Her Majesty the Queen v. Peter Wight, O'Neil Thompson and Fantasia Hoo-Hing
COURT FILE NO.: CR-20-30000477-0000
DATE: 20220510
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PETER WIGHT, O’NEIL THOMPSON and FANTASIA HOO-HING
Accused
COUNSEL:
Julie Battersby and Anna Gilmer, Counsel for the Crown
Lydia Riva and Leah Shafran, Counsel for Peter Wight
Monte MacGregor and Amanda Warth, Counsel for O’Neil Thompson
Steven Stauffer and Kateryna Zadorozhnya, Counsel for Fantasia Hoo-Hing
HEARD: March 2, 25 and 30, 2022
BEFORE: M.A. CODE J.
Reasons for judgement on THREE pre-trial and mid-trial rulings related to extrinsic misconduct and disposition of ONE co-accused
A. OVERVIEW
[1] The three accused, Peter Wight, O’Neil Thompson, and Fantasia Hoo-Hing (hereinafter, Wight, Thompson, and Hoo-Hing), were charged with the murder of Edwin McGowan on September 22, 2019. It was alleged that Wight and Thompson were co-principals who jointly beat McGowan to death, while forcibly confining him in his own apartment, and thereby committed first degree murder. It was alleged that Hoo-Hing aided and abetted the co-principals in various ways and thereby committed second degree murder.
[2] Prior to empanelling the jury, a number of pre-trial motions were heard. One of those motions, brought by the Crown and supported by Wight, concerned the admissibility of text messages between the two alleged co-principals, shortly before and after the alleged homicide. A small number of these text messages tended to infer a drug dealer and drug purchaser relationship between Thompson and Wight. The text messages were to be tendered during the Crown’s case, with Wight joining the Crown’s motion and seeking to emphasize the drug dealing text messages as part of a much broader body of anticipated defence evidence on this general subject. That evidence related to “the power dynamic between [Wight] a drug addict, and [Thompson] a drug dealer”, and it related to their respective roles in the alleged homicide of McGowan. I made an initial ruling on March 2, 2022, admitting the text message evidence and some of the broader body of anticipated defence evidence, while also ruling that certain parts of Wight’s proposed defence evidence relating to Thompson’s prior criminal record, should be addressed at a later stage in the trial.
[3] That later stage in the trial arrived at a point when the Crown had almost completed calling its case. The defence of Wight was about to commence and Ms. Riva sought a ruling as to the admissibility of evidence she intended to call relating to Thompson’s disposition. I made a second ruling on March 25, 2022, tentatively admitting proposed defence evidence on behalf of Wight concerning the disposition of Thompson, based on certain prior criminal convictions, but subject to revisiting the issue after Wight had testified and after he had been cross-examined by counsel for Thompson.
[4] Finally, the issue was revisited on March 30, 2022, after Wight’s testimony had been completed. At this point, Ms. Riva sought to tender certain prior convictions of Thompson for drug trafficking, possession of imitation and loaded firearms, robbery, and assault, in order to infer Thompson’s disposition to engage in this kind of criminal conduct and to explain and diminish Wight’s role in the homicide. At this stage, having now heard Wight’s account of the homicide and the roles that he ascribed to himself and to Thompson, and having heard Mr. MacGregor’s cross-examination of Wight on behalf of Thompson, I ruled that a number of convictions from Thompson’s criminal record were admissible in order to further Wight’s defence. They were then tendered in the form of an Agreed Statement of Fact (Exhibit 126). Wight’s defence concluded at this point. I immediately gave the jury a mid-trial instruction about the limited permissible uses of this evidence and about the impermissible uses.
[5] Thompson did not call a defence.
[6] On March 31 and April 1, 2022, Hoo-Hing testified in her own defence. As part of her defence, she brought out certain evidence about Thompson’s involvement in her work in the sex trade, by providing “security” for her in return for 50% of her earnings. She also testified about Thompson’s work in the drug trade. There was no objection to any of this evidence from Thompson. In fact, some of this evidence was brought out in cross-examination of Hoo-Hing by Mr. MacGregor, counsel for Thompson, and was then relied on during his closing address (as will be explained below).
[7] After two days of closing addresses, and after a lengthy Charge to the Jury in which I repeatedly cautioned the jury about the limited permissible uses and the impermissible uses of the above bodies of evidence, the jury began deliberating on April 8, 2022. The next day, on April 9, 2022, the jury returned verdicts convicting Thompson of first degree murder, convicting Hoo-Hing of second degree murder, and convicting Wight of manslaughter. The sentencing hearing is scheduled to proceed on May 25, 2022.
[8] At each stage of the above three incremental rulings relating to evidence of Thompson’s extrinsic misconduct and disposition, I gave short oral reasons and indicated that I would prepare more thorough written reasons after the trial had concluded. These are my written Reasons for Judgement relating to the above three pre-trial and mid-trial rulings.
B. FACTS
[9] The evidence relating to the murder of Edwin McGowan was a combination of direct and circumstantial evidence. The Crown relied mainly on a body of circumstantial evidence inferring that McGowan was in a relationship of some kind with Hoo-Hing. The evidence was ambiguous as to whether it was a romantic relationship (which is what McGowan appeared to be seeking) or a business relationship between a sex trade worker and a client (which is what Hoo-Hing described in her testimony). There was overwhelming evidence that McGowan was beaten to death around 9:00 p.m. on September 22, 2019, in his own apartment. Wight was admittedly and undoubtedly one of the perpetrators. Hoo-Hing admittedly and undoubtedly let Wight and another man into the apartment building at about 8:45 p.m., after meeting up with the two men in a nearby parking area at about 8:39 p.m. There was evidence that the motive for the severe beating of McGowan was robbery, as he owned some apparently expensive watches and jewelry, his apartment was extensively ransacked, the beating continued for a period of time with numerous blunt force blows to the head, the watches and jewelry were missing from the apartment after the homicide, and Wight was admittedly in possession of one of the watches after the homicide. There was also evidence from Hoo-Hing, and from a voicemail message left for her by McGowan, to the effect that McGowan owed her $1000 for sexual services, that McGowan had not paid this debt, that Thompson had a 50% interest in the debt, and that Thompson’s role as “security” for Hoo-Hing’s work in the sex trade included helping her collect the debt. Telephone records showed extensive communication between Thompson and Hoo-Hing, before and after the murder as well as during the time period when the murder apparently occurred.
