R. v. Anderson, 2024 ONSC 5489

COURT FILE NO.: CR-23-70000504-0000

DATE: 20241003

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

NOAH ANDERSON

– and –

JUNIOR JAHMAL HARVEY

Defendants

Karen Simone and Alexander Merenda, for the Crown

Nader Hasan and Kabir Sharma, for the Defendant, Junior Jahmal Harvey

Melina Macchia and Hedieh Kashani, for the Defendant, Noah Anderson

HEARD: September 16, 17, 18, 19, 20, 23, 24, 25, 26, 2024

There is a publication ban under s.648 in relation to all matters heard in the absence of the jury until the jury retires to consider its verdict.

PRE-TRIAL MOTIONS

g. roberts, j.:

INTRODUCTION

1On the evening of September 18, 2021, Thane Murray, Allen Uthayakumaran and Tony Nguyen were sitting, chatting and smoking, in a parking lot attached to a Toronto Community Housing complex in Regent Park. Around 8:51 pm, four masked men ran towards them and opened fire. Thane Murray was shot 14 times, including in the head, chest, abdomen, back, both thighs, both hands, and his right knee, shin, and ankle. He had no vital signs when first responders arrived, and he was face down with his eyes wide open. Mr. Uthayakumaran and Mr. Nguyen were also shot but survived.

2There is no issue that all four shooters are guilty of the first degree murder of Thane Murray and the attempted murder of Allen Uthayakumaran and Tony Nguyen. The issue is identity: who were the shooters? By mid-December 2021, Toronto Police Service (“TPS”) believed they had identified them:

• Rajahden Angus-Campbell (“R.D.”) (referred to in the Information to Obtain (“ITO”) as suspect 1);
• Junior Jahmal Harvey (“J-Money”) (referred to in the ITO as suspect 2);
• Jabreel Elmi (“Mr. Wallahi”) (referred to in the ITO as suspect 3); and
• Noah Anderson (“Mr. Walk-thru”) (referred to in the ITO as suspect 4).[1]

3Police could only locate two of the four suspects, Noah Anderson and Junior Jahmal Harvey. Both were arrested and charged with first degree murder and two counts of attempted murder.

4The shooting is captured on surveillance video, but the shooters cannot be identified. Nor can the surviving victims identify the shooters. There is no direct evidence linking Mr. Anderson and Mr. Harvey to the shooting. The Crown’s case is entirely circumstantial.

5The Crown’s position is that the four shooters were part of a rap collective associated to Alexandra Park called MG4L (Menace Gang For Life) that does not like Regent Park. The Crown does not seek to prove that MG4L is a gang, or that MG4L stands for Menace Gang 4 Life, or that Mr. Anderson and Mr. Harvey are members of, or associated to, the gang. The Crown agrees this need not be part of the trial.

6Both accused bring Garofoli applications, and related applications to exclude evidence under s.24(2) of the Charter:

• Mr. Harvey challenges the sufficiency of the ITO supporting the production order (“PO”) relating to his cell phone and the search warrant (“SW”) for his home. As part of his challenge, Mr. Harvey seeks to cross-examine the affiant.
• Mr. Anderson argues that the search of his cell phone violated s.8 of the Charter because it was overbroad, police failed to file a timely report to a justice (“Report” or “Report to Justice”) as required by s. 489.1(1) of the Criminal Code (the “Code”) after they seized his phone, and police failed to file a separate Report to Justice when police successfully imaged the phone’s data some months later.
• Mr. Harvey and Mr. Anderson both argue that the evidence obtained as a result of the unconstitutional searches should be excluded pursuant to s.24(2) of the Charter.

7For its part, the Crown seeks a ruling permitting it to adduce photographs, videos and rap lyrics found on Mr. Anderson’s cell phone which constitute extrinsic misconduct evidence.

THE PRODUCTION ORDER FOR MR. HARVEY’S CELL PHONE RECORDS AND THE SEARCH OF HIS HOME

8Mr. Anderson brings a facial and sub-facial challenge to the ITO supporting the PO in relation to his cell phone data, dated October 21, 2021, and the SW in relation to his home, dated December 13, 2021. He argues that the ITO is not sufficient to show reasonable and probable grounds (“RPG”) that Mr. Harvey was one of the shooters. Specifically, the surveillance video cannot support the inference police draw that the light-coloured four door sedan seen just prior to the shooting is the Nissan Altima which parked on McGill Street after the shooting. Without this essential lynchpin, the entire ITO fails.

Should Mr. Harvey be permitted to cross-examine the ITO’s affiant?

9Defence counsel wanted to cross-examine the ITO’s affiant on the following:

1. The duties of an affiant in an ITO.
2. That the basis for RPG is tracing the suspect vehicle.
3. That there are no particular descriptors attached to suspect vehicle.
4. That the affiant did not see the suspected shooters get out of car and he did not explicitly include this in the ITO.
5. The affiant’s description of a “light coloured sedan” in paragraph 65a of the ITO in reference to the vehicle that turns onto Gifford Street at 8:40 pm.
6. What the affiant says at paragraph 65b about seeing the suspects return to Gifford Street, and the fact that he is assuming they returned to a vehicle, and in particular, got into a vehicle on Gifford Street.
7. The fact that the affiant did not explicitly acknowledge that he did not explore alternative inferences or possibilities surrounding the suspects’ flight from the area, such as the possibility the shooters were pedestrians and never got into a vehicle.
8. The affiant’s focus on a light-coloured sedan to the exclusion of all other vehicles.
9. That based on the affiant’s assumption that the suspects got into a vehicle on Gifford Street, and that the vehicle did not come south on Gifford, he made errors with respect to possible routes. Specifically, that the affiant’s assertion at paragraph 66 that there were limited exits from the area, and the statement “any vehicle would be required to proceed eastbound on Spruce Street”, is not accurate.
10. Similarly, the assertion at paragraph 69 that a vehicle would have to turn back to the west to leave the area is not accurate.

10Defence counsel conceded he could make his arguments on most of these areas based on the face of the warrant. However, regarding the last two areas, relating to paragraphs 66 and 69 of the ITO,[2] he argued that the affiant made material mistakes, and he needed to cross-examine to fully flush them out.

11The Crown took the position that Mr. Harvey could make all the arguments he wanted to make based on the face of the warrant. Any inaccuracies in paragraphs 66 and 69 would be apparent based on the screen shot from Google Maps included in the ITO.

12Leave is required to cross-examine the affiant of an authorization like a search warrant or production order to ensure that the competing interests at stake are balanced, namely "the accused's right to make full answer and defence, the Crown and the court's obligation to protect the identity of confidential informants, and the court's obligation to make effective use of limited judicial resources by avoiding unnecessary and time-consuming proceedings:” R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at p.1465; R v. Green, 2015 ONCA 579.

13The requirement for leave is not onerous, but it is specific: there must be a reasonable likelihood that the proposed cross-examination would undermine a basis for the authorization, such as the honesty or reasonableness of the affiant’s belief that grounds for issuing the warrant have been met (not the ultimate accuracy of the information relied on by the affiant). In this case, it is the reasonableness of the affiant’s focus on the light-coloured sedan that Mr. Harvey seeks to challenge.

14Defence counsel did not meet the test for most of the areas he sought to cross-examine on for the simple reason that cross-examination was not required for him to make the arguments he wanted to make. The arguments he wanted to make were available to him on the face of the ITO.

15However, I permitted defence counsel to cross-examine on the last three topics he requested, namely the affiant’s focus on the light-coloured sedan to the exclusion of other vehicles, and what defence counsel said were errors in paragraphs 66 and 69 of the ITO supporting the search warrant for Mr. Harvey’s home.

16Beginning with the apparent errors in paragraphs 66 and 69, defence counsel satisfied me that paras. 66 and 69 potentially contain errors or inaccuracies. Moreover, he showed through Google Maps that the affiant should have been aware of the inaccuracies. These errors could affect the reasonableness of the affiant’s belief that the vehicle he tracked contained the suspects.

17I also permitted defence counsel to cross-examine the affiant about his focus on the light-coloured sedan to the exclusion of other vehicles. While I was less convinced that Mr. Harvey had shown a reasonable likelihood this could undermine the reasonableness of the affiant’s belief that RPG existed, I was mindful that this was the crux of the Garofoli application. The affiant’s focus on the light-coloured sedan lies at the heart of both authorizations. It appears to be the lynchpin underlying all further investigative steps. If it was successfully challenged, it would undermine the existence of reasonable grounds.

18There was no confidential informant, thus I was not concerned about cross-examination potentially revealing information that could endanger the safety of an informant.

19In sum, I permitted Mr. Harvey to cross-examine on topics 8, 9, and 10 listed above.

Addition/Excision/Amplification

20Automatic excision is limited to information obtained in breach of a Charter right. Information that is simply wrong will only be excised when the affiant knew or ought to have known that the information relied upon was wrong. Correct information cannot be excised: R. v. Lising, 2005 SCC 66 at para. 41; R. v. Phan, 2020 ONCA 298 at paras. 51-52; R. v. Maric, 2024 ONCA 665 at para. 154.

21Amplification is permissible to correct errors made in good faith, through evidence that was available at the time the ITO was prepared, where there was no deliberate attempt to mislead. It is intended to ensure form is not put above substance where police had the requisite basis for an authorization. While it may never be used to circumvent the prior judicial authorization requirement process, it is not limited to errors that are so minor as to be irrelevant to the legality of the authorization. It extends to failures to communicate what was known by the affiant as a result of want of drafting skill: R. v. Araujo, 2000 SCC 65; R. v. Lising, at para. 41; R. v. Duncan, 2021 ONCA 673 at paras. 13-16; R. v. Feizi, 2022 ONCA 517 at para. 9.

22The affiant was cross examined on his assertion at paragraph 66 that a vehicle travelling north on Gifford Street from Gerrard Street East “would be required to proceed eastbound on Spruce”. The affiant acknowledged that there was nothing to physically prevent a vehicle turning west on Spruce Street from Gifford Street, and driving the wrong way on Spruce, but explained that Spruce is one way eastbound at Gifford (as is shown in the screen shot from Google Maps included in the ITO) and he was assuming that the vehicle followed the rules of the Highway Traffic Act. The affiant also acknowledged that it was possible the light coloured four door sedan travelled in Corn Chamomile Lane and turned south on Sackville Street. When the affiant was asked whether that was something he explored, he explained that when he reviewed the surveillance video for just after the shooting, there were no vehicles coming south on Gifford or Nasmith Avenue to Gerrard, but he would have to double-check his notes to see if he could see Sackville from the surveillance video. He also testified that he could see a distance up Gifford – either to Corn Chamomile Lane or beyond – he was not sure. The Crown did not ask him to check his notes in re-examination, but rather showed him the surveillance video showing the south end of Gifford that he had reviewed in drafting the ITO.

