2011 ONCJ 162, 2011 ONCJ 162

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published). . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code . This subsection and subsection 539(3) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows: 539. Order restricting publication of evidence taken at preliminary inquiry.------

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the judtice holding the inquiry (

a) may, if application therefore is made by the prosecutor, and (

b) shall, if application therefore is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each accused, (

c) he or she is discharged, or (

d) if he or she is ordered to stand trial, the trial is ended. . . .

(3) Failure to comply with order. ---- Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on

summary conviction.

COURT FILE No.: Toronto 10 – YO21077 Citation: R. v. L.-K.(D.) , 2011 ONCJ 162 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — D.L.K. & S.M., young persons Before Justice Paul H. Reinhardt Evidentiary Reasons released on 14 March 2011 Mary Humphrey & Karen Simone ............................................................................. for the Crown Cydney G. Israel, Anthony Bryant & Ryan H. Clement, ..................................................................... counsel for the accused D.L.K.

Michael Webster & Stephen Stauffer ..................................................... counsel for the accused S.M.

REINHARDT J.: [ 1 ] D.L.K. (“DLK”) and S.M. (“SM”) are charged that, as young persons within the meaning of the Youth Criminal Justice Act on or about 29 December 2009 they did commit first degree murder on the person of Kenneth Mark contrary to the Criminal Code . [ 2 ] In this preliminary inquiry we have, inter alia, conducted two Voir Dires, for which I must now make my rulings, so that we can proceed to the arguments with respect to committal for each young person. 1: Introduction [ 3 ] Initially on Voir Dire #1, I was presented with Exhibit 1 on the Voir Dire, what the Crown has referred to as the “Motive Binder” which is an indexed set of court documents, portions of the Crown brief, medical records, photographs, police notes and transcripts of a video-taped interview with Kenneth Mark on 4 November 2008, the preliminary inquiry and trial in the Superior Court of Lamar Skeete and Jevar Bowyer relating to the allegation that they did attempt to murder Kenneth Mark on 2 November 2008. [ 4 ] Many of the references in the Crown factum on Voir Dire #1 refer to the first exhibit, the “Motive Binder”. [ 5 ] In addition to the Crown factum on Voir Dire #1, the Crown has filed an Appendix “A”, entitled the “ Ante-Mortem Statements of Kenneth Mark” which summarizes and organizes all of the hearsay statements which the Crown is seeking to have admitted into evidence in this preliminary, including a transcribed statement by Margarette Fraser, a Wal-Mart Co-worker of Kenneth Mark, which was given to the police on 14 November 2010. [ 6 ] The “Motive Binder” was admitted by me pursuant to s. 540(7) of the Criminal Code , and on a successful application by the Crown for the admission of “new evidence” included in the material for me to review are the video recorded statement to the police of Margarette Fraser, dated 4 November 2010, the transcript of her evidence in the “Lamar Skeete” murder preliminary before Justice David Fairgrieve, on 12 January 2011, the memo book notes of Officer Duerden Badge #9118 and the transcript of his evidence given at the trial of Jevar Bowyer on 15 December 2010. [ 7 ] The Crown also filed a separate factum on Voir Dire#2, and a written set of Reply Submissions on Voir Dire#1. [ 8 ] DLK filed an initial factum on Voir Dire#1 and a response factum on Voir Dire #2.

SM submitted a single factum covering his arguments for both Voir Dires. [ 9 ] For the purposes of this evidentiary ruling, I have reviewed all factums, exhibits and material filed in the “Motive Binder” as well as the other exhibits from the two Voir Dires, the “new evidence” referred to above all of which I have found to be “credible and trustworthy” and the viva voce evidence of the witnesses on the two Voir Dires.

1.1: Statement of Issues [ 10 ] Voir Dire #1: Should evidence relating to the “prior discreditable conduct” of Lamar Skeete and Jevar Bowyer relating to their motive to seek revenge against Kenneth Mark and the ante-mortem statements of Kenneth Mark be admitted into evidence in this Preliminary Inquiry? [ 11 ] This can be broken down into the surrounding circumstances of an earlier attempt murder investigation, relating to the allegation that on 2 September 2008, Jevar Bowyer and Lamar Skeete attempted to murder Kenneth Mark, and various statements made by Kenneth Mark regarding his status as the principal witness in that allegation, and his fear of retaliation for his agreeing to testify at that preliminary inquiry and trial, leading up to the withdrawal by the Crown against Lamar Skeete and the dismissal of Jevar Bowyer on 17 December 2010. [ 12 ] The admissibility issues in Voir Dire #1, include: (

i) Can evidence of the prior discreditable conduct of Jevar Bowyer and Lamar Skeete be placed before a jury in a trial of DLK and SM? ii) Can evidence of “animus” of Jevar Bowyer and Lamar Skeete towards Kenneth Mark be used by a jury hearing a trial of DLK and SM? iii) Can the “narrative” category of evidence be used to place before the jury evidence of Jevar Bowyer’s and Lamar Skeete’s prior relationship with Kenneth Mark, when there is no evidence of a prior relationship between DLK or SM and Kenneth Mark? iv) Can evidence, presented as “ ante-mortem statements ” of Kenneth Mark’s attesting to his fear that harm might come to him because of his decision to testify against Jevar Bowyer and Lamar Skeete at their preliminary inquiry and December 2009 trial, and police officer’s and other witnesses evaluation of Kenneth’s Mark’s demeanour be placed before the jury in this matter? [ 13 ] Voir Dire #2 involves what the Crown has characterized as “The Roy McMurtry Youth Detention Centre Incident” which took place on 20 November 2009, shortly prior to the murder of Kenneth Mark. [ 14 ] The admissibility issues in Voir Dire #2 include: (

i) Should evidence of prior discreditable conduct involving a fight at the Roy McMurtry Youth Detention Centre (“RMYC”) in which both Lamar Skeete and D.L.K. participated be admitted at this preliminary? (ii) Can Evidence that DLK and Lamar Skeete, after the altercation were housed overnight in joint cells at the RMYC be placed before the jury in this proceeding! 2:

Summary of Facts 2.1: Voir Dire#1 – Evidence Relating to “Prior Dscreditable Conduct” on the part of Jevar Bowyer and Lamar Skeete relating to Lamar Skeete’s Motive to kill Kennth Mark and Ante-Mortem Statements of the deceased, Kenneth Mark [ 15 ] The Crown’s theory in this prosecution is that Kenneth Mark was potentially a target of planned retribution because of his prior co-operation with the police and the Crown in an earlier prosecution. Mr. Mark was the victim of an earlier shooting on 2 September 2008, fifteen months before his murder.

Jevar Bowyer and Lamar Skeete were prosecuted for the attempted murder of Kenneth Mark on that date. [ 16 ] Evidence in this proceeding included the photographs of Kenneth Marks injuries and the medical records from the previous shooting in which Mr. Mark was shot with a shotgun from behind, by masked men, causing multiple wounds to his back, neck and head. [ 17 ] It was Crown’s evidence that Mr. Mark, after first being reluctant at the hospital to name his assailants but eventually came forward at a community meeting and agreed to be a Crown witness in the earlier attempted murder proceedings.

In those proceedings he stated in his testimony that he that he had been shot by Mr. Skeete’s half-brother, Jevar Bowyer, who was accompanied at the time of the shooting by Lamar Skeete. [ 18 ] In the earlier proceeding, Mr. Mark testified that he recognized the brothers, although they both had their faces masked as they approached him from behind. The shooting occurred, according to Mr. Mark’s testimony, a few days after the victim had confronted Jevar Bowyer in the neighbourhood where some of the deceased’s family and friends lived at Runnymede Road and St. Clair Avenue West concerning reports that Mr.