[10] The direct evidence from Wight about the relevant events was that he was addicted to crack cocaine, he also abused alcohol, he was homeless, and he lived in an abandoned house in Pickering. Thompson was one of his regular drug dealers who sold him crack cocaine in small amounts that Wight would pay for with proceeds from his monthly ODSP cheque, supplemented by daily panhandling. On the night of September 22, 2019, Thompson called Wight, picked him up at a bar in Pickering, and drove him to McGowan’s apartment building in Scarborough. There was substantial corroboration for these initial aspects of Wight’s account, from police surveillance, from a police search of the abandoned house in Pickering, from telephone records relating to Thompson’s and Wight’s cell phones, from cell tower evidence locating their phones on the night in question, and from video surveillance at McGowan’s apartment building showing Hoo-Hing letting Wight and a second man into the apartment building at the rear ground floor door, shortly before the homicide. Both Wight and Hoo-Hing identified the second man as Thompson. By the end of the trial, there was no real dispute that Thompson was the second man who picked up Wight in Pickering, drove with him to Scarborough, met up with Hoo-Hing at a parking area near McGowan’s building, was let into the building by Hoo-Hing at the rear ground floor door, and then walked with Wight past various ground floor surveillance cameras, and entered the west stairwell together with Wight at 8:46 p.m. shortly before the beating of McGowan in his 15th floor apartment.
[11] The two real issues in dispute in the case were as follows: first, whether Thompson proceeded up the west stairwell and entered the 15th floor apartment with Wight and participated in the beating of McGowan, or whether Wight acted alone at a time when Thompson was engaged in drug trade work elsewhere in the building; and second, whether Hoo-Hing not only assisted by meeting with the two men and letting them into the building on the ground floor but also assisted in helping them gain entry to McGowan’s apartment on the 15th floor, and whether she acquired knowledge at some point of their purpose for attending at McGowan’s building and then entering his apartment.
[12] In relation to these issues, Wight testified that he simply followed Thompson up the west stairwell to the floor where McGowan resided, followed Thompson into the apartment, and participated jointly with Thompson in the beating of McGowan. In this regard, he testified that Thompson was armed with a gun, that Thompson initiated the beating by using an object of some kind to strike McGowan about the face and head, that Wight joined in the beating of McGowan until Thompson shot McGowan from behind, at which point Wight was able to knock McGowan unconscious with a single punch to the jaw. There was some circumstantial support for some aspects of this account. For example, Thompson can be seen in the video surveillance on the ground floor of McGowan’s building wearing a satchel across his chest, in which a handgun could have been secreted. In addition, McGowan was undoubtedly shot once in the buttocks from behind, although this wound did not contribute to death (which was caused by blood loss from numerous blunt force injuries to the head). Perhaps more importantly, the ground floor video surveillance showed that Thompson was in the lead, and Wight was following behind, as the two men walked through various hallways and then entered the west stairwell leading up to the 15th floor. Most importantly, the motive evidence and substantial evidence of association and communication at the relevant times, directly connected Thompson to Hoo-Hing (and to McGowan through Hoo-Hing), and connected Thompson to the apparent reason or reasons for the beating that caused McGowan’s death. Wight had no connection to or communication with either Hoo-Hing or McGowan.
[13] Hoo-Hing’s account was that she arranged to meet up with Thompson at the parking area near McGowan’s building and that she let Thompson and Wight into the building at the ground floor rear entrance. She was not anticipating Wight’s presence when she met up with Thompson and she assumed that he was one of Thompson’s drug customers. She had arranged with Thompson to assist her in collecting a $1000 debt owed by McGowan in return for her sexual services. She was expecting that Thompson and Wight would come up with her in the elevator to the 15th floor apartment, where she would request payment of the debt from McGowan while Thompson was nearby. She was surprised when they did not join her in the elevator. She attended at McGowan’s 15th floor apartment and knocked on his door. He had let her into the building that evening, when she arrived and called him at the front lobby intercom, and he had told her to “come up”. She stood at the door to his apartment and knocked for about 10 or 15 minutes. McGowan never responded. Hoo-Hing testified that Thompson did not come and join her on the 15th floor, in order to assist in collecting the $1000 debt. This surprised her as their prior arrangement was that Thompson would be nearby. She believed that he must have had some other business elsewhere in the building. She exchanged several text messages with Thompson at this point. Hoo-Hing left the 15th floor, after McGowan failed to answer her knocking at his door. Hoo-Hing testified that she used the west stairwell and not the elevators at this point, when descending from the 15th floor. She also testified that she did not see Thompson or Wight in the west stairwell as she descended from the 15th floor and exited the building shortly after 9:00 p.m. She and Thompson had two telephone conversations at 9:08 p.m. and 9:17 p.m., shortly before Thompson and Wight exited the building at the west stairwell at 9:20 p.m. Hoo-Hing then met up with the two men at 9:28 p.m. in the same nearby parking area where they had previously met.
[14] In the next section of these Reasons, when analysing the law relating to the three pre-trial and mid-trial rulings, I will summarize the evidence relating to Thompson’s extrinsic misconduct and his disposition, which was the subject of these three rulings.
C. ANALYSIS
(i) The pre-trial ruling on March 2, 2022
[15] The police seized cell phones on arrest from the two alleged co-principals, Wight and Thompson. As a result of production orders and search warrants, telephone records for the seized phones were obtained from Rogers and digital data stored on the phones was extracted by the Tech Crimes Unit. The phone records relating to the cell phone that Thompson was using at the time of the relevant events indicated that he made frequent use of Rogers’ text message service. However, no relevant text message data was found in the phones seized from Thompson on arrest, including in the phone with the phone number and SIM card that Thompson had been using at the time of the relevant events. There was evidence inferring that Thompson moved this SIM card and phone number to a new phone, shortly after the murder of McGowan, and disposed of the phone he had been using at the time of the murder. The Crown relied on this “after the fact” conduct as evidence inferring Thompson’s involvement in unlawfully causing McGowan’s death.
