Court File and Parties
Court File No.: CR-19-90000-417-0000 Date: 2022-02-03 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Craig Lawrence, Stephanie Legge, Desmond Kerr, and Jean Simmons, Defendants
Counsel: F. Alibhai and S. Tsai, for the Crown (Applicant) M. Reynolds, for the Defendant/Responding Party Desmond Kerr
Heard: November 22, 2021
Before: Molloy J.
Reasons for Decision
(Admissibility of Post-Offence Travel Records)
A. BACKGROUND
[1] Desmond Kerr is one of four individuals charged with criminal negligence causing harm to Jacqueline Robinson. Also charged are Stephanie Legge, Jean Simmons, and Craig Lawrence. These four individuals are alleged to have facilitated the ingestion of fentanyl by Ms. Robinson on December 15, 2016. The plan was for Ms. Robinson to swallow a number of capsules containing fentanyl and then travel to Bermuda with one of the co-accused (Craig Lawrence). Once in Bermuda, Ms. Robinson would excrete the capsules, they would be passed over to someone in Bermuda, and Ms. Robinson and Mr. Lawrence would return to Toronto with the money on December 22, 2016. Mr. Kerr is also charged (with Legge and Simmons) with exporting fentanyl from Canada and (with Legge) conspiring to commit the offence of exporting fentanyl. All charges flow from the same alleged scheme: to have fentanyl brought into Bermuda by Ms. Robinson in the form of capsules she had swallowed before leaving Canada.
[2] Things did not go well after Ms. Robinson and Mr. Lawrence arrived in Bermuda. Ms. Robinson excreted some, but not all, of the 45 capsules she had ingested. Some of the fentanyl made its way into her system. She was found unconscious in her hotel room on December 20, 2016 and rushed to hospital, where she was diagnosed as suffering from acute renal failure due to exposure to fentanyl.
[3] Both Mr. Lawrence and Ms. Robinson were arrested by the Bermuda Police Service and charged with importing fentanyl into Bermuda. They were held without bail pending trial. Mr. Lawrence was acquitted at trial, and has since returned to Toronto. Ms. Robinson was convicted at trial in Bermuda. She will be a testifying as a Crown witness in the trial against the four accused here. That trial was scheduled to commence before a jury in January 2022, but has been postponed due to the current COVID-19 restrictions. I have been appointed as the Case-Management Judge to hear the pre-trial motions in this case.
B. THE MOTION
[4] On December 22, 2016, Desmond Kerr flew to Bermuda from Toronto, returning to Toronto on December 25, 2016. The Crown seeks to tender evidence of this trip as part of several pieces of circumstantial evidence connecting Mr. Kerr to these charges and ultimately establishing his guilt. Mr. Kerr objects on the basis that this is post-offence conduct that cannot support the inferences sought by the Crown and argues that its prejudicial impact outweighs any probative value it might have.
[5] The Crown’s evidence consists of records from the Bermuda Department of Immigration showing Mr. Kerr’s arrival in Bermuda on December 22, 2016 and his departure on December 25, 2016. If the evidence of Mr. Kerr’s trip is admissible, the defence does not object to it being proved in this manner, or through an agreed statement of facts. The Crown has no evidence as to what Mr. Kerr did or anyone he saw while he was in Bermuda.
[6] The defence filed no materials other than a written “Notice of Response”, which is in the nature of a factum. The potential prejudice relied upon by the defence is as follows:
(i) The Crown’s reliance on travel at Christmastime as a suspicious factor suggests that Mr. Kerr is either “not a Christian or at least not a very good Christian”. This “invites discrimination based on religion” because juries are disproportionally more affluent, more likely to come from families who have been in Canada for multiple generations and more likely to “identify as Christian at least culturally if not religiously”.
(ii) The Crown’s emphasis on the short duration of the trip “invites moral prejudice” because juries are disproportionately made up of people who are affluent or who are paid regular salaries; therefore, most jurors would not understand that people with less money or who work in the “gig economy” can only afford to take short trips, and at times when fares are cheaper.
