R. v. Douglas, 2017 BCSC 844

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Douglas, 2017 BCSC 844 Date: 20170413 Docket: 62861-1 Registry: Chilliwack Regina v. Aaron David James Douglas Before: The Honourable Mr. Justice Verhoeven Oral Ruling on Voir Dire #1 Counsel for the Crown: A.M. Mandell C.A. McPherson J.C. MacRae Counsel for the Accused: K.R. Beatch C.S. Arnason Place and Date of Trial/Hearing: New Westminster, B.C. April 10, 2017 Place and Date of Judgment: New Westminster, B.C. April 13, 2017 [ 1 ] THE COURT: This is my decision on ruling on a voir dire conducted earlier this week.

The decision is being rendered orally and, assuming a transcript is prepared, I reserve the right to edit that transcript for readability without changing any essential reasoning. I. Introduction [ 2 ] Mr. Aaron David James Douglas, (Mr. Douglas), is charged with the first degree murder of Richard Blackmon and Tyler Belcourt and attempted murder of Penni White. The crimes are alleged to have been committed in the early morning hours of August 7, 2014, at an apartment in Chilliwack, B.C. It is alleged that at approximately 4:00 to 4:15 a.m. that day, Mr.

Douglas shot and killed Blackmon and Belcourt and shot White using a handgun that he had brought with him to the apartment when he arrived at approximately 4:00 a.m. Penni White survived and is expected to testify at the trial. The jury trial is expected to commence in five days, next Tuesday, April 18th. It is scheduled to continue for six to seven weeks in total. [ 3 ] The Crown applies for a ruling with respect to the admissibility of evidence of prior discreditable conduct on the part of Mr. Douglas occurring in the hours immediately preceding the shootings.

With one minor exception, no evidence was adduced on the voir dire formally. The voir dire proceeded on the basis of Crown and defence submissions as to expected evidence at the trial. II. Background [ 4 ] The Crown alleges that Mr. Douglas shot Blackmon, Belcourt, and White out of motives of revenge. The Crown alleges that Penni White was a street-level drug dealer dealing specifically in crystal meth. Belcourt was her boyfriend. Blackmon was an associate of hers who acted as an enforcer in the criminal drug trade.

The Crown alleges that Douglas arranged for a robbery of White of drugs and money that occurred on August 5, 2014, thus one or two days prior to the offences charged, by associates of Douglas, Jeremy Commodore and Art Leon. The Crown alleges that as a result of that episode, Blackmon was threatening Commodore and Leon and demanding return of the drugs and money or perhaps compensation.

The Crown alleges that Douglas went to Penni White's apartment on Gore Avenue in Chilliwack with his girlfriend, Shauntel McRae, and with another person named Matt Dalke. [ 5 ] The submissions indicate that there was some type of argument or altercation in the apartment between Douglas and Blackmon. Most of the details of this are not before me.

For example, the extent to which Belcourt and White were involved in the argument or altercation is not yet clear to me. [ 6 ] Douglas is not expected to deny shooting the three victims at the time and place the Crown alleges, although this has not yet been formally admitted. The only issue in the case is expected to be mens rea . In submissions, defence counsel advises that Mr. Douglas can be expected to rely on self-defence and drunkenness. I understand that Mr. Douglas is not likely to deny that he went to the Gore Avenue apartment with the handgun that was used in the shootings. It is possible that Mr.

Douglas will testify. It can be reasonably expected that Mr. Douglas will portray Mr. Blackmon as a dangerous criminal enforcer in connection with the expected self-

defence argument. It is acknowledged by both Crown and defence that Mr. Douglas also has a role in criminal drug-related activities and that this evidence will inevitably be heard by the jury. [ 7 ] The evidence in issue on the voir dire falls broadly into two categories: 1. Evidence of Matt Dalke that, earlier in the evening, Mr. Douglas had pointed a handgun at his face and threatened him and that, immediately following that incident, Mr. Dalke was compelled by Mr. Douglas to accompany Mr. Douglas and Mr. Douglas' girlfriend, Ms.

McRae, first to a residence on Woodbine Street in Chilliwack and then to the apartment where the shootings took place. 2. Evidence that Mr. Douglas threatened two persons, Mike Hilliard and Maureen Prince, at the Woodbine residence, by pointing the handgun at them shortly before the shootings at the Gore Avenue apartment, and that he fired the handgun through the floor of the Woodbine Street residence.

The defence also objects to the admission of certain statements made by Douglas at the Woodbine residence. [ 8 ] There is more detail as to the expected facts as set out in the Crown's written argument which was marked as Exhibit A on the voir dire . For the purposes of these reasons I adopt the Statement of Facts set out in the Crown's written argument, specifically, paras. 4 through 44 thereof: FACTS 4. The following is a

summary of the expected evidence, based upon statements of the relevant witnesses. MATT DALKE 5. Matt Dalke (“Dalke”), one of the witnesses in this matter, is a man who suffers from anxiety and a prior brain injury. 6. Dalke knew Aaron Douglas (“Douglas”) through his brother Shawn Dalke. Dalke had only spent time with Douglas a handful of times prior to the shooting but never by himself. A couple of weeks prior to August 7th, 2014, Douglas had been released from jail and needed an address to provide to probation for his release, so Dalke agreed to let Douglas use his address.

However Douglas was not actually living with Dalke. 7. On August 6, 2014 Dalke received a call from Douglas asking if Dalke wanted to go to a barbeque at Douglas’ cousin’s house on the Tzeachten Reserve. Dalke went to the barbeque with Douglas and Douglas’ girlfriend, Shauntel McRae (“McRae”). McRae drove the three of them in her car. 8. At some point while at the barbeque, McRae came in to use the bathroom while Dalke was there and said “Hey I need to use the washroom.” Dalke jokingly said “go ahead I won’t look.” McRae replied “He would kill you.” Dalke then left McRae in the bathroom. 9.

While still at the barbeque, McRae got angry with Douglas about something else and left without Douglas and Dalke. Dalke and Douglas arranged a ride with someone else to McRae’s house. 10. While at McRae’s house, Douglas said to Dalke “I need to talk to you for a second.” Dalke said “About what?” Douglas put his hand in the bag and said “you know what, you know exactly what I am talking about.” Douglas then pulled a black gun out of a brown shoulder bag. Douglas had been carrying that bag throughout the evening. 11. Dalke had seen Douglas with the gun before.

