Ontario Superior Court of Justice

COURT FILE NO.: CR-22-206 DATE: 2023-08-08

BETWEEN:

HIS MAJESTY THE KING

– and –

ELIJAH MARFOH and CLEVELAND VANEVERY

COUNSEL:

Alex Burns and Anthony Minelli, for the Crown Ehsan Ghebrai and Kevin Kaczmara, for Mr. Marfoh Ian McCuaig for Mr. VanEvery

HEARD: May 23, 24, 25, 26 and 30, 2023

BEFORE: The Honourable Justice Smith

RULING ON PRE-TRIAL MOTIONS

Introduction

[1] The accused are charged with the first-degree murder of Nebuyi Myers on April 17, 2021, in Brantford, Ontario. I have heard evidence and submissions on several pre-trial motions. Those motions relate to the admissibility of statements made by Mr. Marfoh, ante-mortem statements of the deceased, and evidence of the character of Mr. Marfoh and the deceased.

[2] Mr. Marfoh was shot at the home of his friend, David Thompson, at 133 Alfred Street, in Brantford. The police officers investigating that shooting developed the hypothesis that it was connected to the killing of one Isaiah Castillo on April 14, 2021 (also in Brantford), either as part of the same plan or as retribution for the killing of Mr. Castillo.

[3] Through his counsel, Mr. Marfoh has admitted that he attended at Mr. Thompson’s address on April 17, 2021, that he discharged a handgun at that time which caused the death of Mr. Myers, and that when he was arrested on April 21, 2021, he was in possession of that handgun. I am advised that, insofar as Mr. Marfoh is concerned, the defence will be one of self-defence.

Statements made by Mr. Marfoh

[4] The Crown seeks to tender recorded statements made by Mr. Marfoh in two interviews conducted by the Brantford Police on April 21, 2021, and takes the position that the evidence called before me shows that those statements were made voluntarily. Mr. Marfoh asserts that the statements were taken in violation of his rights under sections 7 and 10 of the Charter of Rights and Freedoms (the “Charter”) and that the evidence should be excluded pursuant to section 24(2) of the Charter. He further takes the position that the Crown has not proven the voluntariness of the statements.

[5] In the recordings, Mr. Marfoh made statements which the Crown says are inconsistent and may be used to impeach him should he testify. In addition, Mr. Marfoh made various admissions upon which the Crown hopes to rely, including (but not limited to) that he knew Mr. Myers (to whom Mr. Myers referred as “NJ”), that he called Mr. Myers just before Mr. Myers was shot, that he had a “beef” with Mr. Myers, and that he knew and liked Mr. Castillo.

The Evidence

[6] The police came into information that a phone registered to Mr. Marfoh was the last cell phone to have called Mr. Myers’ cell phone before Mr. Myers died. The police determined to detain Mr. Marfoh for the purpose of retrieving his phone. They learned that he was at a hotel in Toronto and a number of Brantford Police Service officers, including roughly a dozen heavily armed emergency response team (“ERT”) officers, were sent to Toronto to detain Mr. Marfoh.

[7] Officers located Mr. Marfoh, aged 18 years, standing outside the hotel smoking with his girlfriend. At 12:42 p.m., the ERT officers quickly exited the van in which they had been travelling from Brantford. They approached Mr. Marfoh, guns drawn (including rubber bullet shooting guns which resemble assault rifles) and ordered him to the ground. Mr. Marfoh complied. He was face down on the ground, was handcuffed with his hands at his back, and was searched. Among other things, officers found two handguns tucked into Mr. Marfoh’s waistband. As I have said, one of those handguns is admitted to have been used in the shooting of Mr. Myers at Mr. Thompson’s residence.

[8] In a briefing preceding the detention of Mr. Marfoh, Cst. Jay Fenton[^1] was tasked with handcuffing and cautioning Mr. Marfoh with respect to a homicide. He testified before me that he kneeled on Mr. Marfoh’s legs, applied handcuffs, searched Mr. Marfoh, and then advised him of his right to counsel (at 12:51 p.m.) and cautioned him for homicide (at 12:52 p.m.). The search of Mr. Marfoh revealed the handguns to which I have referred.

[9] In the recordings of the events which follow the arrest of Mr. Marfoh, he can be heard complaining repeatedly that he was not properly advised of his rights at the time of his arrest. I am satisfied, however, that Cst. Fenton did caution Mr. Marfoh for a homicide and that he gave the standard version of right to counsel to Mr. Marfoh. As I have said, Cst. Fenton had been briefed in advance and assigned this very task. Other officers confronted Mr. Marfoh and ordered him to the ground at gunpoint, then Cst. Fenton approached, applied the handcuffs, searched Mr. Marfoh, and provided the caution and the right to counsel advice as he had been instructed.

[10] This incident must have been surprising, frightening, and dramatic from Mr. Marfoh’s perspective. I am satisfied that he is not a reliable reporter of exactly what happened at the time of his dynamic arrest. He either forgot that his rights were read to him, or he was too surprised to understand what was happening, or he was not being truthful. I note that at one point early in his later interview with Det. Cabral and S/Sgt. Saini (to which I will return below), Mr. Marfoh does say that he was read his rights at the time of his arrest.

[11] In any case, at 1:06 p.m., Det. Chad Francis, who had arrived at the scene shortly after the arrest of Mr. Marfoh, took charge of matters and started audio recording all interactions with Mr. Marfoh. Mr. Marfoh was seated on the ground outside the front door of the hotel leaning against a pillar. He was moved to a bench in the same area, still outside.

[12] It is important to note that although it was late April, it was cold in Toronto that day, with the temperature at about 0 degrees Celsius. It was also windy. Photographs taken of Mr. Marfoh show that he was wearing a sweatshirt, or hoodie, over a t-shirt but that he had no jacket. He had no hat or gloves but was wearing trousers and socks with sandals. Mr. Marfoh was outside in the cold from before the arrival of the ERT until he was placed in the rear of a police vehicle at 1:34 p.m. Mr. Marfoh complained repeatedly about his treatment, saying that he was very cold and that the handcuffs which had been applied to him were hurting his wrists and shoulders. These complaints were made while he was sitting outside but were repeated many times after he was placed in the police vehicle and later when he was taken to the police station in Brantford. At the scene of the arrest, Det. Francis, who at all times treated Mr. Marfoh respectfully (a point Mr. Marfoh acknowledges on the transcript), at Mr. Marfoh’s request, zipped up Mr. Marfoh’s sweatshirt and rolled down his sleeves. He also got a blanket for Mr. Marfoh.

[13] Beginning at 1:06 p.m. Det. Francis advised Mr. Marfoh that he was under arrest for various firearms offences and again told Mr. Marfoh that he was being cautioned in connection with a homicide investigation. He then advised Mr. Marfoh of his right to counsel and asked whether Mr. Marfoh wanted to contact counsel. Mr. Marfoh said that he would do so when they got to the police station because he did not know his counsel’s number. Det. Francis said that he would see if he could find the number so that Mr. Marfoh could speak to counsel sooner. He repeated that Mr. Marfoh was to be charged with firearms offences and cautioned him for “an ongoing murder investigation.” He provided the standard secondary caution. Mr. Marfoh indicated that he understood.

[14] Mr. Marfoh was unable to provide an accurate spelling of the name of his counsel and Det. Francis was unable to find the number online. Mr. Marfoh suggested that he call his mother, who would know the number. Eventually, Det. Francis facilitated a call to Mr. Marfoh’s mother. Mr. Marfoh told her, among other things, that “they’re trying to tell me homicide.” His mother supplied the number for counsel, who Det. Francis called immediately thereafter. He advised counsel that Mr. Marfoh had been arrested for various firearms offences and that Mr. Marfoh had “also been cautioned for an ongoing murder investigation as well.” Det. Francis made clear that Mr. Marfoh was not being charged with murder but that “it’s an active investigation.” He assured counsel that he could speak to Mr. Marfoh in private, and then exited the police vehicle so that privacy could be provided. Mr. Marfoh spoke to his counsel for 21 minutes, ending at 2:13 p.m.

