COURT FILE NO.: CR- CR-21-30000-302
DATE: 20220606
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KEDAR ABDL GUERRA, ETHAN LOU LEE and ATNEIL FITZROY NELSON
Jason Gorda and Caolan Moore, for the Crown
C. Stephen White and Kristianne C. Anor, for Kedar Abdl Guerra
Christian Angelini, for Ethan Lou Lee
Philip Klumak and Michael Moeser, for Atneil Fitzroy Nelson
HEARD: May 16, 2022
REASONS FOR RULING
M. Dambrot J.:
[1] Kedar Guerra, Ethan Lee and Atneil Nelson are being tried by me, with a jury, on an indictment alleging that on December 31, 2019, at the City of Toronto, they committed the first degree murder of Clinton Williams.
[2] At the outset of the trial, Lee and Nelson each brought an application for an order excluding from evidence certain after-the-fact conduct related to them, specifically cellphone video recordings of them at a nightclub several hours after the shooting of the deceased, on the basis that the prejudicial effect of the evidence exceeds its probative value. I ruled that this evidence was admissible, subject to editing, and that my reasons would follow. These are those reasons. I note that counsel were able to agree on the editing, and I will not address that issue.
The shooting of Clinton Williams
[3] Clinton Williams was shot and killed on December 31, 2019, at approximately 6:00 pm. The shooting took place in the underground garage of an apartment building at 100 Wingarden Court in Scarborough. At the time, Williams was residing with Bernard Mulzac in unit 313 of the building. The Crown alleges that Lee was the shooter, that Guerra drove him to and from the shooting in a silver Mercedes Benz wagon (“Benz”), and that Nelson was in the car and a participant in the murder. Lee and Nelson were arrested together in a residence on January 13, 2020. Guerra was arrested in Sarnia on the same date.
[4] The Crown will adduce evidence from which it will be open to the jury to find the following.
[5] Guerra and Williams communicated with each other by cellphone during the morning of December 31, 2019, Guerra called Nelson before and after his calls to Williams, and Nelson was in touch with Lee during that afternoon. Later that afternoon, Nelson picked Lee up in the Benz and drove with him to the Travelodge Hotel in Scarborough, which is a short distance from Williams’ apartment. The two men were greeted by Guerra in the parking lot.
[6] At 4:57 p.m., the three men entered a hotel room in the Travelodge along with Guerra’s fiancée. At 5:01 p.m., while he was in the hotel room, Guerra called Williams. The call continued for 91 seconds. Guerra, Lee and Nelson left the hotel room at 5:24 p.m., got into Benz and departed from the hotel.
[7] At 5:42 p.m., 18 minutes after the Benz left the Travelodge Hotel, it was on the street outside the deceased’s apartment building. The occupants parked the Benz and remained in place in the vehicle for approximately 20 minutes. Guerra’s phone records show that he was in the area of William’s apartment building and that he exchanged phone calls with Williams at 5:31, 5:41, 5:53, and 5:59 p.m. During the period that these phone calls occurred, Mulzac observed Williams talking on the phone with someone with a male voice about finding parking. Mulzac believed that Williams was planning to meet with the person he was speaking to on the phone. After the last of the phone calls, Williams left the unit.
[8] At 6:01 pm, Williams walked out of his building and over to the Benz, which was still parked on the street, appeared to speak to someone through the driver’s side window, then walked towards the underground parking garage of his building with the Benz behind him, opened the door of the underground parking garage and entered the garage.
[9] When the garage door opened, the Benz pulled onto the garage entrance ramp and stopped halfway down the ramp. A person matching Lee’s description, who was wearing clothing that matched the appearance of the clothing Lee was wearing at the Travelodge 45 minutes earlier, exited the vehicle from the rear driver’s side door with a gun in his hand.
[10] At 6:03 p.m., the man fired four shots in the direction of the deceased, one of which penetrated Williams’ back and entered his chest. The man then got back into the vehicle. The police located four cartridge casings in the parking garage later that evening. The shooter was outside the vehicle for less than 20 seconds. The vehicle then drove away at a relatively high rate of speed.