23There is no issue that the affiant acted in good faith and made best efforts to accurately describe what he believed and why. In these circumstances I believe it is appropriate to amplify the record to consider what was visible to the affiant from the surveillance video of the south end of Gifford. Defence counsel concedes that the headlights of a car driving south on Gifford and into Corn Chamomile Lane would have been visible on the video. After the shooting, the affiant saw no car driving south on Gifford up to 9:00 pm. A car driving north on Gifford following the rules of the road, would have to turn east on Spruce. In the circumstances, while the affiant’s assertion that “Any vehicles would by required to proceed eastbound on Spruce Street” (in paragraph 66 of the residence ITO) could have been drafted more clearly, it is not inaccurate. Nor do I find it misleading.

24The affiant was also cross-examined on his assertion in paragraph 69 that a vehicle that turned north from Spruce, east of Gifford, as he believed the suspect vehicle did, “would have to turn back to the west to leave the area”. The affiant acknowledged that he did not canvass along Gordon Sinclair Lane, Geneva Avenue, or Chipping Sparrow Lane. It is apparent from the Google Maps image shown to the officer during cross-examination that these streets all dead end at Riverdale Park West. Based on the affiant’s stated belief that the suspect car turned north at Sumach Street from Spruce, the affiant’s assertion that a map of the area showed “that to leave the area, the vehicle would have to turn back to the west” is accurate. There is nothing to correct.

25The affiant accepted in cross-examination that there were other possible departure routes he did not canvass, such as the possibility that the suspect car could have driven the wrong way on Spruce, could have gone into a dead end with the suspects departing on foot, or that the suspects were always on foot, and arrived and departed on foot. However, the mere existence of other possible inferences does not mean there is anything to correct in, or add to, the ITO. Nor can other possible inferences negate reasonable grounds. As the Court of Appeal recently explained:

Reasonable grounds can co-exist with exculpatory possibilities….To hold otherwise would effectively be to insist on the standard of proof of beyond a reasonable doubt to obtain a search warrant, when “reasonable and probable grounds” is a threshold investigative standard. This standard requires only a “reasonable” or “credibly based” probability, a standard even below the balance of probabilities: R. v. Illia, 2023 ONCA 75 at para. 17; see also R. v. Maric, 2024 ONCA 665 at paras. 163 and 173.

Did the ITO provide a sufficient basis for the Justice of the Peace to authorize the search?

26I must begin my review of the PO and SW from the premise that both authorizations were properly granted. I ask only whether, based on the totality of circumstances before the authorizing judge, as amplified on review, the authorizing judge could have concluded that the prerequisites for issuing the authorization were met. I must not focus too narrowly on any one observation. I emphasize this, because I am concerned that defence counsel is urging me to do the reverse. I must read the ITO as a whole, recognizing that the affiant need not state obvious reasonable inferences, and the issuing justice could take those inferences into account, and could draw their own common sense inferences from the totality of information provided: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421; R. v. Araujo, 2000 SCC 65; R. v. Muddei, 2021 ONCA 200 at paras. 37-38; R. v. Hamouth, 2023 ONCA 518 at para. 11; R. v. Maric at para.163.

27Defence counsel argues that the ITO hangs by a thread on a facial challenge, but when I excise what he says is erroneous information or assumptions on the sub-facial challenge, what is left no longer provides RPG for the search of Mr. Harvey’s residence or the PO for his telephone. I disagree.

28While I would not excise anything from the ITO, as I have explained, even if I did excise the affiant’s belief that a vehicle proceeding north on Gifford would be required to proceed east on Spruce, what remains in the ITO provides a sufficient basis for the authorizing justice to conclude there was RPG to believe tracking information for Mr. Harvey’s cell phone, and a search of his residence, would provide evidence of the offences. The information contained within the ITO in support of the PO included the following circumstances:

• Shortly after 7 pm on Friday, September 17, 2021, Mr. Anderson arrived at the Chelsea Hotel in what appeared to be the Nissan Altima with license plate CRZN-582, parked, and walked inside. He provided staff with identification and a credit card. He was assigned room 1958. His arrival and registration were captured on surveillance video. Mr. Anderson paid an expense at the hotel on Sunday, September 19, 2020, using a credit card in the name of Jabreel Elmi.
• On Saturday, September 18, 2021, around 8:40 pm, a light-coloured four door sedan turned north onto Gifford from Gerrard. About three minutes later four people emerged from Gifford and crossed Gerrard and walked south into the housing complex. There is no issue that these four people were the shooters. Surveillance video captures them continuing south into the public housing complex, circling the victims, then returning and running in tandem at the victims, all apparently firing handguns.
• After the shooting, which occurred around 8:51 pm, the four shooters ran back in the direction they came from, crossed Gerrard, and disappeared to the north up Gifford.
• No vehicles came south from Gifford or Nasmith onto Gerrard up to 9 pm.
• A “vehicle similar to the one related to the suspects” (a light-coloured four door sedan) was observed turning north on Sumach from Spruce. The affiant noted that the vehicle “arrived at the intersection, relative to the expected time of the related vehicle.”
• Thereafter a “vehicle similar to the one related to the suspects” was observed at different points heading west along Carlton and College Street and turning south on Bay Street, east on Gerrard, and eventually parking on McGill Street. The affiant included screen shots from the surveillance video he relied on, noting its geographic location and the time of the observation. While there is no distinct feature, such a license or a sticker, to confirm that the similar vehicle observed is the same car, it appears similar at every observation, and there is no distinguishing feature that suggests it is a different car. To the contrary, to the extent some features can be viewed, such as colour, shape, and rims, they appear similar. The car arrives at the various geographic points, where it is apparently picked up on surveillance video, at times when one would expect it to arrive at those points if it were the same car.
• Prior to parking on McGill Street, the car drove north into a private driveway, between 40 and 44 Gerrard Street East, connecting Gerrard and McGill streets. The car continued north through the driveway, then parked behind 40 Gerrard, facing west. The area appears tree covered from the clips of surveillance video included in the ITO, but the affiant was able to discern that the driver got out of car, went to the trunk and removed a bag, then got back into the car. The driver and two passengers subsequently got out of the car and then got back inside. The vehicle then continued north on the private drive to McGill Street and turned east. The vehicle continued slowly east on McGill Street and parked outside 67 McGill. Four men got out of the car and walked west. The affiant included screen shots of all these events.
• The four men who got out of the car walked to the Chelsea Hotel. At least one man was wearing a satchel. Each man was carrying a plastic bag containing something that appears soft (based on the screen shots from the surveillance video the affiant included in the ITO).
• The affiant identifies the four men who walked back to the Chelsea Hotel and explains in detail the basis for his identification. Defence counsel concedes, for the purpose of this Garofoli application, that police had sufficient grounds to identify Mr. Harvey (suspect 2) as one of the men. Police identified the other men as Rajahden Angus-Campbell (suspect 1), Jabreel Elmi (suspect 3), and Mr. Anderson (suspect 4).
• Surveillance video showed that the four men were also at the Chelsea Hotel prior to the shooting.
• A resident had footage of the suspect car getting two parking tickets on Monday, September 20, 2021. These tickets revealed that the car was a Nissan Altima, with license CRZN-582. City Parking Tag Operations revealed the car also received a ticket on Sunday, September 18, 2021.
• On Tuesday, September 21, 2021, shortly after 1:00 pm, a black Honda with license plate CSBP-529 pulled into a parking garage across from the Chelsea Hotel. Mr. Anderson and Sharrieff Muhammad left the garage, walked into the Chelsea Hotel and attended at the counter. Mr. Anderson was wearing a large V-shaped medallion and had a red iPhone. Surveillance video captured them again in the lobby, now with Jabreel Elmi, leaving the hotel.
• On October 10, 2021, Mr. Anderson flew to Saskatoon. He took a cab from the airport. Cell and bank records show he relocated to Edmonton, Alberta.
• On October 17, 2021, Mr. Anderson de-activated his cell number (647-569-0844) and began using a new cell number (647-510-2538).

29By the time of the search of Mr. Harvey’s home, the following circumstances added to the mix:

• Cell tower information, combined with surveillance video, placed Mr. Harvey in the Nissan Altima CRZN-582 in a parking spot on McGill Street an hour before the murder. In other words, an hour before the murder, Mr. Harvey is identified in a car that looks similar to the suspect car in the very same parking area the suspect car drove to after the murder.
• Mr. Harvey’s cell phone was turned off between 19:57 and 21:36 on September 18, 2021. In other words, his phone was turned off about half an hour before the murder and turned back on about half an hour afterwards.

30I recognize that the affiant draws inferences that the shooters arrived in the light-coloured four door sedan, parked on Gifford, left the area in the same vehicle, and followed the rules of the road as they did. However, these are all logical, reasonable, inferences apparent on the face of the ITO. They are supported by the information available at the time, which the affiant scrupulously documented, setting out the source information, or demonstrating it through a screen capture. The fact that other possibilities exist, such as the shooters left on foot, or went down a dead end and dumped their car, does not negate the reasonableness of the inferences the affiant drew, or the ultimate conclusion he reached.

31I also recognize that the tracking of the suspect vehicle was imperfect. But it is far from “wholly speculative”. To the contrary, I find it was reasonable. Further, the affiant set out the strengths and limitations of the observations, identifying the source video, the time and location, and including a screen capture for most observations. The screen captures he left out, and simply described, supported his conclusions, and strengthened his grounds. He did not overstate the observations, scrupulously referring to the car shown as “a vehicle similar to the one related to the suspects”.

32Ultimately the question is whether it was open to the authorizing justice in the totality of the circumstances to conclude that there were reasonable grounds to believe an offence had been committed (the murder) and location information from Mr. Harvey’s cell phone, and a search of his home, would provide evidence of that offence. I am satisfied it was. Accordingly, I find that both authorizations were properly issued.

Should the evidence obtained as a result of the searches be excluded pursuant to s.24(2)?

33If I am wrong about either or both warrants, I would nonetheless admit the evidence obtained as a result of each authorization under s.24(2) of the Charter.

34Beginning with the seriousness of the police misconduct, I locate it at the far end of the non-serious side of the spectrum or scale of culpability. If the affiant failed here, it was not by much. It was a minor drafting imperfection. There is no issue of any attempt to mislead or omit important information in the ITO. The affiant was candid and open during cross-examination. There is no question that the affiant acted in good faith. The ITO shows he was also skilled and diligent. Both ITOs are clear, organized, and scrupulously sourced (the only difference is the chronologically later ITO for the residence contains additional information received after the date of the earlier ITO). The affiant explained the sources of his beliefs, often reproducing what he relied on, or including a screen shot in the case of surveillance video, noting the camera it was obtained from, the geographic location and the time. The affiant is careful to refer to the vehicle in question as “a vehicle similar to the one related to the suspects”, and the weaknesses of the tracking of the vehicle are readily apparent. To the extent the affiant did not include all the tracking video, he accurately summarized what he left out, noting it showed “a vehicle similar to the one related to the suspects…continuing westbound on Carlton Street.” The Crown responding materials show that the video that was simply described in the ITO supported the tracking and the conclusions the affiant drew. It also contradicted the defence submission that the observations of the suspect car were separated by distances of as much as 650 and 800 metres. The summarized video includes specific observations of what was believed to be the suspect car within these 650 and 800 metre stretches of Carlton Street.