[15] At 2:14 p.m., Mr. Marfoh was transferred to a marked police cruiser which was used to transport Mr. Marfoh to Brantford. There was no conversation of consequence during that trip apart from Mr. Marfoh’s complaints about his treatment, including that his shoulders felt like they were being dislocated because his hands were cuffed to the rear.

[16] At the station, Mr, Marfoh was taken before S/Sgt. Michael Sciberras, who said that he recognized Mr. Marfoh from other occasions on which he had been arrested. Mr. Marfoh acknowledged that he had been in front of S/Sgt. Sciberras before, and complained to him about his treatment by the arresting officers. Mr. Marfoh then told S/Sgt. Sciberras that:

I have the right to remain silent, right now I’m speaking cuz when I choose to say silent I’m gonna be silent. […] I do know my rights, brother. And I know that law.[^2]

[17] A few minutes later he asked to speak to his counsel again, but S/Sgt Sciberras and Det. Francis declined to allow a second call at that time, having decided that there had been no change in circumstances which justified a second call. Mr. Marfoh was placed in a holding cell at 3:59 p.m.

[18] Shortly thereafter, it was decided that Mr. Marfoh should be cautioned for the murder of Mr. Castillo. This second caution, which was provided by Det. Francis at 4:49 p.m., was not recorded. Det. Francis, testified that he believed that he told Mr. Marfoh that the second homicide in question was that of Mr. Castillo, but that he “cannot confirm 100%” that he did do so. I note here that there is no evidence that Mr. Marfoh was told that the first homicide caution (relayed by Cst. Fenton and then again by Det. Francis) related to Mr. Myers.

[19] Counsel was contacted again and Mr. Marfoh spoke with him from 4:54 – 5:01 p.m.

[20] Eventually, at 8:31 p.m., Mr. Marfoh was interviewed by Det. Jeff Cotter in connection with the killing of Mr. Castillo. That interview ended at 8:50 p.m. Beginning at 8:56 p.m., in the same interview room, Mr. Marfoh was interviewed by Det. Kevin Cabral and S/Sgt. Raj Saini about the death of Mr. Myers, a discussion which lasted about 3 and a half hours. Subject to possible editing for irrelevant or unfairly prejudicial content, the Crown seeks to tender the statements made during these two interviews. It does not seek to lead any statement made while Det. Francis was recording his interactions with Mr. Marfoh.

[21] S/Sgt. Saini testified that before these interviews began, the investigators decided that the discovery of the handguns when Mr. Marfoh was arrested, one of which matched the calibre of the gun with which Mr. Myers had been shot, elevated Mr. Marfoh from a person of interest to the prime suspect in the Myers homicide. The police also decided that they did not regard Mr. Marfoh as a person of interest or a suspect in the Castillo murder, although they did believe that he may have information that could assist in that investigation. It was decided to “downgrade” Mr. Marfoh from a person of interest in the Castillo homicide, despite the possible connections between the two homicides. It was further decided that Mr. Marfoh would be interviewed first respecting the Castillo matter, and second respecting the Myers murder.

[22] At the beginning of the first interview, Mr. Marfoh confirmed that he had been read his rights. He confirmed that he understood his rights “to remain silent and legal aid and duty counsel and all that shit” and that “I talked to my lawyer twice already.”

[23] After assuring Det. Cotter that he did not need anything to eat, Mr. Marfoh said that he could not remember the word that the police had used (which, as becomes clear in the transcripts, was the word “caution”), but that he understood that the police “were trying to say that I’m responsible for the homicide … this homicide …” At this point, Det. Cotter cut Mr. Marfoh off and the following exchange occurred:

COTTER: I don’t wanna talk about any of that stuff, okay. So what they’re telling you, I don’t wanna talk to you about any of that stuff, cuz I don’t want you to say anything right that’s gonna incriminate you or give evidence, okay. So to me, I don’t want you to say anything about that stuff, okay.

MARFOH: So then what are we in here talking about? (unintelligible) question, yeah.

COTTER: Okay, this is what I’m gonna tell you right now. So um, I’m an investigator, one of them, okay we have a whole team of guys and we had a homicide happen on Tuesday night into Wednesday here in Brantford. So technically like just after midnight on the morning of Wednesday the 14th, okay.

MARFOH: The morning of…

COTTER: Now there was a gentleman that was killed in town here um…

MARFOH: What’s his name?

COTTER: His name is…

MARFOH: Izzy?

COTTER: …Isaiah…Izzy, yeah, yeah.

MARFOH: Yeah, I know Izzy, yeah.

COTTER: Can you tell me about how you know him at all. And listen to me, I want, want you to know something before we talk, you right now, you’re not a suspect, you’re not even a person of interest, okay.

[24] Thereafter, Mr. Marfoh continued to discuss his relationship with Mr. Castillo and told Det. Cotter that he had not been in Brantford since Mr. Castillo died. At one point near the end of this first interview, Mr. Marfoh said the following to Det. Cotter:

MARFOH: And it just puts, it puts me in a sticky position you know, cuz now I gotta protect myself but I gotta follow the rules and…I don’t know. You know what I’m trying to say. I’m not trying to say too much but you know what I’m trying to say. You know my charges, right, so.

COTTER: Yeah. Yeah, and I don’t wanna talk to you about that but.

[25] Mr. Marfoh then reported that his counsel had advised that if the search that was conducted at the time of his arrest was illegal, “this whole case is gonna be done.” Det. Cotter responded by saying that as soon as he was finished with Mr. Marfoh, another officer would be in to explain what was going on in the Myers investigation “so you got some idea kinda what’s going on … that way you’re not left in the dark here, okay?” The discussion continued for a few more pages of transcript, during which time Mr. Marfoh acknowledged knowing Mr. VanEvery.

[26] Before the first interview concluded, Mr. Marfoh said “They said I was in, like involved in two. They said I’m gonna be questioned for two. […] So what’s the other one?” Det. Cotter did not know the answer to this question and said that the other detective would speak to him about that.

[27] As I have said, the second interview began approximately 6 minutes after the first interview ended. At the outset, Det. Cabral was the only officer in the interview room. Det. Cabral reminded Mr. Marfoh that he had been charged with firearms offences and cautioned as “a suspect in a homicide,” to which Mr. Marfoh responded “In two, yeah.”

[28] Mr. Marfoh confirmed that he had spoken with his lawyer twice. After making various complaints about his treatment earlier in the day, and confirming with Det. Cabral that he understood that no threats or promises were being made, Mr. Marfoh asked “can I know like who the second person is?” Shortly thereafter, the following exchange occurred:

CABRAL: The other detective already spoke to that side, I’m gonna tell you my side, but my expectation, I don’t, I don’t, I don’t have a lot of questions for you. I just wanna hear what your…like obviously I’ve already told, you’re a suspect. It’s pretty serious.

MARFOH: It’s murder.

CABRAL: So…

MARFOH: Oh yeah.

CABRAL: If, if there’s, if…but my job is not only to find out the truth cuz I don’t know what the truth…I wasn’t there. I’m trying to find out what happened here. And if you were not involved in this and we got it totally wrong, you need…like give me reasons why to believe that and there’s ways that we can check…

MARFOH: Cuz I wasn’t in the city.

CABRAL: Okay and that’s perfect. If you weren’t in the city, that’s what I want. Tell me details about that stuff, so I can help you.