Bowyer had brandished a firearm in front of children at the housing complex. [ 19 ] Mr. Mark testified that Mr. Bowyer ran off, after Mr. Mark told him to stay away from the complex, leaving his bicycle behind which ended up being damaged by other people before Mr. Bowyer was able to retrieve it.

[ 20 ] It was the Crown’s theory that this incident led to the earlier shooting. [ 21 ] Weaknesses in Mr. Mark’s identification evidence, including his reluctance to originally say much at the hospital, the fact that the assailants were masked and that he had only a split second to make any observations resulted in the charges in relation to the earlier shooting being withdrawn by the Crown against Mr. Skeete and resulted in the acquittal of Jevar Bowyer after a trial in the Superior Court. [ 22 ] It was not disputed in this proceeding that Mr.

Mark’s eventual co-operation with the police investigation of the 2008 shooting and his testimony in the youth court proceedings that ensued contributed to thirteen months’ pre-trial detention for both Jevar Bowyer and Lamar Skeete. [ 23 ] It is the Crown’s submission in this proceeding that it would be open for a jury to view such circumstances as supporting a finding that Mr.

Mark was the eventual victim of a planned act of retaliation and revenge, in which DLK and SM participated. 2.2: Voir Dire #2 – The Incident at the Roy McMurtry Youth Detention Centre [ 24 ] The Crown applies to have evidence of an altercation that occurred at the Roy McMurtry Youth Centre (“RMYC”) on 20 November 2009 admitted in this proceeding as evidence that is highly probative of the “issues before the court”. [ 25 ] In November 2009, Lamar Skeete and DLK were housed together in Cottage 4B at the RMYC for a brief period of time. [ 26 ] On 20 November 2009, Lamar Skeete, DLK and Shakeil Wheatle were speaking together in the common area of Cottage 4B.

After a few minutes, DLK approached another detainee, one Jason Beharry and had a conversation with him. A few minutes later, Lamar Skeete and Shakeil Wheatle walked over and joined DLK. The three men began to assault Jason Beharry. [ 27 ] As a result of the incident, DLK and Lamar Skeete were sent to segregation. They were seen talking to each other in secure isolation. This was possible as they were in neighbouring cells and they were the only two youths in segregation at that time. [ 28 ] The Crown submits this evidence is relevant to varies issues.

According to the Crown, it provides context to the relationship between Lamar Skeete and DLK. According to the Crown it demonstrates the devotion between Lamar Skeete and DLK.

According to the Crown, it therefore provides evidence of the motive of DLK to participate in the murder of Kenneth Mark. [ 29 ] The Crown submits that in the jail incident, the two men assisted each other proximate to the time of the murder. [ 30 ] The Crown submits that in the jail incident they were so tightly connected that they were prepared to get involved in criminal activity to help each other out. [ 31 ] The Crown submits that in the jail incident the threat of sanctions in the jail or the police becoming involved did not deter them from helping each other. [ 32 ] The Crown submits that in the case at bar DLK incorporated the motive of his good friend, Lamar Skeete.

He agreed to help his friend Lamar kill the man who testified against Lamar. [ 33 ] The Crown submits that this evidence also provides context to the unfolding of the narrative and the evidence of Motive. At the time of this jail incident, Mr. Skeete was in custody waiting for his trial on the attempt murder charges. Kenneth Mark had already testified at a preliminary inquiry against Mr. Skeete and his brother. The charges against Mr. Skeete were withdrawn and Mr. Skeete was released from jail 25 days after the incident.

It is the Crown’s theory that approximately 10 days after Lamar Skeete is released from custody, he starts having contact with DLK again when DLK comes from Ottawa to visit family and friends for the holidays.

There are cell phone records which indicate that there were phone calls made between the parties. [ 34 ] For the purposes of the case at bar, the respondent DLK admits that both Skeete and Bowyer had motive to harm Kenneth Mark and submits that a brief synopsis of the rationale is sufficient for the court’s needs in this proceeding. [ 35 ] The respondent DLK is also prepared to admit, for the purposes of this proceeding that DLK was, at the time of the murder an acquaintance of Lamar Skeete. [ 36 ] The respondent DLK is not prepared to agree that the Crown should be permitted to place before the court the entire array of circumstances surrounding the failed prosecution of Lamar Skeete and Jevar Bowyer, and the circumstances of the incident at the RMYC on 20 November 2009. [ 37 ] The respondent SM is not prepared to admit that Lamar Skeete had a motive to kill Kenneth Mark. 3: Voir Dire#1 - The Legal Framework 3.1: Motive–Prior Discreditable Conduct and Anti- Mortem Statements

[38] This can be restated in the case at bar, as follows: (

a) Can evidence of the prior discreditable conduct of Jevar Bowyer and Lamar Skeete be placed before a jury in a trial ofDLK and SM? [39] (

b) Can evidence of “animus” of Jevar Bowyer and Lamar Skeete towards Kenneth Mark be used by a jury hearing atrial of DLK? And SM? [40]

c) Can the “narrative” category of evidence be used to place before the jury evidence of Jevar Bowyer’s and LamarSkeete’s prior relationship with Kenneth Mark, in order to provide the jury with a “context” for his later murder when there is noevidence of a prior relationship between either DLK or SM and Kenneth Mark? [41]

d) Can evidence, presented as “ante-mortem statements” of Kenneth Mark attesting to his fear that harm might come tohim because of his decision to testify against Jevar Bowyer and Lamar Skeete at their preliminary inquiry and December 2009 trial, andpolice officer’s and other witnesses’ evaluation of Kenneth Mark’s demeanour be placed before the jury, again, to provide a “context”for the jury to understand the later murder, where those statements do not suggest any connection with DLK or SM? 3.1.1 Legal Principles [42] In order for evidence of prior discreditable conduct to be admitted, the applicant must first satisfy the general test foradmissibility by demonstrating that the evidence is relevant.

If the evidence is found to be relevant, prior discreditable conduct remainspresumptively inadmissible and will only be admitted where the probative value of the evidence outweighs its prejudicial effect. Thefollowing sections address each of these issues. 3.1.1 (a): Relevance [43] In order for evidence to be admissible, the evidence in question must be relevant to a material issue in the case. This is athreshold requirement for all types of evidence, including evidence of prior discreditable conduct.

Evidence is relevant where, as amatter of logic and human experience, it tends to prove the proposition for which it is advanced. This concept was explained by JusticeDavid Doherty of the Ontario Court of Appeal, as follows: Relevance...requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existenceof “Fact B” more probable than it would be without the existence of “Fact A”.

If it does then “Fact A” is relevant to “Fact B”. (R. v.Watson (1996), 108 C.C.C. (3d) at paragraph 33.) [44] There is no minimum probative value required in order for evidence to be relevant. The evidence does not have to firmlyestablish a fact in issue; it must simply increase or diminish the probability of that fact. (R. v.

Arp, (SCC), [1998] 3S.C.R. 339 at paragraph 38.) [45] Furthermore, relevance does not require a direct connection between the evidence in question and the material issue whichit seeks to advance; evidence will be relevant where it triggers a chain of inferences which make the material issue more or less likely.(Watson, supra, at paragraph 35.) [46] Relevance also requires that the evidence relate to an issue that is material to the case.

Whether an issue is materialdepends on the entire circumstances of the case and the positions taken by the Crown and defence. (Watson, supra, at paragraph 35.) [47] The party seeking to adduce the evidence must identify a live issue in the trial to which the evidence relates. Evidenceintroduced for the sole purpose of proving general disposition cannot be the basis for establishing relevance, as the general disposition ofthe accused is not, by itself, a material issue. (R. v.

