His Majesty the King v. Anthony La, 2025 ONSC 3531

CITATION: R. v. La, 2025 ONSC 3531

COURT FILE NO.: CR-25-1245

DATE: 2025-06-19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Applicant

– and –

ANTHONY LA

Respondent

S. Patterson and A. Grady, for the Crown

H. Aly, for the Respondent

HEARD: June 16, 2025

REASONS FOR DECISION

Bordin J.

Overview

1The respondent is charged with the first-degree murder of Sabir Omer and the attempted murder of Aboud Mohammad.

2The Crown seeks to admit at trial the following discreditable conduct against the respondent:

a. Photographs and videos of the respondent in possession of firearms; and

b. Firearms and ammunition located and seized at the residences of 202 Gleave Terrace and 69-57 Forest Avenue when the police executed search warrants on October 14, 2021.

3The evidence sought to be tendered by the Crown is contained in the Crown’s application record and in a USB drive provided to the court and marked as Exhibit 3.

Factual allegations

The shooting

4On September 14, 2021, Sabir Omer was shot and killed outside a Tim Hortons on King Street West in Hamilton. A shot was also fired at Aboud Mohammad who was with Sabir Omer.

5At 2:45 p.m., a single male shooter entered the parking lot from King Street West. The shooter was wearing a black Nike hoody with the hood up tight around his head, and a black mask on his face. Only his eyes were visible. The shooter walked directly towards Sabir Omer while holding a handgun in his right hand.

6The shooter shot Sabir Omer once in the forehead, causing him to fall to the ground. When Aboud Mohammed attempted to run for cover, the shooter fired one shot at him and narrowly missed. The shooter then pointed the handgun back towards Sabir Omer and fired one more shot, striking the back of his right leg. Sabir Omer was pronounced dead at the scene.

7The shooter was only in the parking lot for 35 seconds.

8Three spent casings were located at the scene, which demonstrate that the murder weapon was loaded with R-P Luger 9 mm ammunition and was therefore a 9mm pistol. The firearm used in the shooting was never recovered.

9Police seized footage from numerous security cameras both before and after the murder.

10During the investigation, the police seized numerous cellphones: three from the respondent’s bedroom, four belonging to Jahquann Eccleston, and two belonging to his brother, Trayonte Eccleston.

Events leading up to the shooting

11On September 7, 2021, the respondent communicated with Jahquann and others in a group chat. An unidentified party started this conversation a day earlier by saying “hms are pussyfoots”. On the 7th, this unidentified individual stated, “bout to make her give the drop on hms pussyfoots” to which the respondent said, “Sabir Hassan fb”. Hassan is Sabir Omer’s middle name and FB or fatboy is Sabir Omer’s nickname.

12In the days leading up to the murder of Sabir Omer, Jahquann and Trayonte, engaged in an instant messaging conversation. In the messages, the Ecclestons discuss the speed of a vehicle to be rented. Trayonte states “I hope you don’t regret not giving them a fast car in case they follow hms n air it n need to fly”.

13In the days prior to the shooting, the Eccleston brothers were being surveilled by Hamilton police. Both were seen in possession of a silver Ford Fusion with license plate CSSM 152. Police later confirmed that this was a rental car.

14On the morning of the shooting, September 14, 2021, Jahquann is captured on CCTV arriving at the 57 Forest Avenue apartment building in his black Acura RDX. He enters the underground parking followed by Trayonte, who was driving a black BMW. The two leave in the Acura RDX, return to the apartment building in the Acura RDX, and then leave again together in the Acura RDX at 11:55 am.

15At 1:52 p.m. the shooter entered the Tim Hortons parking lot and walked directly towards Aboud Mohammed and asked Aboud Mohammed if he knew FB. Aboud Mohammed refused to answer, and the shooter left southbound on Caroline Street South.

16After this, CCTV footage captures the Ford Fusion circling the downtown area, travelling past the Tim Hortons on several occasions, and along the side streets in the immediate area.

17At 2:27 p.m., Sabir Omer is captured on CCTV walking to the Tim Hortons on King Street West. As Sabir Omer walked along King Street West toward the Tim Hortons, the Ford Fusion travelled directly past him. Sabir Omer then crossed the street and met up with Mohammed near the electrical box in the parking lot of Tim Hortons.

18The respondent called and connected with Jahquann on five other occasions within an hour prior to 2:30 p.m.. Jahquann is the only person the respondent spoke to in the hour leading up to the shooting.

19At 2:30 p.m., the respondent placed a phone call to Jahquann who was in the direct vicinity of the murder, at a friend’s apartment at 20 George Street. They spoke for 151 seconds.

