Court File and Parties
COURT FILE NO.: CR-24-40000688-0000 DATE: 20241127
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – TAFARI BEZABEH and JUSTIN HARKER
Counsel: Frank Schembri and Ovais Ahmad, counsel for the Crown Dirk Derstine and Jocelyn Heaton, counsel for Tafari Bezabeh Steven Stauffer and Kate Zadorozhnya, counsel for Justin Harker
HEARD: November 18, 2024
M.A. Code J.
REASONS FOR JUDGEMENT ON extrinsic discreditable conduct motion
A. OVERVIEW
[1] The Crown Applicant seeks to tender evidence at trial of certain “extrinsic discreditable conduct” or “extrinsic misconduct”, as it is referred to in the law of evidence. The two accused, Bezabeh and Harker, are charged in a four count Indictment with murder, attempt murder, and two lesser included offences. There was a third co-accused, Campbell-Brown, who was severed during pre-trial motions because of delay that he was causing. In addition, there is a fourth alleged co-perpetrator who is being tried separately in Youth Justice Court (one A. C.-M.). He has pleaded guilty to first degree murder and is awaiting sentencing.
[2] The Indictment relates to two shootings that took place in a neighbourhood of north-west Toronto on June 19, 2022. The two shooting incidents are closely related by time, place, and circumstance. There has been no suggestion that counts relating to the two separate shootings should be severed. Once all the evidence has been heard at trial, I will decide whether the evidence relating to one shooting incident is relevant and admissible in relation to the other shooting incident. That issue is not the subject of the present “extrinsic misconduct” motion.
[3] I heard a number of pre-trial motions in the days leading up to jury selection and the formal commencement of the trial. The present motion was the last of these pre-trial motions. I heard argument of the motion on November 18, 2022. At the end of argument, I made a number of preliminary oral rulings and gave certain directions to the parties, so that jury selection could commence the next day. These are my Reasons for Judgement in relation to those preliminary rulings and directions on the “extrinsic misconduct” motion. I have referred to them as preliminary rulings, in the event that circumstances change during the trial (which is presently ongoing).
B. FACTS
[4] The parties sensibly agreed to the background facts that are relevant to this motion and they summarized those facts in written materials. In addition, the evidence of “extrinsic misconduct” that is the subject of the motion was tendered as photographs or videos obtained from various seizures. As a result, it took little time to present the factual record on the motion.
[5] The evidence of alleged “extrinsic misconduct” that is at issue on this motion comes from three different sources. First, the police executed a search warrant at a townhouse residence in London on July 8, 2022. This was 19 days after the two shootings had taken place in Toronto. Inside the residence, the police seized two loaded handguns and a great deal of ammunition. The seized handguns are not alleged to be the murder or attempt murder weapons used in this case. They are simply generally similar handguns. Some of the ammunition seized at the residence is the same as ammunition used in this case and some is not. The facts relating to the execution of this search warrant at the townhouse in London are set out in detail in my ruling dismissing a Charter motion relating to that search and seizure. See: R. v. Bezabeh, 2024 ONSC 6332.
[6] The second source of “extrinsic misconduct” evidence was found in Harker’s cell phone which was seized incident to his arrest. These photos and videos include images of Harker in possession of a handgun or handguns, as well as certain ammunition. There are also images of Harker associating with the co-accused and with others. Finally, there are images of Harker’s location on certain dates and of the clothing that he was wearing on certain occasions.
[7] The third source of “extrinsic misconduct” evidence was found in Bezabeh’s cell phone which was seized during the search of the London townhouse. These photos and videos include images of Bezabeh in possession of a handgun or handguns. There are also images of Bezabeh associating with the co-accused and with others. Finally, there are images of Bezabeh wearing blue surgical or latex gloves while holding firearms.
[8] I will describe the above three kinds of “extrinsic misconduct” evidence in greater detail in the next section of my Reasons, when analysing admissibility of the evidence. Before turning to that analysis, it is important to set out the background facts relating to the two shooting incidents. It is from those facts that the issues in the case arise and it is those issues that assist in determining whether the legitimate probative value of the “extrinsic misconduct” evidence exceeds any prejudicial effect.
[9] As noted above, the two shooting incidents took place on June 19, 2022 in Toronto. The first shooting was on Amaranth Court at about 4:17 p.m. The second shooting was on Lotherton Pathway at about 4:23 p.m. These two locations are in the same general neighbourhood of north-west Toronto and they were closely proximate in time. In addition, both shootings involved a beige or gold coloured Chevrolet Equinox motor vehicle with license plate CTSD 309. This vehicle had been stolen about a month before the shootings. Its license plate was removed and a stolen license plate (CTSD 309) was affixed to the vehicle shortly before the shootings. Finally, shell casings found at the scenes of the two shooting incidents were tested. This forensic analysis inferred that the same gun was used in both shootings, that only one gun was used in the first shooting, and that three guns were used in the second shooting.
