Reasons on the Admissibility of Discreditable Conduct Evidence

Court File No.: CR-24-90000023-0000
Date: 2025-03-17
Ontario Superior Court of Justice
Between:
His Majesty the King, Applicant
and
Michael Llanos, Respondent/Accused

Appearances:
I. Erdei, for the Applicant/Crown
S. Rinas, for the Accused/Respondent

Heard: March 11-13, 2025
Judge: J.M. Barrett

Overview

[1] On December 26, 2022, members of the Toronto Police Service executed a search warrant on 208-10 Macey Avenue in the City of Toronto. Unit 208 was unoccupied at the time of the search. However, in an extensive agreed statement of facts, the parties agree that on the date of the search, Kyla Joyner and Mr. Llanos lived at unit 208. The parties also agree that shortly prior to police entering unit 208, Ms. Joyner was seen exiting the unit and, one minute after Ms. Joyner exited, Mr. Llanos was observed exiting the elevator on the second floor and turning in the direction of the unit.

[2] During the search of unit 208, the police seized: 5.13 grams of cocaine (Count 1); 26.51 grams of fentanyl (Count 2); 7.57 grams of crystal methamphetamine (Count 3); and, two sets of brass knuckles (Counts 4 and 5).

[3] Kyla Joyner was originally charged as a co-accused. Her charges were stayed after she died of an opioid overdose on July 1, 2023.

[4] There are only two disputed issues: (i) did Mr. Llanos jointly or constructively possess the drugs and weapons found inside unit 208? and, (ii) if so, was his possession for the purpose of trafficking?

[5] As proof of both issues, the Crown seeks to tender discreditable conduct evidence to demonstrate that Mr. Llanos was a drug dealer whose relationship with Kyla was abusive such that Kyla was unlikely to have independently possessed the contraband seized. The Crown’s theory is that Kyla Joyner and Michael Llanos had a “joint enterprise to possess drugs for the purpose of trafficking”.

[6] As the evidence concerning the nature of their relationship and any other drug activity is extrinsic to the charges before the court and reflects negatively on Mr. Llanos’ character, it is presumptively inadmissible: R. v. Handy, 2002 SCC 56.

[7] I understand that at the end of the trial, the Crown will seek to rely on the unlawful common design hearsay exception to admit a total of eight statements that Kyla purportedly made to her mother – Barbara Stock – and to her sister – Alana Joyner. However, at this stage of the trial, the Crown only seeks a ruling on two categories of non-hearsay discreditable conduct evidence. The first category consists of text communications between Mr. Llanos and Kyla Joyner. The second category consists of viva voce testimony from Barbara Stock (Kyla’s mother) and Alana Joyner (Kyla’s sister). The Crown reserves the right to seek the admission of a third category of disreputable conduct evidence concerning a gun seen in photographs filed as Exhibit 8.

[8] For the following reasons, I am satisfied that the five text communications sought to be admitted by the Crown are admissible. I am further satisfied that some of the viva voce testimony of Barbara Stock and Alana Joyner is admissible as is detailed later in these reasons.

The Discreditable Conduct Evidence

[9] The Crown seeks the admission of text communications on five separate dates in November of 2022. The five can be summarized as follows:

(i) November 7, 2022 (5:57 – 7:06 a.m.): During this 69 minute text conversation, Mr. Llanos tells Kyla that his “pipe broke” but that Kyla has the one he gave her yesterday. Kyla asks Mr. Llanos if he is going to call his “boy”. Mr. Llanos tells Kyla “I can get blow” and that “the blow is good but I have to make it”. Kyla comments that “a 40 will cook back to be so small and I won’t get my full 20”.