20After the call, the Eccleston brothers and another individual depart 20 George Street in Jahquann’s Acura RDX.

21After passing Sabir Omer, the Fusion travelled to nearby Hess Street where it pulled over just south of Market Street. The respondent placed another call to Jahquann at 2:37 p.m. that lasted 94 seconds.

22Moments later, the Acura RDX arrived at the same location and parked just behind the Fusion. The respondent placed a third call to Jahquann that lasted 18 seconds. CCTV then captures someone exiting the Acura RDX on the passenger side and entering the Fusion. The Crown alleges that this was Jahquann. The Acura RDX then departs the area. Shortly thereafter, the Fusion begins to travel north on Hess Street off camera. The Crown submits that it can be inferred from the CCTV footage that the Fusion stops off camera for two minutes, after which the shooter is seen walking away from the Fusion on foot.

23The shooter walks directly to the Tim Hortons parking lot, enters the lot, and approaches Sabir Omer and Aboud Mohammed and, after a brief interaction, fatally shoots Sabir Omer and fires a round at Aboud Mohammed. A second round is fired at Sabir Omer and the shooter then flees the parking lot on foot.

Events after the shooting

24The shooter is captured on CCTV running from the Tim Hortons. The Fusion is captured travelling through a stop sign. The driver drives the wrong way down Robinson Street. At 2:51 p.m. the Fusion is last recorded heading south on Caroline Street, around the corner from where the shooter was seen on CCTV on Robinson Street.

25At 3:22 p.m., the respondent’s cellular telephone connects with the Ford Fusion’s Infotainment system. Through cellular telephone records the Fusion is tracked to Burlington. Production orders on phones that belong to Jahquann and the respondent establish that their phones used the same cell towers after the shooting. While in Burlington, Jahquann communicates with Trayonte.

26At 4:04 p.m., the Acura RDX arrives at 57 Forest Avenue. Trayonte is captured using the FOB to enter the underground parking lot. Jahquann and the respondent are captured on CCTV inside the parking garage and entering the elevator to the sixth floor. The respondent is dressed in a patterned windbreaker (later recovered from his home at 155 Stirton Street on October 14, 2021) and wearing a polka dot backpack (later found at 57 Forest Avenue on October 14, 2021).

27At 4:14 p.m., Jahquann enters the elevator alone from the sixth floor and travels to P1 while engaging with his cellphone. The Acura RDX exits the parking garage and travels south on John Street.

28At 5:37 p.m. the Acura RDX returns to 57 Forest Avenue and enters the underground parking garage. Both Eccleston brothers exit from the underground parking garage and travel up to the sixth floor. While in the elevator, Jahquann makes shooting gestures with his hands.

29The brothers exit on the sixth floor. At 5:40 p.m. they both enter the elevator from the sixth floor and travel down to P1. The Acura RDX, followed by the BMW, exit the parking garage at 7:24 p.m. and travel north on John Street.

30The day after the shooting, the Eccleston brothers jointly returned the Fusion to the rental location in Etobicoke.

31In the days after the shooting, Jahquann recorded a video of the respondent in the underground parking of 57 Forest Avenue wherein the respondent says “thank you for the FB treat” while Jahquann makes gestures with his hands and mimics the sound of gunshots.

32On October 14th, 2021, a search warrant was executed at 202 Gleave Terrace in Milton, Ontario. In the living room underneath the coffee table police located:

a. A Glock 30 .45 Calibre Semi-Automatic Firearm with its serial numbers defaced. At the time of its seizure, the firearm was loaded with nine rounds of .45 calibre ammunition capable of being discharged from it. Police also located, attached to the firearm, a stream light TLR laser.

b. A Glock 21 .45 calibre Semi-Automatic Firearm with its serial numbers defaced. At the time of its seizure, the firearm was loaded with ten rounds of .45 caliber ammunition capable of being discharged from it.

c. A clear bag with 31 rounds of 9mm ammunition, specifically R-P 9mm Luger ammunition, the same type and specification of ammunition as that located at the scene of the shooting.

33On the second story landing, where Jahquann was ultimately arrested, police located a gold/brown coloured FN Five-Seven Semi-Automatic handgun, loaded with 17 rounds of .20 calibre ammunition and chambered with one round of ammunition.

34None of the three firearms found at 202 Gleave Terrace were loaded with 9mm ammunition.

35Contained within Tech Crime Unit Exhibit 23, on a phone attributed to Jahquann was a video of him and the respondent at 57 Forest Avenue on September 30, 2021. The video begins selfie-style and depicts Jahquann holding a semi-automatic firearm. It then captures the respondent walking by another semi-automatic firearm on the counter.