[10] It could be inferred from the above circumstances, that the two shootings were carried out by the same perpetrators. However, there were differences between the two incidents that emerged from eyewitness accounts and from video surveillance evidence. In the first shooting incident, none of the occupants exited the Chevrolet Equinox. The gunshots were apparently fired from the driver side window or windows of the car. Fifteen 9mm Luger calibre Hornady brand shell casings were found at the scene. They were all fired from the same gun. The victim, David Joseph, suffered three gunshot wounds but he survived. The Crown alleges that Harker was the driver and that he fired the approximately 15 gunshots in this first incident. The Crown seeks to identify Harker as the driver of the Chevrolet Equinox, mainly relying on video surveillance images, his relatively distinctive clothing, the fact that he had the key to the Chevrolet Equinox on arrest, and evidence from his cell phone. Mr. Stauffer advised the Court during oral argument of the motion that Harker’s identity as the driver will not be an issue at trial.
[11] In the second shooting incident, three passengers exited from the Chevrolet Equinox. All three fired guns at the deceased, Jaron Williams. Twenty-eight shell casings were found at the scene. They were fired from three separate guns. They included the same Hornady 9mm Luger calibre shell casings left at the scene of the first shooting, as well as a number of other different shell casings. The Crown will seek to identify Bezabeh as one of the three gunmen who exited the vehicle at the scene of the second shooting, mainly relying on video surveillance images, certain aspects of his clothing (in particular, blue surgical gloves), and evidence from his cell phone. Identity is a disputed issue in relation to Bezabeh. The driver (admittedly Harker) did not exit the vehicle during this second shooting and he is not alleged to be one of the three gunmen. The severed co-accused, Campbell-Brown, did not exit the vehicle during either of the two shootings. He is alleged to have remained in the middle of the rear seat. His main role was as the alleged driver of a second motor vehicle, a Ford Escape, which will be discussed below. In addition, it is alleged that Campbell-Brown was knowingly present at both shootings, aiding or abetting and acting in concert with the principals. Finally, the young person A. C.-M. is alleged to be one of the three gunmen who exited the Chevrolet Equinox during the second shooting.
[12] It can be seen that Harker is alleged to be a principal who fired a handgun at the victim during the attempt murder on Amaranth Court and he is alleged to be an aider or abettor who drove the Chevrolet Equinox during the murder on Lotherton Pathway. On the other hand, Bezabeh is alleged to be an aider or abettor who was knowingly present in the Chevrolet Equinox and was acting in concert during the first shooting but he is alleged to be one of the three principals who fired handguns at the victim during the second shooting. In other words, knowing participation or party liability in the two shootings is an issue for both Harker and Bezabeh.
[13] It can be inferred that there were five occupants in the Chevrolet Equinox. That vehicle was abandoned and its stolen license plates were removed, shortly after the two shooting incidents. The five occupants all exited the Chevrolet Equinox and got into a black Ford Escape, apparently driven by Campbell-Brown. Video surveillance evidence shows close coordination between the two vehicles, both before and after the two shootings, inferring some degree of planning.
[14] The video surveillance evidence shows that the black Ford Escape was driven to London, shortly after the two shootings, and immediately after the five suspects had abandoned the stolen Chevrolet Equinox. The Ford Escape was parked on Blackwell Boulevard in London and four occupants of the vehicle entered a townhouse on that street. Once the police learned that the suspects had fled Toronto in the black Ford Escape and that four suspects had entered this townhouse in London, a search warrant was obtained. As noted above, the search warrant was executed at the townhouse on July 8, 2022. It is unknown where the fifth suspect was dropped off after the black Ford Escape left Toronto on June 19, 2022 and drove to London. This fifth suspect, who is one of the three gunmen in the second shooting, has never been identified or charged.
[15] Harker and Campbell-Brown were arrested in Montreal on July 2, 2022, six days before the search warrant was executed in London on July 8, 2022. Harker and Campbell-Brown had possession of the black Ford Escape in Montreal, after it had apparently been driven there from the London townhouse where it was last seen on June 19, 2022. Campbell-Brown had the key to the Ford Escape and Harker had the key to the Chevrolet Equinox. There were relevant shell casings and bullets found in both cars. Relevant clothing was also seized as a result of the arrests in Montreal and the search warrant executed in London.
[16] Finally, analysis of Harker’s cell phone (seized in Montreal) and Bezabeh’s cell phone (seized in London), as well as video surveillance evidence, tracked their movements on June 18th and 19th, 2022. They appear to have left the Blackwell Boulevard townhouse in London on June 18, 2022 and travelled to Toronto in the Ford Escape (together with Campbell-Brown and perhaps others). Similar cell tower evidence and video surveillance evidence tracked the movements of the Ford Escape and the Chevrolet Equinox, before and after the shooting, and captured images of persons associated with the two vehicles.
C. ANALYSIS
(i) The applicable legal principles
[17] The governing evidence law principles relating to the admissibility of “extrinsic discreditable conduct” are now well-settled. For example, in R. v. Stubbs (2013), 2013 ONCA 514, 300 C.C.C. (3d) 181 at paras. 54-56 (Ont. C.A.) they were summarized succinctly by Watt J.A. (Sharpe and Gillese JJ.A. concurring):
First, as a general (but not unyielding) rule, evidence of misconduct beyond that charged in an indictment, which does no more than portray an accused as a person of (general) bad character, is inadmissible: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31 and 36; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 96; and R. v. Cudjoe, 2009 ONCA 543, 68 C.R. (6th) 86, at para. 63.
