2020 QCCQ 8098, 2020 QCCQ 8098

R. c. Mohamed 2020 QCCQ 8098 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU “Criminal Division” No: 550-01-113308-193 550-01-113373-197 DATE: November 24, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE ANOUK DESAULNIERS, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. Raffat A.

Mohamed and Sean William Newell Accused ______________________________________________________________________ DECISION ON THE ADMISSIBILITY OF EVIDENCE OF PAST DISCREDITABLE CONDUCT ______________________________________________________________________ WARNING: On September 14, 2020, the Court issued an order, pursuant to

section 539 of the Criminal Code , prohibiting the publication, broadcast or transmission of the evidence taken at the preliminary inquiry before such time as the trial is ended. OVERVIEW [ 1 ] Should the Crown be allowed to adduce evidence of past discreditable conduct (or “bad character” evidence) from the two accused? [ 2 ] The Court conducted a joint preliminary inquiry in the files of Raffat A. Mohamed and Sean William Newell; they are charged with, respectively, second degree murder (s. 235 Cr. C. ) and being an accessory after the fact to murder (s. 240 Cr.

C. ). [ 3 ] The Crown’s theory is that Sean Newell received a phone call from Raffat Mohamed in the evening of July 23, 2019. After this call, Newell proceeded to leave his place of residence in Ottawa to deliver a backpack to Mohamed, who was staying overnight in Treasure Langevin and Stuart Smith’s apartment in Gatineau. [ 4 ] Stuart Smith testified that Raffat Mohamed immediately retrieved a gun from the backpack, cocked it and aimed it at the victim, Jeffrey Claude Godin. Mohamed fired one shot at Jeffrey Godin’s feet.

Godin jumped on him and a short struggle ensued, during which Mohamed killed Jeffrey Godin with a single gunshot through his chest. [ 5 ] The Crown seeks to adduce two bodies of past discreditable conduct from both accused: (

a) Prior events involving a gun; and (

b) Drug trafficking activities. [ 6 ] According to the Crown, this evidence is relevant to proving the following: - Raffat Mohamed and Sean Newell used a cellular phone in their drug trafficking activities, and data obtained from cellular transmission towers assists in identifying the whereabouts of both accused on the day of the events; - Raffat Mohamed exercised some authority over Sean Newell; - On the day of the events, Raffat Mohamed, who was in Gatineau, called Sean Newell in Ottawa to ask him to bring him a gun; - Mohamed was planning to kill Jeffrey Godin when he called Newell to ask him to bring the gun to Gatineau;

- When Sean Newell arrived at the Gatineau apartment, he was aware that he was bringing a gun to Raffat Mohamed; - Mohamed was familiar with the gun and its workings, which negates the possibility that the fatal shooting was accidental. [ 7 ] Also, the Crown submits that the evidence of past discreditable conduct should be admitted as part of the narrative to provide context for the events of July 23, 2019. [ 8 ] For the reasons that follow, the Court finds that the evidence of past discreditable conduct from both accused is admissible. ANALYSIS 1.

THE LAW [ 9 ] It is settled law that, as a general rule, the Crown is not permitted to lead evidence of the accused’s bad character by evidence of either reputation or specific acts. [1] [ 10 ] Evidence of an accused’s misconduct that shows only that she or he is the type of person likely to have committed an offence with which she or he is charged is inadmissible.

On the other hand, evidence of past discreditable conduct that tends to show that an accused is a person of bad character, but that is also relevant and material is admissible, provided its probative value exceeds its prejudicial effect. [2] [ 11 ] Evidence of past discreditable conduct may also be admitted as part of the narrative to provide context for other events, as well as to establish motive. [3] Sometimes, evidence of the accused’s past misconduct will be so inextricably tied to the narrative of the alleged offence that its absence may render the trier of fact unable to understand and evaluate what actually transpired, or how a witness became involved in the events. [4] Without it, the trier of fact would be getting only half the story. [5] [ 12 ] In each case, the evidence of past misconduct must be relevant to some material issue, other than propensity, and be more probative of that issue than prejudicial. [ 13 ] The prejudicial effect of evidence of past discreditable conduct can infect a jury’s deliberative process in three main ways: i. the jury may assume that an accused is a “bad person”, thus likely to be guilty of the offences charged; ii. the jury may tend to punish the accused for the past discreditable conduct by finding him or her guilty of the offences charged; and iii. the jury may become confused by the evidence of past discreditable conduct, their attention deflected from the main purpose of the trial, the offences charged, and substitute their conclusion on this conduct for their verdict on the indictment they are trying. [6] [ 14 ] The trial judge who is charged with balancing the probative value of the proposed evidence against its prejudicial effect should examine the following issues: - Is the conduct which forms the subject-matter of the proposed evidence that of the accused? - If so, is the proposed evidence relevant and material? - If relevant and material, is the proposed evidence discreditable to the accused? - If discreditable, does its probative value outweigh its prejudicial effect? [7] [ 15 ] In assessing the probative value of the proposed evidence, consideration should be given to the following, among others: - the strength of the evidence; - the extent to which the proposed evidence supports the inference(