36At the same time the warrant was being executed at 202 Gleave Terrace, another s. 487 Search Warrant was also being executed at 69-57 Forest Avenue. Police located the following items:

a. a Glock 19 semi-automatic handgun and a loaded extended magazine containing 15 rounds of 9mm ammunition;

b. a plastic bag containing 30 rounds of various brands of 9mm ammunition, including R-P 9mm Luger ammunition;

c. a MasterPiece Arms MPA Defender fully automatic Machine Gun (Uzi) loaded with 5 rounds of ammunition;

d. in the second bedroom closet, the backpack that the respondent was wearing in the 57 Forest elevator on the day of the shooting;

e. seven extended firearm magazines, one of which was fully loaded with ammunition, some of which were R-P 9mm Luger ammunition; and

f. two 50 round drum magazines and over 1100 rounds of various types of ammunition, including rounds of R-P 9mm Luger ammunition, a speed loader used for a firearm, and three firearm silencers.

37Neither of the firearms located at 69-57 Forest Avenue were the firearm used in the shooting on September 14th, 2021.

38While these warrants were executed, a search warrant was executed on the respondent’s family home at 155 Stirton Street in Hamilton. No firearms, ammunition, or firearm paraphernalia were located at this residence or on any person in the home.

39Contained within Tech Crime Unit Exhibit 14, the iPhone 8 registered to the respondent, were four videos and four photos of the respondent in possession of firearms:

a. a photograph taken by the Respondent posing in the mirror with a semi-automatic firearm on October 2, 2021;

b. two videos taken selfie-style in a car with the respondent in possession of a semi-automatic handgun and another individual, Noel Mills, in possession of a semi-automatic handgun on October 3, 2021;

c. a video of both the respondent and Jahquann in possession of semi-automatic firearms in a car on October 4, 2021;

d. a video of the respondent in possession of a machine gun (Uzi) on October 4, 2021;

e. two photographs of the respondent in possession of a machine gun (Uzi) on October 11, 2021.

f. a photograph of the respondent in possession of a semi-automatic firearm in a car on October 12, 2021.

40Tech Crime Unit Exhibit 15, a Samsung cellphone with a phone number registered to the respondent, contained a photograph of the respondent with a firearm taken on September 2, 2021.

41Although it is impossible to determine if the semi-automatic firearms depicted in the photographs and videos are indeed the unrecovered weapon used on September 14th, 2021, they appear to be semi-automatic firearms capable of discharging the calibre of ammunition located at the scene of the shooting.

42The parties also filed admissions pursuant to s. 655 of the Criminal Code.

Applicable Law

Admissibility of other discreditable conduct

43The Crown concedes that there is a general prohibition against the Crown leading evidence of an accused’s bad character for the purpose of showing that, because of their character, the accused is the type of person who is more likely to have committed the offences charged and that the Crown is not entitled to “ease its burden” by stigmatizing the accused.

44As summarized by the Court of Appeal for Ontario in R. v. Café, 2023 ONCA 10, at para. 28, the Supreme Court of Canada in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, established that discreditable conduct evidence is presumptively inadmissible unless the Crown can show on a balance of probabilities that it is relevant to an issue other than the accused’s general propensity to commit bad acts, and that its probative value in relation to that issue outweighs the risks of moral and reasoning prejudice.

45Where discreditable conduct evidence is relevant to and probative of specific inferences relating to live issues at the trial, the fact that the probative value of the evidence arises from propensity reasoning does not, in itself, make the evidence inadmissible: R. v. Kinkead (2003), 2003 CanLII 52177 (ON CA), 67 O.R. (3d) 57 (C.A.), at para. 77.

46The threshold for relevance and materiality is not high. It is met when the evidence has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition would appear to be in the absence of that evidence: R. v. McDonald (2000), 2000 CanLII 16871 (ON CA), 135 O.A.C. 365 (C.A.), at para. 24.

47Evidence which incidentally demonstrates bad character can also be directly relevant to a key element of the Crown's theory of the case, such as motive, opportunity, or means: R. v. G. (S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at paras. 63-64.

48Evidence of the accused’s opportunity and means to commit the offence is relevant. While opportunity and means are not elements of the offence, proof of opportunity or means makes it more likely that the accused committed the crime: R. v. Riley, 2009 CanLII 15451 (Ont. S.C.). Evidence that on other occasions the accused possessed the necessary tool for committing the offence is properly admissible as access to means: R. v Johnson, 2018 ONSC 1552, at para. 25, citing Kinkead, at paras. 72-84.