C. LEGAL PRINCIPLES
[7] The defence relies upon the Ontario Court of Appeal’s 1995 decision in R. v. Morrissey.[^1] The facts are not similar to the case before me, nor is Morrissey a post-offence conduct case. However, the key point from Morrissey is one that is beyond dispute — the only inferences that can properly be drawn from evidence are those “which can be reasonably and logically drawn from a fact or group of facts established by the evidence.” Further, a distinction must be made between “conjecture and speculation” and rational conclusions. Clearly, inferences that amount to nothing more than speculation are improper.
[8] Prior to the 1998 Supreme Court of Canada decision in R. v. White (“White 1998”),[^2] the term “consciousness of guilt” was commonly used to categorize conduct of an accused after an offence had been committed, from which the trier of fact was urged to draw an inference that the accused was guilty of that offence. Typical examples of such evidence would be flight, concealment, or false alibi, but the range of possibilities is infinite. In White 1998, Major J. observed that the consciousness of guilt label for this kind of evidence “is somewhat misleading and its use should be discouraged.” He recommended more neutral language, such as “evidence of post-offence conduct” or “evidence of after-the-fact conduct”.[^3] The Court emphasized that this type of evidence was no different from other kinds of circumstantial evidence relied upon to establish guilt and should not be treated differently, stating:
Evidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it might play only a minor corroborative role. Like any piece of circumstantial evidence, an act of flight or concealment may be subject to competing interpretations and must be weighed by the jury, in light of all the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion.[^4]
[9] The Court in White 1998 also emphasized the importance of looking at all of the evidence in a case as a whole, rather than taking a piecemeal approach by scrutinizing each piece of evidence in isolation. There are circumstances where post-offence conduct will be the subject of a “no probative value” instruction to the jury, but this is usually only warranted where the accused has admitted to committing the actus reus of the crime charged and the issue to be decided is his level of intent. In those circumstances post-offence conduct consistent with guilt could be equally attributable to either offence (e.g. manslaughter as opposed to murder).
[10] Where the evidence cannot possibly support the inference for which it is being tendered, it will either not be admitted, or will be subject to a “no probative value” instruction. Juries, of course, need to be cautioned about the difference between speculation and drawing a rational inference, and reminded of the other possible inferences for the conduct in question. However, as a general rule, whether or not to draw the inference sought will be for the jury to decide, not the trial judge.[^5]
[11] The Supreme Court also emphasized in White 1998 that “in these sorts of cases, while the evidence cannot be said to be irrelevant to the issue in dispute, it might still be withdrawn from the jury by the trial judge on the basis that it is more prejudicial than probative.”[^6]
[12] In 2011, the Supreme Court of Canada considered the issue of post-offence conduct again in another case named R. v. White (“White 2011”),[^7] reaffirming its decision in White 1998 that post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In White 2011, the Supreme Court again dealt with the appropriateness of the “no probative value” instruction and held that at its heart, this was a question of relevance. Rothstein J., writing for the majority, held that for evidence “to satisfy the standard of relevance, it must have some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence”.[^8]
[13] The Court in White 2011 again emphasized the importance of leaving to the jury the issue of whether to draw the inference sought and the weight to give to it. Rothstein J. held:
Once evidence is found to be relevant, it is generally admissible and the jury is left to decide how much weight to give a particular item of evidence. Similarly, once evidence is determined to be relevant with respect to a particular live issue, the jury should normally be free to weigh the evidence in drawing conclusions about that live issue. This is subject to specific exclusionary rules and the judge’s discretion to exclude evidence that is more prejudicial than probative.