He had seen Douglas unload and load it and then put it in the same brown shoulder bag. 12. According to Dalke, Douglas pointed the gun at Dalke’s face, and said “this is your only chance.” Dalke says that he dropped to his knees and began crying and begging for his life. Douglas accused him of having something going on with McRae. Dalke was shouting at McRae to tell Douglas that nothing was going on. McRae was telling Douglas that he was an idiot and Douglas was telling her she was a slut. Douglas was angry. During the shouting and arguing, Douglas continued to point the gun at Dalke.

According to Dalke, this went on for about 5 to 10 minutes. 13. Eventually, Douglas put the gun back into his shoulder bag and sat on the couch. A little while later Douglas said “Ok let’s go, we are going for a drive.” Dalke says that he was not about to say no and was “scared to death.” 14. McRae, Douglas and Dalke then got into McRae’s car and drove to 9562 Woodbine St., Chilliwack, BC (the “Woodbine House”). McRae was driving, Douglas was in the front passenger seat and Dalke was in the back.

Upon their arrival, three people were at the Woodbine House: Maureen Prince (“Prince”), Mike Hilliard (“Hilliard”) and Theresa Lajeunesse (“Lajeunesse”). 15. Not long after they arrived at the Woodbine house, Dalke saw Douglas pull the same gun out of the brown shoulder bag and shoot it into the floor. After Douglas shot the gun through the floor, Dalke went downstairs to the bedroom in the basement to check on the tenant, Tracy Yeomans. 16. Dalke saw Douglas point the gun at Prince and Hilliard. He was particularly frightened because of the earlier incident when Douglas threatened him with the gun.

According to Dalke, he wanted to get out of there but Douglas was standing right beside him. 17. After the incident during which the gun was fired, Dalke left the Woodbine House with Douglas and McRae. 18. According to Dalke, when the three of them arrived at 46109 Gore Avenue, Chilliwack, B.C., Douglas said “let’s go up there” or something along the lines of “let’s get out” or “let’s go in.” Dalke was still scared. He describes himself as “scared”, “shook up” and “held hostage.” 19. They went up to Apt 405, 46109 Gore Avenue (the “Gore Avenue Apartment”). As they entered the Gore Avenue Apartment,

Douglas gave Dalke a silver gun. Douglas told Dalke to go over to the kitchen/dining area where Cole Berard and Tyler Belcourt were. According to Dalke, he was scared while walking into the kitchen/dining area. 20. Dalke didn’t know what Douglas’ intentions were at that point. Dalke did not know if Douglas wanted to kill Dalke or have Dalke distract the others in the apartment. At one point Dalke tried leaving the apartment and Douglas told him to get back to where he was. Dalke was shaking at this time. 21. Dalke says that he ran from the kitchen area before the first shot was fired.

According to Dalke, he ran because he was worried that Douglas would shoot him given Douglas’ conduct earlier in the evening. 22. Dalke ran out of the building and discarded the gun Douglas had given him in the backyard of a residence on Margaret Ave, about 2 blocks away from the Gore Avenue Apartment. He then ran to his mother’s house and stayed there until the morning. 9562 WOODBINE STREET 23. When Douglas arrived at the door of the Woodbine House with McRae and Dalke, Prince and Hilliard were sitting in Hilliard’s bedroom on the bed. Hilliard was playing video games. Lajeunesse had just gone to the bathroom.

Prince heard a knock at the door and went to answer it. At the door she saw Douglas, McRae and Dalke. Prince let them in and led them back to Hilliard’s bedroom. She says that Douglas made her walk in front of him as they went to the bedroom. 24. Prince went back to sitting on Hilliard’s bed beside Hilliard. Douglas stood in front of her. Dalke and McRae were behind him. Lajeunesse was still in the bathroom. 25. According to Prince, Douglas was angry at Prince about a girl by the name of Taylor Watts (“Watts”). Douglas, Prince and Dalke started talking about Watts.

Douglas then asked Prince about a safe of his that had gone missing. Douglas told Prince that she owed him money for the safe. Prince told him that the person who took it owed him the money. 26. Douglas then reached into a tan/rust coloured bag hanging over his shoulder and pulled out a black and grey/silver gun. Hilliard stated that it was a 9mm Beretta gun, smoke grey in colour. 27. Douglas pulled the gun and fired a bullet through an “art box” and into the floor in between the bed and a dresser approximately 1 ½ feet from Prince’s feet. 28.

After he shot the bullet through the floor, Douglas then held the gun to Prince’s face and told her to tell him the story about the safe over again. She started telling the story but Douglas told her she was lying and to start over again. She told Douglas that she was not lying. 29. Douglas also threatened Hilliard. He pointed the gun at Hilliard and got mad at Hilliard about a woman Hilliard had dated in the past. Douglas then pointed the gun back at Prince. 30. After the shot was fired, Hilliard said that there was a woman downstairs and someone should check to make sure she was ok.

Douglas sent Dalke down to check. 31. Lajeunesse had been in the bathroom when Douglas, McRae and Dalke came in the house. She then went to the living room and was there when she heard the gun shot. She took Dalke downstairs to check on the downstairs tenant. After checking on the tenant she and Dalke came back upstairs. 32. Hilliard had a surveillance camera pointed to the front of the house. The camera was connected to a monitor in Hilliard’s bedroom. Douglas saw Lajeunesse leaving on the monitor and sent Dalke out to get her to come back. 33. At the time, Lajeunesse was dating Rich Blackmon (“Blackmon”).

When Lajeunesse came into the bedroom, she and Douglas hugged. Douglas then started asking her: “how is Rich doing? Is Richie brave? Is Richie smart? Is he smart right now?” Hilliard heard Douglas asking: “how stupid is Rich? Is Rich stupid right now?” 34. Douglas then briefly spoke to Prince and Hilliard about someone else and then turned back to Lajeunesse and kept asking: “is Richie smart right now? Is Richie smart?” 35. Douglas asked Lajeunesse where “Rich” was. She told Douglas that Blackmon was at his car.

According to Prince, Hilliard, Lajeunesse and Blackmon had been at the Woodbine House earlier that evening and had said he was going down to his car. The car was parked at the other end of Woodbine Street, outside Marlene Stephan and Stephanie Glaister’s duplex which is located at 9247 and 9245 Woodbine Street respectively. 36. Douglas asked if anyone had cell phones or a charger, which no one did. He said that he was going down to Stephanie’s. He told everyone not to call ahead to warn anybody that he was coming. Douglas said that he didn’t want any static and not to be a rat. 37.

