COURT FILE NO.: 19- 6279 DATE: 2024/01/30 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Donald Musselman Accused

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

HEARD: March 14, 2022 and November 2, 2023

REASONS FOR RULING-DISCREDITABLE CONDUCT

ANNE LONDON-WEINSTEIN J.

Overview

[1] The Respondent is charged with second-degree murder in the June 7, 2019, shooting death of Markland Campbell in the ByWard Market of Ottawa.

[2] The Applicant applied to admit discreditable conduct evidence of the Respondent during its case in chief, namely that:

A) The Respondent illegally possessed a firearm on May 14, 2016. The firearm was stored in his bedroom and was discovered by his stepfather Robert McIlwraith. The Respondent pleaded guilty in youth court and was sentenced.

B) At the time of the shooting on June 7, 2019, the Respondent was trafficking illegal drugs and possessed items related to that trafficking ($520 cash, 13.55 grams of fentanyl and 13 oxycodone).

C) The Respondent, David Vizigiro and Christopher Jean-Francois were passengers in a vehicle during a traffic stop in a vehicle on March 15, 2018. The driver was suspended. None of the passengers were charged with an offence.

D) The Respondent was shot in the face and hand and arm on January 16, 2019, in a Burger King restaurant.

E) The Respondent and Mr. Vizigiro were involved in an altercation near the residence of Shaquelle Ricketts on June 28, 2018, where they, along with Brenden Renegbanga and a male identified only as “Scar” confronted Ms. Ricketts and her friend Morgan Laplante. The Respondent was alleged to have had a gun and someone fired a shot. Shortly after, someone smashed a window in Ms. Ricketts’ home. The context of this incident was domestic violence by Mr. Renegbanga toward his girlfriend Morgan Laplante. The incident occurred while Ms. Ricketts was attempting to help Ms. Laplante.

F) On January 3, 2019, the Respondent, Mr. Vizigiro and Mr. Jean-Francois were part of a group of seven to eight men who committed an apparent home take-over of a vulnerable person in an Ottawa Community Housing unit at 372 Blake Street, Ottawa. Police attended to remove the unwanted persons and discovered what appeared to be a handgun hidden in the sofa. The handgun turned out to be a pellet gun and the men were released without charges. Mr. Jean-Francois was found to be in possession of $380 cash, 5.25 grams of crack cocaine and four TEC pills.

G) On April 18, 2019, Mr. Vizigiro trafficked crack cocaine in the ByWard Market. He pleaded guilty and was sentenced.

A and B) – Prior act of possessing a firearm and possession of drugs for the purpose of trafficking

A) Prior Possession of a Firearm:

[3] The Applicant argued that the prior act of possessing a firearm in his bedroom was probative of the Respondent’s means to commit the offence by having access to a firearm. Further, the evidence is argued to be relevant to rebut any inference advanced by the Respondent that he acted in self-defence; that another person fired the gunshots; that someone else possessed the murder weapon before, during or after the shooting incident; that the Respondent acted under provocation; or if the Respondent puts his character in issue in association with these defences or in any respect during the trial.

[4] The Respondent was 15 when he possessed the firearm for which he was convicted. It was not a handgun. The handgun used to shoot Markland Campbell was found in the Respondent’s bedroom and is part of the evidence in this case.

[5] The prior firearm possession conviction is probative of the Respondent’s access to firearms. The Applicant relies on R. v. Kinkead (2003), 2003 52177 (ON CA), 67 O.R. (3d) 57 (C.A.). In that case, evidence that Kinkead had a habit of carrying a knife similar to the murder weapon had probative value on the issue of whether Kinkead possessed or supplied the murder weapon.

[6] The evidence that Kinkead had previously threatened another person with a knife, in the presence of Ranger (the other charged suspect) was relevant to the issue of why Ranger would have involved Kinkead in Ranger’s planned murder of Ranger’s former girlfriend.

