The Supreme Court of Canada (“SCC”) will soon hear the appeal of R v Chizanga, 2024 ONCA 545 [Chizanga], in which it will opine on the principles of admitting evidence of prior discreditable conduct [41405].
Building upon the seminal case of R v Handy, 2002 SCC 56 [Handy] which set out the principles for the admissibility of such evidence, this appeal raises important questions regarding the role of concessions by parties in determining probative value, the required nexus between a similar fact evidence and what it is tendered to prove, and the appropriate jury instructions for evidence of prior discreditable conduct.
Facts
In April 2017, the appellants Thulani Chizanga and Shamar Meredith were arrested and charged with first-degree murder and tried jointly for the shooting of Mr. Kumar Macintosh (Chizanga, para 2). Macintosh was shot 27 times in a Popeyes restaurant washroom in Mississauga. Security footage showed the appellants entering the washroom prior to the victim’s arrival at the restaurant, and they remained there until after the shooting (Chizanga, para 1). Following their arrest, Meredith admitted to shooting the victim, but claimed it resulted from an accidental discharge. Chizanga claimed he was an innocent bystander in the shooting (Chizanga, para 1).
Prior to trial, the Crown sought to admit a security camera recording taken the day prior to the shooting (“Super 8 video”). The footage showed the appellants, alongside an unknown third party, standing outside of a Super 8 motel room. Chizanga was shown knocking on the door to a hotel room. Meredith then brandished a long-barrel military style rifle which was concealed down his pant leg. The door was not answered, and the three eventually left (Chizanga, para 4).
Judicial History
As evidence of prior discreditable conduct, the Super 8 video was presumptively inadmissible per the Supreme Court of Canada’s governing decision in Handy (Chizanga, para 18). The presumptive inadmissibility of such evidence is premised on its inherent prejudicial effects, particularly, the risk of distracting the trier of fact from the live issues at trial, and/or inferring guilt from an accused’s past bad behaviour (Chizanga, para 18). Notwithstanding these risks, Handy permits the admission of evidence of prior discreditable conduct where its probative value outweighs its prejudicial effect (Chizanga, para 19). In determining the probative value of a piece of evidence, the trier of law must determine whether evidence of past discreditable conduct renders a fact at issue more or less likely when analysed in its entire context (Chizanga, paras 21-23).
Trial Judge’s First Ruling
The Crown brought a pre-trial motion to determine the Super 8 video’s admissibility. The Crown intended to use it to implicate Chizanga as acting jointly with Meredith, and to demonstrate Meredith’s familiarity with his firearm, challenging his assertion that the shooting was accidental. During the motion, Chizanga made concessions in an attempt to dilute the probative value of the Super 8 video. The appellants admitted they knew each other prior to the shooting, and Chizanga admitted he knew Meredith was armed at the Popeyes restaurant the day of the shooting (Chizanga, para 38).
The trial judge nevertheless found the video admissible (Chizanga, para 39). The trial judge noted that the video made it more likely that Meredith had his firearm concealed in the same way as in the Super 8 video. This was relevant to Meredith’s alleged intention and planning to kill (Chizanga, para 39). He specifically noted that the strength of the inference drawn is based upon the “physical acts” shown in the Super 8 video rather than a general propensity for criminality suggested by the video (Chizanga, para 40). The trial judge further found the Super 8 video’s prejudicial effect to be largely “swallowed up” by the uncontested video evidence from the Popeyes restaurant on the basis that they were largely “co-extensive” (Chizanga, para 42).
Trial Judge’s Second Ruling
Later in the appellants’ trial, but prior to showing the Super 8 video, the appellants brought a motion for the trial judge to reconsider his admissibility ruling. The appellants made further concessions in an attempt to reduce the Super 8 video’s probative value. Meredith admitted that the rifle seen in the Super 8 video was the same one used in the Popeyes shooting, and that he had concealed the weapon in a similar fashion on the day of the Popeyes shooting. Further, Chizanga admitted that he knew Meredith was armed with the rifle, and that Meredith was “prepared to use it” (Chizanga, para 44).