Handy, 2002 SCC 56 , [2002] 2 S.C.R. 908 at paragraph 71 – 72 and R. v.S.G.G., (SCC), [1997] 2 S.C.R. 716 at paragraph 63.) [48] In contrast, motive has been held to be a material issue and evidence that tends to prove or refute the existence of motivewill generally be relevant. (R. v. Barbour, (SCC), [1938] S.C.R. 465 at 469.) 3.1.1 (b): Admissibility of Prior Discreditable Conduct [49] As stated above the general rule for the admissibility of prior discreditable conduct, or “similar fact” evidence, is stated inR. v. Handy, supra at paragraph 55: Similar fact evidence is...presumptively inadmissible.

The onus is on the prosecution to satisfy the trial judge on the balance ofprobabilities that in the context of the particular case the probative value of the evidence in relations to a particular issue outweighs itspotential prejudicial and thereby justifies its reception. [50] Similar fact evidence is presumptively inadmissible due to the risk that such evidence will invite the jury to engage inprohibited lines of reasoning. A prohibited inference can arise in several ways: (

i) the trier-of-fact may find that the accused is a bad person who is likely to have committed the offence charged on account of thischaracter trait; (ii) the trier-of-fact may find the accused guilty of the offence charged as punishment for past misconduct; or

(iii) the trier-of-fact may have their attention diverted from the main purpose of their deliberations and substitute the verdict on anothermatter for the verdict on the offence charged. (Arp, supra, at paragraph40.) [51] The risk of prejudice to the accused resulting for such reasoning is the policy basis for the general rule that similar factevidence is presumptively inadmissible. [52] Despite the risks associated with similar fact evidence, there is a narrow exception of admissibility where the evidence ofprevious misconduct is: so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse. (Handy, supra, atparagraph 41.) [53] If the prior discreditable conduct is sufficiently similar to the act sought to be proved, the improbability of coincidenceincreases the probative value of the evidence.

The trial judge must balance this probative value against the risk of prejudice against theaccused. If the probative value outweighs the potential prejudice, the evidence will be admissible under this narrow exception. (Handy,supra, at paragraphs 47-48.) [54] When determining whether similar fact evidence should be admitted, the trial judge must first identify the issue that theevidence seeks to prove. The probative value of the evidence can only be assessed in light of the purpose for which the evidence isproffered.

This purpose must be something more than a general disposition of the accused. (Handy, supra, at paragraphs 69-71.) [55] The probative value of the evidence must then be assessed.

The essence of probative value is the similarity between theprior discreditable conduct and the act the evidence seeks to prove. [56] In Handy, supra, at paragraph 76, Justice Ian Binnie for the SCC referred to this as the: connectedness (or nexus) that is established between the similar fact evidence and the offence alleged. [57] Justice Binnie, outlined at paragraph 82 a non-exhaustive list of factors for assessing similarity, which include thefollowing: (

i) the proximity in time of the similar acts; (ii) the extent to which the other acts are similar; (iii) the number of occurrences of the similar acts; (iv) the circumstances surrounding the similar acts; (

v) any distinctive features unifying the incidents; (vi) any intervening events; and (vii) any other factor that would support or rebut the similarity of the acts. [58] The trial judge must then assess the potential prejudice to the accused. The relevant consideration for the trial judge is therisk that the trier of fact will engage in the prohibited inferences discussed above. (Arp, supra, at paragraph 40.) [59] This includes the potential for moral prejudice and reasoning prejudice.

Moral prejudice involves a risk that the trier offact will find the accused guilty because he is a “bad person”, rather than because of what he did in connection with the offence charged.Reasoning prejudice involves the danger that the trier of fact will be confused or distracted from its focus on the charge itself. It alsoconsiders the risk that the similar fact evidence will result in an undue consumption of time. (Handy, supra, at paragraph 100.) [60] Finally, the trial judge must balance the probative value of the evidence against its potential for prejudice against theaccused.

The starting point for this analysis is that evidence of prior discreditable conduct is presumptively inadmissible and theapplicant must establish that probative value outweighs potential prejudice on a balance of probabilities. (Handy, supra, at paragraph101.) [61] A recent discussion of the “probative” and “prejudice” calculation with respect to prior discreditable conduct as“narrative in context” only, and not for its prohibited use as evidence of “disposition”, has some application to the case at bar. [62] In R. v.

Largie 2010 ONCA 548 , [2010] O.J. 3384, in the Ontario Court of Appeal, Justice David Watt wasevaluating the Crown’s tendering of evidence of prior discreditable conduct on the part of Gavra Largie who was jointly charged withhis brother Karl with the murder of Mohamed Ahmed. The Crown’s theory was that Gavra Largie was the shooter, and that the shootingwas retaliation for some disrespect on the part of one neighbourhood gang against another neighbourhood gang.

There was a significantvolume of evidence that the Crown was permitted to tender by the trial judge, as summarized by Justice Watt: The trial judge listed several themes that were the subject of evidence of disreputable conduct: the prior investigations of Gavra Largie by Detective Cashman when he was at No. 55 Division, or other officers, and the allegedcircumstances; the sale and/or use of narcotics by Gavra Largie such as crack cocaine, ecstasy or marijuana; the sale by Gavra Largie of substances falsely represented to be cocaine, such as "vic", as described by Gavra Largie; the robbery of drug dealers so as to be able to sell drugs, or to settle outstanding accounts;

the commission of robberies to fund a criminal lifestyle; the threats to harm, or kill, informants or witnesses on other matters than this homicide; the possession of guns, the commission of assaults or the uttering of threats of bodily harm in order to advance a criminal lifestyle; the attendance at known drug houses, such as Ruthy's; the breach of bail conditions by Gavra Largie; the decision to live a life of crime; the lies routinely relied upon by persons in the criminal subculture to maintain, or advance, their status in that part of the community; and the rumours on the street that Gavra Largie was implicated in another homicide and/or the related opinion of his aunt. [63] Counsel for the appellant Karl Largie at trial supported the trial judge's determination to describe by theme the evidenceof discreditable conduct by his brother Gavra that was subject to the instruction about limited admissibility. [64] As explained by Justice Watt in his reasons, the trial judge explained to the jury the use it could make of the evidence ofdisreputable conduct (narrative in context) and the use it was not permitted to make of the same evidence. [65] According to Justice Watt, the trial judge repeatedly warned the jury, in language about which no exception has been orcould be taken, that they were not to use this evidence: as proof that Gavra Largie was a person of bad character, thus of a disposition to commit the offence charged; or as a person deserving of punishment for his prior misconduct by being convicted of the offence charged. [66] Justice Watt then stated the governing law for the tendering of “extrinsic” misconduct evidence as requiring the trialjudge to explain to the jury the limited use they to which they could put the evidence, as set down in the leading cases of R. v.Crawford, (SCC), [1995] 1 S.C.R. 858, at pp. 883-85; R. v.

Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144, at para.184; and R. v. Corbett, (SCC), [1988] 1 S.C.R. 670 as follows: identify the evidence to which they relate explain the permitted use of the evidence explain the prohibited use of the evidence [67] In the result, Justice Watt concluded that the evidence of disreputable conduct was admissible because the “limitinginstructions” to the jury by the trial judge were adequate. 3.1.1 (

c) Ante-Mortem Statements and Hearsay - The“Narrative” Exception [68] The Supreme Court of Canada recently restated the law of hearsay in R. v. Khelawon, 2006 SCC 57 , [2006] 2S.C.R. 787, paragraphs 1-4, 34-49, 60. For the unanimous Court, Louise Charron described a “functional approach” for trial judges totake in determining the admissibility of hearsay. (

a) Confirm the proposed evidence is hearsay – meaning it is tendered for the truth of its contents and that there is noopportunity for contemporaneous cross-examination. (

b) If it is hearsay, it is presumptively inadmissible. However, the court then considers whether it falls into a recognizedexception. If it does, it is admissible. (

c) If it does not fit a categorical exception, then it may still be admitted pursuant to an analysis of whether it is both necessaryand reliable. (

d) If found to be necessary and reliable, the trial judge maintains residual discretion to exclude where the probative value ofthe evidence is outweighed by its prejudicial impact. [69] When determining the reliability of a statement, the trial judge must assess the hearsay dangers present. Then, the trialjudge considers the factors that support or negate these dangers. (Khelawon, supra, paragraphs 4, 55.) [70] Under this approach, the trial judge as gatekeeper of threshold reliability may turn to extrinsic evidence.

