Court File and Parties

COURT FILE NO.: 21-129 DATE: 20230113 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Abid Abdi Shire

BEFORE: Boswell J.

COUNSEL: Michael Flosman and Hanieh Azimi for the Crown Alexandra Mamo for Mr. Shire

HEARD: January 9, 2023

Corrected Decision

The text of the original Ruling was corrected on January 16, 2023 and the description of the correction is appended.

RULING ON THE ADMISSIBILITY OF THE writing on the wall

[1] Mr. Shire is charged with committing second degree murder by stabbing Ryan Babineau to death in an apartment in downtown Barrie in November 2019. His trial commenced January 9, 2023 with jury selection. Immediately following jury selection, I addressed a request by the defence to exclude some of the content of crime scene photographs intended to be introduced into evidence in the early going of the Crown’s case.

[2] More specifically, Mr. Shire takes issue with the admissibility of writings scribbled in four locations on the exterior wall of the apartment building where Mr. Babineau lived and died. He asserts that they have no relevance to the issues in the case. Alternatively, if they do have some relevance the prejudice they are likely to cause to his right to a fair trial will exceed any probative value they might have to any of the live issues in this proceeding.

[3] On January 9, 2023 I advised counsel that, for written reasons to follow, evidence of the writings was to be excluded from Mr. Shire’s trial. These are the reasons.

The Circumstances of the Offence

[4] The trial has just begun. My understanding of the circumstances surrounding the offence comes from the Crown’s synopsis filed in relation to an earlier judicial pre-trial.

[5] The deceased, Mr. Babineau, was known to be involved in the local Barrie drug culture, specifically as a dealer of narcotics. At the time he was killed, he was staying at 16 Dunlop Street East, Unit 1, after having recently been released from the Central North Correctional Centre.

[6] On November 16, 2019, Mr. Shire and two former co-accused attended at 16 Dunlop Street East just prior to 7:00 a.m. The two former co-accused are Corry Greavette and Tyler Wren. Mr. Greavette has entered a guilty plea to manslaughter in Mr. Babineau’s death and he has been sentenced. Mr. Wren has entered a guilty plea to being an accessory after-the-fact and he has also been sentenced.

[7] In any event, the three co-accused allegedly entered Mr. Babineau’s apartment with hoodies pulled up. There were a number of occupants in the residence who were apparently familiar enough with the three co-accused that they were able to identify them. According to at least one of the eyewitnesses, Mr. Shire confronted Mr. Babineau about “messing around with his cousin”. He then began stabbing Mr. Babineau in the stomach. Mr. Babineau fell to the floor where Mr. Shire allegedly continued to stab him. According to one witness, Mr. Greavette also participated in the stabbing.

[8] Mr. Shire was described by witnesses as bleeding from his hand. A trail of blood was observed and photographed by investigators leading from the apartment out into the parking lot. DNA evidence from the blood has effectively been matched to Mr. Shire.

The Parties’ Positions in the Litigation

[9] I understand the parties’ present positions to be as follows.

[10] The Crown asserts that Mr. Shire was a principal to the murder of Mr. Babineau. He is alleged to have stabbed Mr. Babineau – alone or in conjunction with Mr. Greavette – and to have caused Mr. Babineau’s death. At the time of the killing, Mr. Shire is alleged to have had one of the requisite intents for murder. In other words, he either intended to kill Mr. Babineau or he intended to cause him bodily harm that he knew was likely to kill him and he was reckless as to whether death ensued.

[11] Alternatively, the Crown posits that Mr. Shire aided Mr. Greavette in the killing of Mr. Babineau. At the time he did the acts that aided Mr. Greavette, he was, the Crown says, aware that Mr. Greavette intended to kill Mr. Babineau and he intended to help him do so.

[12] By way of defence, I understand that Mr. Shire will point to Mr. Greavette as the person who stabbed Mr. Babineau. Mr. Shire denies that he killed Mr. Babineau or that he aided in the killing.

[13] Mr. Shire’s participation in the stabbing, if any, and his state of mind at the time of the killing are obviously the central issues for the trial.

The Writings in Issue

[14] The apartment building where Mr. Babineau was killed is located at 16 Dunlop Street East in Barrie. Dunlop Street is the main downtown thoroughfare of Barrie. Number 16 is on the north side of the street. The building located at that address has a store front facing south on Dunlop Street. The apartment section of the building, however, is at the rear. Its main entrance faces north and fronts onto a parking area common to a number of the buildings along that side of the street.