s) sought to be made from it; and - the extent to which the matters it tends to prove are at issue in the proceedings. [8] [ 16 ] In assessing the prejudicial effect of the proposed evidence, consideration should be given to the following factors, among others: - how discreditable it is; - the extent to which it may support an inference of guilt based solely on bad character; - the extent to which it may confuse issues; and - the accused's ability to respond to it. [ 17 ] Prejudice does not mean that the evidence will strengthen the Crown’s case against the accused or increase the likelihood of a guilty verdict.

Rather, prejudice addresses the risk that the past discreditable conduct may be misused by the trier of fact and result in an unfair or unfocussed trial and a wrongful conviction. [9]

2. APPLICATION OF THE LAW TO THE FACTS 2.1 Prior events involving a gun 2.1.1 The facts associated with the past discreditable conduct [ 18 ] Kyle Hiemstra testified that he got to know Raffat Mohamed around March 2019 through his smoking of crack cocaine. Mohamed would provide him the drugs and would very often stay at his place, which Kyle Hiemstra described as a “crack house”. He lived at the time at [...] in downtown Ottawa. [ 19 ] According to Kyle Hiemstra, Sean Newel worked for Raffat Mohamed selling and delivering drugs.

The two accused would speak on the phone very often and shared the use of a cellular “flip” phone to sell drugs. [ 20 ] Raffat Mohamed would sometimes keep a gun at Kyle Hiemstra’s home, placing it on his living room table. According to Hiemstra, this gun was black and was equipped with a laser pointer. It also had a slide on top that could be moved back and forth. Kyle Hiemstra witnessed Raffat Mohamed load a magazine into the gun’s handle, from the bottom.

Mohamed once told him that, when the red light of the laser pointer hits your body, “bang, you’re pretty much dead”. [ 21 ] Kyle Hiemstra testified that Sean Newell and Raffat Mohamed would often communicate in person and on the phone about where to stash the gun. He also stated that he once heard Mohamed request by phone that the gun be brought to him at Hiemstra’s apartment. Kyle Hiemstra assumed that Mohamed was talking to Sean Newell because, a few minutes later, Newell, who lived down the street from him, arrived with the gun in a black backpack. This would have been in April or May 2019.

On other occasions, he heard Raffat Mohamed requesting on his cellular phone that the gun be brought to him and naming Sean Newell during these conversations, but Hiemstra did not witness the gun being delivered. [ 22 ] Kyle Hiemstra also recounted that, on one occasion, he walked into his living room and saw Raffat Mohamed pointing the gun in his direction. Mohamed, who was in the company of two or three drug clients in the living room, made a gesture with the gun to tell Hiemstra to leave the room.

Kyle Hiemstra went into his bedroom. [ 23 ] Stuart Smith testified that, about a month before the events of July 23, 2019, he met Raffat Mohamed at an apartment in downtown Ottawa to purchase crack cocaine from him and he noticed that Mohamed had a gun. It was a Glock with a slide on top that would move back and forth to cock the gun, which was about 20 cms in length. The magazine would slide into it from the bottom, pushing up. 2.1.2 Is the prior discreditable conduct that of the accused? [ 24 ] The conduct which forms the subject matter of the proposed evidence, i.e.

Raffat Mohamed’s requesting and handling a gun, and Sean Newell’s delivering a gun to Mohamed in the spring of 2019, are the alleged acts of the accused.

This is not at issue in the present case. 2.1.3 Is the evidence relevant and material? [ 25 ] It is the Crown’s theory that, after a verbal altercation with Jeffrey Godin at the Gatineau apartment, Raffat Mohamed called Sean Newell in Ottawa, requesting that the gun be brought to him. [ 26 ] Kyle Hiemstra’s testimony whereby Mohamed made a comparable request and Newell delivered the gun to him in a backpack makes it more likely that this is also what took place on July 23, 2019. [ 27 ] Thus, the Crown argues that Kyle Hiemstra’s testimony is relevant to the following three material issues: - Sean Newell’s knowledge : Hiemstra’s testimony tends to show that, when Newell handed the backpack to Mohamed on July 23, 2019, he knew that it contained a gun because he was responding to Mohamed’s request to bring it to him, as he had done in the past; - Raffat Mohamed planned to shoot Jeffrey Godin : Hiemstra’s testimony is integral to the Crown’s theory that Mohamed’s repeated calls to Newell in the evening of July 23, 2019, were made to ask Newell to bring him the gun.