[7] In that case, the trial judge had correctly identified possession of the murder weapon and the possible motive for Kinkead’s presence at the Ottey home as the issues at trial to which the evidence was relevant and the Court of Appeal held that the trial judge did not err in finding that the evidence had some probative value to these issues.

[8] The Applicant will already rely on the Respondent’s possession of the firearm used in the shooting of Markland Campbell to establish that the Respondent was the shooter. This firearm was recovered by police in the immediate aftermath of the shooting. In my view, the fact that the Respondent previously possessed an unrelated firearm three years earlier, is probative of the Respondent’s access to firearms, however it is evidence which poses a significant risk that the jury will engage in propensity-based reasoning, given the nature of the current charge facing the Respondent which also involves a firearm.

[9] In relation to rebuttal of provocation or self-defence, there was a lack of evidentiary support for the contention that a prior conviction for possession of an unrelated firearm would rebut the defence of self-defence, defence of another person, or provocation.

[10] At this point in the trial, the Respondent has not put his character in issue. Should the Respondent suggest that he is of good character, or that he has never possessed a firearm, nor is the type of person who would possess a firearm, then it would be open to the Applicant to seek to introduce evidence of the prior gun possession to rebut that suggestion. (In fact, the Respondent, in cross-examination by Ms. Miles as to why he would wrap the gun in his white track suit yet change out of that track suit to avoid having it soiled, did testify to the effect that he was not someone who knew anything about guns. The Applicant did not seek to renew this application, although the Respondent had arguably opened the evidentiary door rendering this evidence which was otherwise not admissible, admissible).

[11] At this point in the trial, I found that the prejudicial effect of the prior firearm possession outweighed its probative value and the Applicant was not permitted to lead this evidence as part of its case in chief.

B) Possession of Fentanyl for the Purpose of Trafficking and Possession of Oxycodone and Cash:

[12] The Respondent pleaded guilty on November 14, 2022 to possession of a Schedule I substance, Fentanyl, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. This plea of guilt related to possession of the 13.55 grams of fentanyl, 13 oxycodone and $520 cash on June 7, 2019. The Respondent was sentenced on July 21, 2023.

[13] The Applicant argued that the evidence of possession of drugs for the purpose of trafficking is probative of the Respondent’s motive to carry a firearm and his motive to shoot the person who confronted Mr. Vizigiro.

[14] At this point in the trial, which was the Crown’s case in chief, I reasoned that the evidence lacked sufficient probative value to outweigh the prejudicial impact of the admission of this evidence at this stage of the proceedings. While it is true that some drug traffickers do carry firearms while trafficking, it is not clear to the court that carrying a firearm is a necessary corollary of drug trafficking.

[15] The evidence established that I.A., Mr. Vizigiro and the Respondent were together in the ByWard Market. The Applicant has argued that the evidence supports the inference that they were all trafficking drugs in the ByWard Market Square in the vicinity of George Street. Therefore, I.A. would have an equal motivation to carry a firearm. Indeed, I.A. testified that he was carrying a firearm and drugs on June 7, 2019, although he denied that he was drug trafficking.

[16] It is not established on the evidence that most, or even many drug traffickers carry a firearm when trafficking. I recognize this proposition would be difficult for the Respondent to establish. However, the court cannot simply take judicial notice of this suggestion. Judicial notice applies to two types of facts: [a] those that are so notorious or “accepted”, either generally or within a particular community, as not to be the subject of dispute among reasonable persons; and [b] those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy. Whether or not drug traffickers are likely to carry a firearm does not meet either criterion which would permit the court to take judicial notice of the fact that an individual trafficking drugs is likely carrying a firearm. Since judicial notice dispenses with the need for proof of facts, the threshold for taking judicial notice is a stringent one. R.v.J.M., 2021 ONCA.

[17] It must also be borne in mind that the shooting of Markland Campbell was not a drug-related shooting. The shooting in this case occurred because of an unexpected confrontation between Mr. Campbell, who was not involved in the drug trade, and Mr. Vizigiro. It is the theory of the Applicant that the Respondent then shot Mr. Campbell. The motive for the shooting was not related to the drug trade.

