Discreditable Conduct Application Ruling

[1] Mr. Sitladeen is charged with first degree murder in the shooting death of Mr. Blain Grindley on May 1, 2019. It is alleged that Mr. Sitladeen and two others, Andre Douse and Michael Smith attended to Mr. Grindley’s residence in the John Garland housing complex, City of Toronto at approximately 1:00 p.m. and there shot and killed him at his residence.

[2] The Crown has brought an application to have admitted on the trial prior discreditable conduct evidence of the accused through his rap music videos and lyrics posted on YouTube and other social media. The applicant seeks to adduce the evidence through a proposed expert witness, Detective Constable Kevin Sarjoo to testify that the lyrics and use of gang slang reveal that Mr. Sitladeen is a member of a street gang, the Jamestown Crips, that uses guns and violence in its criminal activities and for turf protection.

Brief Overview of the Case

[3] On May 1, 2019, at approximately 1:00 p.m. Mr. Sitladeen and two others, Andre Douse and Michael Smith were driven in a black Honda Accord, license plate BYNN674 to a plaza on Martin Grove Road. There, as captured on security video, Mr. Douse entered a Dollar Store and purchased masks and gloves. On his return to the vehicle, they were driven a short distance on Martin Grove and into the parking lot of the John Garland housing complex. On the vehicle being parked, Mr. Sitladeen and two others, Douse and Smith exited the vehicle, wearing masks, hoodies and gloves and proceeded to walk through the housing complex walkways in the direction of Mr. Grindley’s unit. As they approached Mr. Grindley’s unit, they went off camera for approximately 50 seconds. During that time a neighbour to Mr. Grindley said he heard a gunshot and then saw three men run away. On video again Mr. Sitladeen and the two others can be seen to run back through the complex walkways to the motor vehicle in the parking lot where they were driven away from the complex.

[4] The Accused/Respondent admits that he is the person in the video wearing a light grey “Champion” track suit and hoodie.

[5] On the same day as the homicide, a rap music video song entitled “Real Spit” written and sung by Mr. Sitladeen under the pseudonym Yung Lava was uploaded to YouTube, then subsequently removed. The introductory lyrics of the song are: “My niggas da be sliding down your walkway, my niggas they ain’t scared of the gun play, we love the action nigga all day eerry day . . . it’s a homicide, fuck the other side, because I aint switching sides on my gang . . ..

[6] The Crown submits that it is just too great of a coincidence that on the day of the homicide Mr. Sitladeen’s rap song that speaks of sliding up walkways, gun play and committing homicide is posted.

[7] The Crown’s theory is that it was an execution, a “murder mission”, a “hit” on the deceased by a rival gang. The three men went directly to Mr. Grindley’s apartment wearing masks and gloves and there he was shot dead. In support of the gang theory the Crown seeks to rely on the accused’s rap music lyrics written and performed by him that reveal he is in a street gang, specifically Jamestown Crips, and as evidence of motivation to kill the deceased.

[8] On a search of the YouTube platform there are several other rap songs by Mr. Sitladeen as Yung Lava under titles, “On Da Block”, “1800”, “No Hook” and “Conversation”. that refer to territorial locations, use of guns, using violence and provoking rivals with insults.

[9] The visual contents and lyrics of these rap videos were examined by Detective Constable Sarjoo, an officer with extensive experience in gang investigations and formal training courses with respect to gangs and gang language and references.

[10] He testified that in his opinion based on the language used, which reference locations within Rexdale associated with the Jamestown Crips, as well as references to use of firearms, violence and selling drugs, disrespecting rival gangs, primarily Driftwood Crips, tattoos and other references that Mr. Sitladeen is a member of the Jamestown Crips, a street gang.

[11] Detective Constable Sarjoo’s expertise is not contested by the Respondent however, counsel submits that his conclusion Mr. Sitladeen is a gang member just because he raps about gangs is flawed. Many rap artists, like Drake, Dr. Dre, Ice T rap about street gangs and violence however, it does not follow that they are themselves members of these gangs. In this instance, in my view it is a false equivalency as the artists referenced by counsel are not implicated in circumstances involving a homicide. The context is markedly different.

Prior Discreditable Conduct Evidence

[12] The evidence the Crown seeks to have admitted is discreditable conduct, otherwise known as bad character evidence. Such evidence is presumptively inadmissible, however in a criminal trial the Crown may adduce evidence of an accused’s person’s bad character if the evidence is relevant to an issue at trial and its probative value outweighs its prejudicial effect. As noted in R. v. Handy, 2002 SCC 56, [2002] 2 SCR 908 at para. 72 discreditable disposition or character evidence may create moral prejudice that is a trier of fact may conclude that a person of bad character is more likely to have committed the offence alleged.