Hilliard heard Douglas say that he was going up the road to see Rich, stating “I wanna go up and see Rich” and then said “If I get there and get any flack I’m gonna come back and dump you both.” Before they left, Hilliard handed the bullet casing from the shot that was fired through the floor to McRae. 38. As they left, Douglas tried to get Lajeunesse to come with him, McRae and Dalke. Douglas called her to the car and said to her “I love you, don’t be a rat, I love you.” Then Douglas, McRae and Dalke left in McRae’s car. Lajeunesse was on her bicycle and went the other way. This was around 3:00 to 3:30 am. 39.

Hilliard and Prince stayed at the house talking for a bit but then Hilliard asked Prince to go home because he was worried about Douglas coming back and hurting her given the earlier discussion.

40. Twenty to twenty-five minutes later, Hilliard said he heard sirens. He thinks it was around 4:30. EXPENDED BULLETS 41. The 911 calls concerning the shooting at the Gore Avenue Apartment began at 4:13 AM. The police started arriving at the Gore Avenue Apartment at about 4:17 AM. 42. A total of six expended bullets were recovered during the investigation: a. one from the basement bedroom directly below Hilliard’s bedroom at the Woodbine house; b. three from the body of Richard Blackmon during his autopsy; c. one from the shoulder of Penni White; and d. one from the Gore Avenue Apartment. 43.

Five expended casings were recovered from the Gore Avenue Apartment. 44. The bullets and casings were analysed by Christopher Kerr from the RCMP laboratory. His conclusion regarding the bullets was that they could neither be identified nor eliminated as having been fired from the same firearm.

Considered together, along with the expended casings recovered the Gore Avenue Apartment, all six bullets were probably fired from a 9mm calibre Luger firearm with rifling characteristics of six (6) lands and grooves, right hand twist. [ 9 ] During the course of submissions, the defence added certain other expected facts, specifically the following: The evidence of the witnesses from Woodbine is important to the Crown's case because it shows Douglas' interest in Blackmon just before the alleged murder. Thus, any comments Douglas made about Blackmon are truly relevant.

However, the discharging of and the threatening of the witnesses with the gun had nothing to do with Blackmon.

Prince was threatened because of a dispute over $10,000.00 that went missing when Prince was managing Douglas' drug-trafficking business and the threat towards Hilliard was about how Hilliard treated a female friend of Douglas' whom Hilliard was dating. [ 10 ] That person was identified in submissions as having the name Dawn. [ 11 ] Additionally, I was advised in submissions that the jury will hear that the argument at the apartment was over the return of the drugs and money that Penni White was robbed of.

They will also hear that Douglas stated at the Woodbine residence that Penni White's robbery was at his direction or behest and that Commodore and Leon are or were his associates. At the apartment, Blackmon was demanding return of the drugs and money and Douglas was refusing or denying that that would occur.

Douglas, I am told, was demanding that Blackmon stop threatening his cousin, Commodore, and saying words to the effect of, "Sit down, I'm here to talk." [ 12 ] As noted in the submissions that I quoted, the defence concedes that aspects of the evidence relating to the events at the Woodbine residence are relevant as they go to Douglas' motives and intentions just before the shootings. So, for example, the defence does not object to the evidence relating to Douglas' questions about Richard Blackmon, his whereabouts, and questions that might relate to his state of mind.

However, the defence seeks to exclude the evidence of the shot being fired into the floor, the threats to Maureen Prince with the gun about the missing safe and $10,000, and the threats to Hilliard with the gun regarding the woman, Dawn, and in addition, the verbal threats to all present. [ 13 ] Specifically, the defence seeks to exclude the following evidence as set out in paras. 36-39 of the Crown's

summary. [ 14 ] From paragraph 36: Douglas said that he didn't want any static and not to be a rat. [ 15 ] From paragraph 37: If I get there and get any flack I'm gonna to come back and dump you both. …Before they left, Hilliard handed the bullet casing from the shot that was fired through the floor to McRae. [ 16 ] From paragraph 38: . . . don't be a rat. [ 17 ] Most of paragraph 39, beginning with the words: . . . but then Hilliard asked Prince to go home because he was worried about Douglas coming back and hurting her given the earlier discussion. [ 18 ] Also, the defence seeks to exclude the evidence set out in para. 42(

a) about the expended bullet being recovered from the basement bedroom directly below Hilliard's bedroom at the Woodbine house. [ 19 ] The Crown argues that the probative value of the evidence greatly outweighs its prejudicial effect, and that concerns about wrongful use of the evidence by the jury should be addressed by appropriate instructions to the jury. As I see it, the Crown's central argument is set out in the Crown's submissions, as follows:

The conduct of Douglas in the hours immediately preceding the killing of Belcourt and Blackmon and the shooting of White arenecessary for the jury to properly determine what Douglas did and why he did it. [20] The Crown argues that the events from McRae's house where the threats to Dalke occurred through to the events at theWoodbine residence and then to the shootings at the apartment are all part of the same sequence of events.

The Crown argues that thejury must have the full flavour of Douglas' conduct on the night in question in order to properly assess his state of mind when he pulledthe trigger. [21] The defence argues that Dalke's reasons for being at the apartment are irrelevant. Thus, whether he was threatened by Douglasand only went to the apartment out of fear, as he maintains, is irrelevant or, at least, not central to the Crown's case. The defence arguesthat the threats to Prince and Hilliard involved unrelated matters having nothing to do with Blackmon and are also irrelevant.

Thedefence argues that Douglas' threats at the Woodbine apartment urging the persons present not to be rats and that he would "dump" themif he got flack do not go to his interest in or animus towards Blackmon, and that the evidence is really nothing other than evidence ofaggressive, threatening behaviour to others that is unconnected to the offences charged. [22] The defence further argues that the probative value of the evidence in issue is slight and that the evidence is highly prejudicial.The defence argues the evidence of threatening does nothing other than portray Douglas as a dangerous and violent man, who waswilling to threaten and intimidate others with a handgun when he had a dispute with them.

The argument is made that this may lead thejury to the forbidden reasoning that, just as he threatened the occupants of Woodbine with violence, and threatened Mr. Dalke, he shotthe occupants of the apartment because he is a violent man. III. Legal Principles [23] The legal principles applicable with respect to applications of this nature were comprehensively reviewed and summarized byMr. Justice Smart in R. v.