[18] This was not a case of rival drug gangs warring over territory or engaging in retributive shootings to avenge old scores. If the shooting were a drug related homicide, the proposed evidence would have heightened probative value. However, the Applicant argues that the evidence is still probative of the inference that the Respondent was motivated to carry the firearm that evening, and that he shot Markland Campbell. The fact that the Respondent was in possession of valuable narcotics made it more likely that he was carrying the firearm to protect himself from being robbed or accosted by drug dealing rivals.

[19] As a starting point, discreditable conduct evidence is presumptively inadmissible: R v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, at para. 96. It is only admissible when evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse: R. v. Handy, 2002 SCC 56, 213 D.L.R. (4th) 385, at para. 41. If moral prejudice is to be introduced, “it must be concluded by the trial judge on a balance of probabilities that the probative value of the sound inferences exceeds any prejudice likely to be created”: Handy, at para. 42.

[20] At this point in the trial, I found that the probative value of the evidence of drug possession for the purpose of trafficking, and the conviction for a prior possession of a firearm was outweighed by the prejudice of introducing this evidence as part of the Crown’s case in chief, given the significant risk of moral reasoning prejudice and, in relation to the possession of narcotics for the purpose of trafficking conviction, the limitations of that evidence to support the proposed available inferences.

C) Traffic stop:

[21] I found the references to the Respondent, Mr. Vizigiro and Mr. Jean-Francois being together in a traffic stop on March 15, 2018 to be of limited relevance to the issues which the jury had to decide, especially since none of the passengers was charged with an offence.

D) Shooting of the Respondent in the Burger King on January 16, 2019:

[22] The Respondent was shot in the face, arm and hand, sustaining life threatening injuries. I did not permit the Crown to call this evidence as part of its case in chief, as in my view, its prejudicial effect outweighed its probative value at this point in the trial. Later, when the defence indicated that I.A. would testify that he was the shooter, the defence conceded the admissibility of the evidence at that point, and the court concurred. At that point, the evidentiary landscape of the trial had shifted significantly. The evidence at that point was highly probative to rebut I.A.’s evidence that he shot Markland Campbell. The evidence gave rise to an inference that the Respondent had motivation to carry the firearm on June 7, 2019 and therefore warranted admission as part of the trial, despite the risk that the jury may engage in propensity-based reasoning.

E, F, G) June 2018 altercation, January 2019 home take-over and Mr. Vizigiro trafficking drugs:

[23] I did not permit the Crown to lead evidence as part of its case in chief that:

E) The Respondent and Mr. Vizigiro were involved in an altercation near the residence of Shaquelle Ricketts on June 28, 2018 where they, along with Brenden Renegbanga and a male identified only as “Scar” confronted Ms. Ricketts and her friend Morgan Laplante. The Respondent had a gun, and someone fired a shot. Shortly after, someone smashed a window in Ms. Ricketts’ home. The context of this incident was domestic violence by Mr. Renegbanga toward his girlfriend Morgan Laplante. The incident occurred while Ms. Ricketts was attempting to help Ms. Laplante. The evidence that the Respondent is alleged to have fired a gun a year before the shooting of Markland Campbell, but for which he was not evidently charged, was probative of whether the Respondent had a gun on June 7, 2019. The basis for establishing that the Respondent possessed and fired the gun was not indicated. While the evidence was probative of the issue of whether the Respondent had a gun on June 7, 2019 and shot Markland Campbell, I did not permit the admission of this evidence as is prejudicial effect outweighed its probative value in two respects. First, it was prejudicial in that the Respondent was alleged to have fired a gun, as he was in this case. The potential for propensity-based reasoning on the part of the jury was considerable. Second, it was not clear to the court how it was established that the Respondent had the gun and fired it since he was not charged. There was potential for this evidence to devolve into a trial-within-a-trial in terms of establishing that it was the Respondent who fired the gun. This may consume a significant body of trial time, will inevitably also delve into other contextual discreditable conduct evidence and may be confusing for the jury. As a result, I concluded that the prejudicial effect of this evidence outweighed its probative value.