(ii) November 12, 2022 (10:24 – 11:07 p.m.): During this 43 minute text conversation, Mr. Llanos only responds with “ok” three times to Kyla writing “I only have $20 cash so I don’t know what I want to do”. Kyla goes on to say “I’m probably gonna wanna buy something from you so if I get the smokes give you a change can you give me you gave me a .5 for 20 last time so can you give me a .5”. After Mr. Llanos replies with “ok” Kyla texts “Scale it rn and it’s ok if it's a .4 I just don’t want less then that”. In a separate text, Kyla wrote “And then no more for me I’ll quit with u”.

(iii) November 13, 2022 (6:53 – 6:54 p.m.): During this brief one-minute text conversation, Kyla wrote “scale me out 10$ I alrey added to tab! Last one” to which Mr. Llanos replied, “come here”.

(iv) November 15, 2022 (12:23 – 12:34 p.m.): During this nine-minute text conversation, Kyla and Mr. Llanos are clearly arguing about Mr. Llanos’ infidelity. Mr. Llanos tells Kyla that she has had sex with 43 people this year whereas he has only had 2 “new girls”. Mr. Llanos tells Kyla that she is “being an idiot” and is “stupid” and a “fucking bitch” for “ruining everything […] because you do all the fucking drugs I give you and then fuck it up”. Mr. Llanos complains that Kyla should let him do what he wants and tells her “this relationship is over”.

(v) November 18, 2022 (5:49 a.m.): A single text from Mr. Llanos reads “Get 500. Cream Pie”. [1]

[10] During submissions, the list of the non-hearsay viva voce testimony sought to be admitted by the Crown was reviewed line-by-line. As a result of this exercise, the Crown modified the evidence sought to be admitted at this stage to the following:

(i) Kyla Joyner began her relationship with Michael Llanos when she was 16 or 17 years old and he was 34 years of age. [2]

(ii) Kyla Joyner used some drugs prior to meeting Michael Llanos, but her drug use escalated to opioids during her relationship with him.

(iii) Barbara Stock called the police repeatedly to request wellness checks of Kyla Joyner. These calls were prompted by Kyla Joyner contacting her and alleging that Michael Llanos abused her. One time, Barbara Stock overheard Michael Llanos berating Kyla Joyner over the phone.

(iv) Barbara Stock noticed that whenever Kyla Joyner was at the family home, Micheal Llanos would text or call her non-stop.

(v) Whenever Barbara called Kyla Joyner, Michael Llanos would be in the background on speaker phone.

(vi) When speaking with Barbara, Kyla Joyner regularly said things like “don’t mess with Spanish because he’s got people”. Kyla Joyner was always worried about violence from Michael Llanos.

(vii) Alana Joyner overheard incidents where Michael Llanos screamed at Kyla. Alana Joyner saw at least one video where Michael Llanos physically assaulted Kyla. Alana Joyner saw Kyla with injuries over the course of several years.

(viii) Alana Joyner once saw Kyla’s teeth bashed in. Kyla initially claimed that she fell into a wall while drunk but later admitted that Michael Llanos caused the injury.

[11] At paragraph 55 of its factum, the Crown detailed an incident after Kyla’s arrest, when Ms. Stock and Kyla were sitting in Ms. Stock’s car. Kyla was upset because Mr. Llanos was across the street cheating on her. While in the car, Mr. Llanos texted Kyla that he had “treats” for her which Ms. Stock understood to be drugs. This is said to be consistent with Mr. Llanos’ general behaviour and “was an effort to shut Kyla up through plying her with drugs”. During submissions, the Crown agreed that it was not pursuing the admission of this evidence as part of its application to admit discreditable conduct. Accordingly, I have not considered the contents of paragraph 55.

The Position of the Parties

[12] The Crown argues that the text messages are relevant to the issue of possession as they demonstrate that Mr. Llanos sold hard drugs to Kyla, and used this to exert control over her. Further, the testimony of Kyla’s mother and sister demonstrate the abusive nature of Kyla’s relationship with Mr. Llanos and that Mr. Llanos “fueled” Kyla’s longstanding drug addiction. The Crown submits that this evidence is relevant as it offers some circumstantial evidence of Mr. Llanos’ knowledge and control over the narcotics found in a common area of the shared residence. Given Kyla’s long history of addiction and the power dynamics of the relationship, the Crown argues that Kyla was merely a “low-level organizer”, whereas Mr. Llanos had an on-going business of drug trafficking.