Sipes, 2011 BCSC 640, at paras. 36-74, which I adopt: GOVERNING LEGAL PRINCIPLES [36] In considering the admissibility of the discreditable conduct I return to the basic principles that govern the admissibility of allevidence in a criminal trial. [37] The overarching principle is that all evidence that is logically probative of a material issue is admissible unless excluded by aclear rule of law or policy: R. v. Morris, (SCC), [1983] 2 S.C.R. 190, 7 C.C.C. (3d) 97. [38] In Kenneth S. Brown et al., eds., McCormick on Evidence, 6th ed., Hornbook Series (St.

Paul: Thomson Reuters, 2006) atp. 306, the overarching principle is described this way: In the law of evidence, truth matters. To facilitate judgments based on an accurate understanding of the facts, the system of proofpresupposes that the parties may present to the court or jury all the evidence that bears on the issues to be decided. Of course, manyrules, such as those involving privilege, hearsay, and judicial economy, limit this system of free proof and keep probative evidence fromthe finder of fact.

Nevertheless, unless there is some such distinct ground for refusing to hear the evidence, it should be received. Conversely, if the evidence lacks probative value, it should be excluded. [39] This foundational principle of admissibility is usually addressed under the heading of relevance. Evidence is relevant if it has". . . some tendency, as a matter of logic, common sense and human experience . . . to help resolve a live issue in the case": R. v. White,2011 SCC 13 at para. 140 (per Binnie J. in dissent, but not on this point). [40] Relevance is informed by what is in issue in the case.

It is contextual: ". . . it depends on the facts in issue, the positions of theparties in respect of those facts, and the other evidence adduced in relation to those facts": R. v. Truscott (2006), (ON CA), 213 C.C.C. (3d) 183 (Ont. C.A.) at para. 23. If evidence is tendered to prove something not in issue, then it is not material andnot legally relevant. [41] Paciocco and Stuesser divide materiality into two components - primary materiality and secondary materiality: David M.Paciocco and Lee Stuesser, The Law of Evidence, rev. 5th ed. (Toronto: Irwin Law, 2008) at pp. 28-29.

They describe primarymateriality as concerned with the issues material to the case as determined by the charges and the applicable substantive and procedurallaw; and secondary materiality as generally concerned with the credibility of witnesses and the reliability of evidence that is introducedto establish the primary material issues.

They note that, while the two components are related and of equal importance, the key issue incriminal trials is often the honesty of the witnesses and the reliability of the evidence. [42] Relevance is a low hurdle to clear but not the only hurdle challenging the admissibility of evidence. Even if evidence is logicallyprobative of a material issue, and not inadmissible because of some rule of law or policy, it is still subject to the trial judge's discretion toexclude in circumstances where its probative value is outweighed by its prejudicial effect.

This was explained in The Law of Evidence atp. 35: Apart altogether from fixed rules of exclusion, judges have the discretion to exclude relevant and material evidence where its probativevalue is outweighed by its "prejudice." In considering the exclusionary discretion, a judge must determine the value of the evidence,based on both its reliability and the strength of the inferences it leads to, against the costs presented by such evidence, including things asdiverse as the practicalities of its presentation, the fairness to the parties and to witnesses, and the potentially distorting effect theevidence can have on the outcome of the case. . . . [43] The court must conduct a cost-benefit analysis to determine "whether its value is worth what it costs": R. v.

Mohan, (SCC), [1994] 2 S.C.R. 9, 89 C.C.C. (3d) 402 at 411 (Sopinka J. quoting from McCormick on Evidence).

[44] The cost-benefit analysis is a case specific exercise. As stated in McCormick on Evidence at p. 310: Analyzing and weighing the pertinent costs and benefits is no trivial task. Wise judges may come to differing conclusions in similarsituations. Even the same item of evidence may fare differently from one case to the next, depending on its relationship to the otherevidence in the case, the importance of the issues on which it bears, and the likely efficacy of cautionary instructions to the jury. . . . A.

Discreditable Conduct [45] One common law exclusionary rule prohibits the admission of evidence that the accused is a person of "bad character". Although logically relevant, such evidence is legally irrelevant and presumptively inadmissible if adduced solely to prove that theaccused is a bad person or has a propensity or disposition to commit crime: R. v. Mahalingan, 2008 SCC 63 , 237 C.C.C. (3d)417 at para. 159. [46] Bad character evidence is described by different names, including: propensity evidence; extrinsic misconduct evidence;disposition evidence; similar fact evidence; and discreditable conduct evidence.

Similar fact evidence is just one form of discreditableconduct. This was explained by Charron J.A. (as she then was) in R. v. L. B. (1997), (ON CA), 116 C.C.C. (3d) 481,9 C.R. (5th) 38 (Ont. C.A.), and later in Mahalingan at para. 160: It is clear that the rule extends not only to criminal acts, but to "similar acts" of a discreditable nature: Handy, at para. 34. Indeed, therule finds its most common application in cases where the Crown seeks to introduce evidence that the accused committed discreditableacts similar to that in respect of which he is charged, hence the label "similar fact evidence rule".

However, the rule also extends tocriminal or otherwise discreditable acts that bear no similarity to the offence with which the accused is charged. Marc Rosenberg, nowRosenberg J.A., provided the following useful example in an

article quoted to make the same point in R. v. B. (L.) (1997), (ON CA), 9 C.R. (5th) 38 (Ont. C.A.), at para. 31: [A]ssume that it can be shown that the deceased was killed by a bullet from a particular gun. The Crown wishes to introduce evidencethat the day before, the accused broke into a gun store and stole that particular gun. The fact that the accused committed the disreputableact of break, enter and theft is really incidental to the case. What the Crown needs that evidence for is to show that the accused hadpossession of the murder weapon at a time proximate to the killing.

From this the jury will be asked to infer that he had the gun at thetime of the killing and therefore that he is the killer. [Citation omitted.] [47] I have described the challenged evidence in these related applications as extrinsic discreditable conduct evidence (although I haveabbreviated the description to discreditable conduct). I have used this label because it reflects that such evidence may be admissible evenwhen it is not similar to the conduct charged, and that it involves conduct that is extrinsic to that which is charged.

In fact, none of thediscreditable conduct in this case is sought to be introduced as similar fact evidence. [48] Discreditable conduct runs the gamut from non-criminal conduct that may be considered morally reprehensible to conduct thatconstitutes very serious criminal offences. [49] The discreditable conduct rule, like most common law rules, is subject to exceptions.