[11] Although he had been shot, Williams was still alive, and was able to enter the stairwell of the garage and make his way back to his apartment. At 6:14 p.m., Mulzac called 911. Two police officers arrived at the unit at 6:18 p.m., quickly followed by paramedics.
[12] Williams was transported to Sunnybrook Health Sciences Centre where he was pronounced dead at 7:19 p.m. The cause of death was a single bullet wound that entered through his lower left flank and exited his upper right chest.
The arrest of Lee, Nelson and Guerra
[13] All three accused were arrested on January 13, 2020, Guerra in Sarnia, and Lee and Nelson together at Nelson’s residence. Clothing matching what each of them was wearing on December 31, 2019 was located in the two residences. Nelson gave a statement to the police after his arrest.
[14] In his statement, Nelson admitted that he was the driver of the Benz on December 31, 2019, but that he believed that he was only involved in a drug deal. He dropped Lee off after the shooting. He said that Lee and Guerra were friends, that he only saw Lee with Guerra, and that Lee was a nobody to him. He also said that he was scared of Lee.
Lee, Nelson and Guerra after the shooting
[15] At 6:13 p.m., the Benz was in the parking lot of the Scarborough Town Centre. By 6:18 p.m., Nelson and Guerra were inside the Centre. Guerra then returned to the Travelodge Hotel in a taxi, and left again at 6:51 p.m. He spent the night at his mother’s residence at 130 Bellamy Road in Toronto. He told his fiancée that he lost his phone that night.
[16] After leaving the Scarborough Town Centre, Nelson drove to Brampton. Several hours later, Nelson and Lee attended a nightclub called Her where they celebrated the birthday of Kellyann Belgrave, Nelson’s girlfriend, and the New Year. They partied there with a number of other people.
[17] At about 11:47 p.m., Nelson searched CP24 on Google and then accessed the CP24 website. At 2:05 a.m. and again at 3:20 a.m. on January 1, 2020, Nelson accessed articles about the shooting on CP24.
[18] The police investigation uncovered a series of photos and videos on Nelson’s cellphone that show him and Lee together in Her. There are also videos on the cellphone showing Lee and Nelson together on January 5, 2020. Crown counsel proposes to adduce 15 of the videos, together with a few still shots, in evidence.
ANALYSIS
[19] Evidence of after-the-fact conduct, like all other types of evidence, is admissible if it is relevant to a live, material issue in the case; if its admission does not offend any other exclusionary rule of evidence; and if its probative value exceeds its prejudicial effect.
[20] After-the-fact conduct is circumstantial evidence that can be used, relying on logic, common sense, and experience, to infer the existence of a fact in issue, or to assess credibility, and which, in turn, may assist in determining the culpability of an individual for a particular offence.
[21] In this case, the Crown argues that the video evidence that Nelson and Lee ask me to exclude reveals after-the-fact conduct on their part that is probative of the following relevant facts and inferences:
• Lee and Nelson were together after the shooting.
• Lee and Nelson were friends.
• Lee was the person who shot Clinton Williams.
• Lee and Nelson carried out a planned and deliberate murder.
• The video evidence contradicts Nelson’s statement to police in which he minimized his relationship with Lee, even going so far as to say he was scared of him. Nelson’s lies in his statement are admissible as after-the-fact conduct consistent with his guilt.
[22] Nelson concedes that the video evidence has probative value, specifically to establish that Nelson and Lee were together on December 31, 2019, that they were together after the shooting, that they were celebrating, and that they did not appear remorseful or concerned about the shooting. However, he takes the position that these facts can be presented to the jury without the need to play the videos through the testimony of witnesses who were present and the introduction of photographs. He argues, however, that the inference that the Crown seeks to draw from the evidence – that the shooting was preplanned – is weak, particularly because it is demeanour evidence.
[23] He further argues that moral prejudice would be occasioned by the introduction of this evidence in the form of videos. Some jurors, as a result of their unconscious biases or stereotypical thinking, might assume that the accused were behaving in the manner that drug dealers and criminals behave. Moral prejudice may also arise from the manner in which Lee, and others, flaunted their jewellery and cash and consumed marihuana on December 31, 2019, and on January 5, 2020.