[13] The defence does not dispute the admissibility of the evidence listed in paragraph 53 of the Crown’s factum which is:

• Kyla Joyner died of a drug overdose in July 2023 at the age of 23.
• Kyla Joyner had a drug addiction since she was 17 or so years old. She used marijuana, crack cocaine, meth, and fentanyl. She had a history of overdosing. Michael Llanos was aware of her addiction.
• Kyla Joyner was in an intimate relationship with Michael Llanos for approximately 6-7 years at the time of her death.
• Michael Llanos lived at 208-10 Macey Avenue. Kyla Joyner lived with him at the relevant time.
• Alana Joyner had been in the apartment several times. She is familiar with the inside of the apartment.
• Michael Llanos was also known as “Spanish”.

[14] Much of this evidence is included in the extensive agreed statement of facts filed as Exhibit 10.

[15] What is disputed is the entirety of paragraph 54 of the Crown’s factum, the modified contents of which are set out above in paragraph 10. Counsel for Mr. Llanos argues that the probative value of this evidence is “limited to non-existent” because “[t]o engage or attempt to engage in ‘controlling’ behaviour in relation to someone does not imply control over every aspect of that person’s life”. Further, as the accused denies that the disreputable conduct occurred, there is a high risk of reasoning prejudice as I must consider the strength of the evidence that the extrinsic acts in question occurred. This will consume time and is unfair to Mr. Llanos as he cannot properly respond to the extrinsic evidence due to the passage of time and the collateral nature of the inquiry.

Governing Legal Principles

[16] It is well established that evidence of an accused’s prior discreditable conduct is presumptively inadmissible: Handy; R. v. C.(Z.W.), 2021 ONCA 116, para 96.

[17] In R. v. J.W., 2022 ONCA 306, para 15, Lauwers J.A., for the Court of Appeal of Ontario, defined the term “discreditable conduct evidence” as evidence that tends to show either the commission of other offences by the accused, or behaviour that a reasonable person would view with disapproval. The rule captures all evidence of an accused’s misconduct beyond what is alleged in the indictment: Handy, para 31; R. v. T.J.F., 2024 SCC 38, para 75.

[18] The rationale underlying the presumption of inadmissibility is twofold; it guards against the risk of moral prejudice and reasoning prejudice. As explained recently by O’Bonsawin J., for a majority of the Supreme Court of Canada in T.J.F., para 76, the admission of prior discreditable conduct risks prohibitive general propensity reasoning and distracting the trier of fact.

[19] The onus is on the Crown to demonstrate on a balance of probabilities that the probative value of the proposed evidence outweighs its prejudicial effect: C.(Z.W.), para 97. This determination can only be done on a case-by-case basis having regard to the “live issues” at trial to which the evidence is said to relate: Handy, para 74.

[20] When determining the admissibility of prior discreditable conduct evidence, the decision of W.(J.), at paras. 20-36 provides a helpful four-step framework of analysis:

(i) Step One: define with specificity the issue to which the evidence is asserted to be relevant – does it advance or refute a live issue in the trial?

(ii) Step Two: assess the probative value of the evidence – is there a logical nexus between the proposed discreditable conduct and the offence charged?

(iii) Step Three: assess the prejudicial effect of the discreditable conduct evidence – what is the risk of moral prejudice and reasoning prejudice, and are there any factors that would mitigate these risks in the specific circumstances of this case?

(iv) Step Four: weigh the probative value of the evidence against its prejudicial effects.