F) On January 3, 2019, the Respondent, Mr. Vizigiro and Mr. Jean-Francois were part of a group of seven to eight men who committed an apparent home take-over of a vulnerable person in an Ottawa Community Housing unit at 372 Blake Street, Ottawa. Police attended to remove the unwanted persons and discovered what appeared to be a handgun hidden in the sofa. The handgun turned out to be a pellet gun and the men were released without charges. Mr. Jean-Francois was found to be in possession of $380 cash, 5.25 grams of crack cocaine and four TEC pills. This evidence was more prejudicial than probative. The pellet gun was not linked to the Respondent.

G) On April 18, 2019, Mr. Vizigiro trafficked crack cocaine in the ByWard Market. He pleaded guilty and was sentenced. This evidence was probative of the fact that Mr. Vizigiro was a drug trafficker. If he had been called as a witness in this case, it would have been admissible. On its own, it is not sufficiently probative of the issues which the jury had to decide given that this was not a drug related shooting.

The Changing Evidentiary Landscape:

[24] I declined to admit this evidence of prior discreditable conduct at the point that the Applicant sought to lead it as part of its case. However, later in the trial, the defence indicated that I.A. would testify that he, not the Respondent, shot Markland Campbell. At that point, the defence agreed that the following discreditable conduct evidence was admissible because of the shifting evidentiary landscape occasioned by I.A.’s evidence:

• The fact that the Respondent was shot in the face, arm, and hand, at the Burger King would be admitted.
• The fact that the Respondent was found to be in possession of the Fentanyl, cash and 13 oxycodone would be admitted.
• The defence, as part of its case, would lead evidence that I.A. came into possession of the firearm through his drug trafficking activities.
• The defence agreed with the Crown position that I.A.’s conviction for first degree murder and three counts of attempted murder in relation to the Gilmour Street homicide would not be led in the trial. I.A. was not the shooter in that homicide.
• In return, the crown would not seek to admit the Respondent’s outstanding charge of second-degree murder which he accrued while awaiting his trial for the murder of Markland Campbell.
• The defence also indicated that it would bring a Corbett application and seek to have the Respondent’s convictions for assault and prior possession of a firearm from being admitted into evidence should the Respondent testify.

[25] I.A.’s evidence that he was the shooter and his explanation regarding why he had the firearm in his possession at the time of the shooting alters the admissibility analysis of the discreditable conduct evidence in this case.

[26] As a result of the changing evidentiary landscape, the defence conceded the admissibility of the Respondent’s possession of fentanyl for the purpose of trafficking and his possession of oxycodone and cash on June 8, 2019. The defence conceded the related admissibility of the drugs and cash and the photographs of same, which the defence had, at an earlier point in this trial, successfully sought to exclude.

[27] Relevance does not exist in the abstract; it is determined in the context of the entire case, including the positions of counsel. The court’s assessment of relevance changed at the point that I.A. was confirmed as a witness who would testify that he was the shooter in this case.

[28] In R. v. Ansari, 2015 ONCA 575, 330 C.C.C. (3d) 105, at paras. 102-5, leave to appeal refused, [2015] S.C.C.A. No. 487, Watt J.A. observed the following:

Relevance is not an inherent characteristic of any item of evidence. Relevance exists as a relation between, on the one hand, an item of evidence and, on the other, a proposition of fact that the evidence is offered to prove. Relevance is a matter of everyday experience and common sense. An item of evidence is relevant if, by the application of everyday experience and common sense, it renders the fact it seeks to establish by its introduction slightly more or less probable than the fact would be without it.