Despite these concessions, the trial judge maintained that the Super 8 video was admissible. He held the video remained highly probative of multiple live issues, including Meredith’s familiarity with the firearm and Chizanga’s involvement in the Popeyes shooting (Chizanga, paras 45-48)
Jury Instructions
To mitigate the prejudicial effect of the Super 8 video’s admission, the trial judge instructed the jury regarding the video’s proper use. He began by warning the jury not to speculate about the circumstances surrounding the Super 8 video, including the appellant’s purpose for being at the hotel that day and what they intended to do had the door been answered (Chizanga, para 50). He further warned that the jury could not infer the likelihood of the appellants guilt from the mere fact that they engaged in other criminal conduct in the Super 8 video, nor could they attempt to punish the appellants for past misconduct that did not form the substance of their charges (Chizanga, para 51).
Per his instructions, the jury could use the video to help determine Meredith’s experience and skill in wielding his firearm, and to assist in determining whether the Popeyes shooting was the result of an accidental discharge (Chizanga, para 52). With respect to Chizanga, the trial judge instructed the jury that the video could also be used to determine whether Chizanga acted jointly with Meredith in the shooting or was merely an innocent bystander (Chizanga, para 53).
The trial judge concluded his instructions by noting the significant differences between the circumstances of the Super 8 video and the evidence of the Popeyes shooting, and that it was open to the jury to place little weight on the Super 8 video if they found it to be unrelated to the events of the Popeyes shooting (Chizanga, para 54).
Issues on Appeal
On appeal to the Court of Appeal for Ontario (“ONCA”), the appellants challenged the trial judge’s rulings on the admissibility of the Super 8 video alongside his jury instructions pertaining to its permissible uses. The appellants also raised arguments concerning available defences, other jury instructions, and sentencing which will not be discussed in this article as the Court unanimously rejected these arguments (Chizanga, paras 95, 102, 110, 116, 137, 139).
Judgment
The ONCA delivered a split 2-1 decision on the issues concerning the Super 8 video and its admissibility.
Majority Opinion
Monahan and Sossin JJ.A. upheld the trial judge’s admission of the Super 8 video, concluding that he applied the proper legal test from Handy. Per the majority, the trial judge recognized the Super 8 video’s presumptive inadmissibility as evidence of prior discreditable conduct, and proceeded to determine the probative value and prejudicial effect of the video.
The majority concluded that the trial judge faithfully applied the Handy analysis in finding that the video was probative to several material issues at trial, particularly in its ability to bolster other circumstantial evidence proffered by the Crown, and to rebut the defences raised by the appellants (Chizanga, para 56). The majority also affirmed the trial judge’s weighing of the video’s probative value and prejudicial effect. In doing so, the majority rejected the appellants argument that the trial judge erred in permitting the jury to engage in “propensity reasoning,” whereby guilt is inferred from an accused’s perceived propensity to engage in unlawful behaviour. In rejecting the appellants’ argument, the majority noted that Handy does not prohibit triers of fact from engaging in propensity reasoning; rather, Handy only requires that the probative value of evidence of prior discreditable conduct outweigh the prejudicial effect of triers of fact engaging in propensity reasoning (Chizanga, para 58). The majority similarly dismissed the argument raised by Chizanga that the Super 8 video, because it did not show him jointly engaging in homicide, could not be probative of his involvement as a joint principal in the Popeyes shooting. The majority noted that evidence showing Chizanga’s joint engagement in other criminal activities less than a day before the Popeyes could make it more likely that he was similarly engaged in the Popeyes shooting (Chizanga, paras 63-65).
Furthermore, the majority dismissed the appellants’ argument that concessions made by Meredith and Chizanga “drained” the Super 8 video of its probative value (Chizanga, para 75). In the majority’s view, the trial judge’s determination was reasonable because the concessions, while helpful, did not dispose of the issues pertaining to Chizanga’s involvement in the shooting, and Meredith’s familiarity with handling his firearm (Chizanga, para 73).
Regarding the trial judge’s jury instructions, the majority held that his instructions were “a straightforward application of the Handy framework” (Chizanga, para 79). In doing so, the majority rejected the appellants’ suggestions that the trial judge’s instructions were contradictory and invited the jury to engage in propensity reasoning (Chizanga, para 79-81).
Van Rensburg J.A.’s Dissent
Writing in dissent, van Rensburg J.A. disagreed with the majority’s analysis of the Super 8 videos’ admissibility. While she agreed with the principles of admitting evidence of prior discreditable conduct laid out by the majority, van Rensburg J.A. found errors of law in the trial judge’s admission of the video and his instructions on its permissible uses (Chizanga, para 142).