Hiemstra’s testimony supports the proposition that Raffat Mohamed planned to shoot Jeffrey Godin from the time he first called Newell after his altercation with the victim; - Raffat Mohamed was familiar with the gun : Evidence that Raffat Mohamed handled the gun in the months leading up to the shooting is relevant to the issue of whether or not he meant to shoot the victim when he did.

Evidence that he was familiar with the workings of the gun supports the proposition that he voluntarily discharged the gun at the victim and negates the possibility of an accident. [ 28 ] Also, Kyle Hiemstra and Stuart Smith provide a description of the gun that Mohamed possessed in the months prior to the events that in many respects matches the gun that the police seized at Sean Newell’s apartment a week after the events.

This evidence, combined with the testimonies of Jean-François Daigneault, ballistics expert, and Josée Houde, biologist, tends to show that the gun observed by Hiemstra and Smith in the spring of 2019, the gun used to shoot the victim on July 23, 2019, and the gun found in Newell’s apartment were one and the same. Also, Stuart Smith testified that, when Mohamed took out a gun from the backpack that Sean Newell had just delivered on the day of the events, he recognized it as the one he had seen earlier in Mohamed’s possession.

Thus, the testimonies of Hiemstra and Smith are relevant to the issue of identifying the gun used to shoot the victim. [ 29 ] In conclusion, the Court finds the evidence of Kyle Hiemstra and Stuart Smith on past discreditable conduct involving a gun to

be relevant and material. 2.1.4 Does the probative value of this evidence outweigh its prejudicial effect? The probative value [ 30 ] The testimonies of Kyle Hiemstra and Stuart Smith were not contradicted at the preliminary inquiry. Defence did not even see fit to cross-examine Smith. [ 31 ] Stuart Smith stated that he went to an apartment in downtown Ottawa to purchase crack cocaine from Raffat Mohamed. It is a reasonable assumption that the place in question was Kyle Hiemstra’s apartment.

Smith’s testimony that he saw a gun while he was there corroborates Hiemstra’s version that the gun was often left out in plain view in his apartment. These two witnesses do not know each other, yet their testimonies converge. [ 32 ] Although Kyle Hiemstra had some hesitations in his testimony with respect to dates and addresses, he remained consistent and transparent in his description of the events involving the gun. [ 33 ] Kyle Hiemstra and Stuart Smith provided reliable and credible testimonies regarding the actions of Sean Newell and Raffat Mohamed’s involving a gun in the months prior to the events.

Their evidence is strong. [ 34 ] Furthermore, the Court finds that the evidence of Kyle Hiemstra and Stuart Smith and the inferences that can be drawn from it clearly and logically advance the Crown’s theory that, on the evening of July 23, 2019, (

i) Mohamed called Newell to ask him to bring the gun; (ii) Mohamed planned to use it against Jeffrey Godin; (iii) Sean Newell knew that the backpack he brought to Raffat Mohamed contained a gun; and (iv) Mohamed deliberately shot Jeffrey Godin. [ 35 ] This evidence thus carries considerable probative value. [ 36 ] The Court notes that, in the present case, the solid combination of factors that link the gun described by Kyle Hiemstra and Stuart Smith to the gun that shot the victim and the gun found at Newell’s apartment is distinguishable from the factors in R. v. Grizzle [10] and R. v.

Chung , [11] submitted by the defence. Thus, the probative value of the accused’s prior gun-related misconduct in the present case cannot be compared to that in those two judgments. The prejudicial effect of this evidence [ 37 ] The testimonies of Kyle Hiemstra and Stuart Smith on the accused’s past discreditable conduct involving the gun were fairly short and straightforward. Hiemstra’s testimony required no more than a couple of hours, including cross-examination by both defence counsel. And Stuart Smith’s testimony is straightforward and limited as regards his observation of the gun prior to the events.