Said in a different way, what the law prohibits as a general rule is the introduction of evidence of bad character (as revealed by evidence of other discreditable conduct) for use as circumstantial evidence or proof of conduct on the occasion charged: Handy, at para. 31; Moo, at para. 96. The general exclusionary rule is based on several policy considerations, including the potential for evidence of other discreditable conduct to foster prejudice, to distract the trier of fact from the true focus of the trial, and to waste time: Handy, at para. 37. The prejudice this evidence engenders has been characterized as moral prejudice, the danger that a finding of guilt will be grounded on “bad personhood”, and reasoning prejudice, the danger that the evidence will create confusion or distract a lay trier of fact from its true task: Handy, at paras. 139 – 146.
Second, the general rule excluding evidence of other discreditable conduct is not unyielding. After all, sometimes this evidence is so relevant and cogent that its probative value exceeds its prejudicial effect: Handy, at para. 41; Moo, at para. 97; Cudjoe, at para. 63. To engage the exception to the general exclusionary rule, Crown counsel must establish, on a balance of probabilities, that the probative value of the evidence exceeds its prejudicial effect: Handy, at para. 55.
[18] There is now a long line of authority applying the above principles in the context that arises on the present motion, namely, prior or subsequent possession of the means to commit the offence (namely, the murder weapon and/or a weapon similar to the murder weapon). My colleague Nakatsuru J. helpfully summarized many of these authorities in a recent decision of this Court, R. v. Bailey and Garwood, 2023 ONSC 2499 at para. 3, as follows:
While the probative value clearly increases where there is proof of the possession of the actual murder weapon itself, it also can come from evidence that the accused had the opportunity to access a firearm or had the means to commit the offence, whether it is the actual firearm used or not. The following caselaw supports this proposition. In R. v. Abbey, [2007] O.J. No. 855 (S.C.), at paras. 13, 17, evidence from a witness who saw the accused sometime prior to the homicide at a house where guns were present was admitted to prove that the accused had access to guns. In R. v. Riley, [2009] O.J. No. 1374 (S.C.), at paras. 100-110, 166-198, evidence of the accused possessing and using firearms on a variety of occasions was admitted as relevant to narrative, motive, and means to commit the offence. One of the trial judge’s evidentiary rulings was affirmed on appeal on the basis that the prior incident involving guns was properly admitted as circumstantial evidence that the accused had access to the tool to commit the offence, thus supporting proof of his identity as the shooter: see R. v. Riley, 2017 ONCA 650, 351 C.C.C. (3d) 223, at paras. 156, 235. In R. v. Cain, 2015 ONCA 815, 330 C.C.C. (3d) 478, at para. 67, in an incident a few months prior to the homicide, the accused pressed a gun into the stomach of the deceased. This was admitted as being probative to animus, motive, and means to commit the offence. In R. v. Asante, 2022 ONCA 657, at paras. 28-31, Mr. Asante was alleged to be the driver of the car that transported the shooter to and from the scene. There was a photograph on his phone, taken four months prior to the homicide, of a gun on a bedspread similar in pattern to that which was later seized by the police from an apartment linked to Mr. Asante. The Crown had only argued that it was possible that the gun could have been the murder weapon but did not assert that it was. The Court upheld the trial ruling to admit the evidence on the basis that it was circumstantial evidence that Mr. Asante had access to and possession of a handgun similar to the type used in the shootings. See also R. v. Fengstad, [1998] B.C.J. No. 2931 (C.A), at para. 11; R. v. Jacobsen, [2009] O.J. No. 522 (C.A.); R. v. Moore, 2015 ONSC 728, at paras. 47-49, aff’d 2020 ONCA 827, 153 O.R. (3d) 698, at para. 30; R. v. Obregon-Castro, 2020 ONSC 6595, at paras. 27-28; and R. v. Johnson, 2018 ONSC 1552, at paras. 18-26.
Also see: R. v. Backhouse (2005), 194 C.C.C. (3d) 1 at paras. 156-172 (Ont. C.A.); R. v. Kinkead (2003), 178 C.C.C. (3d) 534 at paras. 65-84 (Ont. C.A.); R. v. Brown (2018), 2018 ONCA 481, 361 C.C.C. (3d) 510 (Ont. C.A.); R. v. Stanley, 2020 ONSC 6673; R. v. Anderson and Harvey, 2024 ONSC 5489.
[19] The principles set out in the above line of authority must be applied to a variety of different factual circumstances that arise from the different kinds of “extrinsic discreditable conduct” that the Crown seeks to tender in the present case. I will begin with the most probative of these various items of prior or subsequent conduct and will end with the least probative.
(ii) The images found in Harker’s phone
[20] In my view, the images found stored in Harker’s cell phone are the most probative. These photos and videos show Harker in possession of a handgun (or handguns) on dates proximate to the June 19, 2022 shootings. The images that precede the date of the shooting – from June 11, 14, 17, and 18, 2022 – are important because they not only show Harker in possession of a handgun in the days leading up to the shooting but they show him at the 1195 Blackwell townhouse in London and they show him wearing the same clothing that one of the alleged perpetrators (the driver of the Chevrolet Equinox) was wearing at the time of the shootings. The images from the actual date of the June 19, 2022 shooting, show Harker in possession of a handgun with an extended magazine while wearing the same relatively distinctive clothing as the driver of the Chevrolet Equinox. The handgun’s extended magazine may be significant because the driver of the Chevrolet Equinox may have fired as many as 15 gunshots from the driver’s window of that car, during the first shooting. This would presumably require a large magazine. There are a number of additional images from Harker’s phone showing him associating with Bezabeh and/or Campbell-Brown and/or A. C.-M., either before or after the shootings. In some of these images, one or more of these co-accused possessed a firearm and/or is wearing similar clothing to that worn by one or more of the perpetrators during the shootings. Finally, there is one image of Harker after the shootings, on June 28, 2022, apparently with a firearm in his hand.