Regarding the video’s admissibility, van Rensburg J.A. began by noting that probative value under the Handy framework must be considered for each specific purpose the evidence is proffered for (Chizanga, para 146). On this basis, she concluded that the trial judge’s determination of the video’s probative value concerning Chizanga’s joint involvement in the shooting was flawed due to his insufficient explanation as to how the video could tend to prove or disprove Chizanga’s involvement. In particular, van Rensburg J.A. noted that to be probative of Chizanga’s involvement, the video would have had to support the following inferences: i) Chizanga and Meredith had a propensity for committing crimes involving a firearm together, and ii) that this propensity made it more likely that the two acted jointly in the Popeyes shooting (Chizanga, para 157). Due to the weak nexus between the events depicted in the video and the Popeyes shooting, van Rensburg J.A. went on to comment that the first inference was weak at best, with the second being unavailable “as a matter of common sense and experience” (Chizanga, para 157-158).
Furthermore, van Rensburg J.A. disagreed with the majority that the Super 8 video remained probative following the appellants’ admissions. She notes that the admissions addressed all proper uses of the Super 8 video, extinguishing any probative value the video may have held (Chizanga, paras 161-164). Contrary to the trial judge’s assertion, van Rensburg J.A. noted that the admissions spoke to both Meredith’s familiarity with the firearm, and Chizanga’s association with Meredith (Chizanga, para 166). In her opinion, the admissions (along with proper jury instructions) would have allowed the evidence of the appellants’ activities from the previous day to play a carefully circumscribed role in determining their guilt without the accompanying additional prejudicial effects of showing the video (Chizanga, para 164).
On the issue of the trial judge’s instructions, van Rensburg further disagreed with the majority, finding his instructions to be overly broad and creating opportunities for the jury to engage in bare propensity reasoning (Chizanga, para 173). Notably, van Rensburg J.A. points out that his first jury instruction framed the videos permissible use as being to “determine the circumstances surrounding the [Popeyes shooting]” (Chizanga, para 173). While the trial judge provided instructions as to the specific live issues at trial, van Rensburg J.A. took issue with these as well.
With respect to the issue of Chizanga’s joint involvement in the shooting, van Rensburg pointed out the inherent difficulty of using the video to show that the appellants acted jointly towards a common criminal end, all the while avoiding the inference that the conduct shown in the video renders it more likely that they acted jointly in the shooting (Chizanga, para 178).
Analysis
On the issue of the Super 8 video’s admission, I agree with van Rensburg J.A. that the video should not have been admitted in light of the appellants’ concessions at trial. While I believe that van Rensburg J.A.’s discussion of the required nexus between evidence of prior discreditable conduct and the live issues at trial appears overly burdensome and inconsistent with the SCC’s holding in Handy, I nevertheless agree with her contention that the appellants concessions were sufficient to preclude the video’s admissibility. With respect to Chizanga’s concessions, his admission that he knew Meredith, that he knew Meredith was armed on the day of the shooting, and his knowledge that Meredith was prepared to use the firearm appear to address much of the video’s probative value relating to this issue. The additional benefit of seeing Chizanga engaged in a criminal act (one which according to the trial judge’s reasons were less serious than the shooting) adds little and introduces strong prejudice against the accused.
Furthermore, I agree with van Rensburg J.A. that the trial judge’s instructions to the jury regarding the video’s allowable uses were confusing at best. The distinction between inferring guilt from a prior criminal act and inferring one’s propensity to engage in joint criminal enterprise with a co-accused is tenuous, if it exists at all. Van Rensburg notes in her dissent the jury’s apparent confusion with these instructions. Such confusion likely flows from the fact that the video itself, in light of the appellants concessions, was insufficiently probative; attempts to describe its permissible uses failed because the permissible uses, as described by van Rensburg, had been exhausted.
As noted by the majority, evidence of prior discreditable conduct arises frequently, and has often been the topic of decisions by provincial appellate courts. This appeal provides the SCC an opportunity to consider subsequent decisions by provincial appellate courts and build upon its guiding jurisprudence on the topic, especially with regard to the nexus required between evidence of prior discreditable conduct and what it is tendered to prove and the necessary jury instructions for such evidence.
Edited by David Lia