Court File and Parties

Court File No.: CR-856/20 Date: 2023-03-06 Superior Court of Justice – Ontario

Re: His Majesty the King, Applicant And: Jordan Nicholas and Reymon Duncan-Jones, Respondents

Before: M.L. Edwards, RSJ.

Counsel: David Wilson, for the Crown Paul Socka, for Jordan Nicholas Peter Kott, for Reymon Duncan-Jones

Heard: October 25 and 27, 2022

Reasons for Decision

Overview

[1] The Crown seeks to tender excerpts of audio video tapes (the “tape”) that recorded conversations of four individuals who had been arrested and lodged in adjoining and abutting cells in a local police station. The Crown seeks to adduce this evidence as being presumptively admissible statements against interest, which is a recognized exception to the hearsay rule. The Crown’s basic argument is that the probative value of these utterances far outweighs their prejudicial effect.

[2] The tape that the Crown seeks to tender at trial encompasses approximately 30 minutes of the 10 hours the accused persons were lodged in the cells. The edited tape the Crown seeks to tender in evidence comes from total footage that is approximately 20 hours in length.

[3] The defence argues that the tape repeatedly skips forward, including during some of the utterances the Crown relies on, and cannot capture what all four participants to the conversation are saying. The defence argues that the potential for prejudice is great because the utterances which the Crown seeks to adduce may appear incriminating out of context, but their true context is unknown and unknowable. The defence also argues that the jury will be distracted from their task by viewing up to 20 hours of muffled and decontextualized conversation and as such the trial would devolve into a sideshow to the main event of counsel making submissions to the jury as to what muffled words can or cannot be made out.

Background

[4] On August 21, 2020, Mr. Duncan-Jones was driving a Lexus in Lindsay, Ontario. One of the occupants of the vehicle was Mr. Nicholas. The Lexus was pulled over by a police officer. A search of the vehicle was undertaken, which revealed a black bag under the driver’s seat, allegedly containing fentanyl.

[5] The officer who had stopped the Lexus formed the intention to arrest all of the occupants and while attempting to arrest Mr. Nicholas, he attempted to get away and was found to be in possession of a red satchel that allegedly contained a loaded handgun.

[6] The driver of the Lexus, the Respondent, Reymon Duncan-Jones, was arrested for failing to stop for police. The front of the vehicle was searched for the vehicle documents and the driver’s identification. PC McGovern who had stopped the Lexus confirmed the insurance for the vehicle was expired. During this search, PC McGovern located a large quantity of what he believed to be cocaine and fentanyl in a bag that was at the Respondent Duncan-Jones’ feet.

[7] The front passenger of the motor vehicle, later identified as the Respondent Jordan Nicholas, refused to comply with police. Eventually he was secured, and a loaded prohibited handgun was located in a satchel that was on his person. All occupants were eventually arrested and charged with drug and weapon related offences. The Respondent Duncan-Jones was also charged with breaches of court orders and Highway Traffic Act offences. The Respondent Nicholas was also charged with breaches of court orders. The two individuals in the back seat of the vehicle were Johnathon Young and Gavin Bryant. Following their arrests, all of the vehicle’s occupants were held in the cells area at the City of Kawartha Lakes Police Station (“the cells”) while they awaited a bail hearing. While they were being booked, the Respondents were advised that the cells area was audio and video recorded.

[8] Having been given the opportunity to speak to counsel and after they were booked, all four individuals who had been in the Lexus were lodged in 4 separate cells. They were in the cells for approximately 10 hours. During this period of time the cameras outside the cells audio and video recorded their conversations and movement within their cells.

[9] Much of the conversation on the video tape is difficult to understand in part because of the quality of the audio. It is also somewhat difficult to determine who is actually speaking and what they are saying. The evidence on the voir dire confirmed that the camera would only record audio if there was actual movement in the cells area. As such a review of the tapes confirms that there were times when one of the Respondents is observed with their mouth moving (indicative of that individual speaking) but because there was no other movement nothing was being recorded.

[10] The trial in this matter began in March 2022. When the trial began the Crown called as one of its first witnesses the police officer who had stopped the Lexus in May 2020. The cross examination of this officer attacked his credibility Before the cross examination by counsel for Mr Duncan Jones the Crown indicated he had found “something” with respect to the video located outside the cells occupied by the various accused persons.