[21] I am satisfied that the totality of the above images have a high degree of legitimate probative value that is unrelated to general bad character. The images are closely proximate to the shooting and they connect Harker to a handgun (or handguns) that may have been the one (or ones) used in the shootings. They also connect him to clothing that is similar to clothing worn during the shootings. In addition, they connect him to alleged co-perpetrators and they assist in assessing the character of his relationship with these alleged co-perpetrators (a point that will be discussed below in greater detail). Finally, they connect him to the townhouse in London from which the perpetrators appear to have left on June 18, 2022 and to which they apparently returned on June 19, 2022.
[22] In all these circumstances, this evidence has high probative value in relation to the issues of identity and party liability. Indeed, some of this evidence is so proximate to the two shootings that it may not be “extrinsic” at all. It is also relevant to planning and deliberation in the period leading up to the shootings. For example, the evidence shows Harker on June 11, 2022 examining ammunition stored in two separate magazines that may be consistent with ammunition used in the shootings. The video images also show him on June 17, 18, and 19, 2022, moving from London to Toronto while possessing a handgun or handguns, during the days and hours leading up to the two shootings (this inference of planning and deliberation will also be discussed in greater detail below).
[23] In my view, there is a legitimate inference from the totality of the images stored in Harker’s phone, that he is one of the perpetrators because he possessed the kind of gun and ammunition needed to commit the shootings, he wore relatively distinctive clothing similar to that worn by one of the perpetrators, and he was associating with three other alleged perpetrators before and after the shootings (including while one or more of them possessed a firearm, inferring common knowledge and acceptance amongst this group of their collective possession and/or use of firearms). All of the above uses of the images in Harker’s phone have nothing to do with bad character. They relate directly to the essential elements of the offences charged. Any moral prejudice due to the risk that the jury will reason on the basis of general bad character or disposition to commit the offences, can be controlled by a strong limiting jury instruction. Any reasoning prejudice is minor because the images found in Harker’s phone can easily be proved through real and demonstrative evidence, without any apparent challenge to its reliability or credibility and without any undue expenditure of trial time.
[24] I appreciate that Harker has indicated through counsel that he will admit that he was the driver of the Chevrolet Equinox and that he wore certain relatively distinctive clothing. He was, therefore, involved to some degree in the two shootings. However, he does not admit that he was a principal who fired from the driver’s window during the first shooting, he does not admit prior knowledge in relation to aiding or abetting a murder by the alleged principals in the second shooting, and he does not admit planning and deliberation. All these issues are important and the above body of evidence has significant probative value in relation to those issues. In addition, any prejudice is either minimal or it can be prevented with a strong limiting jury instruction.
[25] In spite of the above analysis, I excluded some of the images from Harker’s cell phone videos. The Crown tendered 20 slides of video images seized from Harker’s phone. There were six slides that I ruled inadmissible for narrow reasons, specific to the particular images. For example, “Slide Two” is a particularly frightening image of Harker holding two handguns together, pointing them directly at the viewer, and pretending to shoot. The date of this image (June 14, 2022) and the location (the townhouse at 1195 Blackwell) means that this slide is quite probative as it shows Harker in possession of two handguns five days before the shooting and it locates him at the place where the alleged perpetrators likely prepared for their departure to Toronto on June 18, 2022. However, the Crown can prove these points with a number of other images (for example, with the images created on June 11, 17 and 18, 2022) and without the same risk of moral prejudice that may arise from the potentially emotional reaction to an image like “Slide Two”. Accordingly, I excluded this slide. Similarly, “Slides Three, Four, and Five” are images of Harker that may have been created a few hours after the shootings, on June 19, 2022, wearing the same relatively distinctive clothing worn by the driver of the Chevrolet Equinox. These images may be legitimately probative, depending on their date, as they may locate Harker back at the London townhouse shortly after the shootings wearing the clothing worn by one of the alleged perpetrators. However, there are uncertainties about the date when these images were created. In addition, Harker has admitted that he was the driver who wore this relatively distinctive clothing. Finally, these slides include potentially prejudicial images, depicting a scantily clad female pointing a gun at the viewer while standing beside Harker, and they depict Harker displaying a relatively large amount of cash. Harker’s female associate with the gun and the display of cash introduce extraneous distractions that may give rise to both moral and reasoning prejudice. For all these reasons, I excluded “Slides Three, Four, and Five”. I had the Crown edit “Slide Six”, as it included a sinister and irrelevant image of two young men handcuffed in the basement of the London townhouse on June 29, 2022, some ten days after the shootings. I also excluded “Slide Eight” as it showed little more than Harker apparently smoking drugs, together with some evidence of association that was repetitive of other less potentially prejudicial images. I similarly excluded “Slide Fourteen” as it simply depicted Harker smoking drugs and holding money.
[26] The remaining images from Harker’s phone are all admissible because their legitimate probative value greatly exceeds their prejudicial effect.