Real evidenceis capable of enhancing reliability of statements. “… all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence. Ineach case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining theevidentiary question of admissibility.” (Khelawon, supra, paragraph. 4, R v. S. S. (2008) 2008 ONCA 140 , O.J. No. 747 (Ont.C.A.) at paragraph 31.)

[71] There is precedent, also, for hearsay evidence to be admitted on the basis that it forms an important part of the narrativesurrounding the offence. (R. v. Menard, (SCC), [1998] 2 S.C.R. 109 at paragraphs 19 and 32.) [72] Further, motive is always relevant, and therefore evidence of motive is prima facie admissible. (R. v.

Barbour, (SCC), [1938] S.C.R. 465 at p. 469.) Circumstantial evidence of motive is generally admissible where the evidence has alogical connection with (relevance to) the crime in the sense of having a probative tendency favourable to the Crown or adverse to theaccused. (Barbour, supra.) [73] Evidence tending to prove motive may be admissible even though it demonstrates the accused's bad character where it isrelated to gang membership, context and common purpose even where it also tended to suggest the accused’s bad character. (R. v. Ma,(1978), 11 C.C.C. (2d) 511 (Ont. C.A.) and R. v.

Hiscock, B.C.S.C. 1833 at paragraphs 12-14.) [74] The “state-of-mind” exception to the hearsay rule in relation to ante-mortem statements by a deceased has recently beenaddressed by the Supreme Court of Canada in R. v. Griffin, [2009] S.C.J No. 128. The accused Griffin was found guilty before a judgeand jury of first degree murder.

The second ground of appeal was the trial judge’s directions to the jury regarding the permissible usethat could be made of numerous statements made by the deceased shortly before his death, including “if anything happens to me it isyour cousin’s family” which, along with the other statements could have been construed as referring to Griffin, and ruling out any otherperson as a threat to kill him.

The limiting instruction to the jury, accepted by Justice Louise Charron in the Supreme Court of Canada,was that the “limiting instruction” accurately made it clear to the jury that it could only be used to help the jury understand the “state-of-mind” of the deceased. 3.1.1 (d): Review of the Facts of Prior DiscreditableConduct in Voir Dire#1 [75] On 2 September Kenneth Mark was shot in the back. He was taken to the hospital, treated for his injuries and releasedthe next day. Over the next two months the police investigated the case as an attempt murder.

Kenneth Mark eventually came forward,after first denying that he could identify the two accused and he implicated Jevar Bowyer and Lamar Skeete. They were both chargedwith attempt murder and spent approximately 13 months in custody. Kenneth Mark testified at both a preliminary inquiry and a trial. On14 December 2009, the charges were withdrawn against Lamar Skeete. On 17 December 2009 the charges against Jevar Bowyer weredismissed. Both young men were released from custody. On 29 December 2009, Kenneth Mark ordered some food at a pizza store priorto going to work at Wal-Mart.

Just after he left the pizza store, he was shot in the back of the head and killed. [76] Lamar Skeete was subsequently charged with the first degree murder of Kenneth Murray. DLK and SM were alsocharged as parties to the murder, but given their status as youth, charges against them are proceeding separately from charges againstLamar Skeete. This is their preliminary hearing under the YCJA. Crown’s theory is that Lamar Skeete murdered Kenneth Mark becauseKenneth Mark played a causal role in the incarceration of Lamar Skeete and Jevar Bowyer.

According to the Crown, Lamar Skeeterecruited DLK and SM to assist him in the murder of Kenneth Mark. In furtherance of this theory, the Crown seeks to admit a largebody of evidence regarding the connection of Kenneth Mark to Lamar Skeete and Jevar Bowyer in the proceedings against DLK andSM. This evidence would include ante-mortem statements made by Kenneth Mark. [77] In paragraph 63 of their factum , the purpose for which the Crown is seeking to have these ante-mortem statementsadmitted and the rationale for admitting the multiple ante-mortem statements summarised in Appendix A is stated as follows: 63.

The Crown applies to have admitted into evidence ante-mortem statements made by the deceased to his brother, to the police andto two Judges prior to his death. These statements are relevant to the deceased’s state of mind, the identity of the killer and the motive forthe killing. They provide context for the unfolding of the narrative. They also provide evidence of the Lamar Skeete’s state of mind andhis animus towards the deceased.

This motive evidence is related to the motive of S.M. and D.L.K. as it is the Crown theory that LamarSkeete’s friends assist him with the planned and deliberate murder of a Crown witness. [78] Unlike the “limiting instruction” in Griffin, supra, which found approval in the Supreme Court of Canada, the Crown inthe case at bar, is seeking a much broader purpose and use for the ante-mortem statements they have tendered. In my view, they haveover-reached. 3.1.2: Application of Law to the Facts in Voir Dire #1 [79] In order for any evidence to make its way before a trier-of-fact, it must be:

(1) Admissible, and

(2) The trial judge must not have exercised a discretion to exclude it. [80] Evidence will be admissible where it is: (

a) Relevant, and (

b) It is not subject to exclusion under any other rule of law or policy. 3.1.2 (

a) Relevance

[ 81 ] The first question to be answered therefore is whether the evidence sought to be tendered by the Crown is relevant. If it is not, then it is not admissible. In order to make this determination, I must first determine what inference the evidence is meant to support. In this case, the evidence serves two intertwined purposes: motive and narrative. The evidence sought to be tendered by the Crown, for the most part, tends to prove that the Lamar Skeete had motive to harm the deceased, Kenneth Mark, because Kenneth Mark was a cause of the 13 month incarceration of Lamar Skeete and Jevar Bowyer.

Taken together with evidence of friendship between Lamar Skeete and DLK, the inference which the evidence is meant to support is that, because DLK and Lamar Skeete are friends, and because Lamar Skeete had motive to harm Kenneth Mark, DLK therefore may have had motive to assist Lamar Skeete in the murder of Kenneth Mark. In other words, the evidence goes towards motive. [ 82 ] The evidence also goes towards narrative.

Given that DLK and SM are being charged as parties to the murder of Kenneth Mark, and Lamar Skeete is being charged as the principal, the trier-of-fact will require some background information to understand the context of this case.

If the trier-of-fact is not given any information about how the parties in this case are connected to the deceased, however indirectly, they are left with a distorted picture of the series of events, wherein DLK, SM and Lamar Skeete are being charged with the apparently random killing of Kenneth Mark. [ 83 ] There are however two inferences which could potentially be drawn by the trier-of- fact from the evidence presented by the Crown:

(1) As mentioned above, Lamar Skeete had motive to harm Kenneth Mark, therefore by virtue of his friendship with Lamar Skeete, DLK had motive to assist Lamar Skeete in the murder of Kenneth Mark.

(2) Because DLK was friends with Lamar Skeete, a violent individual with access to guns, he too is likely a violent individual, and DLK is likely to have murdered Kenneth Mark. [ 84 ] The first possible inference is a permissible motive inference. The second possible inference represents impermissible propensity reasoning. [ 85 ] I have already stated that for the most part, the evidence tends to prove motive.

