COURT FILE NO.: 19-6279 DATE: 2024/01/23

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: November 3, 2023, November 6, 2023

REASONS FOR RULING ON EDITING AND USE OF INTERCEPTS

ANNE LONDON-WEINSTEIN J.

[1] Mr. Musselman is charged with second-degree murder in relation to the shooting of Markland Campbell on June 7, 2019 in the ByWard Market, Ottawa. The defence in this case called I.A., to testify that he, not Mr. Musselman shot Markland Campbell. Mr. Musselman also testified that I.A. shot Markland Campbell.

[2] The Crown had a collection of intercepts which it sought to use in this case. The court had previously ruled that the evidence gathered in the March 19, 2020 authorization was not obtained in a manner that contravened s. 8 of the Canadian Charter of Rights and Freedoms. Reasons for that ruling were separately released. The intercepts were gathered in relation to the January 8, 2020 homicide committed in a residence on Gilmour Street (“Gilmour Street homicide”). Mr. Musselman was not alleged to have been involved in the Gilmour Street homicide.

[3] A Part VI authorization was granted on January 23, 2020 by Phillips J. in the Gilmour Street homicide. A second Part VI authorization was granted on March 19, 2020 by Maranger J. in the Gilmour Street homicide. The Gilmour Street homicide involved a gunman opening fire on a group of five men who were sleeping at an apartment on Gilmour Street that had been rented as an Airbnb. The shooting injured three men and killed one. A fifth man escaped without injury. I.A. was the only person whose devices and locations were targeted for interception in the first wiretap application and in the authorization issued by Phillips J.

[4] I.A. was charged with one count of first-degree murder and three counts of attempted murder in the Gilmour Street homicide. The Crown’s theory was that the shooting was a targeted assassination. I.A.’s role in the shooting was not that he was the shooter, but that he aided and abetted the shooter by notifying him where to find the victims, and then guided the shooter to the apartment. The shooter remains unidentified. [1]

[5] Initially, I ruled that the Crown could not introduce the intercepts as part of its case in chief. I indicated that the intercepts must be vetted and edited prior to being used to cross-examine I.A. and Mr. Musselman in this trial if they testified. Defence agreed generally that the intercepts involving I.A. and other individuals, not including Mr. Musselman, were admissible. I provided an oral ruling without reasons given the tight time constraints under which we were operating. This trial had several unforeseen delays and eventually consumed twice the time which had been allotted for its completion. I indicated I would provide full written reasons relating to how the intercepts had to be edited and vetted, how they could be used by the Crown in the trial, and what use the jury could make of them. These are those written reasons.

[6] The Crown submitted several intercepts, in addition to the intercepts which it had sought to introduce as part of its case in an earlier application. I ruled that the prejudice attached to many of the intercepts outweighed their putative probative value. I indicated at the time that the Crown could seek to call some of this evidence in reply after the defence closed its case if it felt such an application was warranted. The Crown declined to do so, which in my view was appropriate given how the defence evidence unfolded.

[7] Contrary to the submissions of the Crown, the court regarded the content of the intercepts to be quite prejudicial, even with editing. There were frequent references to extrinsic acts of misconduct. The intercepts revealed that Mr. Musselman was in custody awaiting his trial on this charge at the time of the conversations. The conversations were peppered with references to a criminal lifestyle.

[8] However, the probity of the evidence in rebutting the defence that I.A. was the shooter was high, and in my view, was more probative than prejudicial. I previously ruled that the use of the intercepts would be restricted due to the prejudicial nature of this evidence. I also ruled that the evidence could be used for impeachment purposes only. I ruled that the evidence could not be admitted in the form of admissions. I declined to permit the jury to have the edited transcripts of the intercepts as an exhibit to review during deliberations and I did not permit the audio of the intercepts to be made an exhibit. The audio portion of the intercepts were played in front of the jury, but this was largely due to the request of I.A. who was a very cautious witness, and who was frequently unwilling to commit to propositions put to him until the intercept had been played. At the end of the trial, the Crown sought again to have the intercepts admitted for their truth, as admissions. I declined to permit the evidence to be received by the jury for that purpose.