[16] Although no text message data was found in the phones seized from Thompson, the cell phone that was seized from Wight and that was admittedly used by Wight at the time of the homicide, contained text message data that was recovered by the Tech Crimes Unit. It was this text message data, together with the Rogers phone records, that revealed the number and the contents of Wight and Thompson’s messages to each other in the period shortly before and after the homicide.
[17] The Crown sought to tender these text messages between Thompson and Wight, as well as the related phone records, mainly to infer the fact of a prior relationship between the two alleged co-principals, the timing and frequency of their communications, and the fact that their communications continued after the homicide. The Crown submitted that this latter point, relating to “after the fact” conduct, inferred that the two co-principals believed that nothing had gone wrong when McGowan was beaten to death on September 22, 2019. The Crown also relied, in this regard, on the content of some of the text messages. For example, between 10:41 p.m. and 11:07 p.m. on September 22, 2019, Thompson and Wight exchanged five text messages. This was less than two hours after the beating that had caused McGowan’s death and after the two men were seen on video surveillance leaving McGowan’s apartment building at 9:20 p.m. In one of these text messages, Wight asked “Is this your work?” Thompson replied, “Its all good.” Both the Crown and Wight’s own counsel put the contents of these text messages to Wight when he testified. He explained them, both in-chief and in cross-examination, as relating to inquiries that he was making about the most recent crack cocaine that he had purchased from Thompson, in particular, he explained that he was asking whether Thompson had “cooked” the crack himself.
[18] The Crown did not seek to prove that the nature of the relationship between Thompson and Wight was between a drug dealer and a drug purchaser. However, Wight sought to rely on the contents of the text messages to infer that he was buying drugs from Thompson. For example, there were a number of cryptic inquiries between them, asking where one or the other was located, consistent with arranging a meeting in order to purchase drugs. More significantly, there were five text messages that were capable of inferring drug transactions. These five text messages were as follows: “Can u do half b. On the cuff”; “22z. Please”; “yeah I got 60”; “Do u still want the hash”; and the above exchange relied on by the Crown where Wight asked “Is this your work”, shortly after the homicide, and Thompson replied “Its all good”.
[19] The above-summarized text message evidence, some of which was capable of inferring that Thompson was a drug dealer who sold drugs to Wight, undoubtedly engaged well-known principles of evidence law concerning “extrinsic discreditable conduct”. Such evidence is admissible only if its legitimate probative worth exceeds its prejudicial effect. See: R. v. F.F.B. (1993), 1993 CanLII 167 (SCC), 79 C.C.C. (3d) 112 at paras. 71-3 (S.C.C.); R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 at paras. 96-100 (Ont. C.A.); R. v. Luciano (2011), 2011 ONCA 89, 267 C.C.C. (3d) 16 at paras. 217-235 (Ont. C.A.); R. v. Stubbs (2013), 2013 ONCA 514, 300 C.C.C. (3d) 181 at paras. 54-6 (Ont. C.A.).
[20] Mr. MacGregor, counsel for Thompson, did not strenuously oppose the admissibility of the text message evidence. The Crown did not seek to call an expert witness to testify about terminology used in the drug trade, in order to assist in interpreting the above five text messages. The Crown did rely on the timing and content of the suspicious post-offence texts (“Is this your work” and “its all good”) to suggest that the two accused had no concern about what had just happened in McGowan’s apartment. Mr. MacGregor conceded that Wight was entitled to explain his text messages with Thompson on the basis that they related to the drug trade, and not to the beating and murder of McGowan. In addition, Thompson relied on the fact that he was a drug dealer as the basis for a suggestion to the jury that he had other drug-related business at McGowan’s apartment building. This was essential to Thompson’s position that he never joined Hoo-Hing at McGowan’s 15th floor apartment and that Wight had acted alone in the beating of McGowan.
[21] In my view, the drug dealer and drug purchaser relationship between the two alleged co-principals helped the defence explain the suspicious post-offence text messages between Wight and Thompson and it could help Thompson explain his whereabouts at the time of the homicide. In addition, the nature of that relationship had legitimate probative value in relation to three other issues in the case that Ms. Riva sought to raise, as part of Wight’s defence. First, Wight had pleaded guilty to manslaughter on arraignment. His only defence to murder was that he lacked the requisite intent to kill or to cause bodily harm known to be likely to cause death, primarily due to his intoxication from drugs and alcohol. In this regard, his evidence concerning his dependency on drugs was supported to some extent by the text messages. Second, Wight’s anticipated account of the beating of McGowan ascribed a primary or leading role to Thompson and more of a secondary role to himself. To the extent that Wight could succeed in minimizing his own active role in the beating of McGowan, his claim that he lacked the requisite intent for murder became more plausible. By tending to infer that Wight was an addict and that Thompson was one of his drug dealers, the text messages could potentially assist in ascribing more of a leading role to Thompson. Third, it was anticipated that Wight would deny any connection to the motives or reasons for the beating of McGowan. His account was that Thompson phoned him, picked him up, and drove him to the Scarborough apartment building at a time when Wight was heavily intoxicated. Wight simply went along with Thompson, assuming that some kind of drug transaction was to occur and not questioning Thompson, his drug dealer, as to the purpose of the trip. This explanation as to how Wight came to be at the scene of the homicide, unconnected to any motive or reason to harm McGowan, could potentially assist Wight’s defence of lack of intent for murder.
[22] For all the above reasons, I was satisfied that the text message evidence, inferring a drug dealer and drug purchaser relationship between Thompson and Wight, had legitimate probative value in relation to a number of important issues at trial. I was also satisfied that any moral prejudice to Thompson caused by this evidence could be controlled by a strong limiting instruction to the jury concerning the permissible and impermissible uses of the evidence, as suggested by Mr. MacGregor. There was little reasoning prejudice because the five text messages that were capable of inferring drug transactions were brief and they were to be tendered in the objective form of a Cellebrite report that simply set out the extracted digital text messages. In all these circumstances, the legitimate probative value of the text messages exceeded any prejudicial effect.