(iii) The images found in Bezabeh’s phone
[27] In my view, the images found stored in Bezabeh’s cell phone have very similar legitimate probative value to those found in Harker’s cell phone. There are images on dates prior to the shootings – on April 25, May 12, June 5 and 11, 2022 – showing Bezabeh holding what appears to be a handgun with an extended magazine while wearing blue gloves (in one image), pointing a firearm in Campbell-Brown’s presence (in two other images), holding or possessing a firearm (in two other images), and holding or possessing a firearm in Harker’s presence (in one other image). Some of these images can be connected to the 1195 Blackwell townhouse in London and some depict one or more of the co-accused wearing clothing that is similar to that worn by the perpetrators of the two shootings on June 19, 2022. The one image of Bezabeh wearing blue gloves while holding a handgun with an extended magazine is particularly probative because one of the perpetrators in the second shooting (who is alleged to be Bezabeh) was wearing blue surgical gloves while firing at the deceased. In addition, blue surgical gloves were found during the search of the 1195 Blackwell townhouse on July 8, 2022, which is where Bezabeh was found and arrested. And finally, there were 28 shell casings found at the scene of the second shooting, and one of the handguns used in this second shooting appeared to have an extended magazine.
[28] There are also images from Bezabeh’s cell phone taken after the June 19, 2022 shootings – on June 28, 29, and July 4, 2022 – showing Bezabeh associating with Campbell-Brown and/or Harker and/or both. In one image, Bezabeh again appears to be holding a firearm while wearing blue gloves. Once again, some of these images can be connected to the 1195 Blackwell townhouse and some can be connected to clothing worn by one or more of the alleged perpetrators of the shootings. Finally, there are two undated images. One is of Bezabeh and Campbell-Brown and the other is of Bezabeh, Harker, and Campbell-Brown. In these images, Campbell-Brown and Harker are wearing clothing similar to that worn by two of the alleged perpetrators during the June 19, 2022 shootings.
[29] I am satisfied that all of these images have much the same significant probative value as the images found in Harker’s phone, for similar reasons. They are highly probative of the issues of identity and party liability because they are proximate in time to the June 19, 2022 shootings, they connect Bezabeh to a handgun (or handguns) similar to those used in the shootings, they connect him to the alleged co-accused in the two shootings (and infer common knowledge and acceptance amongst the group of their collective possession and use of handguns), they connect him to clothing being worn by the co-accused that is similar to clothing worn during the shootings, and they connect him to the London townhouse that the alleged perpetrators left from on June 18, 2022, and then returned to on June 19, 2022. The above legitimate inferences related to identity and party liability do not involve reasoning through general bad character or disposition. They involve reasoning through inferential connection to the known circumstances of the two shootings. I acknowledge that the images found on Harker’s cell phone have greater probative value than the images found on Bezabeh’s phone. That is because there are four images created on Harker’s phone on the actual day of the shootings. However, the above summarized images from Bezabeh’s phone also have high probative value because they are closely proximate in time to the shootings and they connect Bezabeh to the shootings in the multiple ways set out above. In addition, any moral prejudice can be controlled by a strong limiting instruction to the jury. There is little or no reasoning prejudice, for the same reasons as those set out above in relation to Harker’s phone.
[30] There was one image in Bezabeh’s cell phone (“Slide Nineteen”) that particularly concerned me. It is dated July 3, 2022 and it shows Bezabeh holding three handguns together while pointing them at the camera. He is wearing what appear to be blue surgical or latex gloves. This image is particularly frightening because Bezabeh is holding multiple guns at the same time and he is pointing them at the person taking the video or photo (and, in effect, at any person viewing the image). Its legitimate probative value is that, once again, it shows Bezabeh wearing blue latex or surgical gloves while holding handguns at a time reasonably proximate to the two shootings. The recurring nature of this particular image is legitimately probative of a habit or practice or inclination to wear blue latex or surgical gloves when holding a handgun (although there are other images where Bezabeh is not wearing gloves while holding a gun). As explained above, this inference concerning the wearing of blue surgical gloves when handling a firearm is significant in relation to the second shooting where one of the three gunmen can be seen wearing blue gloves while firing at the deceased. On the other hand, there is potential moral prejudice arising from this image for the same reasons discussed above in relation to “Slide Two” seized from Harker’s phone. I am concerned that these two images, of Harker and Bezabeh holding and pretending to fire a total of five guns at the viewer, may elicit an emotional reaction from some jurors that will be difficult to control with a limiting instruction. As a result, I asked the parties to consider an admission to the effect that a third image was seized from the cell phone of Bezabeh, depicting him holding a handgun while wearing blue surgical gloves, and that it was created on July 3, 2022. Alternatively, I suggested that the Crown could simply ask the witness who introduces evidence of the images found in Bezabeh’s cell phone whether there was a third image dated July 3, 2022 of Bezabeh wearing blue surgical gloves while holding a handgun, and the witness could simply answer “yes, there was.” I will then explain to the jury that it was unnecessary to file the actual video image because of the two earlier similar images. In effect, I ruled that the image should be edited in a way that preserved its legitimate probative value but removed those aspects of the image that may give rise to a risk of moral prejudice. The suggested admission would achieve those purposes, in my view, as would the use of limited oral testimony, without any of the risks associated with admitting the actual image itself. Once the trial proceeded, counsel made an admission along the lines of what had been suggested.
[31] There were three other images found in Bezabeh’s phone that the Crown agreed not to tender when pressed, or that I excluded (“Slides 14, 15, and 16”). Two of them were undated and they all added little to other images that had already been ruled admissible.