MARFOH: The girl that you have in custody right now, I was at her house.

CABRAL: Okay.

MARFOH: And then before I was at her house, I was at another house. The day before I was at her house, I was at my cousin’s house which is five minutes down the street.

CABRAL: Okay, so those are the details I’m gonna be looking for. We’ll go over that because if that’s stuff that we can check in, we can exonerate you. Believe me, we do not want to put innocent people in jail.

MARFOH: Of course, bro.

CABRAL: I promise you, like that’s part of our job.

MARFOH: Cuz that’s the thing though, her building, I could tell you that her building has no camera in it. I know for a fact.

CABRAL: But there’s…it’s…you’re in the…was it GTA?

MARFOH: It was the GTA, yeah.

CABRAL: There’s gonna be cameras everywhere.

MARFOH: There’s cameras everywhere, exactly.

CABRAL: So if you have…

MARFOH: There’s light posts. You’ll, you’ll see (unintelligible)

CABRAL: If you remember anywhere you were with dates, times…

MARFOH: Yeah.

CABRAL: …that kind of stuff, that’s what we want to know. So I want you to…I’ll tell you where I’m gonna start. I wanna start on…for me, my investigation starts on April 17th, okay.

MARFOH: April 17th.

CABRAL: We’re, we’re looking at the homicide of Nebiyu MEYERS.

MARFOH: Isn’t that NJ?

CABRAL: Yeah, okay. That was April 17th of 2021. So that’s where my investigation starts. If you’re saying that you were nowhere near this town around those dates, tell me where it starts for you, start there. I won’t interrupt.

[29] From this point Mr. Marfoh described his whereabouts for the previous few days, asserting that he had not been in Brantford since April 15, 2021. Among other things, he also described his relationship with Mr. Myers and with Mr. Castillo and his possession of a large amount of cash at the time of his arrest. At one point, Mr. Marfoh indicated that he asserted his right to remain silent with the arresting officers.

[30] Eventually, S/Sgt. Saini entered the interview room with food for Mr. Marfoh. A discussion then ensued of the various firearms offences which Mr. Marfoh faced. It is clear that Mr. Marfoh understood those charges. Det. Cabral then reminded Mr. Marfoh that he did not have to say anything about those charges. Mr. Marfoh responded “I know, I know, I know” and then complained again that he had not been read his rights and that he had been mistreated at the time he was arrested. It is very clear at several points during this 3-and-a-half-hour interview that Mr. Marfoh was well-aware of his right to remain silent.

[31] At various points in the transcript of this second interview, Mr. Marfoh complained about his treatment, about how he was feeling, and that he was and continued to be cold. At one point he said that he is “vexed” at the officers who dealt with him in Toronto. S/Sgt. Saini joked that Mr. Marfoh was hurting their feelings. The following exchange then ensues:

MARFOH: You guys are hurting my fuckin feelings.

SAINI: No, it’s just…

MARFOH: You guys are accusing me of fuckin murder.

SAINI: It’s just…we’re not accusing you, we’re saying (unintelligible)

MARFOH: I’m a suspect.

SAINI: Yes, suspect, yeah.

MARFOH: So that’s accusing.

CABRAL: (unintelligible)

SAINI: (unintelligible) you’re not being accused (unintelligible)

MARFOH: Okay, okay, well, my bad, my bad…

CABRAL: (unintelligible)

MARFOH: …(unintelligible)

SAINI: (unintelligible) hang on, hang on, hang on (unintelligible) accused of. Let’s straighten it out. You’re getting accused of the two firearms, right, that’s what you’re getting charged for. You’re getting the…put them…and concealed, that’s what you’re getting charged for, okay. And you’re getting…the fact that you were supposed to never have firearms on you and your prohibition, that’s what you’re getting accused for. You are not getting accused for murder, you’re getting…

MARFOH: The way…okay, honestly, brother, thank you for making this so clear. You and your…are you guys partners, Cotter…?

CABRAL: Yeah, we work together, yeah.

MARFOH: You guys are good cops, I appreciate that because the way, the way that the cops that arrested me today, they…

SAINI: So I’m gonna back up.

MARFOH: No, I’m talking about you too, buddy.

SAINI: Oh all right, man.

MARFOH: Don’t worry, man, don’t worry, man.

SAINI: All right, man, all right.

MARFOH: I’m saying, the way they arrested me today…

SAINI: Yeah.

MARFOH: …was like I’m the fuckin killer. Like you guy…like fuck.

SAINI: Dude.

MARFOH: That’s what I’m saying. They’re…it…like it’s just the way I’m being treated. I’m just like, bro, I don’t even… I heard homicide and I’m just sitting here. I’m like, I know they’re not talking about my friend, so what the fuck homicide are you guys really sitting here trying to tell…stick me with (unintelligible)

SAINI: We’re talking about NJ’s.

MARFOH: I know, I know, I know, I know.

SAINI: Yeah.

MARFOH: I’m just saying in the moment, I’m like, what the fuck you guys talking about, my friend just died, you guys are…I didn’t say that cuz I know to remain silent, but I’m just like in my head, I’m like, what the fuck you guys talking about.

SAINI: Yeah, yeah.

MARFOH: And then I just found out now, this guy said his fuckin name. I would never forget his fuckin first name because I used to make fun of him so much for it because it sounds like a fuckin sneeze.

[32] Mr. Marfoh then repeated that “you guys are not accusing me” but that “you guys are questioning me, you guys are asking me the same questions over and over again I’m noticing.” S/Sgt. Saini said the Mr. Marfoh was not going to be released on bail, which Mr. Marfoh understood, and then said, “we’re investigating you for the homicide, okay. You’re a suspect in this homicide, definitely.”

[33] Later in the interview, at about its halfway mark, Mr. Marfoh had difficulty bringing to mind the word “caution.” He asked, “what’s the C-word again?” The following exchange with S/Sgt. Saini then occurred:

SAINI: Accused, no.

MARFOH: No, um, con, con, con, con, con…I don’t know, suspect, I’m just gonna say suspect, I’m one of the suspects.

SAINI: No, you’re not a suspect.

MARFOH: Not a…

SAINI: Yeah.

MARFOH: What’s the word? No, you said I’m a suspect, brother.

SAINI: No, you’re a suspect, yeah, you’re a suspect now.

MARFOH: Yeah, that’s what I’m saying.

SAINI: Yeah.

MARFOH: But it’s the…

SAINI: You’re not accused.

MARFOH: …another C word.

SAINI: You’re not accused.

MARFOH: (unintelligible) I’m not accused, I know, I know.

SAINI: Yeah.

MARFOH: It’s just…that’s what I’m saying, brother.

SAINI: But even…

MARFOH: Like right now, a lot of words are even being messed up right now, like (unintelligible)…

SAINI: I hear you, man, I’m going, I’m going with very little sleep here too because you know what, I’m trying to find…do the right thing…

MARFOH: I hear you.

SAINI: …for NJ’s parents, right.

MARFOH: And Izzy’s parents.

[34] The interview continued. Mr. Marfoh was not arrested for or charged in connection with the death of Mr. Myers at the conclusion of it. Indeed, I am advised the Mr. Marfoh was not charged with the murder of Mr. Myers until May 6, 2021.

Positions of the parties

[35] The Crown takes the position that it has proven the voluntariness of the statements of Mr. Marfoh beyond a reasonable doubt. There is no evidence of threats or promises or of any other kind of improper inducement. Any discomfort Mr. Marfoh felt because of the cold or the handcuffs had long dissipated by the time of the interviews with the investigators. There were no oppressive circumstances, no improper trickery, and Mr. Marfoh was repeatedly cautioned that he need not speak to the police. There is no evidence that Mr. Marfoh did not have an operating mind at the time of the interviews.