Intercept Evidence

[9] Where the defence of third party known suspect is an issue in the trial, it is open to the Crown to introduce evidence that rebuts the claim that a third-party committed the crime. The Crown’s rebuttal evidence must be relevant to and admissible on this material issue: see R. v. Mullins-Johnson (1996), 112 C.C.C. (3d) 117 (C.A.), at pp. 123-24, aff’d, [1998] 1 S.C.R. 977; R. v. Parsons (1993), 84 C.C.C. (3d) 226 (C.A.), at p. 238; R. v. McMillan, [1977] 2 S.C.R. 824.

[10] The intercept evidence is a form of prior discreditable conduct evidence. There is inherent danger in admitting into evidence at trial prior discreditable conduct on the part of the accused. It bears repeating that this type of evidence is presumptively inadmissible, subject to a general exclusionary rule that governs, unless probative value outweighs prejudicial effect. Given that the defence called I.A. to testify that he, and not Mr. Musselman was the shooter, evidence of the intercepts which undermine this claim became highly relevant.

[11] Further, the intercepts also give rise to a potential inference that Donald Musselman directed I.A. to take responsibility for the shooting, when he knew I.A. was not the shooter. For these reasons, the intercepts were relevant to rebut the defence that I.A. shot Markland Campbell.

[12] However, a determination of relevance did not end the analysis regarding admissibility. The court has an ongoing gate-keeping role to ensure that the prejudicial impact of the evidence does not outweigh probative value. A nuanced approach was required in the overall balancing.

[13] The evidence was in the form of intercepted conversations involving a homicide investigation of I.A. The jury was merely told that he was under investigation for serious criminal offences for which Mr. Musselman was not involved.

[14] Against that contextual backdrop, the delicate task of admitting that which was truly probative to the issue, while excluding much of which was not, in order to preserve Mr. Musselman’s fair trial rights, was undertaken.

The Individual Intercepts

March 3, 2020 Intercept Number 2109

[15] Conversations between I.A. and Donald Musselman in the days immediately preceding the preliminary hearing of Mr. Musselman were of particular significance to the Crown. I permitted the Crown to use a large portion of the March 3, 2020 intercept number 2109 where Mr. Musselman and I.A. discuss I.A. being subpoenaed to Mr. Musselman’s preliminary hearing. Defence agreed that the following portions of the intercept were admissible: page 1 to page 3, line 8; page 4, line 7 to page 5, line 16; page 5, line 29 to page 6, line 18; and page 9, line 3 to the end.

[16] In the intercept, I.A. said he is to meet with the lawyer. He asked Mr. Musselman if he had spoken to Rico (David Vizigiro). Mr. Vizigiro was also present at the shooting and gave evidence at the preliminary hearing that I.A. was the shooter. His evidence was equivocal, as he also suggested that I.A. was not the shooter. I.A. indicated to Donald Musselman that he would attend at the home of Maya Daher, who was Mr. Vizigiro’s girlfriend.

[17] I.A. indicated that he would need an adult to accompany him to the Ottawa Carleton Detention Centre. He asked Mr. Musselman whether jail officials will take an expired identification document (“ID”) which belonged to someone else. This evidence was probative to rebut the inference that I.A. was the shooter in this case. I.A. was arranging to meet with Mr. Musselman at the jail, despite the inconvenience of having to have an adult accompany him, and to get false identification which would permit him to visit. I also permitted a portion of this intercept to be used where I.A. asked Mr. Musselman twice where police located the gun. (The gun was located in Mr. Musselman’s bedroom in the aftermath of the shooting).

[18] I.A. indicated that he is coming to Ottawa for the subpoena and would leave the city after that point. Mr. Musselman cautioned I.A. to be careful in the manner in which he comported himself. This portion of the intercept was probative of the inference that Mr. Musselman had a vested interest in I.A.’s safety. If Mr. Musselman was directing I.A. to take responsibility for the shooting, this was probative of that inference. Some of the prejudicial content which was not probative to the issue of I.A. being the shooter was edited from this intercept, including references to people arriving and leaving jail, people getting arrested, and references to general prison violence being visited on various individuals. While this evidence was probative of the Crown theory that I.A. was part of the same criminal subculture as Donald Musselman, and therefore had a motive to take responsibility for the shooting to enhance his credibility within this milieu, the prejudicial impact of this evidence outweighed its probative value.