One exception is that discreditable conductis admissible where it is relevant to a purpose other than to simply demonstrate the accused's bad character or general disposition tocommit discreditable acts, and the probative value of the discreditable conduct outweighs the prejudicial effect of its admission. It is theapplication of this exception which is at the heart of these applications. [50] When considering the application of the discreditable conduct rule it is important to not overlook that the rule is only engagedwhen the conduct is that of the accused and is discreditable to the accused: R. v.

Luciano, 2011 ONCA 89 at para. 227. B. Probative Value of Discreditable Conduct [51] While there is no closed list of purposes for which discreditable conduct may be relevant, some are commonly identified. Anumber of them are noted in McCormick on Evidence at p. 315. They include proof of motive, opportunity, intent, preparation, plan,knowledge, identity and absence of mistake or accident. [52] Justice Watt also identifies various purposes for such evidence in Luciano at paras. 217-218: Evidence of extrinsic misconduct by the person charged may be relevant and material in a criminal prosecution.

This evidence maydemonstrate a motive on the part of the accused to commit the offence, or his possession of the instruments used to commit the crime.Thus, evidence of extrinsic misconduct may help to establish an accused's participation in an offence, as well as his or her state of mindwhen committing it. Sometimes, evidence of extrinsic misconduct completes the narrative of or provides context for relevant events. Evidence of extrinsic misconduct includes conduct that occurs before, at the same time or after the conduct that forms the subject-matterof the charge.

The reasoning process involved in the inquiry into relevance or materiality may be different depending on when theextrinsic misconduct occurred in relation to the crime charged. [53] In assessing the probative value of the discreditable conduct in this trial, it is essential to recognize that the charged offences arealleged to have been committed by members of a gang for the purpose of advancing the gang's drug business. In other words, the motivefor each of the charged offences was a group motive.

As such, the structure of the gang and the role in or relationship of each of theaccused to the gang is relevant to the Crown's theory as to why the offences were committed and why the individual accused participatedin the commission of them. See R. v. Boucher (2000), (QC CA), 149 C.C.C. (3d) 429 (Q.C.C.A.) at para. 11. [54] It is also essential to recall that the Crown must prove not only the actus reus of the charged offences and the identity of theoffenders, but also the mens rea. Mens rea is individual to each accused and, here, culpability may be grounded in s. 21(1)(a), (

b) or (c)as well as s. 21(2) of the Criminal Code, R.S.C. 1985, c. C-46. Therefore, evidence is relevant if it assists in proving the knowledge,intent and purpose of each of the accused with respect to each of the charged offences. See R. v. Briscoe, 2010 SCC 13 , 253

C.C.C. (3d) 140; R. v. Young, 2009 ONCA 549 , 246 C.C.C. (3d) 417; R. v. Yumnu, 2010 ONCA 637 , 260 C.C.C. (3d)421; and R. v. Ball, 2011 BCCA 11 . [55] Given that each of the charged offences involve the alleged unlawful conduct of multiple accused as well as other participants,each accused's expectations or knowledge of the other accused's and participant's intentions or likely conduct may be relevant.

This maybe informed by each accused's knowledge of the past conduct of the other accused and participants. [56] The Crown identifies motive as one of the main purposes for seeking to lead much of the discreditable conduct. Motive iscircumstantial evidence which may be probative of the actus reus and the mens rea of the charged offence, and may be admissible eventhough it is discreditable conduct. This was discussed by Watt J.A. in Yumnu at paras. 273-274: Evidence of motive is circumstantial evidence. The argument for the relevance of motive in a criminal case is that evidence that a personhad a motive to do

an act enhances the likelihood that the person did that act. Motive points forward to future conduct. The argumentinvolves prospectant use of circumstantial evidence. We infer from prior motive subsequent conduct. Evidence of motive is relevant to prove an accused's participation in an offence, as well as the state of mind with which he or she acted.In other words, motive is relevant in proof of identity and intention [citations omitted].

Motive is evidenced by conduct, includingunlawful conduct [citation omitted]. [57] What an accused said or did after an offence may also be circumstantial evidence probative of guilt and admissible even if theconduct is discreditable: White. Here, the Crown identifies post-offence conduct by the accused as one of the purposes for seeking tolead discreditable conduct. [58] The Crown also identifies a number of other purposes for seeking admission of discreditable conduct. I will review many of thepurposes the Crown has identified when I consider the admissibility of the wiretap and other evidence.

However, identifying thepurpose or purposes for which admission of discreditable conduct is sought is only one step in the analysis. This is explained in S.Casey Hill et al., eds., McWilliams' Canadian Criminal Evidence, 4th ed., looseleaf (Toronto: Thomson Reuters, 2010) at p. 10-7: As a result of Handy, it is no longer good enough to say that the evidence is "probative of or buttresses credibility"; that it "establishes aplan or design" or "rebuts the defence of accident or innocent association". These catchphrases are not automatic tickets toadmissibility.

The proponent of the evidence must do more and clearly articulate how and by what method of reasoning the profferedevidence proves the fact in issue in the context of the specific prosecution. C. Prejudicial Effect of Discreditable Conduct [59] Prejudice does not mean that the evidence will strengthen the Crown's case against the accused and increase the likelihood ofconviction. That result merely demonstrates the probative value of the evidence. Rather, prejudice addresses the risk that thediscreditable conduct may be misused by the jury. This was neatly expressed by Davey J.A. in R. v.

Sigmund, (BCCA), [1968] 1 C.C.C. 92 (B.C.C.A.) at p. 102: "Prejudice means, not damage to a prisoner's case by a proper use of the evidence, butdamage that might be caused by an improper use of it". [60] The notion of prejudice has expanded since Sigmund to include not only prejudice to the accused but prejudice to a focussed andefficient trial that seeks to arrive at the truth in a way that is fair to all participants. Prejudice encompasses the ability of the accused torespond to the discreditable conduct and a consideration of the time required to lead and respond to the evidence.

The latter point is ofincreasing concern with respect to lengthy complex criminal trials such as this. [61] In R. v. Handy, 2002 SCC 56 , 164 C.C.C. (3d) 481, Binnie J. organized prejudice under the headings of moral prejudiceand reasoning prejudice. While there is overlap between the two categories, there is no closed list of considerations that may be at playwhen weighing prejudice in the context of a particular case. [62] Reasoning prejudice is concerned with undue time consumption and distracting the jury from the real issues in the trial.