49Prior discreditable conduct is especially important in the context of identity and motive, as well as providing essential details to the unfolding of the offence that allow the jury to render a true verdict: R. v. Obregon-Castro, 2020 ONSC 6595, at para. 22.

Probative value and prejudicial effect

50Courts have suggested the following analytic framework for consideration in balancing the probative value of the proposed evidence against its prejudicial effect:

1. Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?

2. If so, is the proposed evidence relevant and material?

3. If relevant and material, is the proposed evidence discreditable of the accused?

4. If discreditable, does its probative value outweigh its prejudicial effect?

See McDonald, at para. 23. See also R. v. Luciano, 2011 ONCA 89, at paras. 226-228.

51To determine probative value, the judge should first determine the issue to which the proposed evidence relates. The second step in the balancing process involves an assessment of the prejudicial effect of the proposed evidence: Luciano, at paras. 230-231. The meaning and risk of prejudice is set out in Luciano, at para. 232:

The term “prejudice” does not refer to the risk of conviction, rather has to do with the risk of an unfocussed trial and a wrongful conviction through an impermissible chain of reasoning – to infer guilt from general disposition or propensity: Handy at para. 139. Propensity reasoning uses evidence of character or disposition as circumstantial evidence of conduct. An accused is convicted because of what he is, rather than because of what he has done. Prejudice is a surrogate for proof, character for conduct.

52In McDonald, at para. 25, Sharpe J.A. set out the following matters to be considered in assessing the probative value of proposed evidence:

a. the strength of the evidence;

b. the extent to which the proposed evidence supports the inference(s) sought to be made from it; and

c. the extent to which the matters it tends to prove are at issue in the proceedings.

53“Prejudice” in this context refers to both “moral prejudice” and “reasoning prejudice”: R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 126, at para 101. Moral prejudice refers to the risk that the jury may convict the accused based on being a bad person who is likely to have committed the offences with which they are charged, rather than based on the evidence: ZWC, at para. 102. There is a related concern that the jury may punish the accused for prior bad acts as revealed in the evidence of the prior discreditable conduct: ZWC, at para. 102. See also R. v. J.A.T., 2012 ONCA 177, at para. 52. Reasoning prejudice, in contrast, diverts the jury from its task, and describes the risk that the jury will give the evidence more weight than is logically justified: ZWC, at para. 103.

54In assessing the prejudicial effect of the proposed evidence, consideration should be given to such matters as:

a. how discreditable it is;

b. the extent to which it may support an inference of guilt based solely on bad character;

c. the extent to which it may confuse issues; and

d. the accused’s ability to respond to it.

See McDonald, at para. 25 and ZWC, paragraph 104.

The Crown’s position

55The Crown’s position is that the evidence of other discreditable conduct is relevant to the issues of means and opportunity, identity, and planning and deliberation. Further, that the evidence is required to narrow the pool of persons who could be the shooter and strengthen the evidence of the connection between the respondent and the Ecclestons. The Crown submits that since the murder weapon was not recovered, the possibility that the videos depict the murder weapon cannot be ruled out.

56The Crown acknowledges that all but one of the photos of the respondent with weapons are from after the shooting but submits that they are all close enough in time (within one month) to be temporally connected to the shooting and to the issue of opportunity and means and identity.

57The Crown submits that the photos of the 9mm ammunition found in a location that the respondent attended shortly after the shooting is relevant to the live issues at trial. The Crown concedes that there is no evidence that the respondent ever attended at 202 Gleave Terrace. The Crown concedes that none of the weapons found at 202 Gleave Terrace had the ability to shoot 9mm ammunition but submits that the evidence of the 9mm ammunition found there connects the Ecclestons to the respondent and the shooting.

58The Crown’s position is that all the photos and videos are necessary and should be admitted. In the alternative, if what the Crown seeks to admit exceeds what is necessary to address means and opportunity, identity, and planning and deliberation, the photos and videos pertaining to the Uzi may be removed.

The Crown’s cases

59The Crown relies on a number of cases in support of its position, including the following.

60In Kinkead, two victims were stabbed to death. The trial judge admitted evidence that Kinkead had, in the past, both carried a knife and threatened someone with a knife after a minor incident. The Court of Appeal held that evidence that Kinkead had a habit of carrying a knife similar to the murder weapon would have some probative value on the issue of whether he possessed or supplied the murder weapon. The Court of Appeal was of the view that the risk of both moral and reasoning prejudice was minimal and that the evidence was not highly discreditable. In the context of a murder trial there was little risk that the jury would convict Kinkead to punish him for his past conduct of carrying a knife, sharpening it regularly, and, on one occasion, threatening someone. Nor was it likely that the jury would use the evidence to conclude that he was the type of person who would commit a planned and deliberate murder.