[15] There are four locations on the exterior of the apartment building where police investigators located scribbled writings. They are as follows:

(i) On the northwest corner of the building, someone wrote in white marker or paint, “Ryan Goof I will get you”;

(ii) The front door of the apartment consists of two glass entry doors separated by a small vestibule. On the outer glass door someone wrote, in similar white lettering, “Ryan Dead…cock sucker”. There is some lettering between the words “Dead” and “cock” but I am unable to determine what it means;

(iii) The north wall of the apartment building, just to the east of the entrance door, is fitted with a black bumper, apparently made of wood, that protects the wall from potential damage from cars parking up against it. Someone wrote on it, in similar white lettering, “Ryan Dead Boy”; and,

(iv) Finally, there is a solid half-wall that juts out in an easterly direction from the northeast corner of the building into the parking lot, just to the east of the entrance door. It is a dark colour. Its purpose is not immediately obvious. It may just act as a divider between parking areas. At any rate, someone wrote on the north side of it, in similar white lettering, “Ryan Goof up the ass guy”.

[16] There are reasons to believe that the writing in all four locations was done by the same person. It all appears to have been written with the same implement. It has a common theme. And the handwriting appears consistent.

Evidence as to Who Did the Writing

[17] The evidentiary record tying Mr. Shire, or his former co-accused for that matter, to the impugned writings is slim. It consists of two elements. The first is opportunity. There appears to be no dispute that Mr. Shire and his two former co-accused were at the apartment building and in the vicinity of the area where the writings were located. They arguably could have written them.

[18] That said, another tenant of the building, Mr. Metzger, testified at the preliminary inquiry that he went out of his apartment before 11:00 p.m. on the night of November 15, 2019 to purchase some beer from a local craft brewer. He says he saw at least some of the writing – specifically the writing on the glass door – when he went out. If his evidence is accepted, the jury may find that the writing was in place well before Mr. Shire and his cohorts arrived on scene. All that is to say, in the entire context of the case, the evidence of opportunity is not particularly strong.

[19] The second element that arguably ties Mr. Shire or his co-accused to the writings comes from a video recording taken by a security camera mounted on a building in the same general area of 16 Dunlop Street East. It captures three shadowy figures approaching the entrance to the apartment from the northeast. They walk, single file, along the north side of the half-wall where some of the writing was found. The video camera is mounted to the south of the wall so all that is visible of the figures are their heads and shoulders. It is impossible to make out who they are.

[20] The first two figures proceed quickly along the wall and move out of sight of the camera. The third pauses for about five or six seconds in the approximate location of the writing on that wall that said, “Ryan Goof up the ass guy”. The figure moves, rather jerkily, from side to side a little then hurries off in the direction the other two had gone.

[21] The Crown’s position is that the video is some evidence that one of the three co-accused wrote the passage on the half-wall. If the jury concludes that one of the three co-accused was responsible for the writing on the half-wall, the theory goes, they could conclude that he was responsible for all of the writings, given the similarities I mentioned above.

The Evidentiary Value of the Writings

[22] The Crown seeks to tender the writings in evidence for two identified purposes. Both are premised on the notion that the writings were authored by Mr. Shire or one of his two former co-accused. The first purpose is connected to the assertion that Mr. Shire participated in the alleged offence as a principal. The second purpose is connected to the assertion that Mr. Shire participated in the alleged offence as an aider.

[23] In either event, the value of the impugned evidence begins with the assertion that it supports an inference that the three co-accused had a shared animus towards Mr. Babineau.

[24] In terms of the assertion that Mr. Shire participated in the killing of Mr. Babineau as a principal, or joint principal, the Crown submits that the impugned writings support the assertion that Mr. Shire had a motive to harm Mr. Babineau. That motive in turn supports the assertion that Mr. Shire’s killing of Mr. Babineau was intentional. Whether the killing of Mr. Babineau was intentional is, of course, a very live issue in this proceeding.

[25] To understand the Crown’s alternative assertion that the impugned writings are also potentially relevant to Mr. Shire’s participation in the alleged offence as an aider, it is necessary to understand the essential elements of aiding a murder. In the context of this case, to establish Mr. Shire’s guilt as an aider for participating in the murder of Mr. Babineau, the Crown must prove, to the reasonable doubt standard, that (i) Mr. Shire did something that helped Mr. Greavette kill Mr. Babineau; (ii) Mr. Shire knew that Mr. Greavette had one of the requisite states of mind for murder, such as the intention to kill; and (iii) Mr. Shire, armed with that knowledge, intended to help Mr. Greavette commit the offence. See R. v. Briscoe, 2010 SCC 13, at paras. 14-18.