Distraction includes the risk that the discreditable conduct may result in such condemnation or disgust by the jury so as to prevent it fromassessing the evidence rationally and dispassionately. [63] Moral prejudice is concerned with an unfocussed trial and a wrongful conviction. The risk is that the jury will convict anaccused for his or her conduct on other occasions rather than the occasion for which they are charged. As Watt J.A. succinctly stated inLuciano at para. 232: . . . Propensity reasoning uses evidence of character or disposition as circumstantial evidence of conduct.

An accused is convictedbecause of what he is, rather than because of what he has done. Prejudice is a surrogate for proof, character for conduct. [64] Moral prejudice is highest when the discreditable conduct demonstrates a propensity to engage in the same kind of conduct asthat charged on the indictment.

This is so because as a matter of logic, common sense and human experience, the fact that someone hascommitted the same offence on other occasions is logically probative of whether they committed the charged offence. [65] We tell jurors to use their common sense and life experience when weighing evidence and making findings of fact.

It is counter-intuitive for them not to use propensity reasoning in the same way as they would use it in their everyday lives. [66] Justice Binnie explained this in Handy at paras. 39-40: It is, of course, common human experience that people generally act consistently with their known character. We make everydayjudgments about the reliability or honesty of particular individuals based on what we know of their track record.

If the jurors in this casehad been the respondent's inquisitive neighbours, instead of sitting in judgment in a court of law, they would undoubtedly have wanted toknow everything about his character and related activities. His ex-wife's anecdotal evidence would have been of great interest. Perhaps

too great, as pointed out by Sopinka J. in B. (C.R.), supra, at p. 744: The principal reason for the exclusionary rule relating to propensity is that there is a natural human tendency to judge a person's actionon the basis of character. Particularly with juries there would be a strong inclination to conclude that a thief has stolen, a violent man hasassaulted and a pedophile has engaged in pedophilic acts. Yet the policy of the law is wholly against this process of reasoning.

The policy of the law recognizes the difficulty of containing the effects of such information which, once dropped like poison in thejuror's ear, "swift as quicksilver it courses through the natural gates and alleys of the body": Hamlet, Act I, Scene v, ll. 66-67. [67] However, our criminal justice system is grounded in the assumption that jurors will follow a judge's instructions. A judge whoassumes the contrary is in error. That said, our criminal justice system also recognizes the risk that even the most conscientious jurormay misuse evidence. This is of particular concern with respect to propensity evidence.

As Binnie J. noted in Handy at para. 141: Some model studies of jury behaviour have put into question the effectiveness of the trial judge's instruction as to the limited use thatmay be made of propensity evidence [citations omitted]. This is not to undermine our belief in the ability of the jury to do its job, but itunderlines the poisonous nature of propensity evidence, and the need to maintain a high awareness of its potentially prejudicial effect. [68] Justice Doherty expressed a similar concern in R. v. Talbot, 2007 ONCA 81 , 217 C.C.C. (3d) 415 at paras. 33-34: . . .

The trial judge was concerned that if the jury heard that the respondent had eight prior convictions for assault related offences overseveral years, that it would conclude, despite instructions to the contrary, that he had a propensity to act violently and infer from thatpropensity that he had instigated this confrontation. That line of reasoning, while perhaps logically compelling, is impermissible underthe rules of evidence governing criminal proceedings. A verdict that flows from such reasoning is a miscarriage of justice. I see no error in the trial judge's identification of potential prejudice.

Nor do I regard her frank acknowledgement of that potentialprejudice as inconsistent with a recognition of the ability of the juries to follow instructions. Acknowledging the risk of prejudice is nottantamount to suggesting that juries will ignore what they are told by trial judges. Rather, acknowledging the prejudice recognizes thatdespite proper instructions and the best of intentions by juries, faulty propensity based reasoning can infect a jury's deliberations. This isparticularly so where an accused's criminal record lends considerable credence to propensity based reasoning. See also R. v.

Noël, 2002 SCC 67 , 168 C.C.C. (3d) 193 at para. 56. [69] So how is a trial judge to resolve the tension between the assumption that a jury will follow a trial judge's instructions and therisk it may not? Justice Watt recently provided some assistance in Luciano. He described the assumption that jurors will follow ajudge's instruction as a presumption that judges must apply, but one that may be rebutted in the circumstances of the specific case. Watt J.A. explained the analysis the trial judge should have undertaken in that case at para. 262: . . .

If, in his assessment of prejudicial effect, the trial judge proceeded from the premise that jurors were incapable of following complexlegal instructions involving evidence of limited admissibility, he was wrong. The presumption is to the contrary.

But it was open to thetrial judge to conclude, notwithstanding the presumption, that the limiting instructions required in this case, in light of the evidence to beadduced, would not be adequate to overcome the prejudicial effect of the evidence so that probative value would predominate . . . [70] I must, therefore, apply the presumption that the jury will follow my instructions but assess the risk with each piece or item ofdiscreditable conduct that limiting instructions may not be adequate to overcome the prejudicial effect of the evidence. [71] In conducting this assessment I must also be mindful of the caution expressed by Binnie J. in Handy at para. 150: . . .

Justice includes society's interest in getting to the truth of the charges as well as the interest in both society and the accused in a fairprocess. A criminal justice system that has suffered some serious wrongful convictions in part because of misconceived notions ofcharacter and propensity should not (and does not) take lightly the dangers of misapplied propensity evidence. D. The Balancing [72] The final stage of the analysis involves the balancing of the probative value of the discreditable conduct against the prejudicialeffect.

As stated, evidence of discreditable conduct is only admissible where the value or benefit outweighs the prejudice or cost. This issometimes referred to as the cost-benefit analysis. E.

Summary [73] As I have reviewed the governing legal principles in some detail, in my view, it is useful to include a brief

summary of some ofthe factors to be considered when deciding the admissibility of discreditable conduct. In Mahalingan at para. 163, Charron J. notes thatPaciocco and Stuesser provide a useful digest of factors when assessing the probative value and prejudicial effect of discreditableconduct. I respectfully agree. The authors'

summary is set out in The Law of Evidence at pp. 50-51: [Evidence that the accused has engaged in discreditable or criminal acts, or is otherwise of a discreditable character] is presumptivelyinadmissible. The onus is on the prosecution to satisfy the trial judge on the balance of probabilities [before such evidence is admitted]that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potentialprejudice and thereby justifies its reception.