March 4, 2020 Intercept Number 2172

[19] In session 2172, I permitted the Crown to use a portion of this intercept in which I.A. indicated to Mr. Musselman that he was going to see what was going on with David Vizigiro. I.A. indicated that everything is on point. Mr. Musselman told him to say less. I.A. mentioned the name of a lawyer: Addelman. Mr. Musselman told him to say less.

[20] Explicit references to the Gilmour Street homicide were removed. There is a discussion of someone being “blazed” which means shot, which was edited. There was discussion of an individual not talking or cracking to anyone which was not relevant and was edited. References to the Gilmour Street homicide were edited, as was a discussion of I.A. recommending that one of their associates have his girlfriend abort her pregnancy. A discussion by I.A. as to why he could not impregnate his girlfriend was edited as being irrelevant. Further discussions of inmates and irrelevant information was edited from the intercepts.

[21] The portion of the intercept which was permitted to be used gave rise to an inference that I.A. was meeting with David Vizigiro in order to prepare to, on the Crown theory, falsely assume responsibility for the shooting. Defence agreed that page 6, lines 17 to 24 were admissible. The bulk of the intercept was not relevant to rebut the inference that I.A. was the shooter. The evidence was also prejudicial and was excluded.

March 4, 2020 Intercept Number 2174

[22] I excluded the use of this intercept in its entirety, its prejudicial effect outweighing its probative value. The conversation was between I.A., Donald Musselman, Boogie, an unidentified male and an unidentified female. Discussions of sexual violence, drug possession in the jail, someone being crushed, or smoked “For Fifty”, discussion of sex trade workers, discussion of Mr. Musselman and Bam Bam attacking a 270-pound seven-foot man on the range, firearms unrelated to the ByWard Market, and general discussions of events related to known associates predominate this intercept. A discussion of a hit on I.A. was excluded as it related to the Gilmour Street homicide. There was limited evidence with any probative value to the issue of rebutting I.A. as the shooter and the intercept is replete with discreditable conduct evidence.

March 10, 2020 Intercept Number 2880

[23] This was a key date from the Crown perspective. On this date I.A. attended the law offices of Natasha Calvinho, who was formerly counsel for Mr. Musselman. Ms. Calvinho was apparently not present at the time. Ms. Magas (“Condo”) attended with I.A. as his counsel.

[24] This intercept was probative of the inference that I.A., not being charged in the ByWard Market homicide, was inappropriately reviewing disclosure material in preparation of testifying at the preliminary hearing that he shot Markland Campbell. At the time that this ruling was made, the court was unaware that I.A. had attended the office of Natasha Calvinho on June 13, 2019, in the aftermath of the shooting. When he testified at trial, both the Crown and the court learned for the first time that I.A. had provided a taped statement to Mr. Musselman’s former counsel, admitting responsibility for the shooting. He testified at trial that when he said that he looked at “everything” on Ms. Calvinho’s laptop computer, he was merely referring to his own statement. The court was unaware of the existence of the June 13 statement at the time of determining the admissibility of the intercepts.

March 10, 2020 Intercept Number 2882

[25] This intercept involved I.A. booking a taxi to leave Ms. Calvinho’s office. There was no prejudicial effect generated by the use of that evidence, and it was probative of the fact that I.A., who was not charged in the ByWard Market homicide, had attended the law office of Mr. Musselman’s counsel at the time, prior to the preliminary hearing where he was scheduled to testify.

March 10, 2020 Intercept Number 2945

[26] I permitted intercept 2945 dated March 10, 2020 to be used in its entirety. This was an interception between I.A. and his cousin. I.A. discussed getting picture ID which he was waiting for someone to send to him. He confirmed that he attended Ms. Calvinho’s office and was trying to speak to her but she was in court. He confirmed that he saw his own lawyer, meeting her at Ms. Calvinho’s office as Ms. Calvinho had some evidence “or some shit.” I.A.’s cousin asked whether it relates to him, and he said no “like she’s on the case so she had the file and shit so went to go check the file…on her laptop.” There is a reference to I.A. offering to pay someone to act as a surety for someone else. This evidence was probative to rebut the inference that I.A. was the shooter in this case and supported the inference that I.A. was attempting to review the file in order to prepare to assume responsibility for a shooting which he did not commit. The overall prejudicial impact of this evidence was low.

