COURT FILE NO.: CR-23-0147-00 DATE: 2024-10-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING T. Bud & R. Kozak, for the Crown
- and -
KHALID MOHAMED Marchetti & S. Navin Sookram, for the Accused Accused
HEARD: In writing, at Thunder Bay, Ontario
Regional Senior Justice W. D. Newton
Decision on Scopelliti Application
Overview
[1] Mr. Mohamed is charged with the second-degree murder of Steven Burns. His trial will proceed before me without a jury on October 28, 2024.
[2] He brings this Scopelliti application seeking leave to introduce evidence of the prior convictions of the accused for violence.
[3] The Crown acknowledges that certain convictions are relevant, but that the entire record of convictions is not relevant.
The Facts
[4] The Crown acknowledges the following facts:
On the date of this incident, prior to the altercation on Park Avenue, Mr. Keifer Jabic, Mr. Ricky Sakakeesic and Mr. Steven Burns, attended a unit in 36 Cumberland Street South, where the Applicant Mr. Mohamed was located.
According to Mr. Sakakeesic, the three were initially going to attend that apartment to purchase drugs. However, an altercation arose between the parties, where the Applicant, Mr. Mohamed was assaulted during the process and robbed of various items and valuables.
[5] Counsel for Mr. Mohamed alleges the following additional facts:
“that Burns, Jabic, and Sakakeesic violently robbed the defendant, using violence and multiple knives to viciously effect their purpose of talking whatever valuables and drugs they could from the defendant.”
[6] The defence of “self-defence” is “in play”.
The Law
[7] Prior acts of violence by a victim may afford evidence of:
a. The accused’s state of mind; and
b. The probability that the victim was the aggressor in cases of unlawful homicide where the accused relies upon self-defense. (See The Honourable Mr. Justice David Watt, Watt’s Manual of Criminal Evidence, (Toronto: Carswell, 2018) at p. 568.)
[8] In Scopelliti, at paras. 29-30, the court stated:
It is well established that where self-defence is raised, evidence not only of previous assaults by the deceased on the accused, but also of previous acts of violence by the deceased, known to the accused, towards third persons, is admissible to show the accused's reasonable apprehension of violence from the deceased. Evidence of the deceased's reputation for violence, known to the accused, is admissible on the same principle. [Citations omitted; emphasis added.]
Obviously, evidence of previous acts of violence by the deceased, not known to the accused, is not relevant to show the reasonableness of the accused's apprehension of an impending attack. However, there is impressive support for the proposition that, where self-defence is raised, evidence of the deceased's character (i.e. disposition) for violence is admissible to show the probability of the deceased having been the aggressor and to support the accused's evidence that he was attacked by the deceased. [Emphasis added.]
[9] Similarly, in R. v. Golov, 2017 ONSC 6672, at para. 50, the court stated:
That said, a deceased’s disposition or pattern of past behaviour for violence or aggression unknown to the accused, evidence established by otherwise admissible evidence, and not to be governed by the test applicable to evidence of an accused’s similar acts, may, in a case where self-defence is raised, be probative respecting issues such as whether the deceased acted aggressively or provoked the accused on the relevant occasion, whether there existed a risk of harm to be assessed by the accused and the probability that circumstances led to the accused repelling an attack (leaving aside issues of the subjective aspects of an accused’s self-defence claim and whether he responded with excessive violence). The onus is on the prosecution to disprove self-defence where the trial record gives an air of reality to that defence, as will often be the case although the evidence may come exclusively from the accused. [Citations omitted; emphasis added.]
[10] As noted in R. v. Mackinnon, 2012 ONSC 6236, at para. 29, this type of evidence will only be inadmissible where its prejudicial effect substantially outweighs its probative value.
Analysis and Disposition
[11] As noted, the Crown concedes that two convictions are probative: a 2017 conviction for assault with a weapon and a 2021 conviction for break and enter. While not a crime of violence necessarily, such a crime may have some probative value in a case in which a murder follows a robbery.
[12] Mr. Burns has over 50 convictions over 24 years. Some occurred when he was a youth. Not all convictions are of probative value in this case.
[13] The convictions from 2011 to 2021 are sufficiently proximate in time to be of some relevance so those convictions. The convictions for being unlawfully at large, failing to comply with recognizance, undertaking and probation order, and impaired are not probative in this case. But the convictions for break and enter, assault, possession of property obtained by crime, and assault with a weapon are probative in this case. Those convictions and the transcript of the 2017 sentencing for assault with a weapon are admissible.
“Original signed by”
The Hon. Mr. Justice W.D. Newton, R.S.J.
Released: October 7, 2024