Still, judicial experience has shown that certain evidence that ought to be left with the jury, based on the ordinary rules of evidence, carries with it a heightened risk of misinterpretation or misuse. Certain types of evidence may appear more probative than they really are, may be systematically less reliable than they seem, or may be consistent with other less obvious explanations than the one advanced by a party (though not equally so). These potential dangers may not be immediately apparent to lay juries (see R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 4). Accordingly, courts have recognized that when leaving certain types of evidence with the jury, the trial judge should provide a caution that alerts the jury to the risks involved. The content and nature of the warning should address the risk and depend upon the severity of the danger.
A warning or caution does not serve to remove the evidence from the jury’s consideration. Instead, providing a caution allows for juries to benefit from judicial experience concerning the risks associated with certain types of evidence, while respecting the jury’s competence in fulfilling its fact-finding role. The point is that once jurors are alerted to the risks that are not necessarily apparent to the average citizen, they can be trusted to properly weigh the evidence. Our jury system is predicated on the conviction that jurors are intelligent and reasonable fact-finders. It is contrary to this fundamental premise to assume that properly instructed jurors will weigh the evidence unreasonably or draw irrational and speculative conclusions from relevant evidence. I agree with the view expressed by Dickson C.J., in R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, that “it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense” (p. 692 (emphasis in original)).[^9]
[emphasis added]
[14] Most recently, the Ontario Court of Appeal confirmed these concepts in R. v. Hudson, stating:
Evidence of after-the-fact conduct is not some special category of evidence. It is circumstantial evidence. Nothing more. Nothing less. Granted, it invokes a chain of reasoning different from other circumstantial evidence – retrospectant, rather than prospectant or concomitant. But that it does so does not alter its fundamental nature. And like other items of evidence received in a criminal trial, evidence of after-the-fact conduct is received if it is relevant, material, admissible under the applicable rules of evidence, and not excluded because its prejudicial effect exceeds its probative value: Calnen, at para. 107, per Martin J. (dissenting, but not on this point).
As with other forms of circumstantial evidence, evidence of after-the-fact conduct allows the trier of fact to draw inferences grounded in an accused’s words and conduct. There is nothing new or unique about this. To draw inferences, the trier of fact invokes logic, common sense, and human experience. As with all circumstantial evidence, evidence of after-the-fact conduct sponsors a range of inferences each of which must be reasonable according to the measuring stick of human experience. The inferences available depend on the nature of the conduct, the inference sought to be drawn from it, the positions of the parties, and the totality of the evidence. Evidence of after-the-fact conduct is not nullified simply because it may generate a range of inferences. For the most part, it is for the trier of fact to choose among those reasonable inferences which inference will be drawn: Calnen, at para. 112, per Martin J. (dissenting, but not on this point).[^10]
[15] The Court of Appeal in Hudson also reiterated the importance of looking at the evidence as a whole, rather than taking a piecemeal approach to assessing its relevance. Watt J.A. wrote:
The assessment of circumstantial evidence, whether by triers of fact at first instance or by an appellate court on a review for unreasonableness, does not involve an examination of individual items of circumstantial evidence in isolation and separately from the rest, adjudging them against the criminal standard of proof and rejecting them if they are found wanting, as surely they will be. No individual item of circumstantial evidence is ever likely to do so. They are the building blocks of proof, not the final product. It is commonplace that individual items of evidence adduced by the Crown examined separately and in isolation, have not a very strong probative value. But all the pieces have to be considered. Each one in relation to the whole. And it is the whole of them, taken together, whose cumulative force must be considered and may constitute a basis for conviction: Coté v. The King (1941), 1941 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.[^11]
D. EXPECTED EVIDENCE IMPLICATING MR. KERR
[16] Jackie Robinson told the police in a 2017 statement, and is expected to testify at trial, that Mr. Lawrence suggested to her that she could have a free trip to Bermuda with him and that they would both bring back $10,000. She went with him to a bar called the Mysticle Lounge, where they met with Stephanie Legge (one of the co-accused) and Kurt Morgan. Details about the trip were discussed.