March 10, 2020 Intercept Number 2965

[27] I.A. spoke with Mr. Musselman. He indicated that he is playing the television loudly so the neighbours could not hear his conversation. He advised Mr. Musselman that he was at Ms. Calvinho’s office today. Mr. Musselman advised him to say less, though “everything is blessed.” I.A. responded that everything is blessed still, meaning that things are all good. Mr. Musselman asked if they spoke to him. I.A. responded that Ms. Calvinho was not there, but that N-word, meaning himself, was using her laptop to see “everything”. Mr. Musselman asked what his lawyer is saying. I.A. indicated that she told him “wagwan” which is what is going on. Both agreed that everything is blessed and that Ms. Calvinho and Ms. Magas (Condo) are getting along better than Ms. Calvinho and Mr. Adelman. Defence agreed that pages 1 to 2 were admissible. I excluded the balance of this intercept (pages 3 to 10), as it was not probative of the issue of whether I.A. was the shooter. It also involved a conversation relating to extrinsic criminality, including drug dealing, a beating in the jail involving Shadow and Costello and other irrelevant discussions which were prejudicial and not probative.

March 10, 2020 Intercept Number 2973

[28] This intercept involved a conversation between Mr. Musselman and I.A. The first five and a half pages of this intercept were not permitted to be placed before the jury as they were not probative of the identification of the shooter and were highly prejudicial. I permitted the portion of the intercept to be used where I.A. indicated that he has seen everything and the police don’t have shit, all they have is “that bitch.” The last reference was to the primary Crown witness, Reanna Campbell. I.A. indicated that police do not know where the crime scene was exactly. Mr. Musselman cautioned him to say less and indicated that he knows. Mr. Musselman indicated that he loved I.A. and would call him tomorrow. This evidence was highly probative of the Crown theory that I.A. had reviewed the disclosure in order to testify that he was the shooter. The probative value of the evidence outweighed its prejudicial effect. Defence agreed that page 6, line 23 to the end of the intercept was admissible.

[29] The excluded portion of the intercept included a discussion of inmate Shadow rushing Costello in the shower where he was crushed. I.A. advised Mr. Musselman that people are saying he allowed this person to be crushed because he did not bring a package (drug package). Also excluded was a discussion between I.A. and Mr. Musselman, where I.A. advised that Marlo, who was apparently now employed and staying out of trouble, expressed interest in killing the primary Crown witness, Reanna Campbell, the daughter of the victim. Mr. Musselman responded that: “Fam, I was gonna tell him fam I was gonna tell him yo like I was gonna tell him like a light like five ten you know go issue that fuckin’ that that waste bitch you know.” I.A. responded: “Yeah.” Mr. Musselman said, “And yo, fuckin’ N-words telling me are you crazy fam imagine this N- words gets bad time he’s gonna spoil the whole plot. I swear to God I say oh shit it’s probably true, I swear to God.” This offer by Marlo to eliminate the primary Crown witness from the case by killing her was made to both I.A. and Mr. Musselman independently of each other.

[30] The evidence in this case was that I.A. and Mr. Musselman were associates at the time of the shooting. The evidence established they were both present at the shooting. The fact that Mr. Musselman considered an offer to have the primary Crown witness murdered, is at first appearance, highly probative of the issue for which this evidence was admissible: identification of the shooter.

[31] Also highly probative was Mr. Musselman’s comment that Marlo would get a light five to ten. This comment seems to suggest that Marlo may be a youth, who would draw a lighter sentence.

[32] It was the theory of the Crown that I.A. and Mr. Musselman discussed youths taking responsibility for adult charges in order to attract a lower sentence if convicted. The intercepts strongly suggested this inference. I.A. was 14 at the time of the shooting and Donald Musselman was 18. However, the probity of that proposed evidence is diminished by the fact that the same offer to kill Reanna Campbell was made to both Mr. Musselman and I.A. The proposed evidence does not favour identification of Mr. Musselman as the shooter over I.A. since the offer to kill the witness was made to both individuals independently. While the discussion of Marlo getting a light five to ten is consistent with the Crown theory regarding I.A. as a youth “hugging” the charge for Mr. Musselman, who is an adult, there was no independent evidence that Marlo was a youth.