[36] Mr. Marfoh says that the voluntariness of the statements has not been established. He takes the position that the cautions were inadequate, that the instructions provided by Det. Cotter at the outset of the first interview were confusing and would have led Mr. Marfoh to believe that anything he said to Det. Cotter could not be used to incriminate him in the Myers investigation, and that this confusion was compounded by S/Sgt Saini when he told Mr. Marfoh that he was not being accused of murder. When all things are considered, especially given that Mr. Marfoh was barely an adult on April 21, 2021, his statements were taken in oppressive circumstances, and the confusing information given to him deprived him of an operating mind and the ability to make a meaningful choice to speak to the police and amounted to improper police trickery.

[37] Mr. Marfoh also alleges a breach of sections 7 and 10 of the Charter. It is argued that the police violated Mr. Marfoh’s rights by not advising him of the true reason for his detention (that he was detained for the purpose of investigating the Myers homicide) and by not affording him a chance to speak to his counsel again when his jeopardy changed at the end of the first interview (because the police had decided he was the prime suspect in the Myers homicide and because he had been told in the first interview that he was not a suspect). Counsel asserts that Mr. Marfoh should have been put in touch with counsel again between the first and second interviews. Mr. Marfoh argues that his statements should be excluded from the evidence pursuant to section 24(2) of the Charter.

[38] The Crown says that there has been no breach of the Charter. Mr. Marfoh was well-aware of the reasons for his detention, he was promptly and repeatedly advised of his right to counsel, he was afforded the opportunity to consult with counsel twice, and there was never any change in Mr. Marfoh’s jeopardy in connection with the Myers homicide.

Voluntariness

[39] While the issues raised by the parties rest on the same factual foundation, the resolution of the voluntariness and Charter questions posed here require separate analytical consideration. It is for the Crown to prove voluntariness beyond a reasonable doubt. The accused bears the burden of establishing a violation of his rights on a balance of probabilities.

[40] The confessions rule is animated by concerns about both the reliability of statements and fairness considerations. Traditionally, voluntariness has been assessed under four separate headings: whether there were threats or promises made to the accused, whether the statement was made in oppressive circumstances, whether the accused had an operating mind, and whether the police engaged in trickery which would shock the community. While these categories continue to be important, it is also important to recognize that the modern Canadian version of the confessions rule requires a consideration which is flexible, holistic, and contextual. The key question is whether the statements made were reliable and the product of a free choice to speak to a person in authority (Rex v. Beaver, 2022 SCC 54, at paras. 47 – 48; Rex v. Tessier, 2022 SCC 35, at paras. 68 – 70; Regina v. Singh, 2007 SCC 48, at paras. 30 – 35; Regina v. Spencer, 2007 SCC 11, at paras. 11 – 15; Regina v. Oickle, 2000 SCC 38, at paras. 32, 47, 71).

[41] Mr. Marfoh argues that all four branches of the traditional rule are engaged in the circumstances of this case and that, taken together and considered properly, these factors lead to the conclusion that his statements to the police were not voluntary. The Crown argues that Mr. Marfoh understood his right to silence, knew why he was speaking to the police officers, made a free choice to speak to them unaffected by any improper state conduct and, once Mr. Marfoh made that choice, he was very chatty. This was not a case of the police having to convince Mr. Marfoh to speak.

[42] I agree with the Crown and am satisfied that the statements made during the two interviews were voluntary.

[43] Insofar as alleged oppressive circumstances are concerned, while it is true that Mr. Marfoh, just 18 years old, was arrested in dramatic fashion, was made to sit outside in the cold for approximately 52 minutes, was handcuffed and uncomfortable for several hours, and that the interviews started at 8:31 p.m., almost 8 hours after Mr. Marfoh was arrested, and ended at about 12:30 a.m. on April 22, 2021, the statements given by Mr. Marfoh were not the product of oppression.

[44] Apart from the violence inherent in the arrest at 12:42 p.m., the police engaged in no violent or threatening behaviour at any time. The transcripts of the interviews betray no fear or apprehension on the part of Mr. Marfoh. On the contrary, as the Crown observes, the transcripts reveal a chatty, even confident, young man.

[45] While I am satisfied that Mr. Marfoh was cold and uncomfortable while sitting outside in Toronto, and that the handcuffs were also uncomfortable, possibly even painful, while he was transported back to Brantford, I am also satisfied that any pain or discomfort had dissipated by the time of the interviews. To be sure, Mr. Marfoh mentioned the cold and the handcuffs to the investigators multiples times, complaining about his arrest and treatment, but his references are historical (i.e., they are about the arrest earlier in the day), and are not current complaints about how he was feeling during the interviews. Mr. Marfoh did complain that his lips hurt because they were dry and that his stomach hurt because he had not eaten. When he was offered food, Mr. Marfoh declined it even as the officers encouraged him to eat. He seemed more concerned that his girlfriend, who had also been arrested, had not eaten. Otherwise, Mr. Marfoh did not complain that he was in pain, or ill, or that the interview room was cold. Mr. Marfoh did tell S/Sgt. Saini that he was tired, but at no point during the interviews does it appear that Mr. Marfoh’s will was overborne by fatigue.

[46] By the time of the interviews, Mr. Marfoh had spoken to his counsel twice and his mother once. Nothing about the nature of the police questioning was aggressive. While I accept counsel’s submission that Mr. Marfoh’s relative youth is a factor to be considered, in this case nothing suggests that Mr. Marfoh was intimidated by his circumstances. Indeed, it is plain that he had been arrested before, was familiar with some of the procedures, and was comfortable speaking with the police.

[47] None of this suggests oppressive circumstances as they are described in the controlling authorities. This part of the confessions rule was summarized by Justice Jamal in Beaver, supra, at para. 49, as follows:

Oppression focusses on the atmosphere of a police interview. This Court has accepted that “[o]ppression clearly has the potential to produce false confessions” because a suspect may “confes[s] purely out of a desire to escape [inhumane] conditions” (Oickle, at paras. 58 and 60). The non-exhaustive factors that can create oppressive conditions include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; or excessively aggressive, intimidating police questioning for a long time (Oickle, at paras. 58-60; Tessier (SCC), at para. 99).

[48] Here, Mr. Marfoh did not speak to the police because he was caught in inhumane conditions from which he hoped to escape by confessing. Indeed, while Mr. Marfoh did speak, and did make statements which the Crown considers important (some because they are alleged to be true and some because they are alleged to be untrue), Mr. Marfoh did not take responsibility for the death of Mr. Myers. Instead, he falsely claimed to have an alibi. I am satisfied that Mr. Marfoh was not subjected to oppressive circumstances and that he did not feel compelled by any such mistreatment to make a statement at any time. While his arrest must have been frightening, and he was in a state of discomfort for some time, he was generally treated politely and respectfully by the police.

[49] Further, there is no evidence of threats and I reject Mr. Marfoh’s argument that improper inducements were offered to him. The officers in the second interview were clear that they were making no promises to Mr. Marfoh, a point Mr. Marfoh acknowledged.

[50] But it is argued that Det. Cotter’s indication to Mr. Marfoh at the beginning of the first interview – which concerned the Castillo murder – that he did not want Mr. Marfoh to incriminate himself respecting the Myers murder, and his statement that Mr. Marfoh was not a suspect in the Castillo investigation, operated together as an inducement to Mr. Marfoh because they suggested he could speak without consequence to Det. Cotter and that his statements in that interview would not be used against him in connection with the Myers investigation. An essential component of this argument is that Mr. Marfoh was not told that he had been arrested in connection with the death of Mr. Myers until he was with Det. Cabral and S/Sgt. Saini in the second interview. In this respect, it is argued that the cautions provided to Mr. Marfoh were deficient insofar as they failed to identify the deceased persons who were said to have been murdered.