[23] In addition to ruling the text messages admissible, it can be seen from the above reasoning that I also held that Wight could testify about the text messages and about his alleged drug addict and drug dealer relationship with Thompson, for all the same reasons set out above. On behalf of Thompson, Mr. MacGregor conceded that Wight could give this evidence as part of his direct account about the beating of McGowan and the various roles allegedly played by himself and by Thompson.
[24] As part of this pre-trial motion, Ms. Riva gave notice on behalf of Wight that she would also seek to call evidence during the defence case about certain convictions set out in Thompson’s criminal record. Mr. MacGregor submitted, correctly in my view, that it would be premature to rule on this issue at the pre-trial stage. I ruled that this further aspect of Wight’s potential defence should be addressed later in the trial (for reasons explained in the passage set out below from R. v. Pollock and Morrisson, infra).
(ii) The mid-trial ruling on March 25, 2022
[25] After calling evidence for three weeks, the Crown had one final witness to call on Monday, March 28, 2022, before closing its case. Wight was the first accused on the indictment and Ms. Riva indicated that she would begin calling defence evidence on behalf of Wight on Tuesday, March 29, 2022. As a result of this trial schedule, Ms. Riva had one final weekend to prepare the defence on behalf of her client. On Friday, March 25, 2022, she renewed the earlier motion seeking to call evidence relating to Thompson’s disposition based on certain convictions in his criminal record.
[26] Although Wight had not yet testified, Ms. Riva indicated that he would be testifying and she outlined the substance of the evidence that she anticipated he would be giving. I agreed to provide an anticipatory or preliminary ruling, in order to assist Ms. Riva in preparing the defence over the weekend, subject to revisiting and reconsidering the ruling after Wight’s testimony had concluded. See, e.g. R. v. Underwood (1998), 1998 CanLII 839 (SCC), 121 C.C.C. (3d) 117 at paras. 8-11 (S.C.C.); R. v. Adams (1995), 1995 CanLII 56 (SCC), 103 C.C.C. (3d) 262 at paras. 27-30 (S.C.C.). In this regard, the Court of Appeal’s decision in R. v. Pollock and Morrisson (2004), 2004 CanLII 16082 (ON CA), 187 C.C.C. (3d) 213 at para. 106 (Ont. C.A.) provides important guidance concerning the need for an “evidentiary foundation” before admitting this kind of evidence. Rosenberg J.A., speaking for the Court, stated the following:
Accordingly, since evidence of propensity or bad character can carry a very grave risk of prejudice to the fair trial of the accused against whom the evidence is led, it is incumbent on the trial judge to examine closely the probative value of the evidence and the purposes for which the evidence is tendered. In my view, in a joint trial, counsel’s mere assertion that the evidence is necessary for the accused to make full answer and defence is not sufficient given the grave potential for prejudice to the fair trial of a co-accused. There must be some evidentiary foundation to support this assertion. That foundation may come during the Crown’s case through evidence of Crown witnesses in chief or through cross-examination. In some cases, the evidentiary foundation may not be laid until the defence case. If so, the prejudicial character evidence would only be admissible, if at all, at that time. The need for this evidentiary foundation is not simply to avoid irrelevant evidence entering the record. An evidentiary foundation is essential to ensure fair management of the trial. The need for the highly prejudicial evidence can be properly assessed only when the accused demonstrates through evidence the contours of the defence. Until then, the trial judge is left to speculate on the importance and necessity of this evidence. [Emphasis added].
[27] The Crown took no position in relation to Wight’s motion seeking to adduce evidence of Thompson’s character or disposition. It was common ground that such evidence could not be used to assist the Crown in proving guilt and that the jury would have to be given a limiting instruction to this effect, if the evidence was admitted. Ms. Riva on behalf of Wight, and Mr. MacGregor on behalf of Thompson, both made helpful submissions agreeing that any ruling at this stage of the trial should be preliminary or tentative and should be subject to reconsideration, after hearing Wight’s account of the homicide, and after Mr. MacGregor had cross-examined Wight.
[28] Ms. Riva advanced three bases on which, in her submission, certain prior convictions from Thompson’s criminal record were relevant and necessary to Wight’s defence:
- First, a firearm was undoubtedly used during the beating that ultimately caused McGowan’s death. Although the single gunshot to McGowan’s buttocks was not a direct cause of death, the act of bringing a loaded firearm to the apartment in advance of the confrontation with McGowan, was important evidence suggesting an intent to use lethal force, if and when it became necessary. Wight would testify that he never possessed a firearm and would testify that it was Thompson who possessed and used the gun inside McGowan’s apartment. In this regard, Ms. Riva submitted that Thompson had two relevant prior convictions, in July 2005 for use of an imitation firearm and in January 2008 for possession of a loaded prohibited or restricted firearm;
- Second, as previously explained at the time of the pre-trial ruling, the defence relied on the fact that the prior and subsequent relationship between Thompson and Wight was between a drug dealer and a drug addict. Wight would testify that this relationship helped to explain why he got in the car when Thompson called him and picked him up, why he was intoxicated at the time, why he followed Thompson’s lead without questioning him, and why Wight’s reasons for attending at the scene of the homicide had nothing to do with a plan to rob McGowan, to collect a debt, or to use force of any kind against McGowan. In this regard, Thompson had three prior convictions related to drug trafficking in January 2008, in November 2008, and in February 2012. He also had a conviction for robbery in September 2005 (Ms. Riva forgot to refer to the robbery conviction during her submissions on March 25 but she had intended to refer to it and did include it in her subsequent submissions on March 30, 2022); and
- Third, Wight would testify that he participated in the assaults to McGowan’s head that contributed to death but that his own assaults were committed jointly with other assaults committed by Thompson. Wight’s denial that he was responsible for all the assaults that caused death was important to his defence that he lacked the requisite intent to kill or the requisite foresight of the likelihood of death, as previously explained at the time of the pre-trial ruling. In this regard, Thompson had two prior convictions for assault in December 2016 (and the prior conviction for robbery in September 2005).