[17] Ms. Robinson and Mr. Lawrence left Toronto for Bermuda on December 15, 2016. According to Ms. Robinson, the night before their departure, Stephanie Legge picked them up and took them to the Grand Motel, sometime between 9:00 and 10:00 p.m. When they arrived, there were four other people there, one of whom was Kurt Morgan. The others were introduced to her as “RJ”, “John” (alleged to be the accused Desmond Kerr), and “Jean” or “Jeanie” (later identified as the co-accused Jean Simmons).
[18] When Ms. Robinson gave her statement to police, she was shown a photo lineup and identified Mr. Kerr as the person introduced to her as “John”. She said he was also referred to as “John-John” and “Big John”. There is independent confirmation that Kerr identified himself as “John Kerr”.
[19] On the afternoon and early evening of December 14, 2016, Mr. Kerr’s cell phone had been in contact with: Morgan’s cell phone, eight times; Legge’s cell phone, twice; and Simmon’s cell phone, once. There is video surveillance footage of Mr. Kerr at the front counter of the Grand Motel on December 14, 2016, where he appeared to be filling in forms and making payment. His cell phone was in contact with the Grand Motel three times between December 14 and 16, 2016. There is also evidence that Mr. Kerr drove a silver Nissan Altima and security video from the Grand Motel confirms that this same Nissan Altima was at the motel on December 14 and 15, 2016.
[20] Ms. Robinson said that at some point on the night of December 14, 2016, they ordered Chinese food and that she, Mr. Lawrence, and Ms. Legge went to pick it up. Close to 11:00 pm, Mr. Kerr’s phone was in contact with two different Chinese restaurants. There was also other cell phone activity consistent with items being ordered and someone going to pick up the food.
[21] Ms. Robinson said that Collins, Morgan, and Legge left the Grand Motel shortly after midnight and that Kerr and Simmons stayed all night in the hotel room with them. Cell site activation evidence is consistent with Mr. Kerr staying the night at the Grand Motel. Security footage shows his car was there on both December 14 and 15, 2016.
[22] Ms. Robinson reported that Mr. Morgan and Ms. Legge arrived back at the Grand Motel at about 8:30 or 9:00 a.m. on December 15, 2016. Mr. Morgan went into the bathroom, allegedly to prepare the pellets that Ms. Robinson was to swallow. According to Ms. Robinson, Mr. Morgan then oversaw her swallowing the pellets, with Ms. Legge and Mr. Lawrence directing her as to what to do. She said that she initially refused to swallow them but that Mr. Lawrence told her, “You will if you ever want to go home again.”
[23] Ms. Robinson told the police that they went to Pearson Airport to catch their flight in two cars: she was in Ms. Legge’s vehicle with Ms. Legge and Mr. Morgan, and Mr. Lawrence was in Mr. Kerr’s vehicle with Mr. Kerr and Ms. Simmons. They took a WestJet flight out of Terminal 3 at the airport. Cell activation site evidence for Mr. Kerr’s phone shows travel along Highway 401, and then in the area of Terminal 3.
[24] On December 17, 2016, Mr. Lawrence and Mr. Morgan communicated through WhatsApp about the number of pellets Ms. Robinson had excreted.
[25] On December 20, 2016, Ms. Robinson was admitted to hospital with fentanyl poisoning. Mr. Lawrence was admitted the next day, suffering from the same thing, but it was not as severe for him as for Ms. Robinson. Both were arrested by Bermuda Police and charged with importing fentanyl.
[26] On December 22, 2016, Mr. Kerr flew from Toronto to Bermuda on a WestJet flight. He returned to Toronto on December 25, 2016. It is this piece of evidence that is the subject of this motion. There is no evidence as to anything he did while in Bermuda.