[21] In assessing probative value, the disreputable conduct evidence “need not prove conclusively, or even make it more probable than not, that the Live Conduct also occurred.” Rather, the evidence of disreputable conduct is “probative of the Live Conduct as long as it makes it more or less likely that the Live Conduct occurred”: R. v. Chizanga, 2024 ONCA 545, para 24; Handy, paras 94-97.

[22] In C.(Z.W.), para 98, Strathy C.J.O. set out the following factors of consideration when assessing the probative value of prior discreditable conduct: (a) the strength of the evidence that the extrinsic acts in question occurred; (b) the connection between the accused and the similar acts, and the extent to which the proposed evidence supports the inferences the Crown seeks to make (sometimes referred to as the "connectedness" between the similar act evidence and the "questions in issue"); and (c) the materiality of the evidence -- that is, the extent to which the matters the evidence tends to prove are live issues in the proceeding.

[23] Following an assessment of probative value, the trial judge must then assess the prejudicial effect of the proffered evidence. Evidence is not prejudicial simply because it operates to the detriment of one party. Rather, the two forms of prejudice in the context of discreditable conduct evidence are “moral prejudice” and “reasoning prejudice”: C.(Z.W.), para 101; R. v. L.B., para 22.

[24] Moral prejudice refers to the risk that the accused may be punished on the basis that he is a bad person. Reasoning prejudice is the risk that the admission of the evidence will distract the trier of fact from its task of determining guilt solely for the alleged conduct that forms the basis of the offences charged. See C.(Z.W.), paras 102-103; J.W., paras 27, 29. Reasoning prejudice can include a concern that an “accused cannot properly respond to the extrinsic evidence due to the passage of time, surprise, and/or the collateral nature of the inquiry”: See C.(Z.W.), para 103; Handy, para 146.

[25] While the “poisonous nature” of propensity evidence is mitigated in judge alone trials, it is not eliminated: J.W., paras 31, 34. As recognized in J.W., para 35, the admission of discreditable conduct evidence “might effectively force the accused to testify in a case where doing so might be inadvisable for other reasons”.

[26] Finally, after considering the prejudicial effect of the evidence, the trial judge must then weigh the probative value of the evidence against its prejudicial effects.

Analysis

[27] Adopting the framework of analysis set out in J.W., I commence with step one which requires that I define with specificity the live issue to which the discreditable conduct is said to be relevant.

[28] The live issues in this case are informed by the charges and the defences available. Each of the five alleged offences require proof of Mr. Llanos’ possession. Section 4(3) of the Criminal Code, RSC 1985, c C-46, recognizes three forms of possession: personal, joint, and constructive. In the circumstances of this case, the Crown relies only on joint and constructive possession. Both require that the Crown prove, beyond a reasonable doubt, Mr. Llanos’ knowledge and some measure of control over the contraband seized. Joint possession requires the added element of consent. In other words, proof that not only did Mr. Llanos know and have some measure of control over the contraband seized, but he also consented to it being in his apartment: R. v. Pham, paras 15-16, aff’d 2006 SCC 26.

[29] In this case, there is no dispute that only two persons lived in unit 208 at the relevant time: Kyla Joyner and Michael Llanos. One need not be clairvoyant to assume that Mr. Llanos will argue that the contraband belonged exclusively to Kyla.

[30] Having identified the live issue, step two requires that I assess the probative value of the evidence. Does the proposed evidence make it more or less likely that Mr. Llanos was in joint or constructive possession of the contraband?

[31] I will first consider the text communications.

[32] The first three appear to be discussions about illicit drugs. Defence counsel disputes the Crown’s interpretation of these texts as evidence of Mr. Llanos “selling hard drugs to Kyla Joyner”. Defence counsel recognizes that the second conversation shows that Mr. Llanos agreed to “give” Kyla a small quantity of an unknown substance. This, however, does not render it more likely that Mr. Llanos shared control over the narcotics seized. Defence counsel submits that any emotional control Mr. Llanos may have had over Kyla does not extend to control over her possessions. To infer otherwise is to adopt a paternalistic approach that unreasonably strips Kyla of agency and simply relies on prohibitive general propensity reasoning. Further, the texts are of minimal probative value because they are not temporally proximate to the Live Conduct, they are ambiguous, and they lack similarity to the Live Conduct.