[32] For all these reasons, most of the images from Bezabeh’s cell phone were ruled admissible because their legitimate probative value substantially exceeded any prejudicial effect.
(iv) The form of the evidence emerging from the cell phone video images
[33] During oral argument of the motion, counsel for both Bezabeh and for Harker made submissions about the form of the evidence of prior and subsequent gun possession, if this evidence was ruled admissible. Mr. Stauffer submitted that still images from the videos could be admitted, showing Harker in possession of a handgun or handguns, in order to lessen the more disturbing character of the video evidence. Mr. Derstine submitted that an agreed statement of fact could be drafted, admitting that Bezabeh openly possessed a handgun or handguns on certain dates, that others were present on some of these occasions, and that they all appeared to be friendly and close to each other. In response, the Crown submitted that the videos were the “best evidence.”
[34] If the only relevance of the cell phone video evidence was to infer identity from the fact of prior and subsequent gun possession, this submission would have greater force. That is because the simple fact of prior and subsequent gun possession can be fully captured in a still photograph or an admission. However, the legitimate probative force of the video images seized from Harker’s and Bezabeh’s cell phones goes well beyond merely inferring identity from the fact of prior and subsequent gun possession.
[35] In my view, the full character of the relationship between Harker, Bezabeh, Campbell-Brown, and the young person (A. C.-M.), is one of the more important aspects of the “extrinsic misconduct” videos. The nature of that relationship does not fully emerge from a still image or an agreed statement of fact. The videos depict the relationship between these four individuals in a forceful and complete way that would not be replicated by written words or still images.
[36] This cell phone video evidence, depicting the character of the relationship between the four accused, is relevant to a number of issues in this case. Proof of identity is the first issue to which this body of evidence is relevant. The inference of identity of the gunmen that emerges from these video images is not based simply on the fact of prior and subsequent gun possession. Rather, an inference of identity also emerges from the character of the relationship between Harker and his associates. On the particular facts of this case, there is overwhelming evidence connecting the stolen Chevrolet Equinox to the two shootings. There is almost equally compelling evidence inferring that Harker was the driver of that vehicle during the two shootings. As a result, I was advised during argument of the motion that Harker will admit this fact, and that admission has now been made at trial. Once Harker is anchored to the two shootings in this way, the identities of his close associates and the nature of his relationship with those associates in the days before and after the two shootings becomes important circumstantial evidence in helping to identify the four passengers in the Chevrolet Equinox. The extent to which Harker’s relationship with certain associates is tied up with the open display of handguns (and with posturing, mimicking, and apparently preparing for the use of loaded handguns) is particularly helpful in inferring the likely identity of the four passengers he took with him in the Chevrolet Equinox when he drove to the scenes of the two shootings.
[37] The second issue to which the character of the relationship between Harker, Bezabeh, Campbell-Brown, and A. C.-M. relates is party liability. Five persons attended at the two shootings in the Chevrolet Equinox. There appears to have been only one principal in the first shooting and there were three principals in the second shooting. Party liability is an important issue in this case for both Harker and Bezabeh. In Harker’s case, there is compelling evidence that he was present at the scene of both shootings, as explained above. If he drove the other parties to the scene of the two shootings, with prior knowledge that one or more of them intended to use firearms in order to carry out a shooting, then Harker would be a s. 21 aider or abettor to one or more of the four offences charged, depending on the extent of his prior knowledge. Dickson J. (as he then was) explained the law on this point in his seminal decision in R. v. Dunlop and Sylvester (1979), 47 C.C.C. (2d) 93 at pp. 106-110 (S.C.C.):
Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit.
The leading case of R. v. Coney (1882), 8 Q.B.D. 534, decided that non-accidental presence at the scene of the crime was not conclusive of aiding and abetting. … Two passages from the judgment of Cave J. at p. 539 bear repeating:
Now it is a general rule in the case of principals in the second degree that there must be participation in the act, and that, although a man is present whilst a felony is being committed, if he takes no part in it, and does not act in concert with those who commit it, he will not be principal in the second degree merely because he does not endeavour to prevent the felony, or apprehend the felon.
and [at p. 540]:
… Where presence may be entirely accidental, it is not even evidence of aiding and abetting. Where presence is prima facie not accidental it is evidence, but no more than evidence, for the jury.
Hawkins J. in a well-known passage had this to say, p. 557-8:
In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power to do so, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not. So if any number of persons arrange that a criminal offence shall take place, and it takes place accordingly, the mere presence of any of those who so arranged it would afford abundant evidence for the consideration of a jury of an aiding and abetting.
In this Court the question of aiding and abetting was canvassed in Preston v. The King (1949), 93 C.C.C. 81, [1949] S.C.R. 156. The appellant and another were accused of having set fire to a school. Mr. Justice Estey delivered the majority judgment in this Court, in the course of which he stated (p. 159) that in order to find the appellant guilty of aiding, abetting, counselling or procuring, it was only necessary to show that he understood what was taking place and by some act on his part encouraged or assisted in the attainment thereof. Later he said (p. 160) that mere presence does not constitute aiding and abetting, but presence under certain circumstances may itself be evidence thereof. He proceeded to review the evidence and concluded, p. 85 C.C.C., p. 61 S.C.R:
If appellant's explanation was not believed by the jury there was evidence in addition to his mere presence upon which they might well conclude that he was guilty of aiding, abetting, counselling or procuring. (Emphasis added.)