[29] In terms of seeking to diminish and control the prejudicial impact on Thompson of these prior criminal convictions, Ms. Riva made it clear that she was not seeking to prove any of the underlying facts relating to any of the prior convictions and she was not seeking to prove all of Thompson’s prior convictions. She was only seeking to prove the fact of eight prior convictions, their dates, and the sentences imposed. This could be done by proving certified copies of the indictments or informations that set out the convictions or, preferably, by reaching an Agreed Statement of Fact with counsel. In this regard, the Crown agreed to assist in obtaining certified copies of the relevant court records but submitted that some counts in the indictments and informations would likely have to be edited and that an Agreed Statement of Fact would be a better means of controlling any prejudice.
[30] Mr. MacGregor’s primary position, on behalf of Thompson, was that any ruling at this stage should be preliminary and tentative and subject to reconsideration, after Wight’s evidence had concluded. As noted above, I agreed with this position. Mr. MacGregor went on to submit that the two firearms convictions were the most prejudicial and, if they were admitted, Thompson would have to consider seeking severance (although Mr. MacGregor frankly conceded that the test for severance would be challenging). He also conceded that the three drug trafficking convictions were less prejudicial and were more probative, because drug trafficking by Thompson was already a live issue in the case. In this regard, I should note that it was apparent that counsel for Hoo-Hing and for Thompson were consulting during the trial about their respective defences, and were advising the Court as to whether Hoo-Hing’s anticipated defence would likely prejudice Thompson and require any advance ruling from the Court. As previously noted, when Hoo-Hing eventually testified it was counsel for Thompson who brought out additional evidence about Thompson’s work in the drug trade, including drug-related work at McGowan’s apartment building in Scarborough. It was also counsel for Thompson who laid the groundwork for this evidence from Hoo-Hing by cross-examining a Crown witness, Ali Habib, about people in the McGowan apartment building who were using drugs in the stairwells.
[31] Finally, Mr. MacGregor submitted that Thompson’s assault convictions were not of great concern because counsel was armed with considerable circumstantial evidence to refute Wight’s anticipated evidence about Thompson’s alleged involvement in the beating of McGowan. In particular, the DNA evidence connected only Wight to the beating, the bloody clothing and sandals left at the scene connected only Wight to the beating, and the absence of any injuries to Wight’s hands could infer that he used some kind of weapon or instrument to strike McGowan’s head.
[32] After considering all the above circumstances, I made a preliminary or tentative ruling that Wight’s defence had advanced three plausible theories of relevance concerning eight prior convictions from Thompson’s criminal record, as summarized above. These bases of relevance advanced by Ms. Riva were all logical and coherent and, most importantly, they all related to the one issue in the case that Wight disputed, namely, his alleged lack of the requisite intent for murder. Bringing a gun in advance to the altercation at McGowan’s apartment, which Wight denied and which he sought to attribute to Thompson, tended to infer a potential need for lethal force in the mind of the person who possessed and brought the gun. Following the lead of one’s drug dealer without question, anticipating some kind of drug transaction, and having no involvement in any prior motive to rob or harm McGowan, could help to diminish Wight’s role in the events and weaken the inference that he had the requisite intent or foresight of likely death. Finally, committing only some of the assaults to McGowan’s head that eventually caused death could similarly diminish Wight’s role in the events and reduce his opportunity to foresee the likelihood of death. For all these reasons, I was preliminarily satisfied that the proposed evidence of Thompson’s eight prior convictions had significant potential probative value in relation to Wight’s defence of lack of intent. In this regard, it is well established that a person’s prior criminal convictions, even one conviction, can infer a propensity or disposition to act in accordance with that prior conviction or convictions. See: R. v. Arcangioli (1994), 1994 CanLII 107 (SCC), 87 C.C.C. (3d) 289 at pp. 294-298 (S.C.C.); R. v. Suzack and Pennett (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 at paras. 77, 94-6, and 109-135 (Ont. C.A.); R. v. Diu and Lam (2000), 2000 CanLII 4535 (ON CA), 144 C.C.C. (3d) 481 at paras. 133-147 (Ont. C.A.).
[33] I also made a tentative or preliminary ruling that Ms. Riva’s position, that she only sought to prove the fact of eight prior convictions and preferably by way of an Agreed Statement of Fact, and that she did not seek to bring out the underlying facts relating to the prior convictions, would reduce both the potential moral prejudice and any reasoning prejudice. Ms. Riva’s position in this regard was in stark contrast to what had happened in the two leading Ontario cases, where counsel for Pennett and for Lam had gone into the facts underlying the co-accused’s prior convictions. See: R. v. Suzack and Pennett, supra; R. v. Diu and Lam, supra. I tentatively ruled that Ms. Riva’s comparatively restrained manner of proving Thompson’s alleged disposition or propensity could be done quickly and efficiently, without distracting the jury and without unduly prejudicing the jury, by avoiding any mention of the facts of Thompson’s prior cases and by avoiding some of his more serious convictions (as will be discussed below).
[34] In conclusion, I held that I was inclined to rule in favour of Wight’s motion to adduce evidence of Thompson’s alleged disposition but that I would only rule after I had heard his testimony and after applying the test set out by Rosenberg J.A. in R. v. Pollock and Morrisson, supra at paras. 123-4:
Thus, the evidence must be legitimately and reasonably capable of assisting the jury in arriving at a just verdict. Not all evidence of a violent disposition can necessarily meet that test. There must be some legitimate and reasonable nexus between the proffered evidence and the inference sought to be drawn by the accused. Further, the evidence must have “sufficient probative value” for the purpose for which it is tendered. As this court explained in the subsequent decision in R. v. Yaeck (1991), 1991 CanLII 2732 (ON CA), 68 C.C.C. (3d) 545, leave to appeal to the Supreme Court of Canada refused (1992), 71 C.C.C. (3d) vii, at 567, referring to R. v. Seaboyer at p. 406, the value of the evidence must outweigh its potential prejudice to the conduct of a fair trial. Sufficiency implies more than simple bare probative value. As I indicated above, since this is defence evidence, exclusion of relevant evidence is justified only if “the potential prejudice to the trial process of admitting the evidence clearly outweighs its value” (Yaeck at p. 566, referring to Seaboyer at pp. 391-92).