61In R. v. Asante, 2022 ONCA 657, Asante’s passenger exited the vehicle and shot the driver and passenger of another vehicle, while Asante was stopped at a red light. Asante began to drive away while the shooter was getting back into Asante’s vehicle. Asante said that he did not intend to assist the passenger, nor did he know that the passenger had a gun and was going to shoot the victims. The trial judge admitted a photo of a handgun on a bedspread found on the accused’s cell phone, taken approximately four months before the shootings. The same style bedspread was later seized by police at the apartment of the mother of one of the accused’s children. A firearms expert testified that the handgun in the photo either resembled a model that fires .40 calibre ammunition or one that fires 9mm ammunition. The ammunition recovered from the scene was .40 calibre. He could not determine from the photo whether the gun was real. The trial judge held that the photo was circumstantial evidence that connected Asante to the type of handgun used in the shootings and that supported that he had access to and possession of such a handgun sometime before the shootings.

62The Court of Appeal upheld the trial judge’s decision and affirmed the admission of the photo on the premise that the gun in the photo was similar in type to the murder weapon and, thus, was probative of the appellant’s access to or possession of the type of handgun used in the shootings.

63In Riley, the Crown sought to adduce general evidence of the accused’s possession and use of firearms on a variety of occasions to demonstrate that he had both the opportunity and the means to commit murder. No murder weapon had been unequivocally identified. The most the experts could say was that a certain calibre of bullets was used, which limited to some degree the possible firearm used. The court found that, at the very least, the evidence showed that Riley had access to guns and knew how to use them. This in turn was relevant to whether the accused could have participated in the shooting. The court excluded some of the firearms-related incidents because they were temporally too remote.

64In R. v. Abbey, [2007] O.J. No. 855 (Ont. C.A.), the court held that witness testimony that gang members, including Abbey, had access to guns alongside the fact that the witnesses directly observed guns being handled in the presence of Abbey, tended to make more probable the fact that Abbey had a gun on January 8, 2004, the day of the shooting, which was an issue at trial.

65In R. v. Obregon-Castro, 2020 ONSC 6595, the two accused were charged with first degree murder. They were alleged to have entered the victim’s residence, armed with a firearm and a knife, and stabbed her to death. The Crown applied to adduce evidence of Obregon-Castro’s prior possession and use of a gun. The question of who killed the deceased was the subject of dispute between the two co-accused. Identity was also an issue. The court held that Obregon-Castro’s prior possession of a gun was both relevant and material and could be used to show that he owned or had access to a weapon similar to that used by the man who entered the deceased’s apartment. In support of this proposition, the court cited Kinkead and R. v. Cain, 2015 ONCA 815, at para. 67.

66In R. v. Bailey, 2023 ONSC 2499, Shamar Bailey and Kwami Garwood were charged with first-degree murder. The Crown sought to adduce evidence of Garwood’s access to and possession of firearms by introducing images from the phone of a third individual, D.M., which depicted D.M. holding a revolver and an individual alleged to be Garwood holding a semi-automatic pistol. The court held that, given the alleged joint nature of the murder, were the Crown to prove that D.M. was one of the shooters, in the context of the whole of the evidence, then the photos of D.M. holding a revolver could assist in proving that Garwood was the other shooter. In another photograph of a man alleged to be Garwood holding what looked like a semi-automatic pistol, the man’s face was mostly covered by his hand. The court held that it was still reasonably open for the jury to draw the inference that it was Garwood holding the gun in the photograph, as there were aspects of the photo that would allow the jury to compare the man to Garwood. This was further bolstered by the fact that other photographs of Garwood were contained in D.M.’s phone. The probative value of Garwood holding a gun related to his means to commit the murder; it was evidence of access to guns and relevant to proof of identity.

67The Crown also sought to adduce evidence of Bailey’s access to and possession of handgun ammunition, located in a bedroom alleged to be Bailey’s. The ammunition was of the same calibre and had specific characteristics that matched the ammunition used by one of the firearms involved in the shooting. The court held that it had considerable probative value on both issues.

68The court in Bailey noted that while probative value clearly increases where there is proof of the possession of the actual murder weapon, it can also 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 court cited numerous cases in support of this proposition, including some of the cases relied on by the Crown.