[33] I excluded this portion of the intercept evidence. If the offer to murder Reanna Campbell had been made to Mr. Musselman alone, the probity of the evidence of Mr. Musselman’s response to Marlo’s offer to kill the primary Crown witness in this case would have been greatly enhanced and admissible, despite its highly prejudicial nature. However, in the context of the offer being made to both individuals, its probative value was diminished, yet its prejudicial impact remained very high. Relevance is not determined in a contextual vacuum. The issue was whether Mr. Musselman or I.A. shot the victim. Marlo’s offer was to both individuals, depriving the evidence of its contextual probity.

March 10, 2020 Intercept Number 2980

[34] This is an intercepted conversation between I.A., an unidentified female, and Maya Daher, who is the mother of Mr. Vizigiro’s child. The intercept was relevant as it confirmed I.A.’s persistence in speaking to David Vizigiro on the same day that he attended the law office of Mr. Musselman’s former counsel, Ms. Calvinho. Ms. Daher indicated that if I.A. beefed with David Vizigiro again, she did not want to hear that he would shoot up her mother’s house. I.A. assured her that he and Mr. Vizigiro had not been beefing. Evidence that I.A. would threaten to shoot up a house is prejudicial evidence in that Mr. Musselman is depicted as being closely associated to someone capable of gun violence. However, this evidence aligns with the defence theory in this case that I.A. was the shooter. The remainder of the call confirmed that I.A. was going to attend at the address where David Vizigiro and Ms. Daher reside. This meeting occurred during the week of the preliminary hearing. David Vizigiro was present at the shooting and testified at the preliminary hearing. The probative value of this evidence outweighed its prejudicial impact.

March 10, 2020 Intercept 2983

[35] This intercept simply confirmed the address which I.A. would attend.

March 10, 2020 Intercept 2984

[36] This intercept was a brief exchange indicating how long I.A. was going to be. There was no prejudicial impact associated to this evidence. It was simply conformation of I.A.’s attendance at the home of Maya Daher.

March 10, 2020 Intercept 2986

[37] Intercept 2986 dated March 10, 2020 was similarly confirmation of the time I.A. said he would be, which was 20 minutes.

March 10, 2020 Intercept 2987

[38] This intercept was a conversation between I.A. and a driver. I.A. asked that he be picked up on Michael Street as soon as possible. He confirmed that he would be attending the address of David Vizigiro and Maya Daher. The evidence was probative of the fact that I.A. wished to attend the address of David Vizigiro and Maya Daher. This attendance was on the same date that I.A. attended the office of Mr. Musselman’s former counsel. This evidence was probative of the Crown theory that I.A. was attempting to co-ordinate with David Vizigiro in order to falsely claim that he was the shooter. There was no prejudicial impact associated to this evidence.

March 10, 2020 Intercept 2988

[39] This intercept was simply a text message asking I.A. to text when he was close so that the door could be opened at the Daher/Vizigiro residence.

March 10, 2020 Intercept 3012

[40] This intercept captured a conversation between I.A. and a dispatcher regarding getting a ride. It was not prejudicial in any respect and simply confirmed the attendance and departure from the address where Mr. Vizigiro and Ms. Daher lived.

March 14, 2020 Intercept 3370

[41] This intercept captured a conversation between I.A., an unidentified female, Donald Musselman, and two other unidentified males. I.A. explained that the police did not want to subpoena him any longer. Mr. Musselman indicated that he is aware of that fact. There is a discussion that David Vizigiro was making money too. This intercept was excluded as it was not probative of identifying Donald Musselman as the shooter over I.A. and contained a great deal of discussion regarding drug trafficking. They discuss Monkey having a gun and not being willing to take responsibility for two guns if he gets seven years. There is a reference to the Gilmour Street homicide, which was inadmissible, a discussion of I.A.’s plan to rob someone of their trap phone when that person went to jail, and discussion of drug dealing generally. Given the low probative value of this evidence and its high prejudicial impact, the intercept was entirely excluded.

March 20, 2020 Intercept 3872

[42] I entirely excluded this intercepted conversation between I.A. and Donald Musselman. I.A. asked Donald Musselman to crush someone for him before that person is released from jail. There is a reference to a friend of I.A.’s being shot and unable to speak; this person is even more injured than Donald Musselman was when he was shot, according to I.A. There is discussion of drug related matters and a reference to an associate, Christopher Jean Francois. This intercept was excluded as its prejudicial effect outweighed its probative value.