Relevance does not exist in the abstract or in the air. Relevance is also relative; we assess and determine it in the context of the entire case in which the evidence is proffered and the positions of counsel in that case.

To be relevant, an item of evidence need not prove conclusively the proposition of fact for which it is introduced. Nor does the evidence, to be relevant, need to make the proposition of fact more probable than not. An item of evidence is not irrelevant simply because it can sustain more than one inference. The requirement of relevance is met where the item of evidence reasonably shows, “by the application of everyday experience and common sense, that the fact is slightly more probable with the evidence than it would be without it”.

Admissibility is a legal concept. Admissibility rules exclude evidence that is both relevant and material on the basis of some policy consideration that the law regards as of sufficient importance to warrant exclusion of evidence that would otherwise assist the trier of fact in ascertaining the truth of the matter at hand. The rule that excludes relevant and material evidence on the basis that its probative value is outweighed by its prejudicial effect is a rule of admissibility. [Citations omitted.]

[29] The prejudice component of this general exclusionary discretion may involve either or both of moral prejudice and reasoning prejudice. Moral prejudice refers to the risk of an unfocused trial and a conclusion of guilt based on a prohibited chain of reasoning from a general disposition or propensity to guilt of the offence charged. In other words, a finding of guilt that is based on character, not relevant conduct: Ansari, at para. 107.

[30] Reasoning prejudice involves the distraction of the trier of fact from their proper focus on the offence charged by the introduction of evidence of other incidents that consume undue time and may be accorded more weight than should be their due.

[31] When invited to exclude relevant, material and otherwise admissible evidence on the basis that its prejudicial effect predominates over its probative value, a trial judge will consider the individual constituents of the rule—probative value and prejudicial effect—and then balance them to see which predominates: Ansari, at para. 109.

[32] The assessment of probative value invokes the consideration of the strength of the evidence; the extent to which it supports the inferences the proponent seeks to have drawn from it; and the extent to which the matters the evidence tends to prove are at issue in the proceedings.

[33] An assessment of the prejudicial effect should take into account:

1. The degree of discreditable conduct disclosed by the evidence;
2. The extent to which the proposed evidence may support an inference of guilt on the sole basis of bad character;
3. The extent to which the evidence may confuse issues; and
4. The ability of the accused to respond to the evidence.

[34] The Respondent conceded that I.A.’s testimony that he was the shooter and the surrounding evidence of his using the gun for personal protection related to his work in the drug trade rendered the Respondent’s conviction for possession of the narcotics for the purpose of trafficking, and his being shot in the Burger King, sufficiently probative to warrant admission in this trial. The evidence of I.A. that he was the shooter rendered the Respondent’s conviction for possession for the purpose of trafficking, and being shot in the Burger King, probative of the fact that the Respondent had a motive to carry a firearm on June 7, 2019, consequently rebutting the inference that I.A. was the shooter.

[35] The Respondent maintained that the 2016 conviction for possession of a firearm was already substantively disposed of by the court when the court refused to permit the Crown to call this evidence as part of its case. The Respondent argued that at the time the court was aware that the defence was leading evidence that I.A. was the shooter, with the necessary corollary that I.A. was in possession of the firearm on the night in question.

[36] I disagreed with this characterization of how matters unfolded in relation to this application by the Applicant.

[37] The Respondent asserted repeatedly that evidence would be called that I.A. was the shooter. The form that this evidence would eventually assume was however, was very much in question until quite late in the trial. At one point, the defence requested that I make a ruling on prior discreditable conduct based on several potential hypotheticals.

[38] It was suggested that I.A. might testify, the Respondent may testify, they may testify together, or Mr. Vizigiro may testify in combination with them, or alone. Finding this proposed path of hypotheticals to be strewn with potential landmines, not knowing which witnesses would be called, or having a firm idea of what would be said, I declined to make those rulings.