The respondent’s position

69The respondent did not take issue with the facts set out by the Crown in its application material, as set out above.

70The respondent agreed with the summary of the law outlined in the Crown’s application and acknowledged that there is authority for the admission of evidence connecting an accused to firearms when it serves as circumstantial evidence of identification. In his written submissions, the respondent’s position was that a limited number of photos should be admitted into evidence, and only those that do not depict the accused as menacing or are otherwise frightening. The respondent submitted that failing to limit the photos would lead to the admission of evidence wherein the probative value is outweighed by its prejudicial effect.

71The respondent cited from paras. 18 and 19 of R. v. Bezabeh, [2024] OJ No 6058, in which Code J. noted that there is now a long line of authority applying the principles respecting the admission of other discreditable conduct in circumstances of prior or subsequent possession of the means to commit the offence (i.e., the murder weapon or a similar weapon).

72In support of his position that admission of all the proposed photos is unnecessary to establish access to firearms, the respondent cited para. 25 of Bezabeh. There, Code J. excluded the following images:

a. A “particularly frightening image of Harker” pointing two guns at the camera, which depicted the location where the alleged perpetrators likely prepared for their departure. Code J. held that the Crown could prove these points with other images without the same risk of moral prejudice that may arise from an emotional reaction to the image.

b. Images that contained otherwise relevant information but included potentially prejudicial depictions of a scantily clad female pointing a gun at the viewer while standing beside Harker, and Harker displaying a relatively large amount of cash. Code J. held that such an image introduces extraneous distractions that may give rise to both moral and reasoning prejudice. Further, some of the evidence contained in the photos was admissible through other means.

c. A photo that showed little more than Harker apparently smoking drugs, together with some evidence of association that was repetitive of other less prejudicial images; and another photo that simply depicted Harker smoking drugs and holding money.

d. A final photo that was not excluded but edited, as it included a sinister and irrelevant image of two young men handcuffed in the basement of a townhouse ten days after the shootings.

73In oral submissions, the respondent took the position that he would make a s. 655 admission that he had access to firearms and that, as a result, none of the images and videos need be admitted. Following a break, the Crown advised it did not accept this position.

74The respondent’s position is that the photos and videos depict him posing with firearms and having them in public and paints him and his associates as anti-social gun-wielding criminals. Further, he submits that the images of him and others pointing guns at the camera and at their heads would be too troubling and disturbing. Given this, the prejudice is too substantial to admit any of the photos.

75In the alternative, the respondent submits that only one or two of the photos depicting him with a firearm should be admitted. Specifically, he suggests that a screenshot be taken from the video of him in the car holding a gun and that one of the photos of him holding a gun be admitted.

Analysis

The issues at trial

76I accept that the principal issues at trial are identity and planning and deliberation. Means and opportunity are relevant as they point to identity.

77Although included in the Crown’s application record, the photos of the spent ammunition found at the scene of the shooting is not other discreditable conduct. They are admissible on other grounds.

78Below, I break down the other discreditable conduct contained in the Crown’s application into categories, addressing them as such. I first make some general comments about the photos and videos.

79The photos and videos are for the most part strongly probative of access to weapons and ammunition, the respondent’s comfort with them, and therefore means and opportunity and identity. Some are also probative of the association between the respondent and Jahquann. All the images and videos are within a month of the shooting. It will be open to the jury to draw an inference from the images that the respondent is one of the participants of the shooting because he had access to guns generally, and potentially the kind of gun used in the shooting, as well as access to the same and similar ammunition as that used in the shooting, and because he was associating with other alleged perpetrators after the shootings.

80Except for some of the photos of 202 Gleave Terrace and 57 Forest Avenue, the photos depict discreditable conduct of the respondent. It might be said that the photos taken of 202 Gleave Terrace – on the evidence, a place the respondent had not attended – is not the conduct of the accused. However, given that the Crown seeks to tender the evidence to establish means and opportunity and given that the Crown asserts a close association between Jahquann and the respondent, the evidence can be said to be the conduct of the accused or evidence that is discreditable of the accused. The discreditable nature of the evidence is tempered slightly, as it is in the context of a murder trial. The CCTV video of the shooting in broad daylight will also be shown to the jury.

81No indication has been given by the respondent that he cannot respond to the other discreditable conduct evidence the Crown seeks to admit.

82Any reasoning prejudice is limited because the images found on the phones can be readily proved through real and demonstrative evidence, without any apparent challenge to reliability or credibility and without any undue expenditure of trial time. Given the contents of the photos and videos, they should not distract the jury from its role in determining the principal issues of identity and planning and deliberation.

