SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Carlos SWABY-PALACIOS
BEFORE: Justice Gillian Roberts
COUNSEL: Mihael Cole and Karolina Visic for the Crown Alana Page and Julia Kushnir for Carlos Swaby-Palacios
HEARD: February 16, 17, 18, 19, 20, 2026
ENDORSEMENT
1Carlos Swaby-Palacios stands charged with first degree murder of Oluwatobi Alaga around 4:48 am on August 21, 2023 outside an after-hours club they both attended in the area of Spadina and College streets in Toronto. The shooting was captured on a number of different surveillance cameras. Most of the cameras only recorded visual images, but the camera inside Gabriel Kabah’s taxi recorded both audio and visual images.
2Identity is conceded. The expected issues at trial are self-defence, the mental intent for second degree murder, the mental intent for first degree murder, and provocation.
3Both sides bring a number of pre-trial motions.
Powerpoint Application
4The Crown seeks to tender a video chronology of the shooting, and what Mr. Swaby-Palacios was doing before and after. The Crown also wishes to include materials to help orient the jury regarding the video:
Still shots from the videos, identifying the parties and what the shot shows;
Google maps of the areas shown in the videos, and the locations of the surveillance cameras;
A description of the time the parties were inside the after-hours club before the shooting (i.e. the parties were all inside at the same time for 82 minutes before the shooting);
5The defence takes no issue with the admissibility of any of the surveillance video, or the video chronology. However defence counsel take issue with a number of its features:
All uses of the word “shooting”;
The accuracy of some of the descriptions contained in screen shots, and showing them in advance of the videos they are taken from;
The slide showing the time the parties were all inside the after hours club is not original evidence, but an aid to the jury understanding the evidence, and should be separated out from the evidence;
The repetition of similar screen shots in a sequence now that identity is conceded.
6The parties agree that R. v. Guerra, 2022 ONSC 3445 is the most helpful authority. Justice Dambrot explains that a chronology piecing together relevant video obtained during a police investigation is an accepted way to synthesize different pieces of video that would otherwise be “cumbersome and confusing”. He explains (at para.19):
One frequently employed method of doing this is to have police officers who have meticulously reviewed the video evidence create a video chronology that: (1) stitches together in a document still shots captured from the fragments of video; (2) adds identifying information to the still shots relating to time, place and camera; (3) includes circles and arrows, where helpful, to draw the viewer's attention to particular features in the still shot; and (4) summarizes what is seen in the individual still shots by means of short descriptions composed in as neutral a way as possible to identify what the compiler of the video says is depicted and, in some instances, to connect the shot to other shots.
7Justice Dambrot goes on to explain that “it is perfectly proper to permit a litigant to create a compilation of fragments of videos and affix brief summaries to them to in order assist the jury in following the litigant’s case” (para.28.) However, he cautions that the summaries are intended to assist the jury in understanding the evidence, by “clarifying and distilling” the evidence into a manageable and understandable format. They are not “tools of advocacy, or tools to paint a one-side picture of one party’s position” (para.29).
Use of the word shooting
8The defence objects to the use of the word “shooting” throughout the video chronology and suggests that a more neutral term like “discharge of firearm” be used. There is a theme throughout the defence submissions: the importance of scrupulous accuracy. This submissions gives me pause, as a shooting is what happened. Mr. Alaga was shot once and died as a result. The shooting is caught on multiple surveillance cameras. But when I think of the issues for the jury to decide I appreciate the defence concern. While there is no suggestion that accident will play any role in the trial, Mr. Swaby-Palacios’ mental state at the time of the shooting will be front and centre. I do not want to use a word that could influence in any way the jury’s assessment of the issues, especially on the central issue of intention. I suggest the Crown replace the word “shooting” with “shots fired” and make whatever grammatical and other changes are necessary for the new wording to make sense. For example, the Crown may prefer to label the locations of the CCTV cameras pre and post “incident”, rather than pre and post “shots fired”.
9My comments on the use of the word shooting only relate to the powerpoint, which I expect will be made an exhibit that the jury can have during deliberations. Hence my caution about language. My comments do not apply to the testimony of officers. This was a shooting. There is no need to emphasize this, but there is also no need to call it something else.