March 30, 3030 Intercept 5347

[43] This intercept was excluded in its entirety. It is a conversation between Donald Musselman, I.A., an unidentified male and an unidentified female. The conversation included discussion of I.A.’s former girlfriend being beaten and her being shown pictures of I.A. by the police. I.A. talks about changing his phone number and said he will text Mr. Musselman’s girlfriend if he needs to reach him. I.A. lost his phone when he was robbed on Donald Street of $3,000 and the robber cleared off the names of the customers. There was limited evidence of any probative value in this intercept, and it was excluded.

April 20, 2020 Intercept Number 8079

[44] This intercept occurred after the preliminary hearing; however, it was still probative of disproving the defence that I.A. was the shooter. The intercept contains a conversation between I.A. and Mr. Musselman. I.A. indicated that he had been rushed by the police after robbing a sex worker. I.A. says that his boys got bagged, but he was good. Mr. Musselman asked if they got bagged with the gun and I.A. said that the others did get charged with armed robbery. Mr. Musselman said that was crazy and that he had warned I.A. He asked I.A. how much he got and I.A. said four. Mr. Musselman pointed out that the victim would not have ratted out I.A. if he had not done that. There is a discussion of the ages of the co-accused and I.A. said he is going to advise the 17-year-old that he would have to hug the charge. I.A. points out that the gun was not loaded. Mr. Musselman said that’s a nasty gun and that I.A. and his friends are foolish. I.A. admits that the gun was stolen, and it was on the news. Mr. Musselman asked how old the other person was and I.A. said that person was 17 and had the gun on him. Mr. Musselman said that the 17-year-old would have to hug it. Mr. Musselman says, “and the next guy was 18.”

[45] I.A. indicated that his fingers are on the “shit”. Mr. Musselman said they cannot link the firearm to I.A. Mr. Musselman indicated that I.A. was chilling with the guy he showed it to him and then I.A. might have gone home.

[46] I.A. said he is not hugging that charge. I.A. said he has more serious charges to hug. I.A. lamented that he may not get bail if he has a gun charge or a charge of violence. Mr. Musselman said they are not going to let I.A. walk. I.A. said “they’re gonna say yo this guy beat a metal/gun charge and now he caught a next one…What and he’s involved in all these homicides what…they’re gonna say yo this guy’s fucked.”

[47] I.A. said that he would tell Diane Condo to get him out of here as soon as possible. Mr. Musselman advised him to take a little vacation. I.A. says go to Saskatchewan. Mr. Musselman suggested he go to an Airbnb.

[48] This last intercept was probative as it demonstrated that I.A. had a propensity for violence and access to firearms, which from the defence perspective was probative of the defence theory of this case. However, there was discussion regarding a younger accused “hugging” a charge, in other words taking responsibility for a charge as a youth where a lesser sentence would presumably be granted if convicted, than would be warranted for an adult. It was the theory of the Crown that I.A., age 14, was “hugging” the murder charge in this case for Mr. Musselman, who was 18 at the time of the shooting. When I.A. and Mr. Musselman testified in this case, it was explained that in that instance the 17-year-old had to take responsibility for the charge, not due to his age, but because he was arrested in possession of the gun. The evidence was prejudicial in that Mr. Musselman was freely engaging in a conversation regarding I.A. robbing a sex worker. However, the most prejudicial aspects of the intercept were edited. The conduct described in this intercept was also less prejudicial than the offence for which Mr. Musselman was charged. The conversation was also revealing of the nature of the relationship between I.A. and Mr. Musselman. The relationship between the two individuals was a central plank in the Crown case, that is that I.A. was trying to build up his reputation within the criminal underworld by “hugging” this murder charge for Donald Musselman, who was of a higher rank than 14 year old I.A.

[49] A portion of the intercept contained at Page 8, line 28 to page 10, line 4 was excluded as being more prejudicial than probative. It involved Mr. Musselman telling I.A. to go “hit a lick” with a kid. Mr. Musselman tells him to make sure that “you guys” do that proper. I.A. said he was going to pour up some Lean and try to line this person up. There is discussion of Snow who supplies the money for Jamaican kids and buys the guns and drugs and invests with investors. There is apparently beefing within that group.