[51] I cannot accept this argument. Before the first interview, Mr. Marfoh was well-aware that he was being questioned about two separate murders. He had been cautioned three times and, while I accept that it does not appear that Mr. Marfoh was told the names of the deceased men when he was cautioned, I am satisfied that it was clear to him that there were two different deceased men. Mr. Marfoh made this plain in the first interview when he said to Det. Cotter that “They said I was in, like involved in two. They said I’m gonna be questioned for two. […] So what’s the other one?”

[52] Mr. Marfoh knew early on in the first interview that he was being questioned about the Castillo murder. His claim that he did not know who the victim of the other homicide was cannot be credited given the admissions Mr. Marfoh has now made through counsel that he was in fact the shooter of Mr. Myers. Further, in the second interview, before he was told by the investigator that he would be asking questions about the death of Mr. Myers on April 17, 2021, Mr. Marfoh said that he could not be guilty of the alleged murder because he was not in the city on the day it occurred. In other words, he knew without being told what he was to be questioned about.

[53] Further, and in any event, the words spoken by Det. Cotter do not constitute an inducement. On the contrary, he said that he did not want to hear anything about the murder his colleagues were investigating. His advice that Mr. Marfoh was not a suspect in the murder of Mr. Castillo had nothing to do with the Myers investigation and could not have been taken as a promise that anything Mr. Marfoh said to Det. Cotter would not be used against him in either investigation. Mr. Marfoh had been cautioned at least three times that day that anything he said could be used against him. He repeatedly said that he understood his right to silence and acknowledged expressly that he was in “a sticky position” because he did not want to say anything to Det. Cotter that might relate to the other charges he faced. Det. Cotter acknowledged the problem, saying “Yeah, and I don’t wanna talk to you about that but.” Despite Mr. Marfoh’s use of the word “charges,” and despite the fact that Mr Marfoh had not yet been charged with murder, I am satisfied on a reading of this portion of the transcript in context, that Mr. Marfoh was indicating that his sticky position included the fact that he was to be questioned in connection with the Myers shooting.

[54] In summary, although the names of the deceased were not used, I am satisfied that Mr. Marfoh knew when he was cautioned for a homicide at the time of his arrest that he was being cautioned in connection with the death of Mr. Myers (his subsequent admissions make this conclusion inescapable)[^3] and that he understood when he was cautioned a second time that it was in connection with a different homicide. He further understood during the first interview, despite being told that he was not a suspect in the death of Mr. Castillo and that the investigator did not want to hear incriminating information, that it was possible that he could be incriminated in matters other than the Castillo murder and that this put him in “a sticky position.” None of this amounted to an inducement to speak. On the contrary, Mr. Marfoh knew that there were potential consequences to speaking to Det. Cotter, knew that he had the right to silence, and chose to speak to him notwithstanding these facts.

[55] Similarly, I reject the argument made by counsel that S/Sgt. Saini misled Mr. Marfoh about the extent of his jeopardy when he was explaining to Mr. Marfoh that he was not yet accused of Mr. Myers’ murder but that he was a suspect in that murder. It is evident on a reading of the transcript of the second interview (including those passages quoted above) that Mr. Marfoh knew that he was a suspect in the death of Mr. Myers, that there were potential consequences to speaking to the investigators about that matter, that he knew that he had the right to silence, and that he chose to speak to them notwithstanding these facts. Mr. Marfoh was not misled by S/Sgt. Saini.

[56] When considering whether there has been a threat or a promise, the cases instruct that the “most important consideration … is to look for a quid pro quo offer by interrogators…” (Oickle, supra, at para. 57). Here, the officers made no such offer. Indeed, they were clear with Mr. Marfoh that they were offering him nothing.

[57] From the foregoing it follows that I reject the argument of Mr. Marfoh that the police engaged in deliberate trickery that would shock the community. On the contrary, while the police might have provided more information to Mr. Marfoh, they did not at any time deliberately attempt to confuse or mislead him, and he was not at any time confused or misled by the conduct of the officers. Nothing done in this case comes close to the kind of conduct required to trigger this branch of the confessions rule (Oickle, supra, at paras. 65 – 67).

[58] Nor do I accept the argument that the police conduct deprived Mr. Marfoh of an operating mind. He was aware of what the police were saying to him and that what he said in return could be used to his detriment (Tessier, supra, at paras. 50 – 58).

[59] Finally, taking into account all of the facts and circumstances, I am satisfied that the Crown has proved beyond a reasonable doubt that Mr. Marfoh’s statements to the police during the two interviews were statements made voluntarily.

The Charter

[60] The findings I have made to this point help to dispose of Mr. Marfoh’s Charter arguments. For example, my conclusion that the statements were made voluntarily is dispositive of any suggestion that Mr. Marfoh’s right to silence was violated (Singh, supra, at para. 37). Moreover, I do not agree that any of the conduct of the police caused any confusion which had the effect of undermining Mr. Marfoh’s right to counsel. In addition, I am satisfied that Mr. Marfoh was given sufficient information at the time of his arrest such that he understood the reason for his arrest. He knew that he was being arrested for firearms offences and that he was being cautioned in connection with a homicide. That information allowed Mr. Marfoh to exercise his right to counsel – which was fully implemented shortly thereafter – meaningfully. As I have already observed above, Mr. Marfoh knew which homicide he was being cautioned for even if the police did not utter Mr. Myers’ name. Moreover, there is authority for the proposition that providing the name of the victim is not necessarily necessary for the police to fulfil the informational duties under section 10 of the Charter (see, for example, Regina v. Jackson, 2005 ABCA 430, at para. 25). In my view, it was not necessary in the circumstances which govern in this case.

[61] Further, nothing turns on the fact that the police did not tell Mr. Marfoh that it was intended that the arresting officers would seize his cell phone upon arrest. Counsel argues that if Mr. Marfoh had been told that the police wanted to arrest him because his phone had been connected to the death of Mr. Myers, that information would have focused the attention of Mr. Marfoh and his counsel on the homicide investigation. Different advice might then have been given as a result. I disagree. The reasons for the arrest which Mr. Marfoh was given – that he was to be charged with firearms offences while being cautioned in connection with a homicide – were true and were more than sufficient to ensure that Mr. Marfoh and his counsel were laser-focused on the fact that Mr. Marfoh was in very serious jeopardy at the time of his arrest, including jeopardy for homicide, and that he was going to be questioned in connection with the homicide. As Crown counsel put it in argument, the fact that Mr. Marfoh was cautioned for murder should have rung all the necessary alarm bells.

[62] Mr. Marfoh also argues that he ought to have been afforded a third opportunity to consult counsel, between the two interviews, because there had been a change in Mr. Marfoh’s jeopardy given that he had been upgraded from a person of interest to a suspect in the killing of Mr. Myers and given that he had been told in the first interview that he was not a suspect, but that he was a suspect in the second interview.

[63] I do not agree that there was a change in Mr. Marfoh’s legal jeopardy, or that there was any other change in circumstances that required the police to allow Mr. Marfoh a further opportunity to consult with counsel before embarking on the second interview. Mr. Marfoh knew from the moment he was arrested that he was in jeopardy in connection with the death of Mr. Myers. He was afforded an opportunity to consult with counsel shortly thereafter in connection with that matter. That jeopardy did not change in any way thereafter. Mr. Marfoh was at all times in jeopardy in connection with the Myers homicide. Although the opinion of the police that Mr. Marfoh had some connection to Mr. Myer’s death strengthened over the course of the day, Mr. Marfoh’s jeopardy was at all times the same: the police wanted to question him in connection with that death and if he answered those questions those answers could be used against him.