Photographs of known central players
10The defence objects to the photograph of Mr. Alaga which precedes the screen shots of Mr. Alaga. There is no objection to the screen shots identifying Mr. Alaga, and the other central players. The parties agree that they will assist the jury in following the videos of the shooting and identifying who is who, and who does what.
11I agree with the defence that the original photograph of Mr. Alaga cannot be included in the video chronology. It shows Mr. Alaga beaming, all dressed up, wearing a corsage. If I had to guess, it was taken at some major celebration of life, like a wedding or a graduation. It brings the potential to inflame the emotions of the jury for no good reason. It cannot be included.
12The Crown maintains its position that good quality neutral photographs of the central players should be provided to the jury to the extent that they are known. Now that I have seen the surveillance video of the shooting, I agree with the defence that seeing good quality photographs of the faces of the known players will not assist the jury interpreting the surveillance video. However, the Crown explains that there will be witnesses who testify about what happened inside the after hours club. Photographs of the main players will assist in under this evidence. In addition, Gabriel Kabah, a taxi driver present during the shooting, knew some of the players from driving them in the past. In particular, he knew the men with Mr. Alaga: “tall Black man” and Derek Joppen. The Crown expects that having photographs of the known players will assist in making it clear who Mr. Kabah is talking about in his evidence over and above him pointing to the surveillance video.
13I do not see an issue with the Crown including neutral good quality photographs of the faces of the known central players. I accept that these photographs will have some probative value in assisting in understanding expected witness testimony. In particular, it will assist in understanding Mr. Kabah’s evidence. To my eye, both Mr. Alaga and the other Black man he is with could be referred to as a “tall Black man”, and they are both dressed alike, so having a photograph of Mr. Alaga can help clarify exactly who Mr. Kabah is referring to.
14At the same time, I do not see prejudice attached to neutral photographs. But I ask that the photographs be as similar as possible, described in the same way – just the date the photograph was taken. For example, only one photograph of Mr. Swaby-Palacios should be provided, together with the date it was taken. Identity is no longer in issue, so I do not see the current sequence as necessary, and I am concerned that the different format risks confusing the jury. In addition, the photograph should be cropped to be as similar to the other head shots as possible. I suggest that the replacement photograph of Mr. Alaga proposed by the Crown also be cropped so as to be as similar to the others as possible.
Descriptions of the screen shots
15The defence takes issue with many of the descriptions added to screen shots on the basis that they are not an accurate description of what is shown in the still. Defence also requests that the videos be shown before the still shots, so the stills do not colour the jury’s view of the video.
16The Crown responds that the descriptions are accurate when the stills are considered in the context of the video, and simply help orient the jury. The Crown argues that telling it to play the video first is akin to interfering with how they call their case. Further, if they are required to play the video first, they will have to play it again after the screen shots. The Crown notes that the descriptors are similar to leading on non-contentious points. They simply help the jury follow the video chronology. No descriptors are included for the crucial videos of the shooting.
17There is merit to both positions. But ultimately I agree with the defence that the description attached to some of the screen shots (identified during submissions) and a couple of videos (slides 75 and 76) does not accurately reflect what is shown. The defence makes no complaint about most of the descriptions attached to non-controversial video. And most of the descriptions are scrupulously accurate. All the descriptions should follow suit. Absent agreement, I see no basis to include the more expansive descriptions currently attached to the screen shots identified during submissions as problematic and the videos at slides 75 and 76. The current wording of these slides does not reflect what is actually shown. Absent agreement, I do not believe there is a proper basis to say that a screen shot or a video shows something that it does not. The descriptions identified by the defence as problematic should be amended to accurately describe what is actually shown. The defence was clear that there is no issue identifying known parties visible in the screen shots and videos.
18The parties agree that Mr. Swaby-Palacios is holding a cell phone in his right hand when he enters the after-hours club with Lornex Mackey at 3:26 am. Based on this agreement, this detail should be added to the descriptions of the parties entering the after hours club (screen shots at 90-92, video at 93).
19There are currently three almost identical screen shots of Mr. Swaby-Palacios and Mr. Mackey entering the afterhours club at 3:26 am. Now that identity is conceded I do not see why three shots are necessary, and I agree with the defence that the repetition may be potentially confusing for the jury. However, it does not rise to the level that evidence becomes inadmissible. Whatever shots are included should include the agreed fact that Mr. Swaby-Palacios is holding a cell phone in his right hand.