The circumscribed nature of this evidence limits the risk that it will confuse issues for the jury or sidetrack the jury’s attention from the offences it is trying. [ 38 ] Also, the trial judge will be required to instruct the jury as to the permissible and impermissible use of this evidence. [12] In particular, he or she will instruct the jury that they are not to use the evidence of prior events involving a gun or drug trafficking as evidence of a general criminal disposition or bad character. [13] Juries can be expected to apply the law properly and guard themselves against propensity reasoning. [14] [ 39 ] The accused will be able to respond to this evidence at trial by cross-examining Kyle Hiemstra and Stuart Smith.

Conclusion on the admissibility of this evidence [ 40 ] For all these reasons, the Court concludes that the prosecution has shown, on a balance of probabilities, that the evidence of prior events involving a gun is admissible evidence against both accused because its probative value outweighs its prejudicial effect. 2.2 Evidence that Mohamed and Newell were working together in drug trafficking 2.2.1 The facts associated with the past discreditable conduct [ 41 ] As mentioned above, Kyle Hiemstra testified that he met Raffat Mohamed through his consumption of crack cocaine, which was on a daily basis at the time.

That is also how he met Sean Newell, who was working for Mohamed in the drug trade, according to Hiemstra. [ 42 ] Kyle Hiemstra testified that his connection with Sean Newell and Raffat Mohamed and the relationship between these two were essentially tied to crack cocaine. Hiemstra would receive his drugs from Mohamed in exchange for errands he would run for him and for letting Mohamed stay at his apartment and sell drugs from there.

Kyle Hiemstra would also consume crack cocaine with Sean Newell. 2.2.2 Is the prior discreditable conduct that of the accused? [ 43 ] The conduct which forms the subject matter of the proposed evidence, i.e. drug trafficking, is clearly discreditable and is that of Mohamed and Newell. This is not at issue in the present case. 2.2.3 Is the evidence relevant and material?

[ 44 ] Kyle Hiemstra’s evidence regarding the drug trafficking is essential for the trier of fact’s proper comprehension of the relationship between the two accused. [15] Hiemstra testified that Sean Newell worked for Raffat Mohamed in the drug trade. Newell was a consumer of crack cocaine, whereas Mohamed was not. Kyle Hiemstra’s testimony gives the impression that the accused were not on equal footing and that Raffat Mohamed exercised a form of authority over Sean Newell.

Whether that authority was founded strictly on a business hierarchy or whether it was rooted in Newell’s drug addiction is left for the consideration of the jury. This jury, however, would be deprived of relevant context when assessing the relationship between the two accused if information about their involvement in the drug trade was not provided. [ 45 ] Also, considering the nature of the relationship between the two accused is relevant to evaluating the likelihood that Raffat Mohamed asked Sean Newell to bring him the gun and that Newell complied.

This material issue is central to the Crown’s theory. [ 46 ] In addition, the involvement of both accused in drug trafficking is relevant to another key issue: their use of cellular phones, which serves to identify the location of both accused during the day of the events. [ 47 ] Kyle Hiemstra and Stuart Smith explained that they would call the number 613-[...] to purchase drugs, and that either Mohamed or Newell would answer, depending on who was “working” at the time.

This cellular phone number is a central element in the Crown’s case, as it assists in tracking the whereabouts of the two accused in the hours before the shooting, through the location of cellular towers to which the cellular phone would connect. [16] [ 48 ] Evidence of the use by both accused of the cellular phone associated with the number 613-[...] is inextricably linked with their drug trafficking operation.

It explains why use of this cellular phone would alternate between the two, why they each also had a personal cellular phone with a distinct number, and why they made so many calls to and from the phone number 613-[...] on a daily basis. [ 49 ] Furthermore, it would be very difficult for Kyle Hiemstra to testify without referring to the drug trade carried out by the two accused, which was the backdrop to everything that took place in his apartment.

Removing all reference in Hiemstra’s testimony to the drug trafficking by both accused, if it were even feasible, would render the jury unable to understand and evaluate what actually transpired in Kyle Hiemstra’s apartment, as well as how and to what extent he became involved with both accused. [17] This evidence is essential to the narrative in this case. 2.2.4 Does the probative value of this evidence outweigh its prejudicial effect? The probative value [ 50 ] The evidence of Kyle Hiemstra and Stuart Smith regarding the accused’s involvement in the drug trade is credible and reliable.

Their testimonies converge in many respects, yet the two witnesses do not know each other. The defence did not see fit to cross-examine Smith.