[11] The Crown sought to play the video which caught the defence by surprise. While the video had been disclosed to the defence as part of the Crown disclosure back in April 2021, the defence relied on the Judicial Pretrial report which gave no indication the Crown would be relying on the tape. In the result a mistrial was declared by the trial judge. In declaring the mistrial, the trial judge made clear in his reasons that he was not ascribing blame to anyone for the mistrial. A mistrial having been declared this motion was brought to determine in advance of the trial whether the edited tape could be admitted as evidence at the new trial scheduled to start later this year.

Summary of the Edited Audio-Visual Tape Sought to be Adduced by the Crown

[12] For the purposes of the voir dire the Crown provided a summary of those parts of the tape that the Crown would be tendering at trial as a party utterance. As part of the voir dire the Court listened and observed the conversations (and non conversations) reflected in the summary below:

File Folder Label: Nicholas1

a. Timestamp: 1:36:02 AM to 1:36:05 AM – the Applicant intends to play this portion to authenticate the video. It is an excerpt of PC McGovern and NICHOLAS in the cells area.

b. Timestamp: 1:53:34 AM to 1:53:56 AM – Utterance by NICHOLAS to person in cell beside his: “Bro, I had a gun on me bro”. This period places the utterance in context.

c. Timestamp: 2:11:47 AM to 2:14:47 AM – Utterances by NICHOLAS to others in cells area related to the drugs seized. Utterances by NICHOLAS related to convincing the person in the cell beside him to claim responsibility for the drugs and firearms seized. Some of the utterances include: “Yo, yo brother. You need to take that other thing too. You hear me? You’re a first-time offender, you need to take that other thing too. Okay? You know what I’m talking about? Ya, you have no charges, fam. You gotta take one for the team, fam.” This period of time places the utterances in context.

File Folder Label: Nicholas3

d. Timestamp: 3:58:20 to 4:00 AM – Utterances by NICHOLAS to person in cell beside his related to convincing the person in the cell beside him to claim responsibility for the items seized. Some of the utterances include: “Yo, fam, hug it ‘cause you said you don’t have any charges, right? Ya, fam, you hug it. Ya, fam, you gotta hug it, so that we can…because I’m already on probation fam, I’m already on this shit, I’m on a half-a-brick charge, ya know…” This period of time places the utterances in context.

e. Timestamp: 4:02:07 AM to 4:06:23 AM – Utterances by NICHOLAS to person in cell beside his related to convincing the person in the cell beside him to claim responsibility for the items seized. Some of the utterances include: “Ya, fam, hug this for me please fam. If anything just say you passed it to me, bro.” and “Yo, I tell you what, you hold this down, you ain’t never got nothing else to worry about, bro.” This period of time places the utterances in context.

f. Timestamp: 4:10:42 AM to 4:11:49 - Utterances by NICHOLAS to others in cells area related to drugs: “Yo, you know how many niggas have accounts? You know how many accounts we have? Browski, we’re like $24K in…My nigga, $24K drop…Bro, we shoulda never been out here.” This period of time places the utterances in context.

g. Timestamp: 4:21 AM to 4:23 AM – Utterances by NICHOLAS to person in cell beside his related to convincing the person in the cell beside him to claim responsibility for the items seized. Some of the utterances include: “Yo, fam. I need you to take this charge, okay? You hear me? Please, fam. Do you have kids? I got two girls, bro. I fucked up, yeah, I know I fucked up, but I need you, fam. You’re good, bro. You’re going to get probation. They don’t lock people up like you for that. You don’t even have a record.” This period of time places the utterances in context.

h. Timestamp 8:12:59 AM to 8:14 AM – Utterances by NICHOLAS to others in cells related to firearm: “You know what they’re doing right? They’re hittin’ us all with the same charges to see who talks. ‘Cause the fact that they gave my boy right here all the same charges makes no sense. Yo, the machina has no prints on it. The machina has no prints on it.” This period of time places the utterances in context.

File Folder Label: Duncan

i. Timestamp: 1:48:08 to 1:48:12 – Sgt. Benson tells the Respondent Duncan-Jones everything is being audio and video recorded.