In assessing the probative value of the evidence, consideration should be given to such things as: • the strength of the evidence that the discreditable or criminal act occurred; • the extent to which the discreditable or criminal act supports the inferences sought to be made (a.k.a. the "connectedness" of theevidence to the "questions in issue"); and

• the extent to which the matters it tends to prove are at issue in the proceedings (the materiality of the evidence).

In assessing the risk of prejudice caused by the evidence, consideration should be given to such things as: • "moral prejudice," being the risk that the evidence will be used to draw the prohibited inference that the accused is the kind of bad person likely to commit the offence charged; and • "reasoning prejudice," which includes the risk that: − the trier of fact may be distracted from deciding the issue in a reasoned way because of the inflammatory nature of the proposed evidence; − the trier of fact may become confused about what evidence pertains to the crime charged, and what evidence relates to the alleged similar act; − the trial will begin to focus disproportionately on whether the similar act happened; and − the accused will be unable to respond to the allegation that the similar act occurred, because of the passage of time, surprise, or the collateral nature of the inquiry. [74] As these applications demonstrate, stating the formula is much a simpler exercise than applying it.

IV.

Analysis [ 24 ] I have concluded that the evidence in question should be admitted, and that the jury should be given appropriate limiting instructions as to which, of course, I will be guided by the submissions of counsel. [ 25 ] I agree with the submissions of the Crown that the events in questions form a continuous sequence from at least the time when, as set out in paragraph 13 of the Crown's submissions, Douglas allegedly said, after putting the gun back into his shoulder bag and sitting on the couch, "Ok let’s go, we are going for a drive," at the residence of McRae, the stop at the Woodbine residence, and then another stop at a second residence also on Woodbine Street, and finally through to the Gore Avenue apartment and the shootings. [ 26 ] (The second stop at Woodbine Street was at a duplex, the residence of Marlene Stephan and Stephanie Glaister.

There, Douglas used a borrowed cellphone belonging to Alysha Whitelock to call Blackmon at 3:58 a.m.) [ 27 ] All of Mr. Douglas' words and actions in the hours immediately preceding the shootings are relevant to his state of mind at the material time, and to his condition. I do not accept that the jury will be able to properly assess the case without a full appreciation of Mr. Douglas' conduct and statements made immediately prior to the shootings.

In short, in the context of the expected issues, in my view, to do as the defence suggests would leave out major portions of the relevant evidence. [ 28 ] I do not accept the defence argument that the reasons for Mr. Dalke being present at the apartment are not relevant. What is relevant is that, according to the Crown's theory, Mr. Douglas forced Mr. Dalke to accompany him first to Woodbine and then to the Gore Avenue apartment. Whether he did so and his reasons for doing so appear to me to be highly relevant to the motives of Mr. Douglas, his state of mind, and issues of planning and deliberation.

In that context, Mr. Dalke's evidence must include references to the threats with the gun. It would be difficult for Mr. Dalke to explain the events and his own conduct on the evening in question without describing the earlier episodes. The jury would be getting half the story only. [ 29 ] The jury might well be compelled or at least strongly tempted to speculate about Mr. Dalke's role and how his conduct related to that of Mr. Douglas. I note that, as they entered the apartment, as set out in para. 19 of the Crown's submissions, allegedly Mr.

Douglas gave Dalke a silver gun and instructed him to go to the kitchen and dining area where Mr. Berard and Mr. Belcourt were. Later, Dalke tried to leave the apartment, but Douglas told him to return to where he was. Dalke states he ran before the first shot was fired. His behaviour in the apartment, as he describes it, is practically inexplicable without evidence of the prior threat and the earlier behaviour of Mr. Douglas. Evidence of the prior threat and Mr.

Douglas' compulsion of Dalke, therefore, is likely quite probative of the central issues in the case. [ 30 ] I accept the Crown's submission that Dalke's motives will be at issue, especially in the context of the Crown's expected contention that Douglas forced Dalke to accompany him. Thus, Dalke's credibility as to that and perhaps as to other things will be disputed. [ 31 ] As the Crown argues, is likely the defence will argue that a Vetrovec warning ought to be given to the jury regarding Dalke's evidence. The jury will need to have Mr.

Dalke’s evidence in full in order to properly assess his evidence concerning, for example, why he did not just leave the Woodbine Street house, the reasons he went to the Gore Avenue apartment, and why he says he accepted the gun from Douglas, without considering his evidence about the threats made against him. [ 32 ] With respect to the evidence at the Woodbine Street residence, in my view, again, it is impossible as a practical matter to excise and redact the evidence in the manner suggested by the defence.

As I have observed, the defence rightly concedes that the jury must hear the evidence regarding Douglas' questions about Blackmon, and related facts. So, for example, the defence takes no issue with the evidence set out in paras. 32, 33, 34, 35, and portions of 36 and 37 and 38 of the Crown's

Summary of the Facts, but as noted, the defence seeks to exclude the threats with the gun, the gunshot, and the other threats and warnings. [ 33 ] In my view, the threats and warnings are clearly admissible and highly probative to Mr. Douglas' motives, intention, state of mind, and issues of planning and deliberation. Again, leaving out the gun threats and the shot being fired leaves the jury with a partial and inaccurate portrayal of material events. Just as in the case of Dalke, it would be difficult for the Woodbine residence witnesses, who

include Prince, Hilliard, Lajeunesse, and Dalke, to testify regarding the material events and to be cross-examined about them whileleaving out large portions of the story. In particular, the behaviour of Lajeunesse, who was dating Blackmon, would be hard to explainwithout having her testimony about all the events that occurred. [34] Therefore, in addition to its intrinsic probative value, in my view, the evidence in issue is essential narrative evidence.

In thatregard, in the circumstances of this case I share the views of Smart J. in Sipes regarding the difficulty of rigidly parsing the evidence ofseveral witnesses. I refer here to His Lordship's comments at paras. 83, and 401-403: [83] Fourth, in considering the admissibility of the anticipated testimony of the civilian or lay witnesses, I must consider thedifficulties and concerns that may arise from a rigid parsing of their evidence. I will address this point later in my reasons.