Two Canadian cases make the distinction between presence with prior knowledge, and accidental presence.
In R. v. Hoggan, [1966] 3 C.C.C. 1 (Alta. S.C., A.D.), the charge was that the accused aided and abetted in wilfully attempting to defeat the course of justice by attempting to dissuade a witness from giving evidence. Johnson J.A., concluded at p. 5 C.C.C.:
There are two things that must be proved before an accused can be convicted of being a party by aiding and abetting. It must be proved that he had knowledge that the principal intended to commit the offence and that the accused aided and abetted him. Where there is no knowledge that an offence is to be committed, the presence of an accused at the scene of the crime cannot be a circumstance which could be evidence of aiding and abetting.
The basis for Johnson J.A.'s approach to aiding and abetting is found in Preston and Coney, both of which he cites.
In the case at bar I have great difficulty in finding any evidence of anything more than mere presence and passive acquiescence. Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principal offender's intention to commit the offence or attendance for the purpose of encouragement. [Emphasis added].
[38] More recently, in R. v. Kinkead, supra at paras. 65-84, Simmons J.A. (Charron J.A., as she then was, and Feldman J.A. concurring) upheld the decision of the trial judge who had admitted evidence of prior discreditable conduct on the following basis:
The trial judge articulated three bases for admitting the evidence of Daniel and Burey concerning Kinkead's habit, in the past, of carrying a knife and concerning the death threat incident: first, to demonstrate the likelihood that Kinkead possessed the necessary "tool" for committing the crime, second, to show Ranger's state of mind, namely that he knew the type of person with whom he was associating, and third, to rebut the defence of innocent association. The trial judge stated his conclusions as follows:
The relevant issues this evidence is said to address in this trial are:
One, that Mr. Kinkead possessed the tool necessary to commit the crime that he is charged with. In this regard, it is said it will assist in showing that he either provided the knife to Rohan Ranger or used it himself in the killings;
Two, the relationship will go to show the state of mind of Ranger; that he was aware of who he was involving himself with in these killings. Further, it will rebut the defence of innocent association. . . [Emphasis added]
[39] The underlined passages from Dunlop and Sylvester and from Kinkead, set out above, stress the importance of prior knowledge in relation to party liability, including prior knowledge that certain kinds of weapons would be used at the scene of an anticipated crime. Harker’s prior knowledge, when he drove the Chevrolet Equinox to the scene of the two shootings, can be inferred from the character of his relationship with his associates, both before and after the two shootings, and whether their relationship involved the open display of handguns, posturing with handguns, and apparently preparing for the use of loaded handguns. The same reasoning applies to Bezabeh. He is alleged to be an aider or abettor at the scene of the first shooting. If he was present in the Chevrolet Equinox, with prior knowledge that a shooting was going to occur, it could be inferred that he was “ready to assist the main culprit”, as Dickson J. put it in Dunlop and Sylvester, and that he was “acting in concert” and “intended to signify approval” by his attendance, as Cave J. and Hawkins J. put it in Coney.
[40] The third issue to which the character of the relationship between Harker and Bezabeh and their associates relates is “planning and deliberation”. As explained above, the videos on Harker’s and Bezabeh’s cell phones, together with the video surveillance and cell tower tracking evidence, are capable of inferring a planned course of conduct including arming themselves with loaded handguns, traveling to Toronto in the Ford Escape on June 18, 2022, staying at a certain residence in Toronto, obtaining the stolen Chevrolet Equinox and stolen license plate used in the two shootings, and then returning to London in the Ford Escape after the shootings. The character of the ongoing relationship between the four associates that emerges from the cell phone videos may assist in evaluating the extent to which Harker and Bezabeh participated in this apparent planning and preparation for the two shootings and the extent to which they believed, after the fact, that nothing had gone wrong with any plan. See, e.g. R. v. MacKinnon and Crooks (1999), 132 C.C.C. (3d) 545 at paras. 10-16 (Ont. C.A.); R. v. Poitras (2002), 1 C.R. (6th) 366 at paras. 9-14 (Ont. C.A.).
[41] In my view, the totality of the above three issues to which the cell phone video evidence relates, justifies and even requires presenting that evidence in its true original form. A number of still images or an admission would significantly limit, omit, and fail to capture the real probative force of the evidence. It would amount to editing the evidence in a way that distorts by omission. The law relating to editing has always required that the effect of any editing must not distort the true meaning of the evidence. See: R. v. Beatty (1944), 81 C.C.C. 1 (S.C.C.); R. v. Alward and Mooney (1977), 35 C.C.C. (2d) 392 at 396 (S.C.C.); R. v. Otis (1978), 39 C.C.C. (2d) 304 at 307-9 (Ont. C.A.); R. v. C. (F.) (1996), 104 C.C.C. (3d) 461 at 472-3 (Ont. C.A.); R. v. L. (L.) (2009), 2009 ONCA 413, 244 C.C.C. (3d) 149 at 152-5 (Ont. C.A.); R. v. Creary and Creary, 2019 ONSC 4843 at para. 17.
[42] I will not repeat my previous analysis to the effect that any moral prejudice from the cell phone video images can be controlled by a strong limiting instruction and that any reasoning prejudice is minimal.