35In sum, I find the situation in this case similar to the one in R. v. Rocha, 2012 ONCA 707. Like Rocha, the warrant was not obtained with false or deliberately misleading information. Nor did the drafting subvert the warrant process. In these circumstances, Rocha directs that the obtaining of both authorizations “tells” in favour of admitting the evidence obtained as a result. To translate this into the current language used by courts respecting s.24(2), I conclude that this branch of the Grant analysis is neutral and pulls neither in favour of admission nor exclusion: R. v. Tim, 2022 SCC 12.

36Turning to the impact of a breach on Mr. Harvey’s Charter protected reasonable expectation of privacy, I will begin with the information about the cell phone. I would locate the impact of any breach in relation to the PO for Mr. Harvey’s cell phone at the less serious end of the spectrum. What police sought and obtained was location information. While this does attract a reasonable expectation of privacy, it is a good distance from the core of what s.8 protects. No content was obtained. The effect of a breach of Mr. Harvey’s reasonable expectation of privacy pulls modestly in favour of exclusion.

37Regarding the impact of a breach on Mr. Harvey’s reasonable expectation of privacy flowing from an unconstitutional search of his home, I would locate the impact at the serious end of the spectrum. Police searched Mr. Harvey’s home, including his bedroom, going through his possessions. This lies at the core of what s.8 protects. The impact of an unconstitutional search of these areas was very high. Such a breach pulls strongly in favour of exclusion.

38Finally, respecting the reliability of the unconstitutionally obtained evidence, and its importance to the Crown’s case, I find both the cell phone information and the items seized from Mr. Harvey’s home reliable and important to the Crown’s case. Counsel noted in submissions tjat Toronto is littered with cell towers that can provide reliable information about the location of a cell phone. The evidence obtained in the search of Mr. Harvey’s home is real evidence of unquestionable reliability.

39I agree with the defence that excluding either or both categories of evidence would not gut the Crown’s case, nonetheless I find it would seriously impair it. This case is entirely circumstantial. The Crown bears the very high burden of showing that the only reasonable inference that can be drawn in all the circumstances is that Mr. Harvey was one of the shooters. Realistically the Crown can only do this by leading a very compelling constellation of circumstances.

40The tracking information from Mr. Harvey’s cell phone is important. It places Mr. Harvey and the Nissan Altima on McGill Street about an hour before the murder. This is the same location that the Nissan Altima arrives after the murder. This is potentially important circumstantial evidence in assessing the reliability of the police tracking of the Nissan Altima. Mr. Harvey and his cohorts did not happen to drive downtown Toronto and happen to be in a car mistaken for a car that had just been involved in a murder. Mr Harvey at least was in a car that drove back to the same place it had been an hour before. The cell phone evidence also provides potential evidence of planning in so far as Mr. Harvey’s cell phone goes offline half an hour before the murder, and back online half an hour afterwards.

41The items seized from Mr. Harvey’s home are important pieces of circumstantial evidence. The clothing and satchel are probative of whether he was at the Chelsea Hotel on the evening of the shooting. These items also establish connections between the accused. Mr. Harvey is found with distinctive articles of clothing his co-accused are seen wearing at the Chelsea Hotel on the evening of the murder. To focus on the satchel, for example, surveillance video from the day of the murder shows Mr. Harvey leaving the Chelsea Hotel after the murder wearing a satchel that appears similar to the one he threw out his bedroom window prior to police searching his home. Mr. Anderson left the Chelsea Hotel around the same time and then returned to the hotel shortly after wearing what looked like the same satchel. Hours later the satchel is seen on Mr. Elmi as he left the hotel. When police found the satchel during the search, it contained an empty gun case. Mr. Harvey’s actions in apparently trying to hide the satchel from police during their search also gives rise to a potential inference of consciousness of guilt. In short, the items seized from Mr. Harvey’s home are important to the Crown’s ability to discharge its high burden of proof in the context of an entirely circumstantial case.

42It goes without saying this offence is important. Indeed, it is hard to think of a more important case to resolve on the merits than an apparently motiveless coordinated murder and attempted murder of innocent people in downtown Toronto. This branch pulls strongly in favour of inclusion: R. v. McColman, 2023 SCC 5 at para.73.

43When I balance the three Grant factors, I conclude that both the cell phone evidence and the evidence gathered during the search of Mr. Harvey’s residence should be admitted at trial. Admission of the evidence in this case would better serve the truth-seeking function of the criminal trial process and would not damage the long-term repute of the justice system. Exclusion, not admission, would bring the administration of justice into disrepute.

THE SEARCH OF MR. ANDERSON’S CELL PHONE

44Police arrested Mr. Anderson on December 13, 2021. He had two cellphones with him. Police seized them incident to arrest, and held them in a secure police locker. On December 20, 2021, police obtained a search warrant to examine the contents of the phones (the “Vu warrant”). At the bottom of the warrant, below the signature of the authorizing Justice of the Peace (“JP”), there was the following note:

To the occupant: This search warrant was issued by telephone or other means of telecommunication. If you wish to know the bases on which this warrant was issued, you may apply to the Clerk of the Court for the location in which this warrant was executed, at Old City Hall, 60 Queen St. W., Toronto, ON to obtain a copy of the information on oath.

You may obtain from the Clerk of the Court a copy of the report filed by the peace officer who executed this warrant. That report, which must be filed within seven (7) days of the execution of the warrant, will indicate the things, if any, that were seized and the location where they are being held.

45On December 21, 2021, the Vu warrant was executed, and the cell phones were seized from the police locker and sent to the Technical Crime Unit (TCU) of the TPS for analysis. Police filed a Report to Justice relating to the seizure of the cell phones from the police locker pursuant to the Vu warrant on January 24, 2022. The JP signed the Report, noting “this eRTJ is being submitted beyond the 30-day timeline. However, under s.490(9.1)(b) I have accepted and signed it”. Police were able to crack the phone, and image the data on April 13, 2022. Police did not file an additional Report to Justice in relation to the imaged data.

46Mr. Anderson alleges three breaches of his s.8 Charter right. First, he argues that the Vu warrant was unconstitutionally broad, noting that it included no temporal limitations. Second, police were unconstitutionally tardy in filing the Report to Justice in relation to the seizure of the cell phones. Third, a second Report to Justice, pursuant to s. 489.1(1) of the Code, was required when police successfully accessed and imaged the data on the cell phone. Police have never filed that Report, and this failure constitutes a s. 8 breach.

47The Crown responds that the breadth of the search reflected the complexity of searching computer data, the Report to Justice was late but not unreasonably or unconstitutionally so, and no additional Report to Justice was required after the cell phone was cracked and the data imaged.

The Breadth of the Search

48After describing the two iPhones police wished to seize and search, Appendix B of the Vu warrant continued with parameters for the search:

The examination and analysis of the cellular device referred to above will be based on the offence set out in this warrant and will be conducted by a member of the Toronto Police Service Technological Crime Section. The examination and analysis will be conducted in relation to the following data, including stored and deleted content:

i. Data relating to use, ownership and access to the device.

ii. Data relating to the configuration of the device, including internal and external system or program configuration.

iii. Communication history, including but not limited to, emails, text messages, and call logs.

iv. Contacts, addresses and phone books.

v. Calendars and scheduled events.

vi. Internet access history showing websites visited, including any social media accounts.

vii. Digital media content, such as writings, pictures, videos, or sound recordings.

49Further, Appendix B sets out “conditions respecting privacy”:

The analysis and examination of the device for the above identified categories of data to be extracted, and the extraction process, will be conducted by members of the TCU who are not officers otherwise involved in the investigation, and who to the extent possible shall avoid examining the content of any of the data on the devices. To the extent that any content is observed on the devices by a member of the TCU, that person shall not communicate it to anyone else, other than the investigators.

50In R. v. Vu, 2013 SCC 60, the Supreme Court concluded that specific prior judicial authorization is required to search the contents of a computer: at paras. 37-38. (There is no issue that the iPhone seized and searched in this case was a computer.) At the same time, the Supreme Court explicitly declined to impose search protocols or parameters in relation to computer searches, noting this would impose complexity and practical difficulty out of step with the reality of digital information and technology: at paras. 53-54, 56, and 59. Individuals can hide items on digital devices, use guarded or opaque language, and false or obscure names and addresses, including when subscribing for cell phones. Digital data may convey information in numerous and evolving ways. Search protocols may create “blind spots” that simply do not reflect the constantly evolving way in which technology is being used or may be searched: at para. 57.

51Although search protocols are not required as a general rule, this does not mean that a warrant gives police “licence to scour the devices indiscriminately”: at para. 61. Police must carry out the search in a reasonable manner, which “ensures that the search is no more intrusive than is reasonably necessary to achieve its objectives”: at para. 22. If police realize in the course of the warranted search that there is “no reason to search a particular program or file on the device, the law of search and seizure would require them not to do so”: at para. 61.

52Following Vu, this Court and the Ontario Court of Appeal have declined to find that warrants were overbroad because they did not set out search protocols, or that the searches were carried out in an unreasonable manner due to lack of search protocols in the warrant: R v Millard and Smich, 2016 ONSC 348; R. v. John, 2018 ONCA 702; R v Jonat, 2019 ONSC 415; R. v. Otto, 2019 ONSC 2514; R. v. Javer, 2024 ONCJ 293; and R. v. Jattori Williams, 2023 ONSC 4577.

53Courts have also rejected the argument that warrants were overbroad because files searched were not restricted to a certain date range or time period: John, at para. 25; Javer, at para. 98; Otto, at para. 111. Courts have been concerned that limiting searches to data with time stamps or date filters could cause police to miss evidence, given how unreliable information about time and date can be in digital data, and because such information can easily be changed by a user: Javer, at para. 98.

54Mr. Anderson did not press his overbreadth claim in oral argument, relying instead on his factum. He made no complaint that police did not conduct their examination of his cell phone reasonably.

55Given the complexity of searching computers, and the circumstances of this case, I do not believe the Vu warrant was overbroad. It made clear what categories of data could be searched in relation to the offences being investigated. While there were no temporal limits, they are not generally required, for the reasons I have explained. In addition, there was good reason not to impose them in this case. Among other things, police were looking for connections between the individuals they believed to be responsible for the shooting, and for motive. Both circumstances could go back temporally a long time.

The Tardy Report to Justice

56Section 489.1(1) of the Criminal Code requires police to report to a justice anything seized in the course of their duties “as soon as practicable”.

57The report requirement brings everything seized by police in the course of their work, whether pursuant to a common law power or prior judicial authorization, under court supervision and ensures it is dealt with according to law. Items required for an investigation or court proceeding may be detained. Items not so detained are returned to their lawful owner. The scheme also plays a role in protecting the residual privacy interest that persists in things lawfully seized by police. Further it protects police “who become the custodians responsible for the property seized”: R. v. Canary, 2018 ONCA 304 at para. 45. The Court of Appeal has repeatedly emphasized the importance of the requirement to make a timely report to justice: Canary at para. 45; R. v. Garcia-Machado, 2015 ONCA 569.

58As Justice Akhtar explained in R. v. Robinson, 2021 ONSC 2446, evaluating whether a report was filed “as soon as practicable” requires a contextual and fact specific inquiry which “should only be answered after a careful review of all the evidence, including any explanations for why the report was filed when it was”: at para. 12; see also R. v. Canary, at para. 47, citing R. v. Kift, 2016 ONCA 374 at para. 10.