Suffice it tosay at the outset that asking witnesses to omit certain facts from their account of events makes it more difficult for them to give theirevidence and, in some cases, may unduly distort it. . . . [401] These are lay witnesses who will be giving evidence in what will likely be difficult circumstances. Giving evidence in thewitness stand and being vigorously cross-examined can be a difficult exercise. In my view, it is generally too much to ask that witnessesexcise portions of an event or incident.

They must be able to give a full account of what allegedly occurred if they are permitted to givethe account at all. [402] To do otherwise is unfair to the witness and problematic. Despite having sworn to tell the whole truth the witness is being forcedto provide an incomplete version of an event. It is misleading for the jury and invites further difficulties should the omitted evidencelater emerge during cross-examination or through other witnesses.

These concerns are even more pronounced with lay witnesses whosecredibility will be thoroughly challenged. [403] Given these concerns, where I am of the view that parsing the evidence would be unrealistic and fraught with difficulty, I amconsidering the prejudicial effect of the evidence based on a full account of the incident. [35] As noted, the defence argues or is expected to argue that self-defence is applicable. Section 34(1)(

c) of the Code requiresconsideration of whether the act committed is reasonable in the circumstances. Section 34(2) sets out the factors to be considered indetermining reasonableness, in a non-exhaustive list.

In my view, the jury will be required to consider the events leading up to the entryto the apartment in the context of all relevant circumstances for the potential self-defence argument. [36] The Crown argues that the jury will not be able to fairly determine whether the actions of Douglas in shooting Blackmon,Belcourt, and White were reasonable without knowing that, shortly before, he fired a gun through the floor at the Woodbine residenceand that he had also threatened Hilliard, Prince, and Dalke. I agree with that submission.

The Crown also argues that the events relatingto Douglas carrying the loaded gun and using it a short time before the shootings in the Gore Avenue apartment are relevant to the self-defence contention. The Crown also argues that if, for example, Douglas were to argue that he used the gun at the Gore Avenueapartment by accident, or without intending to hurt anyone, the fact that he had used it a short time before in conjunction with threatstowards Prince and Hilliard would be relevant, in that context. [37] As noted, the defence is expected to argue that drunkenness is a defence.

The arguments about drunkenness can only beassessed, in my view, in the context of the conduct of Mr. Douglas at the time of the shootings, but also in relation to the events leadingup to the shootings. [38] As I observed, the Crown's argument is that Douglas' motive for the killing was revenge. The Crown argues that the jury willbe unable to assess that theory if they are unaware that Douglas had used a gun to threaten Hilliard and Prince a short time before he shotthe three victims.

I agree with that submission as well. [39] As the cases emphasize, in this context, prejudice does not mean that the evidence will strengthen the Crown's case against theaccused and increase the likelihood of conviction. I refer to Sipes at para. 59. There, Justice Smart says: … Rather, prejudice addresses the risk that the discreditable conduct may be misused by the jury. … [40] Similar comments are found in R. v. Handy, 2002 SCC 56, at para. 139, and in R. v. Mahalingan, 2008 SCC 63, at para. 164. [41] The defence argues that the evidence in question is highly prejudicial.

The defence argues that the evidence that Douglas wasthreatening others with the handgun would encourage the jury to conclude that just as Mr. Douglas threatened the occupants ofWoodbine with violence, he shot the occupants of the apartment simply because he is a violent man. I agree that there is a risk of suchinappropriate reasoning. However, I do not accept that the evidence is as prejudicial in this respect as the defence contends. Theevidence is of a fundamentally different character.

Threatening persons with a gun or even discharging a gun into the floor is a muchdifferent thing than actually shooting a person or, in this case, three people. For example, Mr. Douglas may say that he brought the gunor the guns to the apartment only to be used for intimidation or as potential self-defence. [42] In assessing the prejudicial effect of the proposed evidence, useful commentary is found in the decision written by MadamJustice Charron, in the Ontario Court of Appeal in R. v. L.B. (1997), (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.), atpara. 24.

That paragraph is as follows: In assessing the prejudicial effect of the proposed evidence, consideration should be given to such matters as: (

i) how discreditable it is; (ii) the extent to which it may support an inference of guilt based solely on bad character;

(iii) the extent to which it may confuse issues; and (iv) the accused's ability to respond to it. [ 43 ] Charron J.A. adds that this list is not exhaustive and that the matters that should be considered depend largely on the particular circumstances of the case. However, I will refer to these particular considerations. [ 44 ] First, then, is the issue of how discreditable the conduct is. In comparison with the matters charged, the discreditable conduct in issue is far less serious and significant. Threatening a person with a gun is far different than shooting a person. It must be remembered that Mr.

Douglas' role in the criminal drug trade will likely be known by the jury, and also the fact that he brought a loaded weapon to the apartment. [ 45 ] As to the second factor, that is, the extent to which the evidence may support an inference of guilt based solely on bad character: there will be no issue in this case that Mr. Douglas pulled the trigger several times. The jury must decide why he did so, his intent, and whether his conduct was planned and deliberate.

In this context, the prohibited line of reasoning is weak. [ 46 ] Third, the extent to which it may confuse issues: in my view, this is not a major concern in this case. For example, I do not expect the jury to become overly focused on factual issues relating to the evidence in question. [ 47 ] Fourth, the accused's ability to respond to the evidence: in this case, it is open to the accused to respond to the evidence. This is not a case, for example, where the accused is being confronted with unrelated or perhaps historical events that could be difficult to defend against. [ 48 ] In

summary, in my view, therefore, a properly instructed jury would have no great difficulty focusing on the real issues in the case and can avoid the prohibited lines of reasoning. I consider, therefore, that the Crown has satisfied the onus upon it and, therefore, the proposed evidence is admissible subject to appropriate limiting instructions. I observe that there are some aspects of the Crown's

summary of evidence that may be open to argument about relevance. I refer specifically to aspects of para. 6 and 39 and arguments about the relevance of aspects of the evidence that are still available. [ 49 ] MR. MCPHERSON: Was that paragraph 6 and 39, My Lord? [ 50 ] THE COURT: Yes, I mentioned paragraph 6 and 39. Paragraph 6, in rereading this, refers to the release of Mr. Douglas from prison on August 7 and needing an address and Mr. Dalke providing that address, but that Mr. Douglas was not actually living with Dalke; I’m not sure about the relevance of that.

Also paragraph 39, the conversations at Woodbine between Hilliard and Prince, apparently, after Douglas departed, I’m not sure about that. [ 51 ] That concludes the decision. “Verhoeven J.”