[64] Further, Mr. Marfoh was at no point confused about his status by virtue of the fact that the police had downgraded his status on the Castillo investigation from a person of interest to a mere witness. Mr. Marfoh knew that there were two homicides being investigated and Det. Cotter also made this plain in the first interview. Nothing Det. Cotter said to Mr. Marfoh could have or did leave the impression that Mr. Marfoh faced no jeopardy in connection with the Myers homicide and could not therefore have had the effect of undermining the advice Mr. Marfoh had received from counsel. Indeed, as I have said, Det. Cotter told Mr. Marfoh that he did not want him to incriminate himself in connection with the other homicide and Mr. Marfoh acknowledged that he was in “a sticky position” for that very reason.

[65] Mr. Marfoh understood his jeopardy in connection with the Myers homicide before, during and after the interview with Det. Cotter. There was no new offence being investigated, nor any fundamental change in the purpose of the investigation, nor any more serious consequence for Mr. Marfoh than had been contemplated at the time of his offence (Regina v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at para. 48; Regina v. Sinclair, 2010 SCC 35, at paras. 2, 47 – 52). Nor was any new investigative technique being employed (Sinclair, supra, at para. 50; Regina v. Dussault, 2022 SCC 16, at para. 34). Nothing done during either interview undermined counsel’s advice. Mr. Marfoh knew at all times that he could refuse to speak to the police and that if he did choose to speak his statements could be used against him (Sinclair, supra, at para. 52; Dussault, supra, at paras. 35 – 39).

[66] In summary, nothing in the circumstances required the police to provide Mr. Marfoh with a third opportunity to consult with his counsel. There was, therefore, no breach of s. 10 of the Charter.

Conclusion

[67] The statements made by Mr. Marfoh were voluntary and were not taken in violation of the Charter. They may be tendered by the Crown at trial subject to editing for unfairly prejudicial evidence.

Ante-mortem statements of the deceased

[68] As noted above, Mr. Myers was shot at the home of his friend, Mr. David Thompson, of 133 Alfred Street in Brantford. While at Mr. Thompson’s home, Mr. Myers spoke to someone on his cell phone. Mr. Thompson could hear only Mr. Myers’ half of the conversation and did not know to whom Mr. Myers was speaking. Mr. Thompson said that Mr. Myers used the word “brother” during the call. About 20 minutes after the call was over, there was a knock at Mr. Thompson’s door (which was down a set of stairs on the ground floor). Mr. Thompson went to answer the door, but Mr. Myers stopped him, saying “No, it’s my brother,” before going downstairs himself. Mr. Thompson could hear that there was some brief discussion at the door, although he could not make out the words, following which he heard shots. Mr. Myers was found shot thereafter.

[69] The Crown seeks permission to lead evidence of the use of the word “brother” during the telephone call, and the statement made to Mr. Thompson when Mr. Myers went to answer the door: “No, it’s my brother.”

[70] As for the first of the two uses of the word brother, I agree with counsel for both accused that this statement should not be admitted. Mr. Thompson’s evidence on this point was vague, came as a surprise to all counsel, and was provided without any context that could allow the trier of fact to attribute any value to the use of the word. It is but a one-word fragment of a much longer conversation, only half of which could be heard. It has no probative value and will be excluded from the evidence.

[71] On the other hand, all counsel are agreed that the statement made to Mr. Thompson (“No, it’s my brother”) may be admitted, although there is some mild difference of opinion as to the basis for finding the statement admissible. Mr. Ghebrai submits that the statement is admissible for the purpose of explaining what Mr. Myers did when he heard the knock at the front door, but it is not admissible for the truth of its contents. In this respect, he points out that Mr. Marfoh, who was at the door, is not Mr. Myers’ “brother.”

[72] Mr. McCuaig submits that the statement is admissible not as hearsay but as circumstantial evidence of the state of mind of the deceased. In other words, the evidence is admissible to show that Mr. Myers believed that he knew who was knocking at Mr. Thompson’s front door. In this respect, it does not matter that Mr. Marfoh was not Mr. Myers’ biological brother, given that the word “brother” may be used to refer to a male person who is a friend.

[73] Although the Crown’s written submissions suggest that the statement should be admissible for its truth, Mr. Minelli’s oral submissions were more akin to those of Mr. McCuaig, that the statement (including the manner in which it was made, i.e., without any indication that Mr. Myers was afraid or upset) is admissible to show the state of mind of the deceased just before he was shot.

[74] I have concluded that the statement “No, it’s my brother,” may be admitted as evidence of Mr. Myers state of mind. That is, to show that he was expecting someone he knew to arrive at Mr. Thompson’s home and that he was not afraid. This use of the evidence does not engage the hearsay rule (Regina v. Candir, 2009 ONCA 915, at para. 56). I have also concluded that the statement is not admissible for the truth of its contents. That is, it is not admissible to show that the person at the door was his brother, biological or otherwise.

[75] While the Crown has established the necessity component of the principled approach to hearsay given that Mr. Myers is deceased, there is no evidence before me from which I could conclude that threshold reliability has been established. There is no evidence that there are adequate substitutes to test the truth or accuracy of the statement (procedural reliability) or circumstantial or evidentiary guarantees of inherent trustworthiness (substantive reliability) (Regina v. Bradshaw, 2017 SCC 35, at para. 27).

[76] With respect to the latter concern, there is no evidence to support the conclusion that Mr. Myers actually knew (as opposed to expected) who was coming to the door and, even if he expected a particular person to come – perhaps the person to whom he had been speaking on the phone – some time had passed since that call. In the absence of evidence that Mr. Myers could see who was at the door, it cannot be concluded that he actually did know who was there. It could have been anyone. Further, there is no evidence that Mr. Myers believed that the person to whom he referred as his “brother” was in fact Mr. Marfoh, or even that he considered Mr. Marfoh a “brother.” Last, there is no evidence that allows me to conclude that the statement was made under circumstances which negate the possibility that Mr. Myers was either mistaken or untruthful, or that allows me to conclude there are no other plausible explanations for his statement (Bradshaw, supra, at paras. 30 – 31, 48 – 50).

[77] For all these reasons, the statement is not admissible for the truth of its contents. It will be admissible as evidence of Mr. Myers’ state of mind.

Character of the accused and of the deceased

Introduction

[78] Mr. Marfoh moves to be permitted to lead evidence of the character of Mr. Myers comprised of evidence of various incidents in which Mr. Myers is said to have acted violently and evidence showing Mr. Marfoh having access to weapons. Mr. Marfoh argues that the proposed evidence is relevant to the defence of self-defence which he will be advancing at trial. He says that it will assist the jury in determining whether Mr. Myers was armed, was willing to attack someone close to him, and was likely the aggressor when he and Mr. Marfoh met at Mr. Thompson’s front door. In taking this position, Mr. Marfoh relies on the line of cases which begins with Martin J.A.’s well-known judgment in Regina v. Scopelliti (1981), 1991 CanLII 104 (SCC), 63 C.C.C. (3d) 481 (Ont. C.A.).

[79] The Crown agrees that some of the evidence which the defence proposes to lead is admissible if (1) there is some evidence that Mr. Marfoh acted in self-defence and that Mr. Myers was the aggressor at the time that he shot Mr. Myers, and (2) the Crown is permitted to lead “balancing” evidence of Mr. Marfoh’s disposition for violence. According to the Crown, some of the evidence proposed to be led by Mr. Marfoh respecting Mr. Myers is too dated to be probative, some of it is too speculative to be admitted and/or does not come in a form that would be easily digestible by the jury. The Crown also warns against overwhelming the jury with evidence of “bad things” about Mr. Myers which could distract from the question of whether Mr. Marfoh acted in self-defence.