59Police filed a Report to Justice in relation to the iPhone on January 24, 2022. The Report noted that the iPhone had been seized from a police locker pursuant to a warrant on December 21, 2021. The JP who signed report, authorizing the detention of the iPhone until the “completion of all proceedings”, noted “Officer, this eRTJ is being submitted beyond the 30-day timeline. However, under s.490(9.1)(b) I have accepted and signed it.”

60The clock on filing the Report began to tick from the time the iPhone was seized from Mr. Anderson incident to his arrest, on December 13, 2021, not when it was seized from a secure police locker on December 21, 2021, pursuant to the Vu warrant. It was 39 days before the Report to Justice was submitted. This is a full week longer that the JP appeared to contemplate in signing off on the continued detention of the iPhone.

61No specific evidence or explanation was provided for the delay in filing the Report. Nonetheless, a number of circumstances are apparent:

• This was a complex investigation.
• Mid-December was a particularly busy time in the investigation. Mr. Anderson and Mr. Harvey were arrested, on December 13 and 14, 2021, respectively, and searches were conducted in relation to those arrests. The other two suspects were at large, and police were undoubtedly prioritizing finding them.
• The affiant appears to have believed the clock on the Report to Justice started ticking from the time of the execution of the Vu warrant (as did the JP and everyone in this case).
• The Christmas and New Year holidays were right around the corner, and this had been an intense investigation all fall.

62Some delay was inevitable given how much was going on in the investigation, and the holidays, but not 39 days.

63Nor can I find that the acceptance of the report by the JP somehow cleanses the delay. The report incorrectly started the clock from the execution of the Vu warrant. Moreover, no one could understand the “30 day-time line” the JP referred to. It may have been a tickler system. It may have been incorrectly referencing a 30-day time limit in s.21.1 of the Controlled Drugs and Substances Act. Regardless of its source, it does not appear to apply to the circumstances of this case. No one referred to the “7 day” requirement for a report on the face of the search warrant itself.

64The Court of Appeal in Garcia-Machado held that failure to comply with s.489.1(1), in the context of a late report, amounts to a s.8 breach. The Court declined to decide whether all non-compliance with s. 489.1(1) amounts to a s. 8 breach, but most subsequent cases have treated Garcia-Machado as standing for the proposition that non-compliance with s. 489.1(1) breaches s. 8: R. v. AA., 2022 ONSC 4014; R. v. Da Costa and Jeffrey, 2021 ONSC 6016; R. v. Sinnappillai, 2019 ONSC 5000; R. v. Neill, 2018 ONSC 5323; and R. v. Merritt, 2017 ONSC 1508.

65In the circumstances of this case, I find that the failure to file the Report to Justice as soon as practicable violated the residual privacy interest Mr. Anderson retained in his iPhone and the data it contained.

Were Police Required to do a Second Report to Justice when the iPhone was Imaged?

66The more difficult question in this case is whether police were required to do a second Report to Justice when they managed to crack Mr. Anderson’s iPhone and image the data that it contained. Unlike the previous issue, where I simply had to apply settled law to the circumstances of this case, the law relating to this issue is unclear and divided.

67The search scheme in the Criminal Code, including its report to justice requirements, does not explicitly contemplate computer data. What we know from the case law, however, is that computers, and the data they contain, are not mere things found in a place searched. Nor are they places to be searched.

68While the Supreme Court in Vu made clear the need for a “specific assessment”, requiring prior judicial authorization before a computer can be searched, it is unclear how a Vu authorization fits within the traditional report to justice regime supervising police seizures: at paras. 39 and 47. Indeed, it is not entirely clear what a seizure is in the context of data. In R. v. Nurse, 2019 ONCA 260, the Court of Appeal affirmed the trial judge’s conclusion that the time frame in the Vu warrant related to the seizure of the device, not the time within which the police had to obtain and analyze the data on the device: at para. 123. At the same time, the Court of Appeal rejected the notion that a second analysis of previously extracted data amounted to a second search requiring fresh authorization on the basis that it was merely “another interpretation, inspection, or analysis of materials already seized”: at para. 132. The reference to “materials already seized” suggests that the seizure was the act of imaging or copying the data.

69There are two lines of conflicting authority from this court regarding how the report to justice scheme relates to computer searches. The first line of authority holds that a second Report is required when police crack the computer or phone and seize the data it contains. A failure to file this report amounts to a s.8 breach: R. v. Jattori-Williams, 2023 ONSC 4577; R. v. Mitchell, 2019 ONSC 5040; A.A.; Da Costa and Jeffrey; Sinnappillai; Neill; and Merritt.

70The second line of authority, established by Justice Akhtar in Robinson, holds that a second report to justice is not required after police extract cellphone data following the lawful seizure of a cellphone. Justice Akhtar based his decision, in part, on Nurse, concluding that it had overtaken earlier cases requiring a second report. Justice Leibovich in Da Costa and Jeffrey, and Justice Bawden in Jattori-Williams, declined to follow Robinson. Justice De Filippis in R. v. Kumi, 2023 ONCJ 287, and Justice Hebner in R. v. Johnson-Philips et al, 2023 ONSC 1977 followed Robinson.

71Given competing authorities from this court, I do not think the concept of horizontal stare decisis applies. In these circumstances, I have done my own analysis.

72The logical starting point in analyzing the requirements of the Report to Justice provisions in the Criminal Code is with the statute. Section 489.1(1) provides:

Subject to this or any other Act of Parliament, if a peace officer has seized anything under a warrant issued under this Act, under section 487.11 or 489, or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,

(a) return the thing seized, on being issued a receipt for it, to the person lawfully entitled to its possession and report to a justice having jurisdiction in respect of the matter and, in the case of a warrant, jurisdiction in the province in which the warrant was issued, if the peace officer is satisfied that

(i) there is no dispute as to who is lawfully entitled to possession of the thing seized, and

(ii) the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or

(b) bring the thing seized before a justice referred to in paragraph (a), or report to the justice that the thing has been seized and is being detained, to be dealt with in accordance with subsection 490(1), if the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii).

73Section 490(1) provides:

Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(b) or subsection 489.1(2), anything that has been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall,

(a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or

(b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detain the thing seized or order that it be detained, taking reasonable care to ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminary inquiry, trial or other proceeding.

74Subsection (13) provides for the making of copies where the original documents are returned, forfeited or otherwise dealt with under subsection (1), (9) or (11).

75It is essential to interpret what a statute means before applying any interpretive aids, such as Charter values, or the principle of strict construction of penal legislation. Such interpretive aids only come into play in the event of genuine ambiguity in the legislation: R. v. Rodgers, 2006 SCC 15, per Charron J. at para. 18. I do not think there is serious dispute that the current regime is ambiguous in terms of how it should apply to digital data. The Code does not explicitly contemplate the seizure and supervision of digital data, from a computer or from any source, such as the internet or the cloud. As a result of this ambiguity, I rely on Charter values, and the principle of strict construction of penal statures, to decide how the Code’s report to justice requirement should apply to digital data.

76I begin with Vu. The SCC concluded that computers are special (there is no dispute that modern cell phones are computers). They are not like a cupboard, or a pocket, which can be checked in the course of constitutionally legitimate search of a home, or a person. Because of the enormous amount of personal data a computer may contain, specific prior judicial authorization is required before that data can be searched.

77I believe it is a logical extension of Vu to require a specific Report to Justice if and when data is imaged in the course of a computer search. In other words, just as Vu requires specific prior authorization to search computer data, I believe there should be a corresponding specific Report to Justice if and when that data is obtained. In short, I agree that the regime of supervision of seized property should reflect the heightened privacy interests associated with digital data: R. v. Merritt, at para. 245.

78Given everything the SCC says about computers in Vu, I do not think it is sufficient to focus simply on the physical computer (or cellphone as the case may be) when it comes to the corresponding Report to Justice. In the case of a common law seizure of a cellphone pursuant to arrest, for example, s.489.1(1) is clear that the police must do a Report to Justice in relation to the seized cell phone. Vu requires police to get specific prior authorization before attempting to look inside the cell phone and access the data. If the Report to Justice is solely concerned with physical property, however, the requirement to make a Report to Justice would be entirely satisfied by the Report following the common law seizure of the phone. The far more important search and potential seizure of data would go unreported and unsupervised. I do not think this is consistent with Vu, and the recognition of how important data is in the context of an individual’s constitutionally protected reasonable expectation of privacy.

79Further, I believe a second Report relating to any data imaged best reflects the policy concerns underlying the requirement for a Report to Justice. Just as the physical computer or phone that has been seized should by properly supervised, and the residual privacy interests in it protected, so too should any data imaged from the computer or phone be supervised, and the residual privacy interests in it protected. Indeed, the privacy interests persisting in data are likely greater than in the physical container given both the breadth and nature of data. The data likely includes information beyond the scope of the warrant and the investigation. In Jattori-Williams, for example, the data included information concerning an entirely innocent third party (the true owner of the iPhone who had been a victim of the accused). Equally, the data may contain material that constitutes an offence and should never be returned, such as child pornography: Neill, at para. 105; Sinnappillai, at para. 105.

80In reaching this conclusion, I accept the conclusion in Nurse that a computer is not a place. However, I do not believe Nurse provides a complete answer to the issue of whether a second Report is required when data is imaged.. Nurse holds that a second search warrant is not required for police to re-analyze data they had already lawfully seized. Justice Trotter quotes Justice Karakatsanis in R v. Reeves, 2018 SCC 56 at para. 30 to the effect that the police seizure of a computer both deprives an individual of control over intimate data and preserves that data. He confirms that the extraction of data from the cellphone need not occur within the period of time authorizing the seizure of the physical cellphone for the purpose of extracting its data. However, I do not think any of this means that a second Report to Justice is not required if and when the data is actually extracted. The Report to Justice regime is about supervision not mere preservation.

81I sum, I find myself cautiously agreeing with the first line of authority. Notwithstanding that police filed a Report to Justice after the phone was lawfully seized pursuant to the Vu warrant, I believe that they were required to file a separate Report when they managed to crack the phone and seize the data it contained. Their continued failure to file this Report fails to respect the residual privacy interests the accused retains in his data, and amounts to a violation of s.8.

Should the iPhone and its Contents be Excluded under s.24(2) of the Charter?

82I have found not one but two breaches of s.8 respecting Mr. Anderson’s red iPhone. Despite this, I would not exclude either the physical iPhone or its data.

83Beginning with the seriousness of the tardy Report to Justice, there was no ambiguity that the police were required to file this as soon as practicable. The clock began to tick on this requirement from the date of the actual seizure of the cell phone from Mr. Anderson, pursuant to the common law power to seize evidence upon arrest, not the subsequent seizure, pursuant to the Vu warrant. Although police got this date wrong in the Report to Justice, I believe the Report respecting the Vu warrant was the more important report. The affiant filed this. He just took too long in doing so. I am mindful that this was a complex investigation, and the delay occurred at a particularly intense time in the investigation, and a particularly busy time of year. I do not accept that there was a systemic failure simply because the Report related to the seizures during the search of Mr. Harvey’s home was also late. Rather I find, based on my knowledge of the investigation, the time of year, and the officer’s diligence in preparing the ITOs, that the officer simply had a lot going on. He acted in good faith and did the right thing. He was just too slow in doing it. There is absolutely nothing to suggest that his failing was intentional, or even negligent. I am satisfied that it was a minor technical failing. This breach pulls only very modestly toward exclusion.