20Nor am I prepared to direct the Crown to play the video before screen shots. This only happens a couple of times, and not in relation to the crucial videos of the shooting. Once the descriptions are amended to accurately reflect only what is seen in the screen shot I do not believe there is a concern about the screen shots improperly influencing the jury’s perception of the video.
The slide describing how long the parties were inside the after-hours club (slide 94)
21I agree with the defence that this slide, which notes when each group entered and exited the after-hours club, and how long they were inside at the same time, is an aid to understanding the evidence. It is not properly part of a video chronology and should be removed.
The use of different coloured ink and larger font
22The defence complains about the use of different coloured ink and larger font or size for symbols in certain of the slides. It will be for the jury to decide what they see in the video and what importance it has. I am concerned that the use of different coloured ink, or larger font could suggest a particular piece of information or evidence is of particular importance. This is advocacy and should be left out of the video chronology.
Motion for directions regarding Gabriel Kabah
23Gabriel Kabah was a taxi driver present during the shooting. He had a camera in his taxi that audio and video recorded the altercation and the shooting, or at least significant parts of it. Mr. Kabah was also present and saw the altercation on the side-walk which preceded the shooting. He provided a police statement and testified at the preliminary inquiry.
24The Crown brings a motion for directions in relation to Mr. Kabah’s evidence. The Crown seeks to rely on the audio and video recording from Mr. Kabah’s taxi, but does not want to call Mr. Kabah as a witness as they are concerned that his evidence is unreliable. There is no suggestion that he is not telling the truth. Rather the Crown is concerned that numerous aspects of his evidence are contradicted by what can be seen on the video, or known to have happened. He is also a difficult witness to control and communicate with. English is not his first language, and he was very difficult to understand at the preliminary inquiry. The Crown was frank during submissions before me that Mr. Kabah’s evidence was not even comprehensible until the cross-examination. The Crown submits that the defence can call Mr. Kabah if they want his evidence. In the alternative, the Crown relies on R. v. Nesbitt, 2024 ONSC 5839 and suggests that I call Mr. Kabah so that both sides can ask leading questions.
25Defence counsel does not suggest any improper Crown motive or abuse of process, and agrees that the Crown can call the witnesses it wants. Further the defence agrees that the audio and video recording from Mr. Kabah’s taxi is admissible without Mr. Kabah. However, the defence cautions that it may be difficult for the Crown to establish the ultimate reliability of the audio and video recording from the taxi without Mr. Kabah. Further, Mr. Kabah can link what he heard with what he saw. Without Mr. Kabah there will be a gap between the audio and the visual recordings of the altercation. The defence will seek to capitalize on this gap in closing argument, and may ask me to draw an adverse inference against the Crown for failing to call Mr. Kabah. In the alternative, the defence agrees that I should call the witness, and both sides should be permitted to ask leading questions.
26There is no suggestion of an improper Crown motive in this case. Nor is there any dispute about the applicable law: absent Crown misconduct, the Crown is entitled to call its case as it sees fit. This issue really boils down to how I would instruct the jury about assessing the reliability of the audio and visual recordings without Mr. Kabah. Beyond saying ultimate reliability must be decided at the end of the case in light of all the evidence, I cannot say what my instructions will be. They will depend on the evidence at trial, considered in totality.
27What I can say is that Mr. Kabah appears to be an important witness as he can link the audio and visual recordings together. In addition, his can provide his impression of the parties, which appears particularly important to the defence. For example, he testified that “the tall Black man” was not scared when Mr. Swaby-Palacios called to someone to “bring it,” and “the tall Black man” responded with something like “go bring the gun”. As I understand it, Mr. Kabah identified the tall Black man as the other Black man with Mr. Alaga; not Mr. Alaga and not Derek Joppen (a white man with a prominent beard). Once Mr. Kabah heard the word gun, he hid for cover and not long after shots ring out. Mr. Kabah’s impression of the parties is not something that the video or audio can provide, at least not in the same way. It is potentially very important to the defence. As is who said “bring it” and “go bring it”. Indeed, the defence submits that without Mr. Kabah linking the audio of who said go bring it (the gun) with the video it will be impossible for the jury to fairly assess what happened. But given the difficuly communicating with Mr. Kabah at the preliminary inquiry, the defence may have trouble getting the evidence if it cannot lead in any way. For example, at the preliminary inquiry, without referring Mr. Kabah to the surveillance video, which is a form of leading, it was unclear who Mr. Kabah was talking about.