Most of the evidence sought to be tendered by the Crown could reasonably support both the permissible, and the impermissible inferences. [ 86 ] However, I must further emphasize, in my view, that there are some portions of the evidence provided by the Crown which do not bear any relevant connection to the permissible inference, but rather serve only to support the impermissible inference. [ 87 ] The evidence which tends to prove (

i) that Lamar Skeete and Jevar Bowyer were charged with the attempted murder of Kenneth Mark; (ii) that they served a significant amount of time in custody awaiting the resolution of those charges; (iii) that Kenneth Mark testified against Lamar Skeete and Jevar Bowyer; and (iv) that Lamar Skeete was released shortly before the murder of Kenneth Mark, are relevant in that they tend to prove the permissible inference of motive as described above, as well as provide helpful narrative. [ 88 ] However the Crown wishes to submit more evidence.

This evidence includes the following: [ 89 ] At paragraphs 13 - 18, 46 - 47 and 55 of the Applicant’s factum re. Voir Dire #1, the Crown details the facts surrounding allegations that Lamar Skeete and Jevar Bowyer tried to shoot one Travis Butler. [ 90 ] At paragraphs 32 to 35 of the Applicant’s factum re. Voir Dire #1, the Crown details an incident wherein the mother of Lamar Skeete and Jevar Bowyer made some inappropriate comments to a witness during the trial of Jevar Bowyer. [ 91 ] At paragraphs 15 - 16 and 46 of the Applicant’s factum re.

Voir Dire #1, the Crown mentions that Jevar Bowyer and Lamar Skeete were charged with some gun offences and that both were convicted of charges arising from the robbery of a taxi (it is unclear whether the gun charges arose from the alleged attempted murder of Travis Butler). [ 92 ] The evidence of the past charges and convictions of Jevar Bowyer and Lamar Skeete, which bear no connection to Kenneth Mark, can only serve to support the impermissible propensity inference and cannot logically provide any support for the permissible motive inference.

The evidence relating to the inappropriate comments made by the mother of Jevar Bowyer and Lamar Skeete is not relevant to any inference, permissible or not. [ 93 ] At pages 6 - 11 of Appendix A to the Applicant’s factum re: Voir Dire #1, the Crown seeks to admit a number of ante- mortem statements made by Kenneth Mark describing why he believes he was initially shot on 2 September 2008 by Jevar Bowyer and Lamar Skeete. Given that the Crown’s position is that Lamar Skeete wanted revenge for having to spend several months in custody, it is difficult to see the relevance of these ante-mortem statements.

The ante-mortem statements amount to speculation by the deceased about why Jevar Bowyer and Lamar Skeete (who were both charged with, but neither convicted of, shooting Kenneth Mark) may have shot him in 2008. This information does not provide any support for the motive inference put forward by the Crown as described above, nor is it required to provide narrative context to the trier-of-fact. [ 94 ] At pages 1 - 5 of Appendix A to the Applicant’s factum re.

Voir Dire #1, the Crown seeks to admit a number of ante- mortem statements made by Kenneth Mark providing background information about Kenneth Mark, Jevar Bowyer and Lamar Skeete, and their relationship prior to the 2008 shooting. This evidence is arguably relevant as it provides narrative to inform the trier-of-fact about who the parties are, and how they know each other.

In my view it is relevant to the live issues in this preliminary inquiry. [ 95 ] The relevance test, simply put, is that evidence which cannot support the permissible motive inference or narrative, is not relevant, and is therefore inadmissible. [ 96 ] By this standard, pages 13 to 17 of Appendix A, the rest of the evidence sought to be tendered by the Crown, including the testimony of Margarette Fraser taken in conjunction with evidence of friendship between DLK and Lamar Skeete, is relevant in that it increases the likelihood that DLK had motive to assist Lamar Skeete in murdering Kenneth Mark.

The strength of the inferential

connection is not at issue at the relevance stage of the analysis. 3.1.2 (

b) Exclusion Under any Other Rule of Law or Policy [ 97 ] There are many rules of law or policy which can lead to the exclusion of a given piece of evidence from a jury.

The only such rules which are relevant for the purposes of this preliminary inquiry, subject to the “credible or trustworthy” provision found in Section 540 (7) , are the hearsay rule and the general rule prohibiting the introduction of evidence of the accused’s bad character. [ 98 ] A working definition of the rule against hearsay can be stated as follows: Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein. (Alan W.

Bryant, Sidney Lederman & Michelle K.

Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada 3 rd ed. (Markham: LexisNexis Canada Inc., 2009) at §6.2) [ 99 ] There are, however, many exceptions to the hearsay rule. [ 100 ] While there are several specific exceptions to the hearsay rule, the underlying criteria for: admissibility of hearsay statements are necessity and reliability of the statements, together with fairness to the accused. ( Sopinka, Ibid. at §6.64) [ 101 ] In order for the “necessity” requirement to be met, it must be shown that the "hearsay statement" is the only available means of putting the evidence before the court. [ 102 ] The rule prohibiting the introduction of evidence of the accused’s bad character is self-explanatory.

However, such evidence may be admissible where it is relevant to a live issue in the case other than mere propensity to commit the offence charged, such as motive. [ 103 ] Arguably, all of the evidence sought to be tendered by the Crown serve, to some degree, to promote negative inferences about the characters of the accused persons. It is important to note however that Lamar Skeete is not an accused person in this proceeding.

Therefore any damage to the character of Lamar Skeete caused by the Crown’s evidence does not lead to exclusion for that reason. [ 104 ] As mentioned above however, the evidence does have some negative effect on the characters of the accused persons because the Crown, in the rest of its case, is attempting to connect them to Lamar Skeete who, in turn, is being painted as a bad, violent person. Evidence of such association could arguably constitute evidence of the accused’s bad character.

However, the evidence, the Crown submits, is not being submitted for a hearsay purpose and is tendered to prove motive and narrative, not to prove propensity. [ 105 ] In this preliminary inquiry, I am taking the Crown at its word, and I am concluding that this can be addressed with appropriate “limiting instructions” as would be the case with a jury.

Further, the damage to the characters of the accused persons is minimal since the evidence does not directly address the accused persons at all, but only indirectly. [ 106 ] Because of the combined provisions of section 540(7) and the case law, including Khelawon I am prepared to find that the testimony of Kenneth Mark at the Preliminary Inquiry on 6 April 2009 and in Superior Court on 14 and 15 December 2009 (pages 1, 4, 5, 12, 13 and 14 of Appendix

A) regarding background information and identification of Jevar Bowyer and Lamar Skeete meet the test of both credible and trustworthy and necessity and reliability.

This testimony establishes some background information about Kenneth Mark, Lamar Skeete and Jevar Bowyer, and the connection between the parties prior to the 2008 shooting incident. [ 107 ] These transcripts also provide the chronology of events and the context of the incarceration of Lamar Skeete and Jevar Bowyer for thirteen months leading up to 14 January 2009. [ 108 ] I have also concluded that the testimony of Margarette Fraser on 12 January 2011 in this courthouse before Justice Fairgrieve in the Lamar Skeete Preliminary Inquiry meet the test of credible and trustworthy and may be considered in this inquiry. [ 109 ] Other than those portions I have just referred to in the last three paragraphs, I have concluded that the other ante-mortem statements are irrelevant and thereby inadmissible. 3.1.2 (

c) Probative Value & Prejudicial Effect - The Trial Judge’s Residual Discretion to Exclude Evidence from the Jury [ 110 ] The trial judge always has the discretion to exclude evidence where its probative value is exceeded by its prejudicial effect. Prejudice generally refers to evidence the admission of which would be unfair to the accused, would tend to mislead the trier-of- fact, or the admission of which would involve an inordinate amount of time which is not commensurate with its value.