[24] Lee also accepts that this evidence has probative value, but argues that the presentation of it can be accomplished through admissions, failing which the probative value of the evidence is outweighed by its prejudicial effect. At the least, Lee says that certain specific, highly prejudicial elements of the audio and video should be redacted.
[25] I will begin by examining the relevance and probative value of the inferences the Crown seeks to draw from this evidence. There is considerable overlap in the way the Crown analyzed the inferences. I have labeled and ordered these inferences somewhat differently than did the Crown for the purpose of my analysis, but admittedly, some overlap remains.
Lee and Nelson were together after the shooting
[26] While Nelson’s presence in the Benz when the shooting occurred is not admitted, it is unlikely to be the focus of his defence. Lee’s presence in the Benz when the shooting occurred is clearly in dispute. The after-the-fact conduct evidence, coupled with other evidence, tightens the circumstantial web from which it might be inferred that Lee was in fact in the Benz. In particular, the evidence that Nelson and Lee were together for a considerable period of time in the afternoon of the day of the shooting, were in the Benz together shortly before the shooting, and were together again later that evening at Her, when viewed collectively, is compelling evidence that they were together at the time of the shooting. This, in turn, supports an inference that Lee participated in the shooting.
Lee and Nelson had an ongoing relationship
[27] The collection of New Year’s Eve videos proffered by the Crown, along with the January 5, 2020, videos and the evidence that Nelson and Lee were arrested together on January 13, 2020, tends to show not only that they spent time together, but that they did so frequently and in a manner that reflects an ongoing relationship marked by closeness and friendship. This once again supports the inference that Lee was in the Benz at the time of the shooting, but it also contradicts Nelson’s assertions in his statement to the police that he only saw Lee with Guerra, that Lee was a nobody to him, and that he was scared of Lee. As a result, it would be open to the jury to conclude that Nelson made false or misleading statements to the police.
[28] As I stated in my ruling in relation to the proposed editing of Nelson’s statement, false or misleading statements made by an accused can be circumstantial evidence of guilt and can be the subject of an after-the-fact conduct instruction to the jury, provided that the statements relate to a material issue and that there is independent evidence of fabrication: R. v. Clifford, 2016 BCCA 336, 407 D.L.R. (4th) 65, aff’d 2017 SCC 9, [2017] 1 S.C.R. 164; R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, leave to appeal refused, [2010] S.C.C.A. No. 263; and R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A). I am satisfied that this test is met.
Lee and Nelson celebrated together a few hours after the shooting
[29] The videos paint a picture of Lee, Nelson and others celebrating in the evening of the shooting. The video depicts young, predominantly black men and women laughing, singing, dancing, rapping, drinking, swearing, gesticulating and smoking on New Year’s Eve. There is, of course, nothing unusual, far less discreditable about such a New Year’s Eve celebration. However, this picture must be considered in the context of Nelson having told the police that hours earlier, when he thought that he was attending a drug delivery with Lee and Guerra, he was startled to find himself not only witnessing a shooting but participating it as the driver of the car from which the shooter emerged, albeit unwittingly.
[30] Human experience might suggest that a person in the position Nelson claims to have been in would be desperate to distance himself from Lee and Guerra, and not be celebrating with either of them hours later. Indeed, human experience might suggest that a person in Nelson’s purported position would be in no mood to celebrate at all a few hours after seeing someone being shot. This evidence is relevant to Nelson’s state of mind in respect of the shooting and is highly probative: R. v. Vorobiov, 2018 ONCA 448, at paras. 64-66, leave to appeal refused, [2019] S.C.C.A. No. 440.
[31] Similarly, if the jury finds that Lee was present at the murder, his conduct that evening suggests, at the very least, that he was not shocked or surprised by the shooting of Williams, and perhaps, in turn, that he had attained his goal or was a party to a plan to kill Williams: R. v. Aravena, 2015 ONCA 250, 323 C.C.C. (3d) 54, at paras. 125-130, leave to appeal refused, [2015] S.C.C.A. No. 497.