83Having said this, I am of the view that the cumulative effect of admitting all the photos and videos proposed by the Crown is not necessary and would be overly prejudicial. Admitting all the photos and videos would be discreditable to the respondent and would create a potentially irresistible pull to draw an inference of guilt based solely on bad character. Further, the information conveyed in many of the photos and videos is the same information depicted in different contexts. As a result, it is not necessary to admit all the evidence sought to be tendered by the Crown.

84In limiting the number of images that are admitted, I seek to balance the probative value of the images and their prejudicial effect. Further, I note that any moral prejudice will be further mitigated by a strong limiting instruction to the jury regarding the permissible and impermissible uses of this evidence: see Asante, at para. 29; and Bezabeh, at para. 23.

85With those general comments in mind, I turn to the specific evidence the Crown seeks to tender.

Photograph of the respondent holding a firearm on September 2, 2021

86This is a photograph of the respondent holding a firearm on September 2, 2021, taken from one of the respondent’s phones. It is clearly highly probative of the issues of means and opportunity, identity, and potentially planning and deliberation. It is also the only photo that depicts the respondent with a gun before the shooting and is unique in its probative value in that sense. Its probative value outweighs its prejudicial effect and the Crown may rely on it.

Photograph of person holding a gun in a mirror (IMG­_0106) dated October 2, 2021

87This is a photograph dated October 2, 2021, of a person holding a gun in a mirror taken from one of the respondent’s phones. Although this image shows only part of the individual’s face, it is taken from the respondent’s phone and is selfie-style. There are some features of the photo that may allow the jury to compare the person to the respondent. Its probative value outweighs its prejudicial effect and the Crown may rely on it.

Photographs of the contents of, and some rooms at, 57 Forest Avenue

88These are photographs of the contents of, and some rooms at, 57 Forest Avenue. Some photos depict two guns, one of which is an Uzi. There are also photos of ammunition, some of which depict RP Luger 9mm ammunition. A backpack appears in the photos, which the Crown says is the backpack worn by the respondent when he attended 57 Forest Avenue after the shooting. If so, such an image further ties the respondent to the location. In some of the photos it also appears that there are bags of drugs.

89Because this is the place that the respondent attended shortly after the shooting, the photos of a gun and of 9mm ammunition (the calibre of ammunition used in the shooting) are highly probative of the issues of means and opportunity, and identity. They may be probative of planning and deliberation for the same reason. The photo of the spotted backpack is also probative of identity. The photos of the contents, appearance, and state of the apartment may also have probative value. For the most parts such photos are not discreditable of the respondent.

90The respondent did not raise any issues with the photographs that appear to depict drugs. The Crown did not make any submissions about the relevance of apparent drugs in the photos. I am concerned that the photos that depict apparent drugs appear to have limited to no probative value on the information before me and are unnecessarily prejudicial, especially when combined with other photos that will be admitted.

91The photos of the Uzi are not particularly probative. It is not similar to the weapon used in the shooting. It is highly discreditable and prejudicial given the likely connotation that an Uzi will have in the minds of most persons. It will strongly suggest an inference of guilt based solely on bad character.

92In summary, all the photos from 57 Forest Avenue may be admitted, except the photos depicting the Uzi and any photos depicting apparent drugs, as their probative value outweighs their prejudice. If the Crown seeks to rely on the photos depicting apparent drugs, the Crown may redact the apparent drugs from the photos or may renew its application before or at trial with further information as to the probative value of the apparent drugs.

Firearms & Ammunition Examination Report of magazines found at 57 Forest Avenue

93The Crown seeks to rely on the Firearms & Ammunition Examination Report of gun magazines found at 57 Forest Avenue. The respondent did not object to the Report, only the photos and videos. The Report is relevant to opportunity and means, and motive. For the reasons discussed above, as conceded by the Crown in submissions, references to magazines for the Uzi are to be removed. The probative value of the balance of the report outweighs its prejudicial effect and is admissible.

Video of the respondent and Noel Mills in a vehicle with a gun dated October 3, 2021 (9a IMG­_0108 MP4)

94This is a video dated October 3, 2021, of the respondent and Noel Mills in a vehicle. The respondent points a Glock semi-automatic handgun at the camera and then briefly at his own head. Music plays in the background. It is taken from one of the respondent’s phones. It is not the same firearm as in 5a-IMG­_2398 MP4. The vehicle seats are black.