In assessing probative value, a trial judge is necessarily determining the degree or extent to which the evidence will prove the fact in issue for which it is tendered. That sometimes requires an assessment of the strength of the inferential link between the evidence in question and the fact in issue. [ 111 ] Recall that above, I have concluded, as requested in the factum for DLK that several portions of the evidence which the Crown seeks to tender must be excluded as irrelevant. Even if they had not been excluded for that reason, the prejudicial effect of those

portions of the evidence would have outweighed their probative value. All of the evidence which was excluded as irrelevant consisted ofcomplex narrative, introducing a number of individuals who have nothing to do with the case at hand (e.g. Shaquille Belle, Travis Butler,Trisha Clarke, Kofi etc.). In attempting to follow this narrative which, if it is relevant at all, is only very marginally relevant, the trier-of-fact will certainly be distracted, and may even be confused.

In addition to the prejudice caused by undue time and complexity, thereremains also the prejudice caused by the potential impermissible propensity inference. While the danger of propensity reasoning can besomewhat combated by effective jury instruction, it remains a factor to be considered in weighing prejudicial effect. [112] However, in my view, the simple narrative account provided at paragraph 2 of the Applicant’s factum re. Voir Dire #1 ismore probative than prejudicial. The time required to present the evidence would be minimal, as would the complexity added to theproceedings.

While there remains the potential prejudice caused by impermissible propensity reasoning, this potential is relatively lowgiven that the evidence does not deal directly with the accused persons in this case, and can be combated by jury instruction. Theprobative value, on the other hand, is relatively high.

A short narrative would provide valuable contextual information to the trier-of-fact, and would facilitate the submissions which will need to be made in this inquiry as to whether there is sufficient evidence to committhese two young persons to trial. [113] However, anything more than a simple narrative tends to become prejudicial, because the story presented by the Crownquickly becomes quite complex, potentially confusing and adds little of value to the context or to the motive theory, or to the vital issueof the connection between the two young persons in the case at bar, and the adult, Lamar Skeete. 3.1.2 (

d) Admissibility vs. Weight To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue; theevidence must simply tend to ‘increase or diminish the probability of the existence of a fact in issue’ (R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298 at paragraph 30) [114] Furthermore, there are no degrees of relevance recognized in our law. If a piece of evidence is relevant, it is for the trier-of-fact to determine what weight, if any, to give to it. (See R. v.

Morris, (SCC), [1983] 2 S.C.R. 190) [115] This is particularly true if the evidence is tendered to prove motive, as is clear from the following statement by JusticeSamuel Grange in the Ontario Court of Appeal: […] the evidence should not be rejected, in my view, merely because it is insufficient without other linking evidence or because it is, inthe opinion of the judge, unconvincing. If it is relevant but unconvincing, that is again a matter of weight for the trier of fact. (R. v.Carpenter (No. 2) (19820, 1 C.C.C. (3d) 261 (Ont.

C.A.) at 158) [116] Much of the concern expressed in the factums submitted by counsel for SM and DLK is based on an evaluation of theevidence which the Crown seeks to tender as being very weakly connected to the accused persons. It is submitted that, for the reasonsdescribed above, this concern is not one which renders the evidence inadmissible without more. Rather, this is an issue of weight to begiven to the evidence, and therefore an issue for the trier-of-fact at trial.

The weakness of the inference suggested by the Crown cancontribute to the exclusion of the evidence where the probative value is relatively low, and thus more easily overtaken by prejudicialeffect. [117] Portions of the evidence which the Crown seeks to admit should not be placed before the jury because of their prejudicialeffect.

However, a brief narrative as described above, which sets out the basic facts required for the trier-of-fact to consider theincarceration of Lamar Skeete for thirteen months as a possible motive for murder, is weak, but not inadmissible, when tendered in thetrial of DLK and SM. [118] No case-law was provided and I could not find cases that dealt with a situation similar to this one. However there is case-law wherein evidence has been allowed to show gang affiliation as the motive for murder. In both R. v. Ma (1978), 11 C.C.C. (2d) 511(Ont. C.A.) and R. v.

Hiscock, 2002 BCSC 1833, it was considered appropriate for the jury to hear evidence of gang connection asprobative of motive and to provide some context in spite of the fact that the evidence would also tend to demonstrate the accused’s badcharacter. Gang affiliation lends itself more easily to the inference of assisting murder, as would, for example, evidence of a close familyrelationship. [119] Again, R. v.

Largie, supra, is another example of evidence of the accused Gavra Largie’s “prior discreditable”antecedents being placed before a jury, but in my view this case cannot be easily relied upon as a usable precedent in the case at barbecause of factual differences, including: 1) the discreditable conduct evidence as against Gavra L. was relied upon by his jointly-triedbrother K.

Largie to advance his defence at trial; 2) the extent to which the other acts by Gavra L. were similar in seriousness to theoffence for which he was being tried; 3) the number of occurrences; and 4) the fact that the conduct placed before the jury clearlyadvanced the narrative to explain to the jury the context of an otherwise inexplicable and random killing. 3.1.3: Conclusion for Voir Dire#1 [120] In their factum, counsel for DLK state the following: For the purposes of this hearing, the Respondent admits the fact that both Skeete and Bowyer had motive to harm Mark and that a briefsynopsis of the rationale for such a finding is appropriate for the Court’s needs. [121] In this preliminary inquiry, this “motive” fact has never been in dispute by DLK. [122] However, SM is not prepared to admit this fact.

[ 123 ] In my view, the Crown has made its case that the “motive” fact be admitted into evidence in this inquiry.

For the purposes of this preliminary, I am therefore prepared to find as a fact that Lamar Skeete had a motive to kill Kenneth Mark. [ 124 ] In my view, it is sufficient for the purposes of the Crown in this preliminary inquiry for me to admit into evidence the entire transcripts of Kenneth Mark’s testimony in Superior Court on 14 and 15 December 2009 and at the Preliminary Inquiry on 6 April 2009, referenced at pages 1, 4, 5, 12, 13 & 14 of Appendix A of the Crown factum and to find as fact the narrative account provided at paragraph 2 of the Applicant’s factum with an added sentence stating that this provided a motive for Lamar Skeete to kill Kenneth Mark. [ 125 ] The transcripts provide background information and linking identification of Jevar Bowyer and Lamar Skeete meet the test of both credible and trustworthy and necessity and reliability.

This testimony establishes some background information about Kenneth Mark, Lamar Skeete and Jevar Bowyer, and the connection between the parties prior to the 2008 shooting incident. [ 126 ] The transcripts also provide context regarding his fear of retaliation, and provide the context and a chronology of events resulting in the incarceration of Lamar Skeete and Jevar Bowyer for thirteen months leading up to 14 January 2009. [ 127 ] The brief synopsis is relevant to motive and to provide some narrative. In my view this brief synopsis passes the probative/prejudice test.

While the weight of the evidence is relatively low as it relates to DLK and SM there is some probative value and, along with the ante-mortem statements it does provide narrative context. Conversely, the prejudicial effect is almost nonexistent.

Admittedly, the young persons, DLK and SM are being indirectly associated with someone of questionable character, but their character is not being directly attacked, and appropriate instruction can be provided to the jury, at trial. [ 128 ] In addition, I have also concluded that the transcript of the testimony of Margarette Fraser on 12 January 2011 in this courthouse before Justice Fairgrieve in the Lamar Skeete Preliminary Inquiry meet the test of credible and trustworthy under 540(7) and may be considered in this inquiry. [ 129 ] However, in my view, anything more than the Fraser transcript, the aforementioned testimony by Kenneth Mark and a brief synopsis should not be admitted.