[39] In support of the fact that it was uncertain as to whether I.A. would testify until late in the trial, the court notes that when the Crown attempted to introduce voice identification evidence through a Crown witness, the defence objected on the basis that the defence had never positively indicated that I.A. would testify. As a result, I ruled that playing the intercept for the purpose of voice identification would be premature given that I.A. may not testify. Playing an intercept if the witness did not testify would have been confusing for the jury at that point.

[40] As further evidence of the shifting of the evidentiary landscape because of I.A.’s testimonial evidence, photos of drugs and cash which the defence successfully had excluded by the court, are now conceded by the defence to be relevant and admissible for the jury’s consideration.

[41] The evidence of the gun possession in 2016 was reserved to be determined as part of the Corbett application should Mr. Musselman choose to testify. My ruling on the Corbett application was released separately. The Respondent was successful on the Corbett application, and the prior conviction for possession of a firearm and the prior assault conviction were excluded. The jury was left with the 2021 conviction for fail to comply with a court order pursuant to s. 145(3) of the Criminal Code, R.S.C. 1985, c. C-46, and the 2023 conviction for possession of narcotics for the purpose of trafficking.

[42] Neither the Applicant, nor the Respondent clarified which underlying facts would be admissible as part of the Burger King shooting. The court learned quite late in the trial that in fact, the Respondent testified at the preliminary hearing of the individual who was convicted of shooting and killing the person believed to have shot the Respondent in the Burger King. The Applicant sought to use that transcript to cross-examine the Respondent.

[43] The evidence contained in the transcript was highly probative of the Respondent’s credibility. He denied several facts which were established in this trial. For example, he denied knowing Mr. Vizigiro’s nickname. He claimed to forget the name of the mother of Mr. Vizigiro’s child. He claimed to not recall what I.A. called him. He claimed he did not recall how long he had known I.A. He claimed to not know what the word “fam” meant. He said he did not remember anyone named “Boogie”. He said he did not know what “to cook someone” meant. He claimed he did not know what “PK” meant. He said he did not know who Rico was. He claimed to not know who people were referring to when they said Scotty was shot. (The evidence in this trial was the Respondent’s nickname was both Donny and Scotty.) This transcript undoubtedly would have been a powerful tool in the hands of the Crown to discredit the Respondent. These references were matters which were part of the intercepts used in this trial. However, the victim in that case was the man believed to have shot the Respondent in the Burger King. There is an inference, in fact it was likely the theory of the Crown, that the motivation for the murder was to avenge the shooting of the Respondent. This would be discreditable conduct evidence in relation to the Respondent, as it would suggest he was associated to retributive and fatal violence. The Applicant submitted that any references which would identify the context of that case could be kept from the jury to minimize the prejudice. That appeared to the court to be a task fraught with some difficulty. Many of the persons who testified or were referenced in this case were also referenced in the preliminary hearing, including I.A. and David Vizigiro.

[44] However, even if this could be avoided, the path which this trial took unfortunately involved a significant correction by the court of the suggestion that defence counsel for I.A. and prior counsel for the Respondent—not Mr. Russomanno or Ms. Hyslop—engaged in impropriety. The lawyers in the preliminary hearing involved I.A’s lawyer acting for the accused and the Respondent’s former lawyer appearing as counsel for the Respondent, who was a witness called by the crown.

[45] The presentation of this evidence posed trial management challenges for the court. There was a concern that the jury may be confused by this evidence given the prior judicial correction and the same lawyers being involved in the preliminary hearing. The fact that the same witnesses were referenced in that hearing posed a risk of propensity-based reasoning and confusion for the jury. The timing of the application also came at a late-breaking point in the trial, just before the Respondent testified. This gave the court limited time to address all the potential pitfalls of this proposed evidence and craft appropriate mid-trial instructions. In the context of this case, while the evidence was highly probative of credibility, given the earlier issues the court had to deal with in this trial, and the other factors referenced, I exercised my residual discretion to exclude this last body of evidence sought to be used by the Crown as being more prejudicial than probative in terms of my ability to manage this trial efficiently and fairly.