95While this video is highly probative of the issues of means and opportunity, and identity, the video is also unnecessary to convey the information contained in it (that the respondent had access to a gun that could have been used in the shooting and that he was in a vehicle while possessing it). All that is necessary to convey this information is a still from the video. Further, the video also depicts Noel Mills. His appearance in the video has little or no relevance based on the materials and submissions before me.

96The Crown may rely on a still from the video that depicts only the respondent and the gun, as the probative value of a still outweighs its prejudice.

Video of the respondent and another person in a vehicle with guns dated October 4, 2021 (10a IMG­_0121 MP4)

97This video dated October 4, 2021, is of the respondent and another person in a vehicle. The respondent points a Glock semi-automatic gun at the camera and then briefly at his own head. Music plays in the background. It is taken from one of the respondent’s phones. In this video the other person briefly points a FN five-seven handgun at the camera. It is the same kind of gun found at 202 Gleave Terrace. The vehicle seats are red.

98While the other person is only seen briefly in this video, the Crown asserts that it is Jahquann and that this is the Acura RDX controlled by Jahquann which also had red seats. As a result, in addition to being highly probative of the issues of means and opportunity, and identity, it will be probative of the connection between Jahquann and the respondent.

99I have considered whether a still from this video will suffice. However, given the potential additional probative value of the video and the difficulty capturing it in stills, I am of the view that the video should be admitted in its entirety. This will likely be simpler and easier for the jury to follow than individual stills.

100The probative value of the entire video outweighs its prejudicial effect and may be tendered by the Crown.

Video taken from Jahquann’s phone dated September 30, 2021, (5a IMG­_2398 MP4)

101This is a video dated September 30, 2021, taken from Jahquann’s phone. It depicts Jahquann lip-syncing to a song and holding and pointing a Glock semi-automatic handgun at the camera and at himself. There is another gun on a counter. The video appears to be taken at 57 Forest Avenue. There is another individual in the video whom the Crown did not identify but could possibly be the respondent.

102This video is relevant for the same reasons as the other photos and videos. However, it also adds information not available from other sources. If the Crown can establish that the person in the video with Jahquann is the respondent, then it depicts the two of them together in the presence of two firearms. In addition, it appears to depict them in 57 Forest Avenue. However, it can be difficult to discern this information from the nature of the video and it is not necessary to play the entire video to convey this information. In my view, stills from the video will be sufficient and will properly balance the probative value of the evidence with its prejudicial effect. The Crown may rely on a still from the video that depicts Jahquann with the gun, one that depicts the other person in the video, and one that depicts the other gun in the video and any distinguishing features of the apartment. The probative value of the stills outweighs their prejudicial effect and they are admissible.

Photos of the three guns found at 202 Gleave Terrace and the Firearm Examination Report

103These are photographs of the three guns found at 202 Gleave Terrace and the Firearm & Ammunition Examination Report of the guns found at 202 Gleave Terrace. The respondent did not object to the Report, only the photos and videos.

104There is no evidence that the respondent had been to 202 Gleave Terrace. The guns are not the murder weapon; they are of a different calibre. The guns are probative of the availability of weapons to the Ecclestons and, by association, to the respondent. Overall, they are less probative than the other evidence of the respondent with guns, and the guns at 57 Forest Avenue.

105With one exception, the photos themselves are not necessary to establish the availability of weapons to the Ecclestons and are thus not admissible. The Firearm & Ammunition Examination Report of the guns, which is admissible, is sufficient for this purpose alongside evidence describing the guns found at the residence. Its probative value outweighs its prejudicial effect.

106The exception is the photo of the FN five-seven handgun, as it is relevant to the identity of the person in the video in the car with red seats (10a IMG­_0121 MP4). This photo is admissible as its probative value outweighs its prejudicial effect..

Photos of 202 Gleave Terrace including photos of ammunition

107These are the other photos of 202 Gleave Terrace, including photos of the ammunition found at 202 Gleave Terrace. The ammunition included 9mm ammunition.

108The photos of the ammunition are relevant for the reasons discussed. Their probative value outweighs their prejudicial effect and may be admitted.

109The balance of the photos are of the contents of the apartment. The Crown made no submissions on their relevance. They are not relevant and are not admissible.

Video and photographs of the respondent with an Uzi

110These are a video of the respondent on Oct 4, 2021, holding an Uzi at 57 Forest Avenue with music playing and photographs of the respondent holding an Uzi on October 11, 2021. Both are taken from one of the respondent’s phones. For the reasons discussed earlier with respect to the photos of the Uzi, the prejudicial effect of this video and these photos far outweighs their probative value. They are not admissible.

M. Bordin J.

Released: June 19, 2025

CITATION: R. v. La, 2025 ONSC 3531