[13] Character/propensity evidence is inadmissible when adduced to show that the accused is the type of person to have committed the offence. There are however generally three exceptions of the rule:

(i) where the evidence is relevant to an issue in the case,

(ii) where the accused has put his or her character in issue, and

(iii) where the evidence is adduced incidentally to proper cross-examination of the accused on his/her credibility, see R. v. G. (S.G), 1997 CanLII 311 (SCC), [1997] SCJ No. 70 at para. 63.

[14] In this instance, even before conducting the probative v. prejudice analysis the question to be addressed is whether the evidence is relevant to an issue at trial.

[15] Here, the Crown submits that the evidence that tends to demonstrate Mr. Sitladeen’s membership in a gang is important background to the killing of Mr. Grindley for without the evidence the jury would be left in an evidentiary vacuum in deciding the case. It is essential for the narrative and evidence of motivation.

[16] In support of this position the Crown relies on the trial judgment in R. v. Riley 2009 CanLII 15451 (ON SC), [2009] O.J. No. 1374, and R. v. Skeete, 2017 ONCA 926.

[17] In Riley the accused was charged with first degree murder, attempt murder and in committing offences for the benefit of the criminal organization. The Crown sought and was allowed to tender evidence that the accused were in a gang, that the gang was at war with another gang and in part, as a result of the killing of their leader, some members formed a squad with the general purpose of finding and shooting rival gang members. The case involved members of that squad who drove up beside another vehicle and believing that the two men inside were members of the opposite gang began shooting them, wounding one and killing the other. The Crown’s case was that the accused were intending to shoot rival gang members, however shot non-members in error. Without the background to the gang involvement and conflict the jury would be left to puzzle over the allegations of a senseless shooting. The evidence of gang membership, and the conflict was admitted as part of the narrative and as relevant to the issue of planning and deliberation.

[18] In R. v. Skeete the allegation was that the accused shot and killed the deceased for having informed on him and another as being responsible for another shooting. In retaliation for the breach and to enforce the code of silence the accused shot and killed the deceased.

[19] Prior to the conclusion of the trial the Crown became aware of a rap song of the accused written and posted before the trial entitled, “Live from the Don” with the lyric: “real niggaz don’t crack to the coppers, muthafucka”. The lyric was held to be relevant as it “tended to establish a motive by its reference to the code of silence and supported an inference that the appellant believed in that code”. It dovetailed with the theory of the Crown that the killing of the deceased was in retaliation for his breach of the code of silence and that there was a temporal nexus between the lyric and the killing.

[20] In upholding the admission of the lyric Watt J.A. noted that “temporally, the composition was recorded and uploaded while the appellant was in custody awaiting trial”. Further, there was also a causal link to the killing as the lyric expressed the code of silence and there was an inference open to the trier of fact that the accused knew about the code, his belief in it and supported an inference that the killing was in response to the breach.

Conclusion

[21] In this case, while there is evidence based on Mr. Sitladeen’s lyrics and performances to support that he is a member of a street gang involved in violent activities, an inference that would be opened to the jury with an understanding of the nature of the street slang used in his compositions. Further, Mr. Sitladeen attending to Mr. Grindley’s residence masked and gloved in the company of others suggests an involvement in some nefarious activity. However, unlike in the case of Riley there is no evidence that the two others with him, Douse and Smith were gang members. In addition, there is no evidence that Mr. Grindley, the deceased was involved in a gang or any gang activity. There is no evidence he was involved directly or indirectly with Mr. Sitladeen or the other two, Douse and Smith. There is no evidence of animus between the accused and deceased or of a motive to kill him, based on Mr. Sitladeen being in a street gang.

[22] I note as well the evidence on the application voir dire revealed that the rap song, Real Spit was produced in April 2017. Further there is no evidence that it was posted by Mr. Sitladeen. Rather, it was posted by someone referred to as 6IX LEAKERS, an anonymous source. The only temporal connection is that the song was posted and removed on the date of the homicide. However, there is no “causal link” as was also necessary to affirm the admission of the lyric in Skeete.

[23] In this instance, due to the lack of evidence of any relationship between the deceased and accused/respondent, the lyrics, in “Real Spit” and the other rap songs provide no evidence of any animus or motivation for the shooting of Mr. Grindley.

[24] The evidence is not relevant to an issue at trial, and its prejudicial effect far outweighs any probative value, based on the evidence provided on the voir dire.

A.J. O’Marra J.

Released: September 15, 2023

COURT FILE NO.: CR-22-50000074

DATE: 20230915

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

DAYNE SITLADEEN

Respondent

Discreditable Conduct Application Ruling

A.J. O’Marra J.

Released: September 15, 2023

R. v. Sitladeen, 2023 ONSC 5226

Case Summary

Discreditable Conduct Application Ruling

Brief Overview of the Case

Prior Discreditable Conduct Evidence

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Legal Tests 1