[33] In support of its position, the defence relies heavily on the decision of the Court of Appeal for Ontario in L.B., paras 44-47, to argue that evidence of Mr. Llanos’ drug trafficking has no probative value beyond general propensity since the drugs could equally have belonged to Kyla who had a history of using all of the very drugs seized. In L.B., Charron J.A., for the Court, considered the Supreme Court of Canada’s decision of R. v. Lepage, in which evidence of Lepage’s past drug dealing was admitted as it was relevant to the issue of possession of illicit drugs found under a living room sofa of a shared residence. In L.B., at para. 46, the court explained that if Lepage’s two roommates were also major drug dealers, Lepage’s history of drug dealing would be inadmissible as, in these circumstances, it did not assist in determining ownership of the drugs as between the three roommates. In my view, L.B. is distinguishable.

[34] Kyla and Mr. Llanos were not mere “roommates” or “co-tenants” as in Lepage. They were common law partners in which one partner was vulnerable because of a serious drug addiction and prior abuse. To the extent that these texts provide some evidence of Mr. Llanos trafficking narcotics to Kyla and arguably using her drug dependency as a form of control may be relevant to the issue of Mr. Llanos’ relationship to the narcotics found. See Lepage, paras 36-37; Handy, para 89; R. v. Dennis, 2023 ONSC 2285, paras 23-27.

[35] No issue was raised concerning the authenticity of the text messages. They are a reliable recording of the communications between Kyla and Mr. Llanos. While the communications were weeks prior to the seizure on December 26, 2022, this does not negate their probative value. They offer some circumstantial evidence of Mr. Llanos supplying Kyla drugs including “blow” that she would then “cook”. At paragraph 85 of the agreed statement of facts, it is agreed that in the view of police drug expert Detective Constable Hurtado, “blow” is the term used to refer to cocaine and “cooking” is the process used to make crack. Cocaine was one the substances found during the search.

[36] The probative value of this evidence does not depend on any degree of similarity to the Live Conduct. The discreditable conduct in this case is not similar fact evidence. The evidence is relevant, not for the purpose of impermissible propensity reasoning – i.e., to show that because Mr. Llanos previously trafficked drugs to Kyla, he is of bad character and more likely to have committed the offence, but to show Mr. Llanos’ knowledge and control over the drugs seized. A history of supplying Kyla with drugs could be relevant as circumstantial evidence of opportunity, knowledge and control.

[37] The last two text conversations do not relate to drugs. Rather, they relate solely to the nature of the relationship between Kyla and Mr. Llanos. Again, there is no issue regarding the authenticity of the texts. In my view, the nature of the relationship is of some relevance in determining whether Mr. Llanos is likely to have known of and had any measure of control over narcotics kept in the shared residence. Again, the facts of this case are not like Lepage in which the nature of the shared residency was as co-tenants. In this case, the residence is shared by partners in a long-term intimate relationship in which one partner has vulnerabilities. To exclude this evidence would effectively sanitize the record and deprive the court of important context and background about the nature of their cohabitation; were Kyla and Mr. Llanos simply sharing a roof but living separate independent lives? The relevance and materiality of these texts is obvious.

[38] With regard to the testimony of Barbara Stock and Alana Joyner set out in paragraph 10 above, I will address each of these separately:

(i) Kyla Joyner began her relationship with Michael Llanos when she was 16 or 17 years old and he was 34 years of age.
This is admissible. In fact, similar evidence is found in paragraph 45 of the agreed statement of facts.

(ii) Kyla Joyner used some drugs prior to meeting Michael Llanos, but her drug use escalated to opioids during her relationship with him.
This is admissible as part of the narrative as it shows the history of Kyla’s drug addiction.