As will be set out below, much of the evidence which the Crown seeks to tender is not relevant to the issue of motive. Further, not only does it not provide relevant narrative, it is in fact counter-productive in that it provides unnecessary and potentially confusing narrative. Finally, anything beyond the aforementioned transcripts of Kenneth Mark’s testimony and a brief synopsis would not survive the probative/prejudice test.

Such evidence, if it has any relevance at all, is so weakly relevant that it is easily overborne by the prejudice of undue time and complexity added to the proceedings, as well as some negative character evidence. [ 130 ] Therefore, for the reasons set out above the testimony of Kenneth Mark, referenced at pages 1, 4, 5, 12, 13 & 14 of Appendix A of the Crown factum and the brief synopsis at paragraph 2 of the Applicant’s factum re. Voir Dire #1 is admissible, with the conclusion about motive clearly stated.

For purposes of the record the amended paragraph reads, and I find as facts in this preliminary inquiry the following: 2. On September 2, 2008, Kenneth Mark was shot in the back. He was taken to the hospital, treated for his injuries and released the next day. Over the next two months the police investigated the case as an attempt murder. Kenneth Mark implicated Jevar Bowyer and Lamar Skeete. They were both charged with attempt murder and spent approximately 13 months in custody. Kenneth Mark testified at both a preliminary inquiry and a trial.

On December 14, 2009, the charges were withdrawn against Lamar Skeete. On December 17, 2009 the charges against Jevar Bowyer were dismissed. Both young men were released from custody. This provided a motive for Lamar Skeete to murder Kenneth Mark. On December 29, 2009, Kenneth Mark ordered some food at a pizza store prior to going to work at Wal-Mart. Just after he left the pizza store, he was shot in the back of the head and killed. 4: Voir Dire #2 – The Prior Discreditable Conduct at the Roy McMurtry Centre [ 131 ] The legal questions here are: (

a) Should evidence of the prior discreditable conduct of DLK at the Roy McMurtry Youth Centre (“RMYC”) on 20 November 2009 (“RMYC incident”), be admitted as evidence in this preliminary inquiry? (

b) Should evidence of the fact that DLK and Lamar Skeete talked following the incident while they were housed in neighbouring cells at the RMYC be admitted at this preliminary inquiry? 4.1:

Summary of the Facts of “Prior Discreditable Conduct” by DLK and Lamar Skeete at the RMYC on 20 November 2009 [ 132 ] DLK and SM are young persons within the meaning of the Youth Criminal Justice Act and are charged with committing the first-degree murder of Kenneth Mark on or about 29 December 2009. Lamar Skeete is an adult co-accused for the same murder being tried separately.

In the preliminary inquiry for DLK and SM the Crown seeks to tender evidence of an altercation involving DLK, Lamar Skeete and two other youths at the RMYC on 20 November 2009. [ 133 ] In November 2009, DLK and Lamar Skeete were housed together in Cottage 4B at the RMYC. On 20 November 2009, DLK, Lamar Skeete and a third youth, Shakeil Wheatle, were congregated in the day room of the RMYC. They observed a fourth youth, Jason Beharry, in the phone area near the day room. Jason Beharry was approached by DLK, who engaged Mr. Beharry in conversation.

After a short conversation, Lamar Skeete and Shakeil Wheatle approached DLK and all three youths began to assault Mr. Beharry. The staff at the RMYC responded to the assault and restrained the youths. [ 134 ] As a result of the incident, DLK and Lamar Skeete were sent to secure isolation. They were placed and neighbouring cells and were heard talking to each other on several occasions. 4.1.1: Position of the Parties [ 135 ] The Crown is seeking to admit evidence of the RMYC incident in order to demonstrate: (

i) the context of the relationship between DLK and Lamar Skeet; (ii) the existence of a motive for DLK to participate in the murder of Kenneth Mark; and (iii) devotion of DLK and Lamar Skeete to one another as friends and their willingness to engage in criminal activity to assist each other if necessary. [ 136 ] The Crown concedes that the RMYC incident involves prior discreditable conduct and is, therefore, presumptively inadmissible; however, the Crown submits that the evidence should nevertheless be admitted on grounds that its probative value outweighs its prejudicial effect.

The defendant DLK submits that the RMYC incident has virtually no probative value and should be excluded on grounds that the evidence is either completely irrelevant or, even if relevant, its minimal probative value does not outweigh its prejudicial effect. 4.1.2: The Legal Framework (Please see above for Voir Dire#1) 4.1.3: Review of the Facts at the RMYC 4.1.3(a): The “issues in question” [ 137 ] The Crown seeks to introduce evidence of the RMYC incident and evidence relating to the fact that DLK and Lamar Skeete talked to each other while in secure isolation following this incident.

In order to analyze the admissibility of the evidence, the court must first identify the issue that the Crown seeks to advance through its admission. [ 138 ] It appears from the Crown’s factum that both the RMYC incident and the evidence of communication following the incident are proffered for the same purposes. The Crown’s factum identifies the following issues that the evidence seeks to advance: (

i) establishing a connection and friendship between DLK and Lamar Skeete; (ii) providing evidence of motive and intent of DLK to murder Kenneth Mark; and (iii) devotion of DLK and Lamar Skeete to one another as friends and their willingness to engage in criminal activity to assist each other if necessary. [ 139 ] Relevance and the admissibility of the prior discreditable conduct must be assessed in reference to these issues. 4.1.3 (b): Relevance [ 140 ] In order for the evidence to be admissible, it must be relevant to a material issue in the case.

First, the Crown’s theory is that Lamar Skeete recruited DLK to assist in the murder of Kenneth Mark. The existence of a connection or friendship between Lamar Skeete and DLK is, therefore, a material issue. Furthermore, the evidence provides corroboration of a connection or friendship between these two individuals, as the evidence makes it more likely that such a connection or friendship actually existed.

It is important to reiterate that no minimum probative value is required at this stage of the analysis. ( Arp , supra, at paragraph 38 .) [ 141 ] In addition, the existence of a motive has been held to be a highly material fact. ( Barbour , supra , at 469.) [ 142 ] The Crown’s theory is that DLK incorporated the motive of his friend, Lamar Skeete. As a matter of logic and human experience, an individual is more likely to incorporate the motive of a close friend or acquaintance than a complete stranger.

To the extent that the RMYC incident and the communication that followed increase the likelihood of a connection between the two parties, it meets the test for relevance. [ 143 ] Finally, the Crown seeks to introduce the evidence in question to prove that DLK is willing to engage in criminal activity to assist his friend, Lamar Skeete. This evidence appears to be proffered in order to prove the actus reus of the offence.

The chain of reasoning would be that DLK is more likely to have assisted Lamar Skeete in the murder of Kenneth Mark if on a previous occasion he had assisted Lamar Skeete in an assault at the RMYC. Although the probative value of the evidence may be low, in my view it meets the test for relevance.

The existence of a previous incident where the two accused assisted each other in a violent act does make it more likely, even if only slightly, that they committed a second violent act together. [ 144 ] In my view, the evidence of RMYC incident and the evidence that Lamar Skeete and DLK talked following the incident are both relevant to a material issue in the case. 4.1.3 (c): Admissibility of Prior Discreditable Conduct

[145] As stated above, relevance alone is not sufficient to establish admissibility. Evidence of prior discreditable conduct ispresumptively inadmissible and the applicant must establish on a balance of probabilities that the probative value of the evidenceoutweighs its prejudicial effect. [146] As the respondent DLK notes in his factum, evidence of communication following the RMYC incident, if viewed inisolation, is not per se discreditable. However, the defendant also notes that the evidence of communication cannot be extracted from thesurrounding circumstances.

In my view, the respondent rightly characterizes the evidence as interconnected. As a result, I will proceedto assess the admissibility of the RMYC incident and the admissibility of communication following the incident under the same analysis. [147] The issues that the Crown seeks to advance are identified above, so the next stage of the analysis is to weigh the probativevalue of the evidence. This is done with reference to the factors set out in Handy, supra, although this is not a closed list.