[26] The Crown submits that Mr. Shire would have been aware of the explicit references in the impugned writings to Mr. Babineau being “dead”. Those references would have alerted him, the Crown says, to Mr. Greavette’s intention to kill Mr. Babineau, thus going a long way to satisfying one of the essential elements of culpability as an aider.

The Governing Principles

[27] This dispute between the parties engages the basic fundamentals of evidence law.

[28] To be admissible in evidence in a criminal trial, evidence must be relevant, material, not subject to any applicable rule of exclusion, and be more probative than prejudicial. See R. v. Calnen, 2019 SCC 6, at para. 107, per Martin J. (dissenting, but not on this point), and R. v. Wood, 2022 ONCA 87, at para. 59.

[29] Relevance reflects the relationship an item of evidence has to a fact in issue. The relevance threshold is very low. Evidence is relevant if, as a matter of logic and human experience, it renders a fact in issue more or less likely than it would be without the evidence. See R. v. Candir, 2009 ONCA 915, at paras. 47-48.

[30] Evidence is material if it is offered to prove a fact in issue. Facts “in issue” are determined by the allegations in the indictment, the governing substantive and procedural law, and the positions taken by the parties in the litigation. See R. v. Luciano, 2011 ONCA 89, at para. 207.

[31] The rules governing the admissibility of otherwise relevant and material evidence are generally exclusionary in nature. See Candir, at para. 50. To be admissible, therefore, relevant and material evidence must not be subject to a rule of exclusion.

[32] The rule of exclusion relied upon by defence counsel in this instance is the court’s residual discretion to exclude evidence, where its prejudicial effect is out of proportion to its probative value. See R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3. While Khelawon and many other cases have described the balancing of probity and prejudice in terms of a “residual discretion”, it seems to me that this balancing – sometimes referred to as an assessment of the “legal relevance” of evidence – is now an integral part of any admissibility analysis. Again, see Calnen, as above, at para. 107 and R. v. Schneider, 2022 SCC 34, at para. 36. For a discussion on the concept of legal relevance, see R. v. Abbey, 2009 ONCA 624, at paras. 82-85.

[33] Relevance and probity are sometimes conflated. They are not the same thing. While relevance exists as a relation between an item of evidence and a proposition of fact in issue, probity is a reflection of the cogency of the evidence; its relative strength; the extent to which it supports the inferences urged upon it; and the extent to which the matters the evidence tends to prove are at issue in the proceedings. See R. v. Ansari, 2015 ONCA 575, at para. 110 and Luciano, as above, at para. 230.

[34] The determination of probative value must begin with a determination of the issue to which the proposed evidence relates. Once the issue is identified, the court is in a position to consider the proffered evidence, in the context of the case as a whole, to determine the extent to which it tends to establish (or refute) that live issue.

[35] The determination of the prejudicial impact of evidence on offer generally involves a consideration of prejudice in two broad categories: moral prejudice and reasoning prejudice. See R. v. Handy, 2002 SCC 56, at para. 100. Neither refers to the risk of conviction. The fact that evidence may work unfortunately towards an accused person is not a relevant consideration. The relevant considerations are whether it works unfairly; whether it may result in an unfocussed trial; and whether it risks a wrongful conviction. See Handy, para. 139.

[36] Moral prejudice refers to the risk that the jury will seize upon evidence of a discreditable nature and infer guilt on the basis that the accused is the type of person likely to be guilty.

[37] Reasoning prejudice refers to the risk that the evidence on offer will distract the jury, consume an inordinate amount of time relative to its value, or invite the jury to engage in impermissible reasoning.

[38] As Watt, J.A. instructed in R. v. Ansari, as above, at para. 111, an assessment of prejudice should generally take into account:

(i) the degree of discreditable conduct disclosed by the evidence;

(ii) the extent to which the proposed evidence may support an inference of guilt on the sole basis of bad character;

(iii) the extent to which the evidence may confuse issues; and,

(iv) the ability of the accused to respond to the evidence.

The Positions of the Parties as to Admissibility

[39] Mr. Shire takes the position that the impugned writings are not admissible for two reasons.

[40] First, he says they are not relevant to any live issue in the proceedings.

[41] I understand that it will be admitted that Mr. Shire was one of the three men who intruded into Mr. Babineau’s apartment at the time he was killed. In other words, it will not be disputed that Mr. Shire was present at the time of the killing. Mr. Shire’s defence, however, is that it was Mr. Greavette – and Mr. Greavette alone – who caused Mr. Babineau’s death. In other words, Mr. Shire’s position is that although he was present, he did not stab Mr. Babineau.