(iii) Barbara Stock called the police repeatedly to request wellness checks of Kyla Joyner. These calls were prompted by Kyla Joyner contacting her and alleging that Michael Llanos abused her. One time, Barbara Stock overheard Michael Llanos berating Kyla Joyner over the phone.
Evidence of the wellness checks is admissible. Similar evidence is found in the agreed statement of facts at paragraph 78.
The remainder is not admissible. In her testimony before me, Ms. Stock did not link her requests for wellness checks to any allegation of abuse by Mr. Llanos. Further, while Ms. Stock testified that she heard Mr. Llanos screaming in the background, she did not link this to her request for a wellness check, nor were any details provided about the timing of this. Ms. Stock testified about one call from Kyla after Kyla had jumped out of a window but this occurred after Kyla’s arrest.
This evidence is lacking in strength. Not because I doubt Ms. Stock’s testimony, but because of the lack of any details. Further, I am not satisfied it advances the inquiry of the ultimate issue of Mr. Llanos’ knowledge and control over the seized narcotics.

(iv) Barbara Stock noticed that whenever Kyla Joyner was at the family home, Micheal Llanos would text or call her non-stop.
This is admissible as some evidence of the dynamics of the relationship that existed between Kyla and Mr. Llanos.

(v) Whenever Barbara called Kyla Joyner, Michael Llanos would be in the background on speaker phone.
This is admissible as some evidence of the dynamics of the relationship that existed between Kyla and Mr. Llanos.

(vi) When speaking with Barbara, Kyla Joyner regularly said things like “don’t mess with Spanish because he’s got people”. Kyla Joyner was always worried about violence from Michael Llanos.
This is not admissible as Barbara Stock’s testimony placed the timing of this to after the arrest when Kyla believed people were “watching” her. It offers no probative evidence of the live issue in this case of who possessed the drugs found inside unit 208.

(vii) Alana Joyner overheard incidents where Michael Llanos screamed at Kyla. Alana Joyner saw at least one video where Michael Llanos physically assaulted Kyla. Alana Joyner saw Kyla with injuries over the course of several years.
This is not admissible. There is no evidence as to when this occurred in relation to the search of unit 208. Given the other evidence about the relationship, evidence of physical abuse is highly prejudicial and does not make the issue of Mr. Llanos’ possession of the narcotics found any more or less likely.

(viii) Alana Joyner once saw Kyla’s teeth bashed in. Kyla initially claimed that she fell into a wall while drunk but later admitted that Michael Llanos caused the injury.
This is not admissible. There is no evidence as to when these injuries were observed in relation to the search of unit 208. Given the other evidence about the nature of the relationship, evidence of physical abuse does not advance the inquiry about the Live Conduct.

[39] Being satisfied that the discreditable conduct evidence has probative value, at step three I must assess the prejudicial effect of its admission.

[40] The risk of moral and reasoning prejudice are present in this case. However, as this is a judge alone trial, these risks are mitigated. I will self-instruct on the limited legitimate use of the evidence.

[41] Finally, I come to stage four. In my view, the probative value of the evidence – with the exception of items at paragraph 38(iii), (vi), (vii) and (viii) above – far outweighs any prejudicial effect in this judge alone trial.

Conclusion

[42] For the reasons given, the application is granted in part. The five text communications are admissible as are the items as outlined in paragraph 38 above.

J.M. Barrett
Released: March 17, 2025

[1] Kyla’s cell phone extraction records show that within minutes of this text, Kyla messaged a male contact (i.e., Joseph) offering to have sex explaining “I really really really really need some money”. After 33 minutes of messaging with Joseph, Kyla messaged a second male (i.e., Peter) offering to have sex with him, explaining that she really needed money.

[2] Paragraph 54 of the Crown factum refers to Mr. Llanos as being 32 years old. During the hearing, the Crown advised that he was 34 years of age when their relationship started.