[50] I excluded lines 23 to 39 where Donald Musselman, after hearing of the robbery of the sex worker said: “I swear to god idiot thing and now what now and the bitch ratted on you guys”. I.A. replies: “Ratted fam N-word had the car”. Mr. Musselman says: “See I told you you’re a retard fam that’s not how you’re supposed to do it fam I told you this shit takes patience but look see that ten now you only got four look you could’a had five and she or you coulda just had the four right away just off the bat from fuckin’ getting it and she would have fuckin’”. I.A. replies: “Mm hmmm”. Mr. Musselman replies: “Continued fam”. In this exchange, Mr. Musselman is explaining to I.A. how he could have more successfully separated the sex worker from her money without robbing her in the way that I.A. did. The exchange illustrated the relationship between Mr. Musselman and I.A., as Mr. Musselman, the more senior person, is explaining to I.A. that the way he went about executing this robbery was clumsy and caused the worker to call police. I excluded this exchange as, while it is demonstrative of the relationship between I.A. and Mr. Musselman, there is other evidence which illustrates that relationship without revealing to the jury that Mr. Musselman is experienced in taking money from sex workers. I also excluded lines 26 to 31 where Mr. Musselman talked about how crazy those types of experiences are, in reference to I.A. saying that he ran after the robbery and slept in a backyard. I included the passage where I.A. is explaining the robbery which he committed with a youth. Defence agreed that the following portions of the intercept were admissible: page 4, lines 22 to 27; page 5, lines 15 to 22; and page 7, lines 12 to 32.

March 27, 2020 Intercept Number 96

[51] This is an intercepted conversation between Donald Musselman, I.A., Maya Daher and an unidentified male. The first five pages of the intercept were admitted. Defence agreed that pages 1 to 5, and 11 to 12 were admissible. Mr. Musselman implored Maya Daher to be extra cautious when I.A. is staying with her, as I.A. is his lifeline right now. He also speaks to David Vizigiro and told him not to bring around any DT (“downtown”) kids when I.A. stayed with him. Mr. Musselman tells him to mind his Ps and Qs. This evidence is probative as it suggests that Donald Musselman is quite concerned regarding the well-being of I.A. From the Crown perspective, this is evidence that Mr. Musselman is aware that I.A. is taking responsibility for the shooting; a shooting which I.A. did not commit. From the defence perspective, the evidence is relevant as Mr. Musselman is aware that I.A. is taking responsibility for a shooting which I.A. committed and for which Donald Musselman was currently being held in custody. The prejudicial impact of this evidence was minimal within the context of the case, and the probative value outweighed the prejudicial effect.

Conclusion

[52] In conclusion, I permitted intercepts to be used to impeach I.A. and Mr. Musselman. The intercepts were vetted and edited. Only the intercepts which were probative of rebutting the defence that I.A. was the shooter, and the Crown theory that Mr. Musselman was directing I.A. to assume responsibility for that shooting were permitted to be lead before the jury. The evidence was more probative then prejudicial and became admissible when the defence made the decision to call I.A.

[53] At the time this decision was made to allow the intercepts to be used, the court was not aware that I.A. had given a statement to Mr. Musselman’s prior counsel, in June of 2019, admitting responsibility for the shooting. Knowing that I.A. had given an inculpatory statement in June did denude the intercepts of some of their probity, in that I.A. indicated when he testified that he was simply reviewing his statement. However, it is my view that the Crown was still entitled to use this evidence to challenge the claim that when he said he saw “everything” he was simply referring to his prior statement. Similarly, his attendance at the home of David Vizigiro on March 10, on the day he attended Mr. Musselman’s former lawyer’s office was also material which the Crown was permitted to use to challenge the claim that I.A. was the shooter in this case.

Use of the Intercepts

[54] The decision to prevent the use of the evidence for the truth of its contents was a discretionary decision made by the court. In another case, where there was less prejudicial evidence at play, and the context of how the trial unfolded was different, a different decision may have been made. However, in the context of this case, assessments had to be made during the trial as to the impact of some of this evidence on a jury which had already expressed concern regarding the conduct of defence counsel. I hasten to point out that the jury’s concern regarding the conduct of Mr. Russomanno was completely without merit, which was pointed out to the jury by the court. [2] However, given that much of this evidence on the intercepts touched on the conduct of defence counsel, not trial counsel, and given the criminal lifestyle evidence to which the jury was exposed, a discretionary decision was made to not admit the evidence for the truth of its contents.