84Turning to the seriousness of the failure to file a Report to Justice respecting the data imaged from the red iPhone, I recognize that this breach is serious in so far as it continues to this day. This is not a case of a late report, but a complete failure to file a report. However, the authorities on this issue are deeply divided, with an eminently respected Justice of this Court, Justice Akhtar, having recently directed that a second Report was not required (Robinson was released on March 31, 2021; police filed the Report to Justice in relation to the Vu warrant for Mr. Anderson’s iPhone on January 20, 2022). Again, I am satisfied the affiant acted entirely in good faith in this case. He was attempting to follow the prevailing law. Moreover, his interpretation of that law was reasonable. In these circumstances, I do not find the police failure to make a second Report serious. Indeed, accepting that multiple breaches can have a cumulative effect, in the circumstances of this case, I do not believe the second breach adds anything to the seriousness of the first breach. The cumulative effect of both breaches continues to pull only modestly toward exclusion.

85Turning to the impact of the breaches of Mr. Anderson’s residual privacy interest in his cell phone and data, I believe the impact is negligible respecting the physical cell phone. Mr. Anderson’s residual privacy interest in the physical phone was minimal, and the delay in filing the Report was minimal. He knew his cellphones were seized by police upon his arrest. While a greater privacy interest no doubt persists in the data contained in the cell phone, I believe this is off set by the fact that police did file a Report to Justice respecting the seizure of the phone for the explicit purpose of examining its data.

86The authorities requiring a second Report to Justice when data is imaged or seized have consistently admitted the seized data under s.24(2): Jattori-Williams at para. 223; Da Costa and Jeffrey at paras. 52-53; Sinnappillai at para. 105; Neill, at paras. 99-100 and 103-105. In sum, I find the cumulative effect of both breaches on Mr. Anderson’s residual expectation of privacy in the phone and its data neutral, neither pulling toward exclusion or inclusion.

87Finally respecting the reliability and importance of the iPhone and the data it contains, I find both pieces of evidence reliable and important. Although neither were essential to the Crown case, they were nonetheless both important.

88The two “four-handgun videos” found on the iPhone (discussed below) potentially provide evidence of means, proximate to the murder, depending on what inferences the jury draws from them. As does the Taurus-gun video. Means are relevant to identity, which is the essential issue in this case.

89The rap lyrics (also discussed below) provide evidence of animus and association. The evidence of animus is particularly important in the circumstances of this case. Without it the jury is left entirely in the dark in trying to understand a planned and deliberate attack of astonishing violence. The evidence of animus provides a potential explanation for why two such nice young men could do something so awful.

90When I consider all three lines of inquiry, I am satisfied that the iPhone and the data it contains should be admitted at trial. Exclusion, not admission, would bring the administration of justice into disrepute.

CROWN APPLICATION TO ADDUCE EXTRINSIC MISCONDUCT EVIDENCE

91The Crown seeks to adduce two categories of extrinsic misconduct evidence, both of which were found on Mr. Anderson’s cell phone. First, photographs and videos of guns the Crown argues are probative to means to commit the offences (and by extension identity). Second, draft rap lyrics for “Peppered” and “Bxtches” that the Crown argues are probative to animus (and by extension identity). The Crown concedes Bxtches is admissible only against Mr. Anderson but argues that Peppered is admissible against both accused.

92Defence counsel argue that both categories of evidence are so problematic they are almost devoid of probative value, while bringing considerable moral and reasoning prejudice. Mr. Harvey argues that the problems are magnified in his case as the evidence is more tenuously linked to him. If extrinsic misconduct is admitted against Mr. Anderson only, Mr. Harvey will be tarred by it by virtue of his close association with Mr. Anderson.

93While only the evidence from the first category (photographs and videos) is presumptively inadmissible, given the dangers associated with rap lyrics (discussed below), it is common ground that evidence from both categories can only be admitted at trial if the Crown shows it is relevant and material (to a live issue), and the probative value of the evidence exceeds its prejudicial effect (including both moral and reasoning prejudice). Probative value can only be understood and assessed in relation to the specific issues that the evidence relates to. Its strength, or cogency or connectedness, turns on the extent to which it supports the inferences sought to be drawn. It is also necessary to consider whether any frailties in the evidence reduce its probative value: R. v. Handy, 2002 SCC 56; R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 145 C.C.C. 3d 449, at paras. 98-104; R. v. ZWC, 2021 ONCA 116, at paras. 98-100; R. v. Chizanga, 2024 ONCA 545, per van Rensberg, J.A., at para. 145.

Background facts

94Counsel very helpfully reached an agreed statement of facts in relation to most of the facts on this application. They are complicated. I will not summarize them but instead attach them as Appendix A. After the motion was argued, they were supplemented by additional agreed facts which I attach as Appendix B. I attach the rap lyrics for Bxtches and Peppered as Appendix C.

95At the outset of oral argument, in addition to the agreed facts, both defence counsel admitted that all four accused know each other. No detail was provided about the extent of the association.

96On behalf of Mr. Anderson, defence counsel also admitted that Mr. Anderson checked into the Chelsea Hotel on September 17, 2021, wearing a V-Walker pendant (but not that he was there on the day of the murder). Defence counsel notes that the V-Walker pendant is not distinct, but simply a pendant associated to a community in Toronto (the area of Alexandra Park surrounding Vanauley Walk), worn by a number of people. Defence counsel filed an Affidavit showing that a number of people wear V-Walker pendants, including the rap artist AP BABYYY, whose Instagram handle is “V Walker”, and the rap artist 0mizzle, both of whom also wear MG4L pendants. In addition, other unnamed people wear both pendants. There is no evidence that only a member of the MG4L collective could wear the V-Walker or MG4L pendants, as opposed to a fan.

97It was common ground that 59 cartridge casings were found at the scene, in two calibres: 31 x .40 calibre Smith and Wesson cartridge casings and 28 x 9 mm Luger cartridge casings. A number of guns fire .40 calibre Smith & Wesson ammunition, including a Glock 22. A number of guns fire 9 mm Luger ammunition, including a Glock 48.

98One of the guns used in the murder (a Glock 48 manufactured in Austria) was found almost a year later, on September 14, 2022, in the possession of Quinn Sinkia-Pryce in his home in Scarborough. It is common ground that this “murder gun” is not one of the four handguns shown in the two “four-handgun” videos, discussed below, and at issue in this application (it has visibly different features than the Glock 48 described as gun 1 in the four-handgun video). Further, it is common ground that Mr. Sinkia-Pryce has no connection to either Mr. Anderson or Mr. Harvey.

Expert evidence about the “four-handgun” videos

99On the consent of all counsel, both DC Daniel Morgan (called by the Crown), and Liam Hendrikse (called by the defence), were qualified to give expert evidence in the identification, classification, and examination of firearms and ammunition.

100Both experts agreed that of the four handguns shown in the “four-handgun video”, only the one on the bottom left (referred to as gun 1) can be identified as a real handgun, namely a Glock model 48. It fires 9 mm Luger ammunition. DC Morgan based this conclusion on the following:

• Glock calls this a “slim line” handgun. The front frame is shorter than where the barrel and slide stick out. Older versions have thicker magazine with a double stack magazine. This gun has a single stack which is thinner and easier to conceal.
• The serial number is visible on the slide and barrel - AEAE783. DC Morgan was able to trace it to a Glock 48 purchased from a dealer in Enid, Oklahoma on March 6, 2020.
• Other models of Glock are much more common, and he did not believe replica air or pellet guns were modelled after the Glock 48.
• He has examined hundreds of replica air or pellet guns. They often have aesthetic serial numbers like GUW019 or GUW017, but he has never found one with a serial number that links back to an actual firearm.
• Just above the trigger there is spot where one can push out a pin. There is a tiny map of Georgia with P stamped on it as a proof mark. DC Morgan has never seen this on a replica air or pellet gun.

101Both experts agreed that it was possible that the other handguns were also real, but they could not say for certain. DC Morgan believed that gun 2, on the left above gun 1, was a real Glock 22, which fires .40 calibre Smith & Wesson ammunition, but DC Morgan could not say for sure. He explained that, in his experience, the Glock 22 is a much more common gun than the Glock 48. In addition, he did not have as much information to go on as with the Glock 48. He noted that gun 2 is marked as a Glock 22, manufactured in Austria, but this would also be the case if it was a replica. Further most replica Glock 22s are marked as having been manufactured in Austria, as opposed to the US. Mr. Hendrikse did not dispute any of this and added that there was nothing shown in the video that was inconsistent with gun 2 being a replica.

102Regarding guns 3 and 4, on the right side of the video, DC Morgan explained that these guns resemble full size frame non-compact Glock handguns, but he could not tell if they were real or replica air or pellet guns. Nor could he say the model or what calibre ammunition they fired. Mr. Hendrikse did not dispute any of this and added that there are dozens of specific models of Glock handguns.

103For both guns 3 and 4, the serial number was removed from the slide. In DC Morgan’s experience, this was uncommon on a replica. He agreed that it was possible to remove the serial number on a replica but explained that it was uncommon in his experience. He believed he had maybe seen it once. He estimated that he had dealt with over 100 real firearms which had the serial number removed.

104Mr. Hendrikse testified that he had seen 6 or 7 cases where the serial number was removed from a replica, for example where an individual purported to sell a real firearm but it was actually a replica. He had never personally handled a replica Glock with an abraded serial number. His experience with this situation was through documentation and photographs. He did not believe it was a rare situation, but he believed DC Morgan had better statistics. He noted simply that it happened. He estimated that he had examined about 150 real guns, about half of which had the serial number scratched off.

105Both experts agreed that it is necessary to handle and test fire a firearm in order to conclude it is operable. The most that could be said in relation to firearm 1 was that it was real, and it was manufactured to be operable.

106Both experts agreed that a replica intended to look identical to a real Glock handgun can be purchased at Canadian Tire for less than $200.

The photographs and videos of guns

107Justice Code recently summarized the relevant law in R. v. Stanley, 2020 ONSC 6673. I cannot improve on it, and adopt it:

21 Evidence that the accused acquired or possessed "instruments, tools or other means of doing the act" has always been admissible to prove the identity of the perpetrator. Martin J.A. (Jessup and Dubin JJ.A. concurring) gave the judgement of the Court in R. v. Davison, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 at 436-7 (Ont. C.A.). He cited a long line of English and Canadian authority and the leading American text, Wigmore on Evidence, on this point. The accused Davison had been found in possession of two publications titled the Safeman's Guide and the Locksmith's Ledger. It could be inferred that the sophisticated bank robbery in that case had been perpetrated "by means of a key" used to open two locked doors leading to the bank's money counting rooms. As Martin J.A. put it (at p. 445 C.C.C.), "the appellant's possession of the incriminating material...was relevant and admissible to prove design and on the issue of identity."