File Folder Label: Duncan1

j. Timestamp: 1:54:26 AM to 1:54:36 AM – the Applicant intends to play this portion to authenticate the video. The excerpt shows Sgt. Benson and DUNCAN- JONES in the cells area.

k. Timestamp: 2:02:19 AM to 2:03:30 AM – Utterance by DUCAN-JONES to others in cells related to reason for the stop: “Insurance”. This period of time places the utterances in context.

Analysis

[13] The utterances that are summarized above are described by the Crown as party admissions which, while hearsay, are still subject to the same reliability/necessity analysis as other types of hearsay. In their factums both sides to this application reviewed at length the law as it relates to hearsay and the principled exception to the hearsay rule. The parties factums were filed in August 2022. On October 7, 2022 the Supreme Court of Canada released its decision in R v Schneider, 2022 SCC 34. Much of the focus in oral argument revolved around the application of Schneider to the utterances the Crown now seeks to adduce in the trial of this matter.

[14] The evidence that was at issue in Schneider was the evidence of the accused’s brother who overheard the accused speaking on the phone to his wife. When called upon to testify the brother could not recall the exact words that he heard his brother say but he did hear him admit to killing the victim. The Supreme Court delineated the issues that flowed from that evidence as follows: a) was the evidence of the brother relevant to an issue at trial; b) was the evidence of what the brother overheard admissible under an exception to the general exclusionary rule against hearsay and c) whether the trial judge had correctly admitted the evidence as its probative value outweighed its prejudicial effect.

[15] In upholding the decision of the trial judge the Supreme Court concluded that while the evidence of the brother was hearsay evidence it was nonetheless capable of non-speculative meaning such that it was relevant, and it was admissible under the party admission exception to hearsay.

[16] The determination of whether party admission evidence is admissible is guided by the three-part test for the admission of all evidence-specifically; a) whether the evidence is relevant; b) whether it is subject to an exclusionary rule and c) whether to exercise discretion to exclude it is the weighing of probative value against prejudicial effect. See Schneider para 36.

[17] In its analysis of the evidence at issue in Schneider, Wagner CJ at para 55 makes clear that party admissions are admissible without reference to necessity or reliability except in the “rare case” where judges will still retain the discretion to exclude any hearsay evidence on the basis that it is unreliable or unnecessary.

[18] The oral argument before me had as its focus, not surprisingly, the application of Schneider and whether this court should exercise its discretion to exclude the evidence because it was unreliable and prejudicial. The Crown argues that while a party admission is hearsay it is clear from the majority decision in Schneider that it will be a rare case that a party admission is not admitted. As it relates to the quality of the tape the Crown argues that this is an issue of weight and that the trial judge will have to deal with any frailties in the tape when he or she deals with this evidence in the instructions to the jury.

[19] The defence strenuously objects to the edited tape being admitted into evidence as it does not provide the full context to the entirety of the dialogue between the various accused persons while lodged in their cells over a lengthy period of time. As well the defence points to the fact that the tape is difficult to understand and that the tape does not record everything that was being discussed. The fact that the tape is motion activated precluded the entirety of the conversations being recorded. If the accused were not moving but they were talking that discussion would not be recorded. From a factual basis there is merit to the defence observation that not all of the conversations were recorded.

[20] Ultimately this courts determination regarding the admission of the edited tape comes down to the question of whether the tape is relevant; whether there is any exclusionary rule that precludes its admission and whether this court should exercise its discretion to exclude the edited tape because of its potential prejudicial effect.

[21] The edited tape is relevant. In the early morning hours shortly after their arrest Mr Nicholas is heard saying “Bro, I had a gun on me bro”. He is also heard in the context of the drug charges saying to one of the other accused persons “Yo, yo brother. You need to take that other thing too. You hear me? You are a first time offender, you need to take that other thing too. Okay? You know what I am talking aout? Ya, you have no charges, fam. You gotta take one for the team, fam”. These utterances, like all of the other utterances referenced in paragraph 12 above, in my view are no different than the evidence of the brother in Schneider who overheard the accused admit to killing the victim. If anything this edited tape is perhaps stronger because the brother in Schneider could not recall the exact words that he overheard. With the edited tape the words are recorded – even if they are somewhat difficult to decipher. The utterances reflected in the edited tape go directly to the charges before the court. The relevance of these utterances flows from the very nature of the alleged charges.