E. ANALYSIS
The Evidence Is Relevant
[27] The Crown will be presenting direct evidence from Ms. Robinson implicating Mr. Kerr, along with others, in the conspiracy to export fentanyl to Bermuda. Her evidence places Mr. Kerr at the Grand Motel the night before her departure to Bermuda and in the motel room with her and Mr. Lawrence that night. According to her evidence, Mr. Kerr was still in the motel room the next morning when she was being persuaded to swallow 45 pellets containing fentanyl. She is expected to testify that he went with them to the airport, driving his own car and delivering Mr. Lawrence to the terminal, while she travelled with Ms. Legge in her car.
[28] In addition to this direct evidence, the Crown intends to present circumstantial evidence in the form of video surveillance and cell phone evidence linking Mr. Kerr to the Grand Motel, renting the motel room, and travelling to the airport in time for their departure for Bermuda. It will be for the jury to determine whether to draw the inferences sought by the Crown, and whether on the whole of the evidence Mr. Kerr was part of the criminal conspiracy alleged.
[29] Mr. Kerr’s short visit to Bermuda from December 23 to December 25, 2016 is just another piece of circumstantial evidence. Viewed in isolation, it may have no particular relevance. But it does not stand alone. It is part of a matrix of evidence connecting Mr. Kerr to various people and locations involved in the offence.[^12] When looked at as a whole, the inference could be drawn that this trip is just another link in the chain of evidence linking Mr. Kerr to the offence. It would be open to a jury to conclude that, as a matter of everyday experience and common sense, it is more likely that this trip was connected to the fentanyl exportation, rather than being a purely coincidental vacation trip. To be relevant, the evidence must only make “the fact for which it is tendered slightly more or less probable than it would be without the evidence”. [^13] The fact that other inferences might be available to explain the trip “does not nullify it as a means of proof or render it irrelevant”. It is for the jury to decide what inference to draw.[^14]
[30] Accordingly, I find that the evidence is relevant and material to an issue before the jury.
Probative Value vs. Prejudicial Effect
[31] Evidence that is relevant should in the ordinary course be admitted, even if subject to some limiting instruction by the trial judge. However, there is a discretion to exclude such evidence if its probative value is outweighed by any prejudicial effect it might have.[^15]
[32] The first step is to consider the probative weight of the evidence. I immediately recognize that the probative value of the evidence is not particularly high. It is just one detail in a chain of evidence connecting the accused with the crime. It is by no means conclusive of guilt. However, it is relevant. Where there is considerable circumstantial evidence and a need for a jury to “connect the dots”, removing even one of the dots may have an impact on the result. Further, I must be cautious at this stage and refrain from entering into the kind of “weighing” of evidence that should only be done by the jury.
[33] The next step is to consider the prejudicial impact of the evidence. In my view, the prejudicial impact is minimal if it exists at all.
[34] The first source of prejudice alleged by the defence is that the Crown’s position that the fact Mr. Kerr chose to travel on Christmas Day in some way suggests that the purpose of his trip was not legitimate. The defence argues that juries are disproportionately Christian and that the Crown is inviting moral prejudice by suggesting that “Mr. Kerr is either not a Christian or at least not a very good Christian”. No evidence was presented to support the contention that juries are disproportionately Christian. I query whether this is the case for modern juries in the City of Toronto. Even individuals whose ancestors might have been Christian may not be observant Christians. There is no evidence to suggest the proposition that a modern Toronto jury would think less of a person who travelled during the Christmas season. I find no moral prejudice arises from this evidence.
[35] Alternatively, if there is some tiny aspect of residual prejudice in the minds of some jurors, I cannot believe it would affect their reasoning on this point. If the Crown were to make some kind of suggestion to the jury that travel at Christmastime is by its very nature suspicious, I would expect this to be met by a strong correction and instruction to the jury. Lots of people travel out of Toronto during Christmas, particularly to more hospitable climates such as Bermuda. The issue here is the travel to Bermuda for a short, almost turnaround trip, within two days of Ms. Robinson’s arrest. It has nothing to do with it being Christmastime, and I would not expect that to become an issue.