28In the particular circumstances of this case, including the agreement of both parties in terms of their alternative positions, I believe that it is in the interests of justice that I call Mr. Kabah and both sides be permitted to cross-examine. I would like submissions on exactly how this unusual exercise should happen. One possibility is that Mr. Kabah testifies during the Crown’s case, and the Crown should begin, asking non-leading questions as much as possible, but with permission to lead using the video and audio recordings, and with the ability to ask non-leading questions in reply in relation to anything new that arises in the defence cross-examination. But I would like to hear from the parties what they believe is fair and just in the particular circumstances of the case. In addition, I would like submissions on what if anything the jury should be told about the fact that both sides can ask leading questions. I would also like submissions on what if anything the jury should be told about the weight to be placed on an answer given to an open-ended question vs. a leading question.
Scopelliti
29The defence seeks to cross-examine Derek Joppen about Mr. Alaga’s disposition or penchant to get into stupid arguments in bars, and the fact that Mr. Joppen always had Mr. Alaga’s back, and would step in to de-escalate the arguments before they got physical. The defence argues that this pattern of behaviour is relevant to what happened in the moments immediately before the shooting, which are not clear from the audio and video recordings. It suggests that Mr. Alaga continued to be aggressive notwithstanding obvious cues that Mr. Swaby-Palacios was calling to his friend to bring a gun. Mr. Alaga’s continued aggression in this context is very important to the defence. When combined with some other factors, including body language and the fact that the “tall Black man” accompanying Mr. Joppen and Mr. Alaga was wearing a satchel, it provides support for Mr. Swaby-Palacios’s belief that Mr. Alaga also had a handgun.
30The Crown responds that this disposition evidence has little or no probative value. Numerous witnesses can testify about the altercation inside the after hours club, and everything outside, including the actual shooting, is captured on audio and video surveillance recordings. The disposition or pattern of conduct evidence adds nothing. It serves only to blacken Mr. Alaga’s character, and raise the spectre of the Crown responding with disposition relating to Mr. Swaby-Palacios. Mr. Swaby-Palacios has a significant criminal record including numerous prior convictions for violence, including an incident in 2017 resulting in convictions for 2 assaults and 5 assaults causing bodily harm.
31It is well-established that defence evidence is admissible if it has probative value that is not substantially outweighed by the risk of prejudice: R. v. Seaboyer, [1991] 2 SCR 577; R. v. Scopelleti (1981), 63 C.C.C. (2d) 481 (C.A.); R. v. Yaeck (1991), 68 C.C.C. (3d) 545.
32It is also well-established that defence evidence that the victim in a homicide has a propensity or disposition for violence may open the door to the Crown leading similar evidence in reply in relation to the accused where “it is necessary to enhance fairness and ensure that the trier of fact has a balanced, not a distorted, picture of what occurred between the deceased and the accused and their respective dispositions for aggression”: R. v. Williams, 2008 ONCA 413 at para.58. As Justice Watt explained in the trial decision in R. v. Yaeck (quoted in Williams):
[T]he prosecution should be entitled to show that the combat was between two persons of similar dispositions for violence, not one with and the other without it. The trier of fact would then have evidence bearing on the probability of each version of aggression, as well as the direct evidence thereof, thereby being in a better position to assess the legitimacy of the claim.
33I appreciate that the defence only needs to meet a low bar in order to have evidence admitted, but I do not think that low bar is met here.
34I do not believe the proposed evidence from Mr. Joppen has much if any probative value in the circumstances of this case. Independent witnesses can testify to what happened inside the bar. Everything outside the after hours club is audio and video recorded, including the shooting. It is apparent that Mr. Alaga was angry and aggressive:
Mr. Alaga and Mr. Swaby-Palacios apparently got into an argument about whose turn it was to play pool. They started to call each other “goof”, combined with expletives. Mr. Swaby-Palacios threw a drink at Mr. Alaga and was escorted out of the club. His friend Lornex Mackey accompanied him.
