Court File and Parties

COURT FILE NO.: 19-6279 DATE: 2024/01/10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – Donald Musselman Accused

Counsel: Matthew Geigen-Miller and Lisa Miles, for the Crown Leo Russomanno and Kim Hyslop, for the Accused

HEARD: August 9, 2022

REASONS FOR RULING ON INTERCEPTS USE AT TRIAL AS PART OF CROWN CASE

ANNE London-weinstein J.

[ 1 ] Donald Musselman is charged with second-degree murder in relation to the shooting death of Markland Campbell on June 7, 2019 in the ByWard Market Square in Ottawa. The Crown sought to introduce wiretap intercepts involving conversations between Donald Musselman and I.A. as part of the Crown’s case. The intercepts were part of an investigation into I.A. as part of the Gilmour Street homicide investigation. Mr. Musselman was not involved in that investigation.

[ 2 ] The proposed evidence was probative of the identification of the shooter. The evidence was also probative to rebut the defence of alternate known suspect. Introducing the evidence at this early stage in the proceedings posed some risks to the conduct of the trial. If I.A. or Mr. Musselman did not testify, which was unclear at this early stage, there existed a significant risk of the jury being induced into reasoning error. In my view, the probative value of the evidence was directly linked to the evidence of I.A. that he was the shooter in this case. If that evidence was not introduced by the defence, the jury would have been exposed to intercepts which may prove to be quite confusing, and which also pose a risk of moral prejudice given the nature of the evidence itself. The intercepts involved extensive discussions of extrinsic criminal behaviour at a time when Mr. Musselman was in custody awaiting trial in this case.

[ 3 ] As a result, I ruled that the intercepts could not be introduced as part of the Crown’s case but could be used to cross-examine I.A. if he testified. Much later in this trial, the defence confirmed that both I.A. and Mr. Musselman would testify. I indicated at that point, before Mr. Musselman made the decision to testify, that both he and I.A. could be cross-examined on the content of some of the edited intercepts. I indicated that I would provide written reasons for that ruling at a later point. These are those reasons.

[ 4 ] The intercepts were granted as part of an investigation into the Gilmour Street homicide which involved I.A., but not Mr. Musselman. The Defence had indicated it would rely on the defence of alternate known suspect but had not indicated initially the form this defence might take. In other words, it was unknown whether Mr. Musselman, I.A., or Mr. Vizigiro, the three potential defence witnesses, would be testifying in this trial. At one point, the defence requested that I provide hypothetical rulings regarding which discreditable conduct evidence would be admissible, contingent on which witnesses were called by the defence. I did attempt to undertake this exercise, but I found this to be an impossible task, given the various unforeseen potentialities and in the end, I was unable to provide that ruling.

[ 5 ] Mr. Musselman was in custody for the shooting of Markland Campbell at the time of the intercepts. I.A. was out of custody. In ruling that the intercepts could be used if I.A., or Mr. Musselman testified, I indicated that the intercepts would have to be vetted and edited prior to using them as impeachment material in the trial.

[ 6 ] Just prior to Mr. Musselman’s preliminary hearing, in early March of 2020, I.A. was observed by police attending the office of Natasha Calvinho, who was Mr. Musselman’s defence counsel at the time. In a March 3 intercept, I.A. asked Mr. Musselman twice where the gun was located by police. In a March 4 intercept, I.A. says that he speaks to his lawyer, Diane Condo, every day and she found this out and found that out, and everything is blessed, and she has a plan. Mr. Musselman tells him to say less. In the March 4 intercept, I.A. said that he attended Ms. Calvinho’s office, Ms. Calvinho was not there, but N-word used her laptop to see everything. The inference here is that I.A. had accessed Ms. Calvinho’s laptop in her absence to see everything. Mr. Musselman asks him what his shorty was saying, which was interpreted to mean, what was Ms. Condo saying. I.A. replies that Ms. Condo told him “wagwan” which is interpreted to mean what was going on. Mr. Musselman said everything was blessed, and I.A. affirmed, that yes, everything was blessed. Mr. Musselman said that everyone was on the same page, and I.A. agreed that Ms. Condo and Ms. Calvinho were getting along better than Mr. Adelman, a prior counsel.

[ 7 ] It should be noted that even with vetting and editing, some portions of the intercepts eventually proved to be simply too prejudicial to be introduced into the trial. For example, in one intercept which was not part of the initial application by the Crown, I.A. and Mr. Musselman discussed the fact that a third person had offered to kill the primary Crown witness in this case. Other intercepts were not probative of rebutting the defence evidence that I.A. was the shooter in this case. In a separately released ruling the reasons for limiting the use of the intercepts is set out.

[ 8 ] The defence also indicated that it would no longer be relying on the theory advanced by previous counsel for Mr. Musselman, Ms. Calvinho, that the gun was planted in Mr. Musselman’s bedroom. This was significant, as in one of the intercepts, I.A. asked Mr. Musselman twice where police located the gun. If the defence had continued to rely on the theory that the gun was planted, I.A.’s repeated queries as to where the gun was located would have assumed a heightened probative value, even at this early stage of the proceedings.