[22] As for any exclusionary rule that would preclude the admission of the utterances reflected on the edited tape, the Crown does not dispute that the evidence is hearsay but relies on Schneider for the proposition that it will be a rare case that the Court would exclude the evidence categorized as a party admission. I agree. This is not that rare case envisioned in Schneider.

[23] As it relates to the concerns raised by defence that the edited tape may not provide the full context of the discussions amongst the accused that is an issue best handled by the trial judge. The defence will have the edited tape tendered by the Crown. It will be open to the defence to utilize all, or just parts of the tape that they say provides more context to the edited tape that the Crown will adduce at trial.

[24] The defence stressed in its oral argument that because of the length of the tape that if the defence needs to play the entirety of the tape to the jury that this will prolong what is scheduled to be a 7-day jury trial. Counsel for the defence should not be precluded from presenting their case in the manner they deem most beneficial to their clients. If this involves playing the entirety of the tape to give “the full context” then defence counsel will be guided by their instructions and professional judgement. Where much of the tape reflects no conversation whatsoever (i.e. no conversation because there was none-as opposed to no recorded conversation because there was no movement to activate the recording) then counsel will have to decide what material benefit is gained by playing those portions of the tape as opposed to fast forwarding the tape to other portions which may provide context helpful to their case. While the time allotted to a trial is a factor it is not the determinative factor when deciding whether to admit the tape.

[25] Dealing with the quality of the edited tape and the tape as a whole this will be a factor for the trial judge to address in his or her charge to the jury. To the extent that the tape needs to be enhanced from an audio perspective such that the jury and others in the court room can actually hear the tape it is expected that the Crown will take such steps so as to ensure that the best quality of audio is available for everyone to hear what is being said (or not said) on the tape.

[26] In my view the probative effect of the utterances reflected in the edited tape outweighs the prejudicial effect that the jury might misuse the evidence. As noted at para 61 of Schneider the cost associated with the evidence i.e. the prejudice can be attenuated by appropriate jury instructions that will properly equip the jury with a clear understanding of how to use the evidence.

[27] The defence may have some very legitimate concerns about the ability of the jury to hear and understand what is being said on the edited tape (and any other portions of the tape that the defence may adduce during the trial). There may be issues with respect to who is saying what. Those are concerns that can be readily addressed in both a mid-trial instruction and in the final instructions to the jury.

[28] Specifically, the trial judge may consider it appropriate to provide an instruction that they should consider carefully whether the tape is of sufficient clarity and quality and shows one or other of the accused persons for long enough to help them decide whether the person saying the things on the tape is one or other of the accused as suggested by the Crown. The jury will be reminded that the tape is just one piece of the evidence and that they must consider all of the evidence in deciding the case. By way of example, the jury may be instructed in relation to the utterance attributable to Mr Nicholas in “File Folder Label Nicholas 1” as follows: “You have heard the tape played and the Crown suggests the tape reflects Mr Nicolas saying “Bro, I had a gun on me Bro”. Members of the jury you will have the tape available in your jury room. You may decide to play the tape. It will be up to you to decide if the tape in fact does depict Mr Nicholas speaking and whether he in fact does say “Bro. I had a gun on me Bro”. You will have to make that determination based on what you conclude you heard on the tape together with all of the evidence including any other evidence from the tape adduced by the defence that may give a different context to this utterance different from that suggested by the Crown”.

[29] The wording of the mid trial instruction and or the final instruction to the jury will of course be in the final discretion of the trial after consultation with counsel in pre charge discussions. I offer the above suggestion simply to illustrate that an instruction can be crafted to address any prejudicial impact the admission of the tape may have.

[30] If there are parts of the tape that the defence intends to play at trial that counsel know includes conversations that may be privileged or otherwise inadmissible it is expected that the Crown and defence counsel will consult amongst themselves to ensure such parts of the tape are properly redacted. To the extent there is disagreement in this regard I will be available to assist.

[31] The Crown’s application to tender excerpts of the cell videos is granted subject to the right of the defence to adduce all or part of the tape to establish the full context of the discussions between the various accused.

M.L. Edwards, RSJ. Released: March 6, 2023