Outside the club, Mr. Mackey immediately crossed Spadina heading east (in the direction of where they had parked the Honda Accord they arrived in). Mr. Swaby-Palacios stepped into a nearby alcove.
Mr. Alaga followed Mr. Swaby-Palacios out of the club despite efforts by his friend Mr. Joppen, and the bouncer, to dissuade him.
Mr. Alaga emerged 20 seconds after Mr. Swaby-Palacios together with Mr. Joppen, followed by a “tall Black man” wearing a satchel.
The trio goes directly to Mr. Swaby-Palacios in the alcove. Mr. Alaga gets in Mr. Swaby-Palacios’s face. The tall Black man punches Mr. Swaby-Palacios. There is a scuffle and Mr. Joppen tosses Mr. Swaby-Palacios aside. Mr. Swaby-Palacios walks backward south on Spadina followed by the trio.
The audio and video recordings capture Mr. Swaby-Palacios say “bring it”, while making a grabbing motion in the direction of Mr. Mackey with his hand. Mr. Alaga or someone in his party responds “go bring it” while continuing to advance on Mr. Swaby-Palacios.
Mr. Mackey arrives and hands Mr. Swaby-Palacios a gun. Mr. Swaby-Palacios cocks it and fires several times at Mr. Alaga.
35While not all the words exchanged can be heard on the audio recording, I do not believe the disposition evidence adds anything probative to the mix. It is apparent how Mr. Alaga was acting right up to the point he was shot (and after – he retreated). The jury can see the shooting, and the moments preceding the shooting, for themselves. Indeed, the defence factum notes “Video surveillance footage depicts Mr. Alaga’s aggressive behaviour toward the Applicant, as well as his apparent lack of fear when the Applicant is heard saying “bring the gun” on the taxi driver’s video recording.” I understand that what can actually be heard is “bring it” but it is combined with a hand-gesture by Mr. Swaby-Palacios’s suggesting he wants an object (thus the context arguabley suggests it is a gun). Someone in Mr. Alaga’s group responds “go bring it”, and the group continues toward Mr. Swaby-Palacios. In short, there is no gap in the evidence about what happened that disposition evidence can help the jury understand.
36The real issue at trial will be whether Mr. Swaby-Palacios subjectively believed Mr. Alaga had a firearm, and whether this belief was reasonable. The evidence about Mr. Alaga’s disposition has nothing to do with firearms. Or even violence. It is a penchant to get into stupid arguments which Mr. Joppen would step in to diffuse. Mr. Swaby-Palacios knew nothing about it. Logically it cannot support a subjective belief that Mr. Alaga had a firearm. Nor can it suggest such a belief was reasonable.
37At the same time, the disposition evidence poses a significant risk of prejudice. Its lack of probative value in the circumstances of the case mean its proper role will be unclear, and it will be confusing. Further, it tends to disparage Mr. Alaga. He cannot respond. It risks the jury thinking Mr. Alaga deserved what happened, or somehow had it coming.
38In addition, I am concerned that it potentially opens the door to highly prejudicial evidence relating to Mr. Swaby-Palacios. Defence counsel argues that this pattern or disposition does not open the door to the Crown responding in kind because it is so specific: it is not so much disposition evidence as a belief that Mr. Joppen will always bail him out which emboldened aggression. It is the relationship between the two that is important; not a disposition. I do not accept the defence distinction. The significance of such a belief is that Mr. Alaga will continue his argumentative behaviour while Mr. Joppen is with him. This is disposition evidence. It potentially opens the door to the Crown to respond in kind.
39Defence counsel also argued that the proposed evidence does not open the door to the Crown to cross-examine Mr. Swaby-Palacios on his record for assaults because the proposed evidence is not about a disposition for violence. This makes sense to me. But also supports my essential conclusion that the proposed disposition evidence has no probative value in the circumstances of this case.
40Based on the record before me, I do not believe the evidence the defence seeks to elicit from Mr. Joppen is probative. At the same time, it poses a significant risk of prejudice to the trial process. The evidence is not admissible.
G. Roberts, J.
February 23, 2026