[ 9 ] The initial intercepts which the Crown sought to introduce all occurred in March and April of 2020. Later in the trial, the Crown sought to introduce additional intercepts. I deal with those intercepts in a later ruling.

Issue 1: Should the Crown be permitted to call the intercepts as part of its case in chief?

[ 10 ] The Crown argued that the intercepts were admissible as part of its case to prove the identification of Mr. Musselman as the shooter. The Crown argued the intercepts were also relevant to rebut the defence of alternate known suspect. I found that in the absence of testimony from I.A. or Mr. Musselman that I.A. was the shooter, the intercepts held less probative value but posed a significant risk of inducing reasoning errors on the part of the jury.

[ 11 ] At the initial application, the Crown sought to tender, as part of its case in chief, wiretap intercepts (in particular, three intercepts from March 3, March 4, and March 10, 2020) together with surveillance evidence to establish that Mr. Musselman and his friend I.A. conspired to collude with respect to I.A.’s anticipated testimony in the preliminary hearing of this matter. The evidence was tendered based on it being after-the-fact conduct evidence relevant to the issues of identity and self-defence.

[ 12 ] The Crown pointed out that identification and self-defence were likely to be the most significant issues in the trial. The Crown argued that the evidence had probative value regarding the issues of identification and self-defence and that the evidence had modest, or non-existent potential for prejudice.

[ 13 ] Evidence which is relevant to a material issue is admissible; however, evidence of misconduct beyond what is alleged in the indictment which does no more than make the accused appear to be a person of bad character is inadmissible: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31.

[ 14 ] Evidence that tends to show from extrinsic misconduct that an accused is a person of bad character, but that is also relevant and material, falls outside the general exclusionary rule provided its probative value exceeds its prejudicial effect.

[ 15 ] Prejudicial effect includes the risk that the jury will engage in both moral and reasoning prejudice.

[ 16 ] The evidence in the intercepts also poses a risk that the evidence will cause the jury to engage in moral reasoning prejudice, that is that the evidence would cause the jury to believe that Mr. Musselman is the type of person to have committed the offence for which he is charged.

[ 17 ] For example, the jury would have to be told that I.A. was being investigated for a serious criminal offence and that wiretap authorizations had been issued to intercept his phone conversations. The jury would also have to learn of Mr. Musselman’s custodial status, since Mr. Musselman was in custody at the Ottawa-Carleton Detention Centre at the time of the intercepts.

[ 18 ] The intercepts are also interspersed with gang related discussions, discussions of drug use, drug trafficking and of other crimes, discussion of people being “crushed” and “gerked” in jail, discussions of shootings and a stabbing, and discussion of someone charged in another murder case. This was all occurring while Mr. Musselman was being held in custody on the charge before this court.

[ 19 ] There is conversation regarding the fact that Ottawa Police are not allowed to live in the city for fear of being shot. Mr. Musselman repeatedly tells I.A. to be on his err, which is code for keep your gun with you. In addition, both Mr. Musselman and I.A. make prolific use of the N-word and swearing. There are discussions of forcing women to work as sex workers and crude discussions regarding violence and sexual activity. This content poses obvious risks that the jury will engage in moral reasoning errors.

[ 20 ] However, the more significant danger posed by the introduction of this evidence at this point in the trial, as part of the Crown’s case, is its potential to confuse the jury; to cause the jury to engage in reasoning prejudice.

[ 21 ] In this case, I found that the prejudicial effect of the evidence outweighed its probative value if introduced at this early point in the trial, prior to the defence calling evidence that I.A. was the shooter. If I.A., Mr. Musselman, or both men testified that I.A. was the shooter, the potential for reasoning prejudice was diminished and the probative value of the evidence was correspondingly increased as it is evidence which undermined the claim that I.A. was the shooter. If for some reason, neither Mr. Musselman nor I.A. had testified, the evidence of the intercepts, even with an instruction by the court as to their potential use, would be quite confusing for the jury, running a high risk of inducing reasoning errors on the part of the jury.

[ 22 ] The Crown maintains that the prejudicial effect of this evidence in terms of the tendency for the jury to engage in moral reasoning error is low. I respectfully disagree. The references by I.A. to attending Ms. Calvinho’s office and looking at everything on her computer are relevant to rebut the defence of alternate known suspect. However, in the absence of I.A.’s testimony that he was the shooter, the proposed evidence would tend to confuse the jury if the evidence were introduced at this early point in the trial. If Mr. Musselman or I.A. did not testify, the jury would have also been exposed to a significant body of extrinsic discreditable conduct evidence.

[ 23 ] At this early stage of the proceedings, the probative value of the evidence had not ripened to the point that justified introducing the intercepts as part of the Crown’s case. However, as indicated, the intercepts once edited and vetted could be used to cross-examine I.A. and/or Mr. Musselman if they testified that I.A. was the shooter in this case. At that point, the probative value of the evidence would be crystallized as rebutting the defence claim, warranting the introduction of this evidence which, even with editing was still quite prejudicial. However, if I.A. testified that he was the shooter, the probative value of the evidence, including his discussions of attending Mr. Musselman’s lawyer’s office and accessing her laptop in her absence outweighed the prejudicial effect of that evidence.

Released: January 10, 2024 Anne London-Weinstein J.