22 Over twenty years after Davison was decided, the Supreme Court cited it with approval in R. v. G. (S.G.) (1997), 1997 CanLII 311 (SCC), 116 C.C.C. (3d) 193 at 217 (S.C.C.). Cory J. gave the unanimous judgement of the Court on this point, stating that "Evidence which incidentally demonstrates bad character can also be directly relevant to a key element of the Crown's theory of the case, such as motive, opportunity or means" [emphasis added].

23 There is now a considerable body of authority applying the above principle in murder cases where the "means" used to commit the offence was a knife or a firearm and where the accused was allegedly in possession of that knife or firearm at some point before or after the offence. In particular, in R. v. Backhouse (2005), 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d) 1 at paras. 156-172 (Ont. C.A.), the Court held that the accused's possession of the murder weapon some nine or ten months after the murder was admissible in relation to the issue of identity. Rosenberg J.A. (Goudge and Borins JJ.A. concurring) reasoned as follows:

This line of reasoning, which flows simply from the fact that the appellant was in possession of the murder weapon at some time after the killings, does not depend on similar fact reasoning from disposition. The appellant's possession of the murder weapon is nothing more than circumstantial evidence of his involvement in the killings.

As I have stated above, the fact that the appellant was in possession of the murder weapon some ten months after the killings was some evidence of his involvement....[I]t is the fact of possession that gives the evidence its probative value….

The mere fact that the appellant had possession of a restricted weapon was itself discreditable conduct and did carry some prejudicial effect. However, the probative value of that evidence outweighed the prejudicial effect. [Emphasis added by Justice Code].

24 The Court in Backhouse held that the accused's "after the fact possession of the murder weapon" was admissible…for the reasons set out above. It is noteworthy that Rosenberg J.A. was of the view that the legitimate probative value of the accused's subsequent possession of the murder weapon, on the particular facts of the Backhouse case, was not great. He nevertheless held that this evidence of subsequent possession (but not use) was admissible…. a point which experienced appellate counsel had conceded. In regard to the legitimate probative value of the accused's subsequent possession of the murder weapon, Rosenberg J.A. stated, "evidence that the appellant...was in possession of the gun used in the [subsequent] shootings was some evidence that he was involved in the [charged] shootings. This inference, while available, was not a strong one given the passage of time (eight months), the relative ease with which guns can be passed around in the criminal underworld, and Cadman's evidence that the appellant was not in continuous possession of the gun following the [charged] shootings." Also see: R. v. Moore, 2015 ONSC 728 at paras. 28-49; R. v. Brown, 2020 ONSC 3280 at paras. 19-23; R. v. Kinkead (2003), 2003 CanLII 52177 (ON CA), 178 C.C.C. (3d) 534 at paras. 65-84 (Ont. C.A.); R. v. Johnson, 2018 ONSC 1552 at paras. 15-26; R. v. Riley et al 2009 CanLII 15451 (ON SC), [2009] O.J. No. 1374 at paras. 100-110 (S.C.J.), aff'd (2017), 2017 ONCA 650, 351 C.C.C. (3d) 223 at paras. 149-160 (Ont. C.A.).

108Ultimately, among other evidence, Justice Code admitted a photograph of Mr. Stanley with a revolver that looked very similar to one of the two guns used in the murder. He explained:

26 In my view, the photographs seized from the cell phone are clearly admissible …. There is a compelling body of circumstantial evidence inferring that the cell phone in question belonged to Stanley and that the person depicted in the colour photographs is Stanley. There are also a number of distinctive similarities between the revolver in the person's lap in the photographs and the Taurus revolver seized from Trevor Barnett on April 16, 2017. In addition, there is evidence that the photographs were taken on April 2, 2017, which is proximate to the date on which the gun was used (April 15, 2017), and the date on which it was seized (April 16, 2017). Finally, there is evidence of an apparently close association between Barnett and Stanley on April 13, 2017 (and arguably on April 15, 2017, depending on the inferences drawn from all the evidence relating to that date). In all these circumstances, it will be open to the jury to infer that Stanley was in possession of the Taurus revolver used in the murder of Samatar Farah. Indeed, this inference is stronger on the facts of the present case, than it was on the facts of Backhouse, as explained above.

109Justice Code contrasted the evidence in Stanley, with the evidence in Brown, which was not as strong, but a photograph of a gun on the accused’s cell phone was nonetheless admitted at trial:

27 In R. v. Brown (2018), 2018 ONCA 481, 361 C.C.C. (3d) 510 (Ont. C.A.) the Court held that photographs seized from the accused's cell phone were admissible at his trial for possession of a loaded prohibited firearm (contrary to s. 95 of the Criminal Code). Unlike the present case, the photographs in the Brown case did not depict the accused actually in possession of a gun. They merely depicted a gun. Furthermore, the gun depicted was said to only "resemble" the seized gun on the basis that it was "at least probably the same make or model" as the seized gun (see paras. 6 and 27 of the Court of Appeal's reasons), whereas in the present case there are detailed similarities between the two guns. Finally, there is no indication in the Brown case of the date when the photograph was taken, unlike in the present case, and whether it was proximate to the date of the alleged offence. On this weaker set of facts, the Court of Appeal agreed with the trial judge (at paras. 31, 35 and 42 of their reasons) that "the photographs were circumstantial evidence that connected the appellant to the gun...It was common ground that it was open to the jury to find that the images in the appellant's cell phone were of the gun. In such a case, they would be highly probative to the issue of possession...In such a circumstance the photographs would not be extrinsic character evidence - they would be relevant circumstantial evidence of possession."

110Consistent with Stanley, in R. v. Asante, 2022 ONCA 657, the Court of Appeal upheld the admission of a photograph of a handgun taken about four months before the murder and found on the accused’s cell phone. The handgun in the photograph resembled two potential models, one of which was consistent with the cartridge casings found at the scene. The Court of Appeal upheld the trial judge’s conclusion that the photograph was circumstantial evidence connecting the accused to the type of handgun used in the shootings which inferred access to and possession of a handgun similar to the type used in the shootings (and thus means to commit the murder). The trial judge noted that his conclusion was bolstered by a cut-throat defence, but the Court of Appeal noted that this is not what drove the conclusion:

The trial judge did not rule the photo admissible based on the cutthroat defence. He admitted the photo on the premise that the gun in the photo was similar in type to the murder weapon and, thus, was probative of the appellant’s access to or possession of the type of hangun used in the shootings (para.31).

111Defence counsel argued that when a firearm is only established to be similar, and not the same, as that used in an offence, it has only been admitted to show means when linked to an accused before the offence. Further, this is always the case for photographs of firearms, as a firearm in a photograph can never be shown to be the same as that used in the offence (because of the limitations of what can be observed from a photograph). I do not accept this proposition. It is not born out by the case law (see for example para. 23 of Stanley, and Brown, as described above). More importantly this “rule” obscures the essential issue which is the balance between probative value and prejudicial effect in the particular circumstances of the case. However, I do agree with the defence that the evidence of access or means must be sufficiently proximate to the offence in order to have probative value.

112I begin with the photographs of Mr. Anderson with what appears to be a handgun at his waistband (which appeared on his cell phone on December 8, 2021), and a long gun resting against his head (which also appeared on his cell phone on December 8, 2021). I will not admit either photograph. While these images suggest Mr. Anderson had access to firearms, and are thus relevant to means, there are significant issues which diminish their probative value. There is no metadata attached to either photograph. All we know is when they were saved on Mr. Anderson’s cell phone. There is no evidence as to when these images were taken, how they got on Mr. Anderson’s cell phone, or anything about their provenance. While an inference can be drawn that Mr. Anderson took the selfie-like photograph with what appears to be a handgun in his waistband, we know that he was somewhere out west on December 8, 2021, and we know that when he flew back to Toronto on December 12, 2021, he did not travel with a firearm. Thus, assuming the selfie was taken on the date if appeared on Mr. Anderson’s cell phone, he possessed this gun outside Toronto, considerably after the offence.

113Comparing the two photographs also gives me pause about when they were taken. Notwithstanding that they appear on his cell phone the same day, Mr. Anderson’s hair is much longer in the selfie than in the photograph of him resting the long gun against his head. Further it is not possible to tell whether either gun is real. Even assuming they are, the long gun is a very different gun than the handguns used in the murder. And if the selfie was taken on the date it appeared on the phone, the handgun shown could not have been in Toronto for the shooting, as Mr. Anderson did not fly with it. All that to say, I find the probative value of both photographs to be limited. At the same time, they give rise to significant moral prejudice in so far as they suggest Mr. Anderson likes guns, and thus could be more inclined to use them. I do not even need to consider reasoning prejudice to conclude that the value of these photographs at trial is not worth the risk of prejudice they bring.

114Regarding the photographs Mr. Anderson sends Mr. Harvey on September 15, 2021, of himself holding a large stack of cash (in 100s and 20s), while wearing the V-Walker pendant, I will not admit them in their current form. I think the link between the cash and the line in “Bxtches” about a “Quick 17 grand” is too tenuous to give these photographs probative value. At the same time these photographs have significant potential for prejudice as they suggest Mr. Anderson is a criminal, with access to a large amount of case presumably through criminal means. However, the fact that Mr. Anderson is wearing the pendant is probative and not prejudicial. A sample photo or photos showing this, with the cash edited out, is admissible at trial. I do not see the prejudice in the edited form I propose.

115Turning now to the two videos of four handguns surrounding a V-Walker pendant and a MG4L pendant (the “four-handgun videos”), the first appeared on Mr. Anderson’s cell phone on October 6, 2021, and the second, with the label “G22/G48” added, appeared on October 13, 2021. As with the other gun photographs and videos, these videos have no metadata. There is no evidence as to when they were created, by whom, in what circumstances, or anything about their provenance. What we know is that the first video appeared on Mr. Anderson’s cell phone on October 6 (counsel elaborated that this suggested it was saved to the phone this day), and the second video appeared on October 13, 2021. Both dates are proximate to, but after, the date of the murder (September 18, 2024). Further we know that the one handgun that police have recovered and identified as having been used in the murder is not shown in the video. Notwithstanding these issues, I find that both videos, especially when considered together, have significant probative value in showing that both accused had the means to commit the murder:

• The videos show 4 handguns, the number of handguns used in the shooting: a Glock 48 (it is gun 1, in the bottom left corner, and is the handgun both experts agree is real); a Glock 22 (it is gun 2, directly above gun 1 on the left side); and two full size Glock-like handguns (guns 3 and 4 on the right side), the exact make and model of which could not be determined.
• While the experts can only say with certainty that the Glock 48 is real, a jury could reasonably conclude that all four handguns were real.
• Assuming the 4 handguns were real, the handguns shown in the video includes types capable of firing the kind of cartridges found at the scene: the Glock 48, among other guns, fires 9 mm Luger cartridges; the Glock 22, among other guns, fires .40 Smith & Wesson cartridges.
• The second video with the label “G22/G48” suggests the person who added the label knew the type of handguns shown.
• While neither accused, or any person, is visible in the videos, the guns surround pendants associated with each accused. Mr. Anderson wears a V-Walker pendant, like the one in the video, including when he checked into the Chelsea Hotel on September 17, 2021, and checked out on September 21, 2021. Mr. Harvey wears a MG4L pendant, like the one in the video, when performing in rap videos. Based on some of the clips from rap videos, he also appears to have MG4L tattooed on his forearm. I recognize that these pendants are not unique, and others wear the same or similar ones, but they are distinctive and are associated with both accused, including during times proximate to the murder.
• Mr. Anderson and Mr. Harvey are closely connected. They are in communication leading up to the murder and in the months after. When Mr. Harvey leaves the Chelsea Hotel after the murder, and takes a Lyft home (which was apparently ordered by Mr. Anderson’s cell phone), he is carrying a satchel that looks like the one he appeared to try to hide from police when they searched his home (it contained a gun case when police found it). Mr. Anderson leaves the Chelsea Hotel around the same time as Mr. Harvey. He returns shortly after carrying what appears to be the same satchel Mr. Harvey left with.