In considering the admissibility of the evidence of Pollock’s disposition, the trial judge had to find that the evidence had sufficient probative value to warrant its reception. He needed to consider whether the evidence would mislead the jury, would involve an inordinate amount of time, would unduly distract the jury from the real issues in the case or would cause unfair surprise to Pollock’s defence. The trial judge did not take these other issues into consideration. He focused solely on the assertion from counsel that the evidence was necessary for Morrisson’s defence. [Emphasis added].
(iii) The final ruling on March 30, 2022
[35] As anticipated, the Crown called its last witness and closed its case late on Monday, March 28, 2022. Ms. Riva opened to the jury and called the accused Wight as her first witness on Tuesday morning, March 29, 2022. During Wight’s testimony, Ms. Riva also tendered two Agreed Statements of Fact (Exhibits 118 and 125) setting out certain corroborating evidence from the police investigation relating to Wight’s marginalized life and his drug use. On behalf of Thompson, Mr. MacGregor carried out a lengthy and vigorous cross-examination that extended into the next day, Wednesday, March 30, 2022. Ms. Battersby then cross-examined Wight on behalf of the Crown. Both cross-examinations challenged certain important aspects of Wight’s account and attacked his credibility and reliability, while implicitly accepting other aspects of Wight’s account that were corroborated or supported by the known facts.
[36] I have previously summarized Wight’s account of the relevant events (at paras. 10 and 12 above). I will not repeat that summary. There was no suggestion that Wight testified in a manner that was materially different from Ms. Riva’s outline of his anticipated evidence during her submissions on March 25, 2022. As a result, there was no request that I revisit or reconsider the tentative or preliminary ruling that I had given on March 25, 2022. In my view, the additional detail that came out when Wight testified simply added force to Ms. Riva’s earlier submissions. For example, Wight testified that as soon as he entered McGowan’s apartment, following behind Thompson, the altercation was already underway. Thompson was striking McGowan about the head and face with an object that could have been a gun. Later in the altercation, Thompson kicked McGowan in both sides while McGowan was on the ground fighting with Wight. Thompson then shot McGowan from behind while McGowan was still on the ground. The evidence of the pathologist, Dr. Bellis, supported some aspects of this account. She had testified that the blunt force injuries to McGowan’s head could have been caused by an object like a gun, a cut to McGowan’s liver could have been caused by a kick, and the gunshot wound to McGowan’s buttocks entered from behind and traveled downwards before the bullet lodged in his hip. In addition, Wight’s account implicated Thompson in the robbery-related aspects of the case. Wight testified, in this regard, that he saw Thompson rummaging through drawers and cupboards in the kitchen and in the bedroom. Wight denied any involvement in these robbery-related activities that were apparent from the crime scene evidence.
[37] Most importantly, in my view, the cross-examinations of Wight by both Mr. MacGregor and Ms. Battersby challenged him in areas that increased the importance to the defence of the proposed disposition evidence. In particular, Mr. MacGregor repeatedly put suggestions to Wight that he was in possession of the gun and that he had sufficient means and contacts to obtain a gun. Mr. MacGregor also played certain video clips from the surveillance evidence at McGowan’s building and suggested to Wight that they showed the outline of a gun at Wight’s waist, underneath his shirt (Exhibits 120, 121, and 122). Mr. MacGregor also cross-examined Wight about his DNA found on the handle of a 20 pound dumbbell that also had McGowan’s blood on the end of it, and about the absence of any injuries to Wight’s hands. These lines of questioning had the objective of suggesting that Wight used objects like the gun and the dumbbell to cause McGowan’s death, without Thompson’s involvement (which was the theory that Mr. MacGregor eventually put to the jury in closing argument, on behalf of Thompson). Finally, both Mr. MacGregor and Ms. Battersby cross-examined Wight about the implausibility of his evidence to the effect that he did not know the reason why Thompson picked him up at a bar in Pickering, drove him to McGowan’s apartment building in Scarborough, and led him up the west stairwell and into McGowan’s 15th floor apartment. In this regard, Wight insisted that he never asked Thompson, either before or after the relevant events, about the reason why they were driving to Scarborough or why McGowan was beaten in his own apartment. When responding to suggestions that this was all implausible, Wight repeatedly fell back on the nature of the relationship between a drug dealer and a drug addict, involving a power imbalance and an element of fear, which explained why Wight simply followed Thompson’s lead without asking questions.
[38] As a result of the above developments during Wight’s testimony, I was satisfied by the end of the day on March 30, 2022 that my preliminary or tentative ruling on March 25, 2022 was correct. Indeed, I was satisfied that Thompson’s disposition and ability to access and possess firearms, his role and relationship to Wight as a drug trafficker, and his prior involvement in assaults and robbery all had substantial probative value in relation to Wight’s defence of lack of intent, for the reasons explained above. In terms of the prejudicial effect on Thompson of evidence of his disposition, Ms. Riva advised that counsel had arrived at an Agreed Statement of Fact which could be read into the record quickly and efficiently without any factual disputes and without attracting undue emphasis or attention to this evidence. There were no further submissions relating to the admissibility of the disposition evidence, except that Mr. MacGregor advised that he was not bringing a severance application but that he was requesting an immediate mid-trial limiting instruction concerning the permissible and impermissible uses of the evidence. In my view, Mr. MacGregor’s decision not to pursue severance was wise, in light of the two leading Ontario decisions where severance was denied on somewhat more sympathetic facts, in R. v. Suzack and Pennett, supra and R. v. Diu and Lam, supra.
[39] For all these reasons, I ruled that the proposed evidence of Thompson’s disposition was admissible, pursuant to the test set out above from R. v. Pollock and Morrisson, supra, because its legitimate probative value in relation to Wight’s defence of lack of intent was significant and was not clearly outweighed by its potential prejudice to Thompson’s right to a fair trial. The Agreed Statement of Fact was read to the jury and it was filed as Exhibit 126. I immediately gave the jury a mid-trial limiting instruction about this evidence. That instruction was repeated in the final Charge to the Jury, which was marked as a lettered exhibit and provided to the jury in writing during their deliberations. These mid-trial and final instructions were based on Suzack and Diu and were as follows (at pp. 80-83 of the written Charge):
When this evidence was tendered by Ms. Riva last Wednesday, I gave you a Mid-Trial Instruction about the permissible uses and the impermissible uses of Mr. Thompson’s prior criminal convictions. I will now repeat that instruction, and you will have it in writing in this Charge.