Thus, this evidence is very strong. [ 51 ] Their evidence has considerable probative value because, for the reasons outlined above, it is clearly relevant to material issues key to the Crown’s case, i.e. the nature of the relationship between the two accused, the authority exercised by Raffat Mohamed over Sean Newell, and their use of the cellular phone associated with the number 613-[...]. [ 52 ] The jury may properly use this evidence as a possible logical link in a chain of circumstantial inferences to find that, among other things, Raffat Mohamed called Sean Newell, asking him to bring the gun to the apartment in Gatineau.

The prejudicial effect [ 53 ] The evidence of the accused’s involvement in the drug trade was straightforward. Kyle Hiemstra’s testimony required no more than a couple of hours, including cross-examination by both defence counsel. The testimonies of Stuart Smith and of Treasure Langevin on this topic were also very short.

The circumscribed nature of this evidence limits the risk that it will confuse issues for the jury or side- track the jury’s attention from the offences it is trying. [ 54 ] Also, the trial judge will be required to instruct the jury as to the permissible and impermissible use of this evidence. [18] In particular, he or she will instruct the jury that they are not to use the evidence of prior events involving drug trafficking as evidence of the accused’s general criminal disposition or bad character.

The jury can be expected to decide the case in a manner consistent with the evidence and the law [19] and guard themselves against propensity reasoning. [ 55 ] Also, the accused will be able to respond to this evidence at trial by cross-examining Kyle Hiemstra, Treasure Langevin and Stuart Smith.

Conclusion on the admissibility of evidence of the accused’s involvement in the drug trade [ 56 ] For these reasons, the Court concludes that the prosecution has shown, on a balance of probabilities, that the evidence of the accused’s involvement in the drug trade is admissible evidence against both accused because its probative value outweighs its prejudicial effect. 3. CONCLUSION [ 57 ] For all these reasons, the Court concludes that the evidence of prior discreditable conduct by both accused involving a gun and drug trafficking is admissible.

__________________________________ Anouk Desaulniers, J.C.Q. Mtre Isabelle Bouchard Mtre Stéphane RollandFor the Crown Mtre Emmanualle Béliveau-LabrecqueFor the accused Sean William Newell Mtre Elise PinsonnaultFor the accused Raffat A. Mohamed Dates of hearing: September 14 to 30, 2020, and October 1, 2020 [1] R. v. Morin, (SCC), [1988] 2 S.C.R. 345; R. v. B. (C.R.), (SCC), [1990] 1 S.C.R. 717; R. v. Arp, (SCC), [1998] 3 S.C.R. 339; R. v. B. (F.F.), (SCC), [1993] 1 SCR 697, 730; R. v. Morris, (SCC), [1983] 2 S.C.R. 190 at 201 - 202. [2] B. (F.F.), ibid., at 730-731; Morris, ibid., at 202; R. v.

B. (C.R.), (SCC), [1990] 1 S.C.R. 717 at 735. [3] R. v. F. (D.S.), (1999), (ON CA), 132 C.C.C. (3d) 97 (Ont. C.A.) at paras. 22 to 24; R. v. S. (P.), (2000) (ON CA), 144 C.C.C. (3d) 120 (Ont. C.A.) at para. 31; and R. v. Trotta, (2004) (ON CA), 190 C.C.C.(3d) 199 (Ont. C.A.), rev’d on other grounds, 2007 SCC 49 , [2007] 3 S.C.R. 453 at para. 46. [4] R. v. Riley, 2017 ONCA 650 para. 192 (leave to appeal dismissed: Tyshan Riley v. Her Majesty the Queen, (SCC)). [5] R. v Douglas, 2017 BCSC 844 at para. 28 and 32. [6] R. v. D. (L.E.), (SCC), [1989] 2 S.C.R. 111 at 127-128. [7] See R. v. L.B., (ON CA). [8] Id..

See also Martin Vauclair, Tristan Desjardins, Traité général de preuve et de procédure pénales 2020, 27 éd., Éditions YvonBlais at para. 40.57. [9] R. v. Handy, 2002 SCC 56 , [2002] 2 SCR 908 at para. 139; R. v. Mahalingan, 2008 SCC 63 at para. 164; R. vDouglas, supra note 5 at para. 39. [10] 2012 ONSC 2225. [11] (BC SC). [12] Handy, supra note 9 at para. 70. [13] See for example, R. v. Millard, 2017 ONSC 5928 at para. 31. [14] R. v. Latimer, 2001 SCC 1 , [2001] 1 SCR 3 at para. 70. [15] See R. v. Millard and Smich, 2015 ONSC 7357 at para. 77. [16] See P-14. [17] See R. c. Spezzano, 2020 QCCS 3142 at para. 53.