.

[23] Context is everything. The news reports in Canada these days confirm that the federal Government may be contemplating a ban on all handguns in this country. A piece of proposed legislation in the last Parliament, Bill C-21, would have allowed municipalities to ban handguns. Gun violence, especially involving handguns, is a notorious phenomenon in Canada but particularly in the Greater Toronto Area, which includes the jurisdiction where these two accused persons will be tried. Halton is not generally a place for “gun enthusiasts”, to borrow an expression used by Ms. Lafleur in her oral submissions at the hearing of the within application.

[24] I came to Halton from a very different part of the Central West Region, and the attitudes and perceptions about firearms generally are strikingly different in Halton than in the more rural and northern part of the Region. The jurors in this trial, of course, will come from Halton. I think that most if not all of them who watch the video will wonder why in the world someone would even want to attend at a gun range like that shown. I think, further, that the natural tendency would be to conclude that the activity is associated with violence and criminality. In fact, even the Crown in its own submissions on the application stated that what K.A. is shown doing in the video is probably “illegal”.

[25] This all leads to the determining factor in this case, probative value versus prejudicial effect. I agree with Ms. Lafleur that the relevance and materiality of the impugned evidence is not as strong as suggested by the Crown.

[26] The photograph of the handwritten note and the ammunition is only probative if the jury concludes that K.A. wrote the note, or that he used the note to his own advantage (even if it was written by someone else), or at least that he used the photograph of the note to his own advantage. There is no direct evidence of any of that, however, and no evidence that K.A. even took the photograph. Circumstantial evidence is an important part of all criminal trials, and certain inferences could be drawn from the fact that the photograph was extracted from the cellular telephone that was seized from K.A., but then there are the important considerations that flow from R. v. Villaroman, 2016 SCC 33.

[27] The video has even less probative value, in my opinion. That someone would attend at a gun range and fire off a few shots with a handgun says little about that person’s overall familiarity with firearms or handguns specifically, something alluded to by the Crown in oral submissions, and is completely divorced, in my respectful view, from a person who goes around brandishing a handgun in front of others and making threatening remarks about putting a bullet in another’s head.

[28] I simply do not accept the proposition that any of the challenged evidence makes it more likely that the complainant is being truthful when she alleges that K.A. showed her a handgun and did or said something threatening with it in the presence of the complainant and a client.

[29] Even assuming that proposition to be correct, however, I would not admit the impugned evidence. I would not admit it because its prejudicial effect is substantial and would clearly outweigh any limited probative value that it may have.

[30] To use blunt language, you show this note to the jury and the quick assumption will be that K.A. wrote it and that he used it to threaten others about blowing their brains out, just like he threatened the client of the complainant. You show that video to the jury and the quick assumption will be that K.A. is some crazed handgun guru who is just plain violent and irresponsible.

[31] The evidence, both the photograph and the video, in my view, is highly likely to support an inference by the jury that K.A. is guilty of the charges that he faces based solely on bad character, and that is an important reason to exclude it from the evidence at trial. B.(L.), supra.

[32] The evidence, both the photograph and the video, as this Court has already observed, are highly discreditable to K.A., and that is another reason to exclude it from the evidence at trial. B.(L.), supra.

[33] Finally, the evidence, both the photograph and the video, will only serve to confuse the issues at trial, in my respectful view, and according to B.(L.), supra, that is another reason to exclude it from the evidence at trial. Will there have to be expert handwriting evidence, for example, with regard to the note? Will there have to be expert firearms evidence, for example, to compare the magazine in the photograph with that in the video, and/or to compare the handgun in the video to that described by the complainant in her statement to the police? Will there have to be expert firearms regulations evidence, for example, to tell the jury whether the use of a handgun at a shooting range is legal or illegal? Does it matter where the shooting range is, which information is unknown? Does it matter what type of licence K.A. had at the time, if any, which information is also unknown?

[34] In summary, the prejudicial effect of this challenged evidence is very high. Its probative value is relatively low. Consequently, the Crown has failed to discharge its burden to prove on a balance of probabilities that this presumptively inadmissible prior discreditable conduct evidence ought to be ruled admissible at trial.

III. Conclusion

[35] The Crown’s application is, therefore, dismissed.

[36] The photograph and the video in question are inadmissible at trial.

Conlan J.

Released: May 3, 2022