116I do not believe the four-handgun videos pose a significant risk of prejudice. Beginning with moral prejudice, the videos do not show either accused, greatly minimizing the risk of improper propensity reasoning. I recognize that this also diminishes their probative value, but I believe the videos still have significant probative value. They are very specific: four handguns are shown, including the types capable of firing the cartridges found at the scene, surrounding distinctive pendants linked to both accused. Although one of the guns show in the video was clearly not used in the murder, the video infers access to multiple handguns including makes and models capable of firing the type of ammunition found at the scene. It is well-established that this is relevant to means and identity.

117Nor am I concerned about reasoning prejudice. While the jury will have to grapple with the expert evidence, and decide whether the guns are real, this evidence is focused and not particularly complex. It only took about an hour to hear from both experts during the admissibility voir dire. On balance, based on the circumstances put before me on the application, I am satisfied that the probative value of both four-handgun videos exceeds their potential for prejudice. Defence counsel acknowledged in argument that if the first four-handgun video is admitted, the second adds little if any prejudice. It does add probative value, however, in so far as it infers knowledge of the make and model of the guns shown, which is linked to the cartridge casings found at the scene.

118Finally, I turn to the video of the single handgun that both experts agree it is a real Taurus PT745 Millennium Pro handgun with serial number NCS11435. DC Morgan was able to trace the gun to a purchase in Norcross, Georgia, on June 2, 2010. The handgun is turned over and moved around over the course of the video – displayed really – so that it is visible from multiple angles, including down the barrel where a bullet is visible in the chamber, ready to fire. Based on the extensive views provided, both experts agree it is a real handgun, though without actually firing it they cannot confirm it is operable. Both experts also agree that the handgun was not used in the murder as the Taurus fires .45 calibre ammunition, and the 59 cartridges found at the scene were 9 mm Luger and .40 calibre Smith & Wesson. It is an agreed fact that Mr. Anderson and Mr. Harvey are not visible in the video, and neither is the person who is handling and displaying the firearm.

119No metadata is attached to the video. We do not know when or how or why the video was created, who is holding the handgun, or when, why or how it got on Mr. Anderson’s cell phone. What we know is the video appeared on (or was saved to ) Mr. Anderson’s phone on October 12, 2021. In addition, a radio clip, which originally aired on September 18, 2021 (the day of the shooting), can be heard during the video. While this p does not prove that the video was made on September 18, 2021, this is an available inference. The tight proximity to the timing of the murder gives the video significant probative value on the issue of means. While we know that the Taurus handgun was not used in the murder, the video suggests access to handguns proximate to the murder. This is important, as we know at least one of the handguns in the four-handgun video was not used in the murder. We also know that whether three of the handguns in the four-gun video are real is hotly contested. In sum, notwithstanding the shortcomings of the provenance of the video, I believe it has significant probative value on the issue of means.

120While both the four-gun video and the Taurus-gun video are probative to means, I do not think the Taurus video is more of the same such that it simply “piling on”: R. v. Candir, 2009 ONCA 91 at para.60. It adds distinct and important information. The radio clip potentially links the video to the day of the murder. In addition, it is indisputably a real gun. Access to real guns proximate to the murder lies at the heart of the question of means.

121At the same time, I do not see the Taurus-gun video giving rise to significant prejudice. The moral prejudice is minimal. Neither accused is present in the video, thus there is limited risk of improper propensity reasoning. While this also diminishes the probative value of the video, for the reasons I explained, I believe it is nonetheless probative. Nor do I see significant reasoning prejudice. There are frailties and complications in the evidence given its uncertain provenance, but they are easily explained and understood. Based on the circumstances before me, I am satisfied that the probative value of the video exceeds the risk of prejudice (moral and reasoning) it poses. It is admissible.

122These videos are not statements, admissible only against the speaker. They are circumstantial evidence of means relevant to the essential issue in this case - the identity of the four shooters. They are admissible against both accused.

The rap lyrics

123Rap lyrics are potentially admissible as statements by an accused. Before they can be admitted, however, there must be a threshold assessment of what inferences may reasonably be drawn from them in the circumstances. This is because rap is artistic expression, often celebrating toughness, thus it may not be reasonable to conclude the lyrics are true, let alone the views of the lyricist or an admission that the lyricist acted in accordance with the lyrics: R. v. Mills, 2019 ONCA 940; R. v. Skeete, 2017 ONCA 926; R. v. Ali, 2024 ONSC 5208; R. v. Millard, 2017 ONSC 5275; R. v. Campbell, 2014 ONSC 6199.

124Given the often violent content of rap lyrics, it is also necessary to ensure that the probative value of the lyrics exceeds their potential for moral and reasoning prejudice.

125Rap lyrics have probative value or cogency where there is a significant connection or nexus or correspondence between the lyrics and the offence when all the circumstances are considered, including temporal and contextual connections, and how distinctive the lyrics are in relation to the details of the offence. The nature and extent of the connection required will depend on how the raps are relevant, and the chain of reasoning involved.

126Given the potential for misunderstanding and prejudice, courts have been cautious about admitting rap lyrics into evidence. In assessing whether the necessary connection/nexus/ correspondence exists to give the lyrics probative value, however, courts should not lose sight of the forest for the trees. The entire context must be considered. As the unanimous Court of Appeal explained in Mills:

122 While we accept that rap lyrics can constitute a form of artistic expression and do not dispute the appellants' suggestion that courts must be alive to the risk that they may trigger or inflame stereotypical assumptions about race and culture, these factors alone do not render them prima facie inadmissible in a criminal trial. Although they are factors that must be taken into account in determining the probative value of those lyrics and any prejudice that may flow as a result of admission, as with much art, rap lyrics can carry artistic meaning while at the same time reflect real life events. For instance, while we agree with the sentiment that no one would seriously think that just because someone writes and sings about having shot a sheriff he or she actually engaged in that act, if charged with that exact act, accompanied by other circumstantial evidence suggesting the singer actually committed that act, it may be that the lyrics would take on a much more probative posture.

127In this case, I am satisfied that “Peppered” has significant probative value in relation to the association between all four accused and animus (which is relevant to identity). The nexus or connection or correspondence between the rap and the murder includes the following:

• The rap has a close temporal connection to the murder. The first draft of the lyrics appeared in the “Notes” of Mr. Anderson’s iPhone on September 27, 9 days after the murder. The note was titled “Peppered x RD x JMoney”. The lyrics were modified on November 15, 2021.
• The rap has a close contextual connection to three of the four accused.
  • The lyrics are in Mr. Anderson’s cell phone. Mr. Harvey and Mr. Campbell are credited as co-writers. The lyrics were later modified, including to add Mr. Anderson (Mr. Walk-Thru) as a co-writer (see label of audio file sent September 29, 2021, and October 20, 2021 note, apparently about a video, which refers to a V-Walker necklace, and “Officially 3 artists on the song, not 2”). Mr. Harvey was always credited as a co-writer. This never changed, including after the audio track was sent to Mr. Harvey. He is also listed as co-writer in Mr. Anderson’s October 10, 2021 note which appears to be about shooting a video about the rap in Regent Part in January. The three co-writers, Mr. Anderson, Mr. Harvey and Mr. Campbell, happen to be three of the four people police roughly tracked from the murder scene to the Nissan Altima parked on McGill Street shortly after the murder.
  • An audio file labelled “Mr. Walk Thru x RD x JMoney – Pepp.mp3” was sent from Mr. Anderson’s cell phone to the cell phone associated with Mr. Harvey via a text messaging app on September 29, 2021. Mr. Harvey did not acknowledge receipt, and the software does not indicate whether the song was played. Nonetheless, I am satisfied that it is a reasonable inference that Mr. Harvey received the song and listened to it (ultimately this will be a question for the jury). The song was sent on a text messaging app that Mr. Harvey and Mr. Anderson regularly used to communicate before and after the recording was sent, including to send other music files. Mr. Harvey did not acknowledge receipt of any of the music files Mr. Anderson sent him (15 in total between September 4, 2021, and November 18, 2021) but, as I noted, they regularly used the app to communicate with each other during this time period.
  • Defence counsel argued that the fact “@Kakirabeat” is also listed in the credits significantly breaks the link between the accused as co-writers. Without accepting the logic of this submission, it has no merit on the facts: according to DC Sarjoo’s report, Kakira is simply a down-loadable beat.
• The lyrics describe the murder of a man in Regent Park who gets “peppered” by a group of men. The rappers describe a block that gets “peppered” where they “catch one”, a “Head shot, he had a seizure” leaving him “DOA” (Thane Murray had no vital signs when first responders arrived, and was face down with his eyes open), putting him on a “t-shirt”, “sending him straight to Jesus”, and making them “RP killas”. While all this sounds remarkably similar to the murder in this case, it is not particularly specific, especially considered in light of Justice Nordheimer’s analysis in Campbell. However, the lyrics also contain very specific details that correspond to the circumstances of the murder alleged by the Crown.
  • The lyrics open with “Your block is getting Peppered / MG4L man”. MG4L is on a pendant worn by Mr. Harvey, and I believe a tattoo on his forearm (based on my review of the clips from rap videos in the original Crown’s application record which was eclipsed by the agreed statement of facts). It is one of the pendants in the four-handgun video. As noted at the outset, MG4L is a rap collective associated to both accused and the Alexandra Park neighbourhood (and also a violent street gang but I understand all counsel agree that this aspect of MG4L should have no role in the trial).
  • The lyrics explicitly refer to two of the four people who emerged from the Nissan Altima which parked on McGill Street around 9:05 pm on September 18, 2021 (the car police roughly tracked leaving the area of the murder immediately afterwards): Mr. Harvey and Mr. Campbell. The lyrics were begun shortly after the murder. Even the amended lyrics came at a time (November 15, 2021) well before police laid charges or arrested anyone identifying them as accused of the murder. The references to Mr. Harvey and Mr. Campbell include:
    • JM, call them jeeper, Creeper (it is an agreed fact that Mr. Harvey goes by the nickname JMoney);
    • They know RD quick to leave em, ah (while there is no agreed fact respecting RD, the Crown explained that Mr. Anderson had the telephone number police were able to associate with Mr. Campbell saved in his phone as “RD”).