Beginning with the negative instruction, concerning impermissible uses, you must not use this evidence of Mr. Thompson’s prior convictions in any way to prove his guilt of the present offences charged. In other words, the Crown cannot use this evidence to incriminate Mr. Thompson, that is, it cannot be used to assist the Crown in meeting its burden of proving guilt beyond reasonable doubt. Evidence of a person’s past criminal conduct is often referred to as evidence of bad character, or disposition, or propensity to commit an offence. The law of evidence strictly prohibits any form of reasoning that looks at a person’s past misconduct in order to infer that they are the type of person who is likely to have committed the present offences. I previously instructed you about this principle of evidence law in Section “M” of the Charge and it applies equally to this evidence of Mr. Thompson’s criminal record.
Turning to the positive instruction, concerning permissible uses, the law of evidence does however allow one accused, in a trial of jointly charged accused, to rely on evidence of a second accused’s bad character or disposition or propensity, in order to raise a reasonable doubt about the first accused’s guilt. In other words, Mr. Wight is entitled to point to Mr. Thompson’s prior criminal record in order to infer that Mr. Thompson has a disposition or propensity to engage in certain kinds of criminal conduct and, therefore, it is more likely that Mr. Thompson engaged in this particular kind of criminal conduct than Mr. Wight.
On the particular facts of this case, Mr. Wight denies possessing or using a firearm, he denies being involved in any plan to rob Mr. McGowan, and he denies initiating the assaults on Mr. McGowan or committing all of the assaults on Mr. McGowan. He testified that Mr. Thompson was the one who possessed and used the gun, Mr. Thompson was the one who was rummaging in the kitchen and bedroom (consistent with a robbery), and Mr. Thompson initiated the assaults by hitting Mr. McGowan in the face and head with some object, and Mr. Thompson kicked Mr. McGowan in both sides and then shot him in the buttocks at a later stage in the beating. Mr. Thompson’s prior convictions may or may not relate to these three forms of conduct – the convictions for robbery, assault, and possessing a restricted or prohibited firearm with ammunition. In addition, Mr. Wight repeatedly asserted that Mr. Thompson was in charge and Mr. Wight was only following his lead, because of their drug dealer-drug user relationship. Mr. Thompson’s prior convictions also may relate to this form of conduct – the convictions for drug trafficking.
The defence of one accused is allowed to engage in these forms of reasoning that are based on the character or disposition or propensity of a co-accused to act in accordance with past criminal convictions, in order to raise a reasonable doubt concerning the extent of the first accused’s involvement. However, the Crown is strictly prohibited from engaging in this form of reasoning in order to prove guilt. This is a difficult instruction to follow because it is asymmetrical, that is, one side is allowed to rely on certain kinds of evidence for certain purposes but the other side is prohibited from relying on the same kind of evidence for somewhat similar purposes. This may seem to you, at first blush, like a double standard but it actually makes sense. There is a greater risk that you would give this kind of evidence undue weight, or that you would use it to fill gaps in the evidence, if it could be relied on by the Crown as a sword in order to prove guilt. However, when it is being used by the defence as a shield (as Ms. Riva is using it on behalf of Mr. Wight), in order to raise a reasonable doubt about the extent of Mr Wight’s involvement, there is less risk that you will give it undue weight and no risk that you will use it to fill gaps in the burden of proof. So you can see that there are rational distinctions when the law of evidence allows the defence of one accused to rely on this kind of evidence, to raise reasonable doubt, but prohibits the Crown from relying on the same kind of evidence to prove guilt.
Those are the permissible and impermissible uses of this evidence and you must work hard to follow this subtle and somewhat difficult instruction. [Emphasis in the original].
(iv) The evidence of Hoo-Hing
[40] One final development at trial in relation to the broad issue of evidence concerning Thompson’s extrinsic misconduct and/or his disposition, occurred when Hoo-Hing testified. As previously noted, Mr. Stauffer and Mr. MacGregor had been conferring during the trial about their respective defences, on behalf of Hoo-Hing and Thompson. At a certain point, Mr. Stauffer advised that he would not be bringing a Pollock and Morrisson motion, seeking a ruling concerning prejudicial evidence of Thompson’s disposition. However, when Hoo-Hing testified she gave evidence about her own sex trade work, and about Thompson’s 50% interest in the proceeds of that work, in return for providing her with “security”. This business arrangement figured prominently in Hoo-Hing’s explanation for why she let Thompson and Wight into McGowan’s apartment building on the night of September 22, 2019, and then proceeded up to McGowan’s 15th floor unit and knocked on his door, shortly before the murder took place.
[41] When evidence of this business arrangement with Thompson emerged, during Hoo-Hing’s examination-in-chief, I inquired as to whether there was any issue concerning its admissibility. I was concerned that it could be construed as evidence of extrinsic misconduct and that it could require a limiting instruction, assuming it was admissible. Mr. Stauffer and Mr. MacGregor assured me that they had discussed this anticipated evidence and there was no issue as to its admissibility. They advised that Thompson’s prior criminal convictions in March 2015, for assault and exercising control in relation to prostitution (the former s. 212(1)(h) offence of procuring), would not be raised as part of Hoo-Hing’s defence. Ms. Riva had also not sought to rely on these convictions in relation to Wight’s defence, and the jury never heard about them. Mr. Stauffer and Mr. MacGregor agreed with my suggestion that a limiting instruction to the jury would be appropriate in relation to this evidence. Finally, as noted previously, the business arrangement between Thompson and Hoo-Hing, relating to “security” for her sex trade work, helped the defence explain why Hoo-Hing arranged for Thompson to attend at McGowan’s apartment building on the night of the murder. It did not explain why, according to Hoo-Hing’s account, Thompson was not nearby on the 15th floor when she knocked on McGowan’s door. In relation to that issue, Thompson’s involvement in the drug trade was advanced as a potential explanation for Thompson being elsewhere in the building.