[32] The suggestion was made in argument that the force of this evidence could be captured by an agreed statement of fact. I do not agree. Having viewed the video, I have no doubt that an agreed statement of fact, like my summary of the event, could not adequately capture the mood of Lee and Nelson or the extent of their elation, which provides the evidence with its true impact.
[33] Nor do I accept the argument made by Nelson that the force of this argument is diminished because of the unreliability of demeanour evidence. This evidence is a very far cry from the sort of evidence that has been the focus of concern of the appellate courts in numerous cases. We are not concerned here with the immediate reaction of an accused to a startling event. We are concerned with the behaviour of the Nelson and Lee over an extended period of time several hours after the startling event – celebrating and partying into the night hours after at least witnessing a man being shot to death.
Lee’s identity as the person who shot Clinton Williams
[34] The Crown’s case identifying Lee as the shooter is based primarily on video evidence – video footage of Lee at the Travelodge Hotel and video of the shooter in the parking garage at 100 Wingarden Court. Video footage of Lee hours after the shooting is an important part of the Crown's case to prove his identity as the person who shot Williams. The videos from Nelson’s cellphone will permit the jury to assess Lee’s body type, his manner of movement, and the clothing he was wearing, including his shoes, and compare them to the video of the person appearing to be him at the Travelodge and the video of the shooter. Needless to say, no statement of fact short of an admission that Lee was the shooter, could substitute for the jury observing the video for this purpose.
PREJUDICE
[35] I will begin with the argument made by Nelson that some jurors, as a result of their unconscious biases or stereotypical thinking, might assume that the accused were behaving in the manner that drug dealers and criminals behave. I do not discount the possibility that some jurors might wonder whether Nelson and Lee are criminals because of their participation in the night club party, but I do think that counsel greatly overstate this concern.
[36] We live in a diverse and cosmopolitan city. Toronto juries, particularly since the elimination of peremptory challenges, are markedly diverse. Most people, particularly those who are young or have children, have been exposed to rap music, rap lyrics and rap videos. We are aware that rap music and hip-hop culture often deals with drugs and guns. We are familiar with the words and gestures that have moved from hip-hop culture into youth culture more generally. In short, jurors are not delicate flowers brought into court from greenhouse nurseries.
[37] Lee also argues that the videos are highly prejudicial. They leave the impression, he says, that he, as a young black man, is a part of a gang, has a violent disposition, has an affinity for handguns, and that he would kill for status or material possessions. In my view, this not only ignores the reality of modern society, but it also reads a great deal into the video that simply isn’t there. To me, the video looks little different than what can be seen in endless rap videos that are widely seen on social media and that ordinary people are accustomed to seeing. Of course, the fear that some jurors may see young black men as violent and prone to gang membership and gun use is undoubtedly real, regardless of the videos. For that reason, the jurors were challenged for cause in relation to conscious and unconscious racial bias and have been and will continue to be extensively warned against it.
BALANCING PROBATIVE VALUE AND PREJUDICIAL EFFECT
[38] As a result, I conclude that the probative value of the videos, which I find to be significant, strongly outweighs the general prejudice advanced by Nelson and Lee, which I find to be insignificant.
[39] None of this is to suggest that an effort should not be made to remove aspects of the videos that are suggestive of criminality and of more limited probative value. It is well worth making the effort to minimize the effect of whatever negative stereotypical thinking any of the jurors may harbour despite our precautions. But as I have indicated, counsel have agreed on the appropriate editing, and I need say nothing else about it.
Disposition
[40] The cellphone video recordings and photos of Nelson and Lee at a nightclub several hours after the shooting of the deceased that the Crown seeks to adduce in evidence are admissible, subject to editing, which has been agreed upon.
M. Dambrot J.
Released: June 06, 2022
COURT FILE NO.: CR-21-30000-302
DATE: 20220606
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
HER MAJESTY THE QUEEN
– and –
KEDAR ABDL GUERRA, ETHAN LOU LEE and ATNEIL FITZROY NELSON
REASONS FOR RULING
DAMBROT J.
RELEASED: June 06, 2022