128The fact that rap lyrics may give rise to different or competing reasonable inferences is not a reason to exclude the lyrics as lacking probative value: Skeete, para.145. Nonetheless, as part of my threshold assessment of connection or nexus, I consider possible exculpatory explanations for the connections other than participation, such as being an observer or narrator, or coincidence (see eg. Justice Nordheimer’s analysis in R. v. Campbell, 2014 ONSC 6199). The timing of the lyrics, the fact that the co-writers are three of the four men police roughly tracked to McGill Street after the murder, and the reference in the lyrics to two of the four men tracked, all well before police publicly identified the accused, satisfies me that there is a significant connection between the rap and the murder.

129I appreciate that rap is art and not necessarily truth, and exculpatory inferences exist, but, for the reasons I have just tried to explain, I find the rap lyrics in Peppered to have probative value in relation to the issues of association and animus/identity in this case. Animus is highly material. The Crown has honed the extrinsic evidence of misconduct with admirable focus and fairness. I have edited it further. Without some evidence about animus, the jury will be left entirely in the dark about why two such nice young men could do something so terrible as this planned and deliberate murder.

130I also appreciate that the lyrics give rise to moral prejudice in so far as they glorify violence. But I do not see a significant danger of propensity reasoning. Rapping about violence is a far cry from committing it. It is not the sort of poison that could seep into a juror’s mind like “quicksilver” and overwhelm. Indeed, the raps on their own mean little. Only as a piece of circumstantial evidence considered with the other evidence do they attain potential significance. I also appreciate that the raps will involve the jury analyzing the evidence and deciding what inferences can reasonably be drawn from it, but the raps are not lengthy or complex, and the jury will have to sort through much of the related evidence in any event. In addition, the issue of the probative value and prejudicial effect of rap lyrics is easily amenable to a forceful jury instruction about permissible and impermissible uses.

131Turning now to the lyrics of Bxtches, I am also satisfied that it has significant probative value in relation to animus/identity and the association between all four accused. The following show a nexus or connection between the rap and the murder:

• The rap was created relatively proximate to the murder. The extraction report notes a first draft appeared in the Notes of Mr. Anderson’s iPhone on October 17, 2021, just under a month after the murder. The lyrics were modified November 17, 2021.
• There is a contextual connection between three of the four accused in relation to the rap. The lyrics are in a note on Mr. Anderson’s phone, and Mr. Wallahi (a nickname for Mr. Elmi), one of the four people police roughly tracked to McGill Street after the murder, is credited as a co-author. On November 2, 2021, an audio file labelled “Mr. Walk Thru – Bitches.mp3” was sent from Mr. Anderson’s phone to the phone associated to Mr. Harvey via a text messaging app they used to communicate (see description above). For the reasons I explained above, I am satisfied the jury could reasonably conclude that Mr. Harvey heard the song.
• The lyrics of Bxtches describe the murder of one man by four men, all named in the song: “…When we run up turn him victim…Got them glizzards with them switches….Should’ve had it, he lacking (the four accused had handguns, none of the victims did)…The youngboys from my ends (neighbourhood) / We made it happen / Took a couple loses but my V-Walkas still walkin / Chalk him…” While all this sounds very similar to the murder in this case, it is not particularly specific. However, as with Peppered, the lyrics also contain very specific details that correspond to the circumstances of the murder alleged by the Crown:
  • It is a reasonable inference that the reference to V-Walkas refers to a V-Walker pendant, or someone who wears a V-Walker pendant. Mr. Anderson wore a V-Walker pendant around the time of the murder, including when he checked into and out of the Chelsea Hotel before and after the murder. I appreciate that there are other possible exculpatory inferences, such as it simply referred to people who live in the area of Vanauley Walk in Toronto. In addition, defence counsel noted that one of the occurrence reports referred to in the expert report about gangs related to a shooting where a Vanauley Walk resident was shot but survived. I also appreciate that the V-Walker pendant is not unique, and is worn by other people, including rappers using the names AP BABYYY and 0mizzle. Nonetheless I am satisfied that the V-Walker is a distinctive pendant, worn by Mr. Anderson around the time of the murder, and it is reasonable to link the reference to “V-Walkas” to Mr. Anderson.
  • A theme throughout the lyrics, and part of the chorus, is the repetition of certain sound effects or feelings, which occurred during the murder being described in the rap, four times: “grrrt, grrrt, grrrt, grrrt; switch, switch, switch, switch (which the Crown submitted could refer to changing a semi-automatic handgun to a fully automatic handgun); shit, shit, shit, shit.” This resonates with the particular circumstances of this murder which involved four shooters attacking in tandem.
  • The lyrics explicitly refer to three of the four people who emerged from the Nissan Altima which parked on McGill Street around 9:05 pm on September 18, 2021, the car police roughly tracked leaving the area of the murder immediately afterwards: Mr. Harvey, Mr. Campbell and Mr. Elmi. The fourth man who emerged from that car is Mr. Anderson, who wrote or kept the lyrics in the Notes of his iPhone, and who wore a V-Walker. As with Peppered, the lyrics were written and amended well before police laid charges and made arrests identifying the four people accused of the murder. The references to the men who emerged from the Nissan Altima around 9:05 pm on September 18, 2021, include:
    • JM walked him outta Regent (again Mr. Harvey’s nickname is JMoney);
    • Wallahi drowned him the projects (Mr. Elmi’s nickname is Mr. Wallahi); and
    • RD take out the Connections (there is no admission as to Mr. Campbell’s nickname, but, again, the telephone number police associated to Mr. Campbell was saved in Mr. Anderson’s phone as RD).

132As with Peppered I find these circumstances, considered together, highly specific, and the establish a strong connection between the lyrics and the murder, sufficient to give the lyrics probative value on the issue of association and animus/identity.

133The analysis I did above in relation to the moral and reasoning prejudice associated with Peppered applies equally to Bxtches. However, with respect to Bxtches I must also confront the fact that the song is only admissible against Mr. Anderson. Given the close connection between Mr. Harvey and Mr. Anderson, counsel for Mr. Harvey expressed concern about Mr. Harvey being effectively tarred by Bxtches, notwithstanding that it is not admissible against him.

134I do not see this as a reason to exclude otherwise highly probative evidence. Jury trials function on the expectation that jurors follow instructions. I am confident that they will understand that just as Mr. Harvey’s actions in throwing the incriminating satchel containing the gun case out the window when police arrived at his home with a search warrant can only be considered against him, these particular lyrics can only be considered against Mr. Anderson. This is not a case where a large amount of extrinsic misconduct is only properly admissible again one co-accused. Rather this is the only piece, of a highly curated body of extrinsic misconduct, that is only admissible against one co-accused. Nor is it a particularly distinct or powerful piece of extrinsic misconduct. The other rap, Peppered, is admissible against both accused. I do not think the jury will be unable to make the distinction between the two raps, or otherwise be overwhelmed, to the detriment of Mr. Harvey. It is commonplace in trials of co-accused that jurors are instructed that the statements of one accused are not admissible against the other accused.

135In sum, in the circumstances presently before me, I find the probative value of both rap lyrics significantly greater than the prejudice they pose to Mr. Anderson and Mr. Harvey, and the trial process. Like the evidence of gang membership in R. v. Phan, 2020 ONCA 298, the evidence of animus suggested in the lyrics of Peppered and Bxtches provides important context necessary for the jury to do their work in this case. Justice Strathy affirmed the importance of context in Phan, explicitly approving the following statements by experienced trial judges:

Jurors should not be placed in a situation where they are attempting to perform their truth seeking function in what is effectively either a factual vacuum or an artificial one: R. v. Skeete, 2012 ONSC 737 per Nordheimer J.A, as he then was, at para. 15.

Without this background, the jury will be left to puzzle over an allegation of a senseless shooting by individuals who had no motive to do it….I do not think that the jury should be expected to decide this case on the basis of some artificially crafted, antiseptic version of the case: R. v. Riley, 2009 CanLII 15451 (ON SC), [2009] OJ 1374 (SCJ) per Dambrot J. at para.38.

Phan, paras.92-96; R. v. Abdulle, 2023 ONCA 32; R. v. Aragon, 2022 ONCA 244.

Mr. Harvey’s conduct during the search of his home and the Negrini gun case

136In oral argument, defence counsel asserted that I should exclude the evidence that Mr. Harvey threw a satchel out the window of his bedroom as police entered his home to arrest him and conduct a search. I do not view this evidence as extrinsic misconduct. Rather it is directly related to the offence. The search was in relation to the offences at issue in this case. The satchel, and what it contained, are highly probative of his presence at the Chelsea Hotel, and his association with the others accused, particularly at the hotel. After the murder, all four accused are captured on surveillance video walking to the Chelsea Hotel from McGill Street, where they parked the Nissan Altima. Surveillance video shows Mr. Harvey subsequently leave the hotel wearing what looks like the same satchel he threw out the window during the search. Mr. Anderson also leaves the Hotel around the same time and then returns to the hotel, wearing what looks like the same satchel. Sometime later Mr. Elmi leaves the hotel wearing the satchel.

137Whether or not Mr. Harvey’s actions during the search warrant can also form the basis for an after the fact conduct instruction is something to be decided at the end of the case, in light of all the evidence. The possibility that there is an exculpatory explanation for Mr. Harvey’s actions, or that the after the fact conduct instruction may not be given, does not make the underlying evidence inadmissible: R. v. Calnen, 2019 SCC 6 per Martin, J.

138Even if am wrong and Mr. Harvey’s conduct in the course of the execution of the search warrant in relation to the charges he currently faces is properly viewed as extrinsic misconduct, it has significant probative value. I do not see any improper moral prejudice. His actions in relation to a search in this case do not give rise to improper general propensity reasoning. The evidence is straightforward, and I do not see reasoning prejudice. Whether an after the fact conduct instruction will be given is to be decided at the end of trial.

139The Negrini gun case was found in the search of Mr. Harvey’s home in relation to the instant offences. It is not extrinsic misconduct. The Crown can lead evidence that it is manufactured and marketed as a gun case (assuming that is the case). The defence can cross examine to the effect that its use for this purpose is not self-evident, and that it can fit other items like a microphone (assuming that is the case). Ultimately the case is a piece of circumstantial evidence, and it will be for the jury to decided what, if anything, to make of it considered in the context of all the evidence in this case.

140Determining the admissibility of extrinsic misconduct and rap lyrics is about assessing probative value and prejudicial effect in the particular circumstances of the case. To the extent these circumstances change, this assessment may need to be re-visited.

G. ROBERTS, J.

Released: October 3, 2024

COURT FILE NO.: CR-23-70000504-0000

DATE: 20241003

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

NOAH ANDERSON

– and –

JAHMAL HARVEY

Defendants

Pre-trial motions

G. ROBERTS, J.

Released: October 3, 2024

1The nicknames noted were agreed facts on the Crown’s application to admit extrinsic misconduct evidence, except for “RD”. The Crown notes that Mr. Anderson had the telephone number associated to Mr. Angus-Campbell saved as “RD” in his phone contacts.