[42] Mr. Shire submits that none of the impugned writings is capable of assisting in distinguishing who, as between Messrs. Shire and Greavette, actually stabbed Mr. Babineau. For that reason, he argues that the writings are not relevant to the central issue in the case.

[43] Moreover, without knowing who did the writing, it is impossible to infer any particular individual’s intent from it.

[44] Second, Mr. Shire argues that, even if relevant to a live issue in these proceedings, the writings are highly prejudicial. Their probative value is, at best, slight and easily outweighed by the risk of prejudice. Mr. Shire’s fair trial right, he contends, dictates that the writings be excluded from evidence.

[45] The Crown’s position is that the evidence is relevant for the reasons I set out above when I discussed their evidentiary value. Crown counsel argue that the evidence may be unfortunate for Mr. Shire in the sense that it is inculpatory, but its admission would not be unfair, given that it is relevant to one or more very live issues in the case.

[46] Any potential for prejudice, moreover, could be attenuated, the Crown contends, by a clearly worded jury instruction.

Analysis

[47] I start the analysis by recognizing that the evidence in issue consists of four out-of-court utterances.

[48] Before the jury may consider the out-of-court utterances as evidence against Mr. Shire, they must be able to connect them to Mr. Shire in some way. Absent a connection to Mr. Shire, they will have no relevance or probative value.

[49] It may be helpful to consider the alleged connection of the utterances to Mr. Shire in the contexts in which they are said to be relevant to the live issues in this case.

Logical Relevance

[50] Recall that the utterances are said to be relevant to establishing Mr. Shire’s participation in the killing of Mr. Babineau either as a principal or as an aider. In either event, the utterances are said to provide circumstantial evidence of Mr. Shire’s state of mind at the time the alleged offence was committed.

[51] In terms of his alleged role as a principal, the utterances purportedly support the assertion that Mr. Shire had an animus towards the deceased, which suggests he had a motive to harm him and, in turn, an intent to kill him.

[52] For the utterances to have relevance to Mr. Shire’s state of mind as a principal, it is necessary that there be evidence capable of supporting the contention that he either uttered the writings himself or that he at least knew of them and adopted their contents as his own.

[53] In terms of his alleged role as an aider, the utterances purportedly support the assertion that Mr. Greavette had the intent to kill Mr. Babineau, or the intent to cause him grievous bodily harm that he knew was likely to kill him. Moreover, that Mr. Shire knew of that intent.

[54] For the utterances to have relevance to Mr. Shire’s state of mind as an aider, it is necessary that there be evidence capable of supporting the contention that Mr. Greavette either uttered the writings himself or adopted the writings of someone else, as well as evidence that Mr. Shire knew of the writings and knew that they expressed Mr. Greavette’s state of mind at the time of the killing.

[55] In my view, the evidence on offer is not capable of meeting the relevance threshold in either case.

[56] I pause to note that to be relevant, a piece of circumstantial evidence need not, on its own, establish a fact in issue. It is to be considered in the context of the evidence as a whole. In this case, however, the evidence of the security camera video is really the only piece of evidence, at least that I have been made aware of, tendered by the Crown in an effort to identify the writer(s) of the impugned utterances. In that sense, it is being asked to pull a lot of freight.

[57] On one level, the video of one of three shadowy males pausing in front of the half-wall for roughly six seconds is some evidence that is relevant to the determination of who wrote the utterance found on that wall. In other words, the presence of that individual makes it more likely that one of the three co-accused wrote the utterance than it would be without that evidence. That said, this conclusion does not, in my view, meaningfully advance the Crown’s cause.

[58] I have reviewed, over and over, the security camera video that recorded the three shadowy figures approaching the entrance to 16 Dunlop Street East on the morning of November 16, 2019 at 6:58 a.m. Having done so, I conclude that even if the jury is satisfied that the three shadowy figures are Mr. Shire and his two former co-accused, there is no means of discerning who is who. That is to say, there is no means of identifying who the person was who stopped at the half-wall near where one of the utterances was written. Even assuming for the moment that the person who stopped wrote the utterance, it is impossible to say who that was.

[59] There is no way, in other words, for the jury to determine that Mr. Shire uttered the writing on the half-wall or, for that matter, any of the other locations.

[60] Moreover, the jury could only speculate about whether Mr. Shire saw what another person wrote and whether he adopted the contents.