[55] At the time I made this ruling, I left it open to the Crown to seek to seek to admit in reply any evidence from the intercepts which I ruled were limited to be used for impeachment purposes. The Crown sought—both at the time I made this ruling and later renewing the argument later in the trial—to have the intercepts contained in sessions 2019 and 8079 admitted for their truth as admissions.

[56] Relying on R. v. Schneider, 2022 SCC 34, the Crown argued that anything the other side has ever done or said will be admissible as long as it has something to do with the case: at para. 57. Of course, this is subject to the caveat that prejudicial effect must not exceed probative value.

[57] Given the unique manner in which some of the issues in this jury trial unfolded, I limited the use which could be made of the intercepts in an attempt to blunt the prejudicial impact of this evidence. I ordered that the intercepts be vetted and heavily edited. I restricted the use of the intercepts to impeachment only, although Mr. Musselman made admissions in the intercepts. While it was left open to the Crown to seek to have the intercepts admitted for their truth in reply, the Crown declined to do so. This was a sound decision, in my view, given how the defence case unfolded. Mr. Musselman agreed to some of the propositions arising from the intercepts.

[58] The court also had an ongoing separate concern regarding the overall volume of potentially admissible disreputable conduct evidence in this trial. The concern was that the sheer volume of this type of evidence might overwhelm the jury’s ability to try this case fairly. While various pieces of discreditable conduct evidence were admissible under various heads of relevance, the court had an overriding concern that the global impact of it all may give rise to erroneous propensity-based reasoning. For that reason, the court, exercising its trial management discretion, limited the manner in which the intercepts, for example, could be used by the Crown, and also restricted the admissibility of other discreditable conduct evidence. The restrictions placed upon the Crown use of discreditable conduct evidence were aimed at maintaining overall trial fairness.

[59] Trial fairness is available as a basis upon which to admit or exclude evidence, or to limit its use: R. v. Al-Shammari, 2016 ONCA 614, 350 O.A.C. 369, at para. 39. The intercepts were highly probative to the issue of whether I.A. was the shooter or not. However, by nature, the evidence was prejudicial. It involved conversations between drug traffickers, who appear to be in a criminal organization, in a homicide which was not gang related. The intercepts themselves were sought to investigate I.A. Mr. Musselman was not the target of that investigation, but it was fairly conceded in the information to obtain that incidental information regarding this homicide may be revealed.

[60] While I accept that there was a basis to admit some of this evidence as admissions for their truth in relation to Mr. Musselman, I limited the manner in which the intercepts could be used in an attempt to blunt their prejudicial impact, and to also limit the global impact of all of the prejudicial evidence which existed in this case by virtue of its somewhat unique factual context. Limiting the manner of use of relevant, otherwise admissible evidence from the jury is not something which is in keeping with a trial’s search for truth. However, this search for truth must always be tempered with concerns for trial fairness. The search for truth is not a quest pursued at all costs. In this case, the court’s estimation of the impact of the intercepts on the jury caused the court to limit the use which could be made of this evidence. An attempt was made to balance the need for the jury to have access to relevant evidence to assist them in their task, without tipping the balance too far, encouraging resort to propensity-based reasoning.

Anne London-Weinstein J.

Released: January 23, 2024

Footnotes:

[1] I.A. was convicted of first-degree murder and three counts of attempted murder in relation to the Gilmour Street homicide by the time of Donald Musselman’s trial for the murder of Markland Campbell.

[2] The physical layout of the courtroom resulted in the jury observing defence counsel’s cross-examination notes as he was cross-examining Reanna Campbell. The jury provided a note indicating that it believed that defence counsel was trying to surreptitiously communicate with the jury in an improper manner. The message which the jury believed that had been communicated to them was, in fact, a question which defence counsel posed to Reanna Campbell. The jury was advised that it was in error and that defence counsel had not sent them a message. The jury was instructed not to permit this incident, in which they had misapprehended the conduct of defence counsel to interfere with their task in this case, which was to determine whether the Crown had proven the guilt of Donald Musselman beyond a reasonable doubt. This instruction, given at mid-trial, was repeated in the final instructions to the jury.