[36] The second source of moral prejudice suggested by the defence is that the short duration of Mr. Kerr’s trip would strike jurors as suspicious. The defence argues that jurors tend to be people who can afford to participate in the process. Either they are affluent, or they have salaried jobs or pensions which will pay them throughout the course of the trial. Although again, the defence has provided no evidence to support that, given my experience as a trial judge in Toronto for 26 years, I readily accept it as true and take judicial notice of it. People who own and run their own businesses or who get paid only for the hours they work often, quite simply, cannot afford to give up weeks of income to sit on a jury. Potential jurors who show that they will not be paid for the time they are on jury duty are almost routinely excused from serving.
[37] Although I accept this first part of the defence premise, I do not agree with the second and determinative part. On the defence theory, the pool of more affluent jurors would not understand that “gig workers of extremely limited economic means”, if they are able to take vacations at all, are “often required to keep them short to get back to work”. It is further suggested that such individuals have to travel when other people do not, such as Christmastime, in order to get the lowest possible price. I reject that proposition in the absence of any evidence to support it. As a matter of logic, I would expect that trips to Bermuda are considerably less expensive in the spring, summer and fall than they are in the winter and during the holiday season, which is often a very popular time for travel to tropical or island destinations. I would also expect that there are cheaper places to go in late December than Bermuda, including places with a better climate. In the absence of evidence, I am not able to agree that less affluent people are more likely to travel for short trips to Bermuda in December than at other times of year.
[38] Further, I do not see any rational basis for the proposition that a more affluent jury would see a short trip of this nature as being suspicious, but a less affluent jury would not. In my view, the logical connection between economic status and moral prejudice is simply missing. The short trip might well suggest that there was a more “business” nature to this trip than leisure. However, and acknowledging that I am looking at this through my own lens of economic privilege, I do not see a negative connotation. There are a number of inferences available to the jury. One is that Mr. Kerr went to Bermuda to check up on what was happening with the fentanyl delivery. Another is that Mr. Kerr was there to visit friends or family, or that he was just taking a quick vacation when work was not busy. The likely economic status of the jurors does not factor into this, nor is there any moral prejudice associated with people who take short trips down south around Christmas time. I see no prejudice to the accused from this evidence, and certainly nothing that would outweigh its probative value.
F. CONCLUSION
The evidence is relevant. There is virtually no prejudice to the accused if it is admitted. The probative value of the evidence outweighs any prejudicial effect it may have. Any prejudice that might arise during the course of the trial is curable by an appropriate instruction to the jury. Deciding otherwise at this point would be to usurp the role of the jury as the finder of fact in this case.
Molloy J.
Released: February 3, 2022
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN
- and – CRAIG LAWRENCE, STEPHANIE LEGGE, DESMOND KERR, and JEAN SIMMONS, Defendants
REASONS FOR DECISION Molloy J.
Released: February 3, 2022
[^1]: R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (C.A.). [^2]: R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72. [^3]: Ibid, at para. 20. [^4]: Ibid, at para. 21. [^5]: Ibid, at para. 27. [^6]: Ibid, at para. 33. [^7]: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433. [^8]: Ibid, at para. 36, citing Paciocco, David M. and Lee Stuesser, The Law of Evidence, 5th ed., Toronto: Irwin Law, 2008 at p. 31, and cases in which the excerpt from that text was approved. [^9]: Ibid, at paras. 54-56. [^10]: R. v. Hudson, 2021 ONCA 772 at paras. 137-138. [^11]: Ibid, at para. 70; see also R. v. Adan, 2019 ONCA 709, at paras. 66-68. [^12]: Hudson, at para. 70; White 1998 at paras. 14, 50-52. [^13]: Adan, at para. 66. [^14]: Ibid, at para. 67; White 2011, at para. 56. [^15]: The Queen v. Wray, 1970 2 (SCC), [1971] S.C.R. 272; White 2011, at para. 31.