[61] There is similarly no way to determine that the utterances on the half-wall – or any of the others in issue – was written by Mr. Greavette. Again, the jury could only speculate about whether Mr. Greavette observed what someone else wrote and whether he adopted or shared the sentiment.

[62] There is a vague suggestion in the air that the three co-accused were co-conspirators and that the written utterances in issue were, in effect, declarations in furtherance of a common unlawful design. Acts done or statements made in furtherance of a common unlawful design by a participant in it are generally admissible against all participants in the design on the basis that each member has implied authority to speak for all. See David Watt, Watt’s Manual of Criminal Evidence, 2022 (Toronto: Thomson Reuters, 2022) at §36.03.

[63] The Crown did not, however, articulate the common unlawful design argument in support of the admissibility of the impugned evidence. Moreover, it is not clear at this stage of the analysis whether the preconditions to that route of admissibility are capable of being made out.

[64] I conclude, in the result, that there is no way for the jury to connect any of the written utterances to Mr. Shire, either directly or indirectly. They are not, therefore, capable of informing his state of mind at the time of the alleged offences and thus are not relevant.

[65] That conclusion is sufficient to end the matter. Having said that, I will make a few brief comments about legal relevance – the balancing of probity and prejudice – because, in my view, even if the evidence in issue met the relevance threshold, its probative value, in all the circumstances, is so slight that it cannot overcome the prejudice associated with its introduction.

Legal Relevance – Probity vs. Prejudice

[66] Probity, as I noted, is about the strength of the evidence. How capable is it of supporting the inferences the Crown urges upon it?

[67] A witness, Mr. Metzger, testified at the preliminary hearing that he observed at least some of the writings in issue on the evening of November 15, 2019. His evidence tends to undermine the suggestion that the utterances in issue were written when the three former co-accused arrived at the building just before 7 a.m. on November 16, 2019.

[68] I appreciate that the jury may choose to reject Mr. Metzger’s evidence. That said, I was not offered any reason why they might do so.

[69] In the face of that evidence, the Crown offers just six seconds of video from a somewhat distant security camera in an attempt to establish that Mr. Metzger was wrong and that the utterances were in fact written by one or more of the three co-accused.

[70] The video, as I noted, shows three shadowy figures walking past the half-wall on their way to the entrance door to the apartments at 16 Dunlop Street East. Two figures walk briskly along the wall without stopping. One stops and pauses for roughly six seconds near where one of the utterances was written.

[71] It is entirely unclear from the video whether the figure stopped to write something or to read something or to do neither. It is not even possible to tell from the video if the figure is facing the wall or facing away from it and back into the parking lot. The figure moves a little from side to side, but the movements are rapid and jerky and not, in my view, consistent with the act of writing.

[72] While the video is some evidence that the one shadowy figure wrote something on the wall, it is dangerously dubious. For this reason, and for the reasons expressed in the previous section, I consider the probative value of the evidence to be extremely slight.

[73] At the same time, of course, there is obvious prejudice associated with the writings. The content of them is discreditable. They express themes of violence and homophobia. That said, I consider their discreditable nature to be of minimal concern in the assessment of prejudice. It is a factor that could easily be attenuated through a jury instruction.

[74] The real prejudice, however, is that the manner in which the evidence might be said to be relevant to any live issue in this proceeding is so complex and confusing, that it would take considerable time to explain to the jury and involve considerable risk of misapplication. And if the jury got it wrong, in terms of the reasoning process, the error may have a significant effect on the outcome of the case. The content of the written messages is arguably quite damning. Its potential impact on the case is grossly out of proportion to its probative value.

[75] It is my judgment that, in all the circumstances, admitting this evidence, with all of its frailties and associated problems, is simply not worth the candle.

[76] In the result, I ruled that the written utterances in issue were to be excluded from evidence. At the same time, I indicated to counsel that this ruling is provisional in nature, given that it is made at a time well before the evidentiary record has been completed. I accept that the record may change in a way that impacts both the relevance and probity of the impugned evidence. Should such a change occur, the admissibility of the writings in issue may be revisited.

C. Boswell J.

Date: January 16, 2023

January 16, 2023 – Corrections:

1: Para. 10 second sentence now reads: He is alleged to have stabbed Mr. Babineau – alone or in conjunction with Mr. Greavette – and to have caused Mr. Babineau’s death.

2: Para. 13 now reads: Mr. Shire ’s participation in the stabbing, if any, and his state of mind at the time of the killing are obviously the central issues for the trial.