[80] Mr. Marfoh submits that he will be testifying at trial and will say that Mr. Myers was the aggressor. He objects to most but not all of the Crown’s proposed balancing evidence and submits that concerns respecting the form of the evidence may be addressed by counsel, perhaps by way of an agreed statement of facts.

The law

[81] The evidence tendered by Mr. Marfoh may be admissible if it is relevant and probative to the issue of Mr. Myers’ disposition for violence, especially against people close to him, and the likelihood that he was armed at the time he was shot (Scopelliti, supra, at paras. 30 – 31, 33; Regina v. Watson, (1996), 1996 CanLII 4008 (ON CA), 108 C.C.C. (3d) 310, at paras. 35 – 37; Regina v. Golov, 2017 ONSC 6672, at paras. 49 – 50), if there is evidence that Mr. Myers was the aggressor (Scopelliti, supra, at para. 32, Golov, supra, at para. 50; Regina v. Leon, 2018 ONSC 1482, at para. 49).

[82] Given that this evidence is tendered by the defence, if relevant and probative it may be excluded where its probative value is substantially outweighed by its prejudicial effect (Regina v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at paras. 32, 38 – 43). Among other things, probative value is assessed having regard to the strength of the linkage between the past behaviour and incident in issue at trial (Scopelliti, supra, at para. 46; Regina v. Yaeck (1991), 1991 CanLII 2732 (ON CA), 68 C.C.C. (3d) 545 (Ont. C.A.) at paras. 76 – 77, 80), and such prior acts must be assessed both individually and cumulatively (Regina v. Sinclair, 2010 ONSC 7254, at para. 21), while prejudice may include evidence which serves only to create hostility against the accused (Scopelliti, supra, at para. 47; Regina v. Varga (2001), 2001 CanLII 8610 (ON CA), 159 C.C.C. (3d) 502 (Ont. C.A.), at para. 71; Sinclair, supra, at paras. 22 – 23).

[83] Where evidence of the deceased’s disposition for violence is admitted, it may be appropriate to allow the Crown, as a matter of fairness, and so that the jury does not receive a distorted understanding of the relative dispositions of the accused and the deceased, to lead evidence of the accused’s disposition for violence (Regina v. Williams, 2008 ONCA 413, at paras. 58 – 59; Regina v. Forde, 2012 ONSC 6655, at para. 21; Regina v. Leon, 2018 ONSC 1482, at paras. 61 – 62).

Evidence of incidents which occurred when Mr. Myers was 15 or 16 years old

[84] Mr. Marfoh proposes to lead evidence of three incidents which occurred when Mr. Myers was 15 or 16. In the first, in October of 2016, when Mr. Myers was 15, he is said to have put his stepmother in a headlock after she confronted him for failing to follow house rules. The argument ended when Mr. Myers’ father intervened. I note that no firearm or other weapon is said to have been involved in this incident and that it was Mr. Myers himself who complained to the police that he had been assaulted by his parents. There does not appear to have been any charge laid against anyone in connection with this incident.

[85] In the second incident, which occurred in August of 2017, police were dispatched to a Tim Horton’s. Mr. Myers’ father had confronted him about where he had been going and in response Mr. Myers (still 15 years old at this point) had stabbed his father. The police arrived and found Mr. Myers trying to drop a knife into a sewer. There was no firearm involved. Mr. Myers was charged in connection with this incident and pleaded guilty.

[86] In the third incident, in May of 2018, at a celebration of life event, Mr. Myers (then 16) got into a dispute with another attendee over an unpaid debt. Mr. Myers stabbed the other man/woman in the neck and upper chest. He sustained life-threatening injuries. Mr. Myers was charged in connection with this event but, part way through the trial, the charges were dismissed at the invitation of the Crown.

Evidence of incidents which occurred when Mr. Myers was 17 years old

[87] Mr. Marfoh also proposes to lead evidence of three incidents which occurred when Mr. Myers was 17. In the first of those incidents, on February 7, 2019, Mr. Myers and another young person entered the home of a third person, brandished knives and demanded money and other items. Mr. Myers pleaded guilty to the offence of robbery in connection with this incident. The police document on which Mr. Marfoh relies suggests that the other young person who entered the home was a young man with the initials J.M. The Crown, however, points to a police synopsis which indicates that the other man was Mr. Marfoh, and says that Mr. Marfoh was also charged and pleaded guilty to robbery. At the time of the argument of this motion the Crown did not yet have the transcript of Mr. Marfoh’s guilty plea.

[88] In the second of these incidents, on March 15, 2019, Mr. Myers got into a confrontation with his girlfriend and three other young women. He took a shotgun and chased the young women down a road, assaulting one of them. He was charged with and pleaded guilty to the offence of assault with a weapon.

[89] The third incident occurred on April 22, 2019. Mr Myers was staying at the home of a friend, Arthur Levy. There was a confrontation because Mr. Levy refused to give Mr. Myers a ride. Mr. Myers stabbed Mr. Myers and fled in Mr. Levy’s vehicle. Mr. Myers pleaded guilty to failing to comply with a release order and with aggravated assault.

Mr. Myers’ alleged gang membership

[90] Mr. Marfoh proposes to lead evidence that Mr. Myers was a member of a gang that went by the moniker “MMS” or “Make Money Savages.”

[91] The Crown argues that this evidence is not admissible. While there is evidence of Mr. Myers with a tattoo, that may be a gang marking, there is also evidence that Mr. Myers may have not have been a member of the gang. Further, there is no evidence, according to the Crown, that this gang routinely or always carried guns, or what kind of gang it was. Accordingly, the Crown argues, the evidence is not probative and, instead, may serve to do nothing more than to lead the jury to dislike the late Mr. Myers.

Photos of Mr. Myers holding firearms

[92] Mr. Marfoh also proposes to lead evidence of several photos and videos found on Mr. Marfoh’s phone. In each of the photos or videos Mr. Marfoh is seen in possession of a firearm on a date proximate to his death. The Crown does not object to the admission of this evidence but says that a video of Mr. Marfoh with a firearm should also be admitted into evidence, a point I will address below.

Conspiracy to shoot Mr. Castillo

[93] Mr. Marfoh seeks to tender evidence of a plan – captured in text messages dated April 13, 2021 – to shoot and rob Mr. Castillo, who was a friend of Mr. Marfoh’s. In one of the text messages, Mr. Marfoh tells a friend that he has everything he needs to execute the plan, including a vehicle, other co-conspirators, gloves and duffel bags.

[94] Mr. Marfoh also proposes to lead evidence that Mr. Myers contacted another friend on April 13, 2021, advised that he needed a side bag for his firearm and that he intended to confront and shoot Mr. Castillo.

[95] Mr. Marfoh also moves to lead evidence that Mr. Myers and two others murdered Mr. Castillo on April 14, 2021.

[96] In connection with this body of evidence, the Crown points out that Mr. Myers died just three days after Mr. Castillo died. He was never given the opportunity to make a statement to police and therefore never had an opportunity to provide information showing that someone else was the killer of Mr. Castillo, or that he had an alibi, for example. The evidence against Mr. Myers in connection with the death of Mr. Castillo is circumstantial and, unlike some of the other incidents, there is no transcript of evidence or a guilty plea to which would establish guilt. Instead, the jury would be required to make findings of fact and draw inferences before they could conclude that Mr. Myers killed Mr. Castillo, all of which would be a prerequisite to drawing the inferences that Mr. Myers was armed, was willing to attack someone close to him, and was likely the aggressor when he and Mr. Marfoh met at Mr. Thompson’s front door. For these reasons, the Crown says that the evidence that Mr. Myers killed Mr. Castillo is too speculative to be put before the jury and is likely to be taken as nothing more than an attack on the character of Mr. Myers. The risk of admitting such evidence is as described by Doherty J.A. in Varga, supra (at para. 71):

Attacks on the character of the deceased are often easy to make and risk the conclusion that it is a defence to a murder charge to show that the deceased’s demise was a civic improvement.