[42] The limiting instruction relating to all of the evidence of extrinsic misconduct that had come out during the trial was as follows (at pp. 60-66 of the written Charge to the Jury, which was provided to the jury during their deliberations):
Sometimes in the course of a trial, the jury will hear evidence that is permitted for only some limited purpose, but the law strictly prohibits its use for some other impermissible purpose. That happened during this trial on a number of occasions. It happened first, during the Crown’s case, when you heard evidence of certain text messages between Mr. Thompson’s phone and Mr. Wight’s phone that could suggest a drug dealer and drug purchaser relationship (brought out in cross-examination of Det. Cst. Battaglia by Ms. Shafran). You also heard evidence from Mr. Okpei (brought out in cross-examination by Mr. Stauffer), to the effect Ms. Hoo-Hing worked at an adult massage parlour called “Pickering Angels” and he suspected she was involved in the sex trade. This same topic came up during the cross-examination of Det. Cst. Morden, when Mr. Stauffer brought out evidence about a file folder with certain suggestive photographs relating to the “Pickering Angels” that was extracted from Ms. Hoo-Hing’s phone. When Ms. Hoo-Hing testified, she confirmed that she did work in the sex trade, that Mr. McGowan was a client, and that Mr. Thompson provided security for her in return for half of her income as an escort. …
I have already summarized some of the evidence relating to these matters in the immediately preceding section “L” of the Charge. In any event, I need not set out this evidence in detail because most of it was brought out by the defence and it was largely unchallenged. In particular, it was admitted by Mr. Wight in his testimony that he was addicted to crack cocaine, that he was a heavy user of illicit drugs... Similarly, both Mr. Wight and Ms. Hoo-Hing testified that Mr. Thompson was a drug dealer and this was not seriously challenged by counsel for Mr. Thompson. In addition, Ms. Hoo-Hing’s testimony about the business arrangement she had with Mr. Thompson, in which she provided him with half of her escort earnings in return for security, was not seriously challenged.
Beginning with the permissible use of the evidence relating to alleged drug dealing by Mr. Thompson and admitted drug use and possession by Mr. Wight, you may use this evidence to infer that there was a relationship between Mr. Thompson and Mr. Wight prior to the alleged homicide, and to infer the nature or the dynamics of that relationship. You may also use this evidence in relation to Mr. Wight’s defence, to the effect that he lacked the requisite mental element or intent for second degree murder (on which I will instruct you later in the Charge). If you find that Mr. Thompson and Mr. Wight had a drug dealer and drug user relationship, prior to the alleged homicide, you may use this evidence to assist in determining how Mr. Wight came to be involved in the events that unfolded at 41 Antrim Crescent that night, and you may use it when considering the likely conduct and roles of Mr. Thompson and Mr. Wight, and in determining whether they both attended at Mr. McGowan’s apartment, as I instructed you in the previous Section “L” of the Charge. In this regard, you must remember my instructions in that section of the Charge relating to circumstantial evidence because this permissible use of the evidence involves drawing circumstantial inferences, after a consideration of the totality of all the evidence.
Turning to the permissible uses of evidence that Ms. Hoo-Hing was working in the sex trade at the relevant time, you may use this evidence to assist in determining the nature of her relationship with Mr. McGowan at the time of the alleged homicide. In particular, you can use this evidence to assist in determining whether Mr. McGowan was a client who was paying Ms. Hoo-Hing for sexual services. Similarly, you can use the evidence that Ms. Hoo-Hing and Mr. Thompson had a business relationship in which she paid him half of her escort earnings in return for security, in order to assist you in determining whether the reason why Ms. Hoo-Hing arranged for Mr. Thompson to attend with her at 41 Antrim that night, was in order to lawfully ask Mr. McGowan to pay a sexual services debt that he owed Ms. Hoo-Hing and Mr. Thompson.
Now let me deal with the impermissible use of this kind of evidence. It is very important that you understand that you must not use the evidence relating to Mr. Thompson’s alleged drug dealing, or Mr. Wight’s admitted drug use and drug possession, or Ms. Hoo-Hing’s and Mr. Thompson’s work in the sex trade, … to infer that one or both or all three of them are the sort of person or persons who would commit one of the offences charged. That is a completely impermissible use, relating to a person’s general propensity or general disposition to commit crime. You must not decide this case on the basis of anything you may think about Mr. Thompson’s or Mr. Wight’s or Ms. Hoo-Hing’s past history or general character or disposition or propensity. These kinds of considerations are irrelevant to the issue of their guilt or innocence and involve an entirely impermissible process of reasoning.
In conclusion on this point, you must be disciplined and judicial and use this evidence about Mr. Thompson’s alleged drug dealing, Mr. Wight’s admitted use and possession of drugs, Ms. Hoo-Hing’s and Mr. Thompson’s work in the sex trade, … only for their legitimately relevant purposes, that is, as evidence relating to the existence of a certain kind of relationship between Mr. Thompson and Mr. Wight prior to the alleged homicide, relating to Mr. Wight’s state of mind at the time of the homicide, relating to the nature of Ms. Hoo-Hing’s relationship with Mr. McGowan, relating to the reason why Ms. Hoo-Hing arranged for Mr. Thompson to attend with her at 41 Antrim Crescent that night … You cannot use this evidence to infer a general bad character or a general criminal disposition, and to infer guilt on that basis. [Emphasis in the original].
D. CONCLUSION
[43] The above reasons explain the basis for the three pre-trial and mid-trial rulings that I made in the course of this murder trial, all in relation to evidence of Thompson’s extrinsic misconduct and propensity.
M.A. Code J.
Reasons Released: May 10, 2022.
COURT FILE NO.: CR-20-30000477-0000
DATE: 20220510
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
PETER WIGHT, O’NEIL THOMPSON and FANTASIA HOO-HING
Accused
REASONS FOR JUDGEMENT ON three pre-trial and mid-trial rulings related to extrinsic misconduct and disposition of one co-accused
M.A. Code J.
Released: May 10, 2022