Conclusion:

[46] The court had initial reservations regarding the jury not being advised of I.A.’s conviction for first-degree murder and three counts of attempted murder. This was evidence which was relevant to the jury’s task of assessing whether I.A. had the propensity for murderous violence. However, this was a compromise which experienced counsel proposed to limit the evidence called by the Crown to rebut the inference that it was I.A. who shot Mr. Campbell, and not the Respondent. The jury was simply told that I.A. was under investigation for a serious criminal offence. Notably, I.A. was not the shooter in the Gilmour Street homicide for which he was convicted. There was a great deal of evidence which suggested I.A. was well entrenched in the criminal lifestyle and had ready access to firearms. At the end of the day, I am satisfied that the appropriate balance was reached, and the jury was provided with an equitable view of the evidence to resolve the issue of who shot Markland Campbell. I am also cognizant that counsel is in a far better position than the court to assess the tactical impact of various pieces of evidence. See: R. v. Lomage (1991), 1991 7228 (ON CA), 2 O.R. (3d) 621 (C.A.), at p. 630, has been cited for the following passage:

Defence counsel assumes a great deal of responsibility in a criminal case and when he makes a decision, both he and his client must live with it. It is no function of this court to play the role of what in football terminology is called a "Monday morning quarterback" when it comes to trial tactics employed by counsel. If we were to do so, it would have the effect of placing an unhelpful burden on the trial judge. Instead of being able to rely on the competence of counsel who must know more about the case than the trial judge, we would effectively be saying that the trial court has an overriding responsibility to vet tactical decisions of counsel and, where necessary, to vary or reverse them. Such overweening paternalism denigrates the adversary system. Had the court taken such an approach in this case, it would have amounted to an unjustified interference in the role of both Crown and defence counsel.

[47] In the end, as the gatekeeper in this trial, it is the court’s responsibility, guided by the submissions of counsel and the issues in the case, to make sure that the appropriate balance is reached regarding what evidence of prior discreditable conduct the jury may consider. The jury did not learn of the Respondent’s prior conviction for a firearm, his conviction for assault, nor did they learn that he was alleged to have discharged a firearm a year earlier, because of the incident with Mr. Renegbanga. The jury also never learned of his outstanding murder charge accrued while awaiting trial for the murder of Markland Campbell.

[48] In addition, the Crown sought to lead investigative hearsay evidence in relation to the Burger King shooting which I did not permit. In my view the fact that the Respondent was shot in the Burger King was relevant to rebut the inference that I.A. was the shooter. The underlying facts surrounding the shooting were not relevant as it was the shooting itself which would have provided the Respondent with the motivation to carry a gun on his first night out since being shot on June 7, 2019. There also was a likelihood that permitting Det. Benson to testify regarding investigative hearsay evidence relating to the Burger King shooting would inject a great deal of prejudicial evidence into this trial. I also did not permit the crown to cross-examine the Respondent about the underlying facts surrounding the Burger King shooting. Again, the probative value of that evidence was derived from the fact that the Respondent was shot in a public place. This provided him with the motivation to be carrying a firearm when out in public at the ByWard Market on June 7, 2019 for the first time since being shot on January 16, 2019. It was this last fact which rebutted the defence that I.A. was the shooter.

[49] Therefore, the jury was not exposed to evidence, which was probative, but which may have caused the jury to engage in either moral reasoning errors, or logical reasoning errors due to the nature of the evidence itself. The court was of the view that the decision by the defence to call I.A. to testify that he was the shooter in this case necessitated that the Crown be permitted to rebut this evidence through cross-examination on the edited intercepts. These intercepts were played in the presence of the jury at I.A.’s request. This evidence was prejudicial, but given the context of the case, its probative value outweighed its prejudicial effect. The permissible use of the intercepts and the controls enacted regarding the presentation of this evidence is discussed in a separately released ruling.

Anne London-Weinstein J.

Released: January 30, 2024