One factor thatmay increase the probative value of the evidence is that the two events occurred just over one month apart and are, therefore, relativelyproximate to each other. However, several of the other factors suggest that the probative value of the evidence is relatively low. First, theprior discreditable conduct and the offence alleged are of different characters, as the prior discreditable conduct is an assault, whereasthe young person, DLK is charged with being a party to a murder.

Second, the two incidents occurred under different circumstances, asthe prior discreditable conduct occurred against a fellow youth in the context of a youth detention centre, while the alleged offenceoccurred in public and against a different victim. There are also no distinctive unifying features between the RMDC incident and theallegation in the case-at-bar, except for the allegation that both involved DLK and Lamar Skeete. [148] In addition, the prior discreditable conduct in the RMDC incident occurred only once.

The Crown asks the trier-of-fact tofind that DLK had a disposition to assist Lamar Skeete in circumstances of criminality and that DLK acted in accordance with thatdisposition in the matter before the court. The strength of these inferences is significantly weakened when there is only one act of priordiscreditable conduct upon which the trier-of-fact can base this chain of reasoning. (See R. v.

Batte (2000), (ON CA),49 O.R. (3d) 321 at paragraph 98, per Doherty, J.) [149] This is compounded by the facts that the acts are dissimilar in nature and occurred under different circumstances. [150] The same reasoning applies to the Crown’s assertion that the prior discreditable conduct proves the motive of DLK tomurder Kenneth Mark. The Crown asks the trier of fact to infer that, because DLK had motive to assist Lamar Skeete on one occasion inthe past, DLK also had motive to murder Kenneth Mark under circumstances substantially dissimilar to those surrounding the priordiscreditable conduct.

In my view, the strength of the inferences here is relatively weak and the Crown seeks to rely on the prohibitedline of reasoning involving general disposition to prove the offence charged. [151] In R. v. J.S.R. [2008] O. J. 3926 (S.C.J.), the accused was charged with second-degree murder and Justice Ian Nordheimerrefused to admit evidence of prior discreditable conduct showing that the accused engaged in a robbery and started a fight with two malesimmediately prior to the alleged offence.

The offence itself involved the accused firing a gun and Justice Nordheimer held at paragraphs18-21 that the evidence should be excluded because the prior discreditable conduct was not similar in detail to the offence that theCrown was seeking to prove. In a trial of co-accused arising out of the same events, R. v. Valentine, [2009] O.J. 5960 (S.C.J.) Justice G.I.

Pardu gave a similar ruling on prior discreditable conduct based on the fact that the acts were dissimilar and noted: Where a person stares, robs someone of a cell phone, attempts to steal a shopping bag, and engages in a 30 second fight, the inferencethat he must also have willingly engaged in a gunfight does not readily flow. (Valentine, supra, at paragraph 22.) [152] As a result, the probative value was held to be low and the evidence was excluded. Although Molloy J. admitted similarevidence in R. v. G.C. [2009] O. J.

No. 5335 (S.C.J.), she relied heavily on the fact that the case was a judge-alone trial where the risk ofprejudice is significantly reduced. [153] In general, evidence is admitted only where there are multiple previous acts of specific and very similar discreditableconduct. (See R. v. Shearing, 2002 SCC 58 , [2002] 3 S.C.R. 33 at paragraphs 48-64.) 4.1.3 (d): Probative Value & Prejudicial Effect [154] As above, in Voir Dire#1, the next stage in the analysis involves assessing the prejudice to the accused that may resultfrom admitting the evidence.

In this case, there appears to be a danger of both moral and reasoning prejudice. In terms of moral prejudice,the evidence has the potential to portray DLK as a violent individual who is aggressive against fellow youths. It is also noteworthy thatthe event occurred at a youth detention centre. The trier-of-fact may be tempted to find DLK guilty because he is a “bad person” ratherthan based on proof that he committed the offence charged. One mitigating factor is the fact that the offence charged is far more seriousthan prior discreditable conduct, which diminishes the potential for prejudice. (R. v.

Handy, supra, at paragraph 40.) [155] In terms of reasoning prejudice, there is a risk that the trier-of-fact will be distracted by the similar fact evidence andadmitting this evidence will result in an undue consumption of time. There is a danger that the trier-of-fact will have difficultydisentangling the prior discreditable conduct from the subject matter of the charges. One mitigating factor is the fact that the evidencesupporting the existence of the prior discreditable conduct is strong.

As a result, it is unlikely that the trier-of-fact will be distracted in anattempt to determine if the prior discreditable conduct occurred. Overall, there appears to be fairly strong risk of moral prejudice and aless significant risk of reasoning prejudice. [156] Finally, the trial judge must balance the probative value of the evidence against its prejudicial effect. This analysis beginsfrom the proposition that evidence of prior discreditable conduct is presumptively inadmissible. (Handy, supra, at paragraph 31.) 4.1.3 (

e) Admissibility vs. Weight

To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue; theevidence must simply tend to ‘increase or diminish the probability of the existence of a fact in issue’ (R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298 at paragraph 30) [157] Furthermore, there are no degrees of relevance recognized in our law. If a piece of evidence is relevant, it is for the trier-of-fact to determine what weight, if any, to give to it. (See R. v.

Morris, (SCC), [1983] 2 S.C.R. 190) [158] As stated above in my ruling on Voir Dire#1, this is particularly true if the evidence is tendered to prove motive, as is clearfrom the following statement by Justice Samuel Grange in the Ontario Court of Appeal: […]the evidence should not be rejected, in my view, merely because it is insufficient without other linking evidence or because it is, inthe opinion of the judge, unconvincing. If it is relevant but unconvincing, that is again a matter of weight for the trier of fact. (R. v.Carpenter (No. 2) (19820, 1 C.C.C. (3d) 261 (Ont.

C.A.) at 158) [159] Much of the concern expressed in the factums submitted by counsel for SM and DLK is based on the view that the “singlediscreditable act” at the RMYC cannot support any inferences which the Crown seeks this court to make, much less establish the motiveto assist Lamar Skeete in the murder of Kenneth Mark. However, the authority above suggests that this concern is not one which rendersthe evidence inadmissible without more.

Rather, this is an issue of weight to be given to the evidence, and therefore an issue for thetrier-of-fact at trial. [160] Again, as I stated in my ruling on Voir Dire#1, the weakness of the inference suggested by the Crown can contribute to theexclusion of the evidence at trial where the probative value is relatively low, and thus more easily overtaken by prejudicial effect. [161] In my view, the minimal probative value of the prior discreditable conduct should at least be weighed by me, in the mannerrequired of me where the committal is being sought by the Crown on the basis of circumstantial evidence. (See R. v.

Arcuri, 2001 SCC54 , [2001] 2 S.C.R. 828 at paragraphs 21- 23) [162] Because it is a single act, and quite innocuous, in my view it does not attract significant moral prejudice on the part of thejury. There is some possibility of reasoning prejudice, but again, this can be dealt with by the appropriate “limiting instructions” to thejury.

Even though the probative value of the evidence of this incident appear to be quite low, it forms part of the Crown’s argument withrespect to motive, and I at the least, must hear that argument and give this evidence the weight that it deserves. 4.2: Conclusion for Voir Dire#2 [163] In my view, the evidence of prior discreditable conduct at the RMYC, and the evidence that DLK and Lamar Skeete talkedwhile in secure isolation, are both relevant to a material issues in the case. [164] In my view, the Crown should be permitted to place those facts before me in its argument for committal.

Released: 18 March 2011 Signed: “Justice Paul H. Reinhardt”