(v) The seizures of two handguns and ammunition at the London townhouse
[43] In my view, the ammunition seized at the London townhouse on July 8, 2022 has considerable probative value. In the first place, it is this townhouse from which the alleged perpetrators departed on June 18, 2022 and to which they returned on June 19, 2022. The search of the townhouse on July 8, 2022, some 19 days after the two shootings, was reasonably proximate in time to the shootings. In the second place, the two shootings required a large quantity of ammunition because at least 15 bullets were fired at the scene of the first shooting, at least 28 bullets were fired at the scene of the second shooting, three separate handguns were used in the two shootings, and one or more of those handguns appeared to have an extended magazine. There were approximately 151 rounds of ammunition found during the search of the London townhouse, inferring access by the occupants to a reasonably large quantity of ammunition. Third, and most importantly, there were Hornady 9mm shell casings, Hornady 40 S&W shell casings, and FC 9mm shell casings left at the scene of the two shootings. All three of these kinds of ammunition were found during the search of the London townhouse on July 8, 2022, as well as some other kinds of ammunition.
[44] I am satisfied that it can reasonably be inferred from all the above circumstances, that the alleged perpetrators of the two shootings had access to the kinds of ammunition they required, in the quantities they required, at the time they required it, and at the townhouse where they apparently prepared for the two shootings. In a circumstantial case, this one item of evidence is not insignificant, when combined with the other circumstances relating to identity. The use of this evidence, in order to draw the above inferences, does not involve any reasoning through general bad character or disposition. Rather, the above inferences relate to the element of identity and they are based on the circumstances of the offences and on the fact that the alleged perpetrators appeared to be connected to this particular townhouse in London where the ammunition they needed was apparently available.
[45] Balanced against the above legitimate probative value of this evidence, the seizure of this large quantity of ammunition gives rise to little or no moral prejudice. The possession of ammunition, in the absence of illegal handguns (which I will address below), is not per se illegal. Furthermore, if it is “extrinsic misconduct”, it is a kind of misconduct that pales in comparison to the two shootings in this case. Finally, there is little or no reasoning prejudice as the evidence of the seizures will take minimal trial time and there is no challenge to the credibility and reliability of this evidence.
[46] For all the above reasons, I was satisfied that the seizure of approximately 151 rounds of ammunition at the London townhouse on July 8, 2022 is admissible because its probative value significantly exceeds its prejudicial effect.
[47] The last item of “extrinsic misconduct” evidence that the Crown seeks to tender on this motion is the seizure of two loaded handguns during the search of the London townhouse on July 8, 2022. This item of evidence has the least probative value of all the “extrinsic misconduct” evidence that the Crown seeks to tender at trial. In terms of its probative value, forensic testing of the two handguns positively determined that they were not used in the two shootings on June 19, 2022. This fundamentally distinguishes these two handguns from the handguns depicted in Harker’s and Bezabeh’s cell phone videos, which may well have been used in the shootings. In addition, two of the alleged perpetrators (Harker and Campbell-Brown) had left the London townhouse and had been arrested in Montreal on July 2, 2022. Accordingly, the inference that they had access to the two handguns seized in London on July 8, 2022 was weak. Bezabeh was present in the London townhouse on July 8, 2022 when the two handguns were seized but he was only one of six persons who were present. Accordingly, the inference that he had access to the two handguns has some weaknesses. Most importantly, the Crown already has much more probative proof of the two accused’s actual possession of handguns, given that I have admitted a number of highly probative images of both accused holding handguns at the relevant time, as depicted in various photos and videos stored on their cell phones (for all the reasons set out above). Binnie J., speaking for the Court in the leading decision on this topic, R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 at paras. 73-74 and 83 (S.C.C.), stated that the probative value and prejudice from certain evidence must be assessed in relation to “its ability to advance or refute a live issue”, and in relation to the “relative importance” of that issue and “whether the Crown can prove its point with less prejudicial evidence” [emphasis added].
[48] For all the reasons set out above, I am satisfied that the seizure of the two loaded handguns at the London townhouse on July 8, 2022 has minimal probative value. If I had not already admitted the much more probative evidence of actual handgun possession at the relevant time, found in the video images on Harker’s and Bezabeh’s cell phones, I might well have taken a different view of this issue.
[49] Balanced against that minimal probative value, the seizure of the two loaded handguns has some prejudicial effect. It is per se illegal to possess these two loaded handguns. More importantly, it will unnecessarily occupy and distract the jury in trying to determine the true probative value of this evidence of access to handguns on July 8, 2022 (19 days after the shootings) when, in my view, this is simply unnecessary. On the particular facts of this case, there is already clear evidence inferring that Harker and Bezabeh actually possessed handguns, at the time of the shootings. Accordingly, it is a wasteful distraction to inquire into whether they also had access to handguns at a later date.
[50] For all these reasons, the seizure of the two loaded handguns on July 8, 2022 is inadmissible. The minimal probative value of this evidence is outweighed by its prejudicial effect.
[51] The Crown advised during oral argument that it was not seeking to admit evidence that two bullet proof vests and a large over-capacity drum magazine were also seized during the execution of the London townhouse search warrant. None of these items relate to issues in the present case.
D. CONCLUSION
[52] For all the above reasons, I made a number of oral rulings and gave counsel certain directions on November 18, 2024 at the end of oral argument concerning the admissibility of “extrinsic discreditable conduct”.
M.A. Code J.
Released: November 27, 2024