[97] The Crown adds that it consents to the admission of other evidence which should be sufficient to establish that Mr. Myers was prone to violence and had access to weapons including firearms.

Balancing evidence

[98] As noted above, the Crown concedes that some of the evidence of Mr. Myers’ character should be admitted but that evidence of Mr. Marfoh’s character should also be admitted to balance the view which the jury has of the deceased and the accused. Justice Doherty summarized the law on this point as follows in Williams, supra (at para. 58):

When an accused relies on self-defence and leads evidence that the deceased was a violent person, the question of whether the Crown may lead reply evidence of the accused’s propensity for violence arises. The Crown will be permitted to do so where it is necessary to enhance fairness and ensure that the trier of fact has a balanced, not a distorted, picture of what occurred between the deceased and the accuse and of their respective dispositions for aggression [citations omitted].

[99] To balance the evidence of Mr. Myers’ character, the Crown seeks permission to lead evidence of the background of two incidents which resulted in criminal convictions for Mr. Marfoh, the fact that he was arrested with two handguns in his waistband (one of which was the weapon he used to shoot Mr. Myers), and a video of Mr. Marfoh with a firearm.

[100] With respect to the two incidents resulting in criminal convictions, the first is an incident which occurred on September 24, 2018. Mr. Marfoh, who was 16 at the time, was walking home from school with a group of friends. One of the friends had a bag in which he was carrying a quantity of marijuana. Mr. Marfoh beat the other young man about the head causing him to lose consciousness. Mr. Marfoh took the bag containing the money, leaving the victim in a bushy area. Mr. Marfoh pleaded guilty to robbery.

[101] The second incident is the incident which occurred in February 2019, and which is described above at para. 87. Counsel for Mr. Marfoh concedes that this evidence, including evidence of Mr. Marfoh’s role in the incident, is appropriately put before the jury.

[102] With respect to the arrest of Mr. Marfoh, described above at paras. 7 – 8, the Crown proposes to call police witnesses and to introduce photographs of the weapons seized.

Discussion

[103] Assuming that there will be evidence at trial that Mr. Myers was the aggressor at the time he was shot by Mr. Marfoh, I agree that some evidence of Mr. Myers’ disposition for violence should be admitted.

[104] I agree with the Crown’s concession that the evidence of the three incidents occurring when Mr. Myers was 17 may be admitted into evidence.

[105] As for the three incidents which occurred when Mr. Myers was younger, I will take each of them in turn. The first incident, occurring in October of 2016, will not be admissible. It suffers from several frailties. First, it is the incident most remote in time for a young person and for that reason has less probative value (see Leon, supra, at para. 72). More importantly, there is some doubt on the evidence before me whether in fact Mr. Myers was the aggressor. I note that it appears that he called the police. No weapon is said to have been involved. Finally, the event did not result in any conviction (or indeed even any charge) from which proceedings we might have been able to resolve some of these factual questions. In my view, this evidence has no probative value.

[106] The second incident, although somewhat dated, does seem to me to be probative and should be admitted. It involved a weapon and resulted in a conviction following a guilty plea. The facts may be established by way of the transcript of that proceeding or by agreement between the parties.

[107] With respect to the third incident, in May 2018, the Crown argues that this incident should not be put before the jury because the Crown was unable to prove this case against Mr. Myers. While evidence tendered for the purpose of establishing the deceased’s propensity for violence need not be established beyond a reasonable doubt, I agree with the Crown that the evidence tendered must be admissible (Leon, supra, at paras. 56 – 60). In this respect, and in the absence of the Crown’s agreement, Mr. Marfoh points only to documents from the Brantford Police Service which are hearsay and not admissible. This evidence of this incident is not admitted.

[108] Turning to the issue of whether Mr. Myers was a member of a gang, I agree that on the record before me this evidence has no probative value. There is no evidence before me of the nature of the gang, what its purpose was and whether its members were routinely involved in violence or the use of weapons. I add that, despite evidence of a tattoo which might signal membership in the gang in question, there is also evidence suggesting that Mr. Myers was not a member of the gang. Evidence of involvement in the gang may be relevant and admissible at trial for some other reason (for example, evidence of motive) and, if it is, whether it is also admissible for the purpose of showing Mr. Myers’ disposition for violence may be revisited at that time.

[109] As I have said, the Crown does not object to the admissibility of photographs showing Mr. Marfoh in possession of a firearm on dates proximate to his death. That evidence will be admitted. I will return below to the evidence which the Crown says should be admitted to balance this evidence.

[110] With respect to Mr. Marfoh’s proposal to lead evidence that Mr. Myers conspired to shoot and did shoot Mr. Castillo, again, there is no criminal conviction or guilty plea upon which this assertion could rest. Instead, Mr. Marfoh points to text messages and a police synopsis, all of which are hearsay and not admissible. In the absence of the Crown’s agreement, this evidence will not be admitted to show Mr. Myers’ disposition for violence. As with Mr. Myers’ alleged gang membership, if evidence of who was responsible for Mr. Castillo’s death is led at trial for some other reason (like motive), this issue may have to be revisited.

[111] Last, with respect to balancing evidence, Mr. Marfoh agrees that the evidence of his involvement in the incident in February 2019 may be used for this purpose. In my view, the facts which led to Mr. Marfoh’s conviction for robbery should also be admitted to give balance given that they show Mr. Marfoh engaged in violence without the participation of Mr. Myers. I agree with the Crown that if the jury were of the view that Mr. Marfoh engaged in violence only when in the company of Mr. Myers, that would be both inaccurate and do little to provide balance and guard against the possibility that the jury will be inflamed against the deceased.

[112] I agree with the Crown that evidence of what was in Mr. Marfoh’s possession upon his arrest is also admissible as balancing evidence. It shows that he too had access to firearms (including the weapon used to shoot Mr. Myers) and did in fact possess them on dates proximate to the relevant events. In light this evidence, and Mr. Marfoh’s admissions that he possessed the handgun that was used to shoot Mr. Myers and that he was the shooter, in my view the evidence of Mr. Marfoh captured on video displaying a firearm is of little added probative value and will not be admitted.

[113] As for the presentation of the evidence which I have ruled admissible, as they said they would, I encourage the parties to come to an agreed statement of facts as much as that is possible.

I.R. Smith J

Released: August 8, 2023

COURT FILE NO.: CR-22-206 DATE: 2023-08-08

ONTARIO SUPERIOR COURT OF JUSTICE

His Majesty the King

– and –

Elijah Marfoh and Cleveland VanEvery

RULING ON PRE-TRIAL MOTIONS

I.S.

Released: August 8, 2023

[^1]: Some of the police officers referred to herein have today different ranks or positions or employers than they did in 2021. In these reasons, I will refer to the ranks and positions that the various police officers had in April 2021. They were all, at that time, officers of the Brantford Police Service. [^2]: In these reasons I quote from the recordings verbatim, using the spelling and punctuation in the transcripts of them verbatim. [^3]: In this respect, consider Regina v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714, at para. 29 – 30, where the court concluded that the fact that the accused knew that he had been involved in a shooting was important context in considering the adequacy of the information provided to the accused upon his arrest for the purposes of assessing the validity of his waiver of his rights under section 10 of the Charter.