Should this man have walked away from a murder case?

This article deals with a series of very interesting legal questions of law in which a man accused of murder was able to walk free of the charge because of the conflicting statements of a particular witness who testified at the man’s trial.

First, I will give you the background of the murder and the man (Yousanthan Youvarajah) who was accused of directly participating in the murder.

It was alleged that Youvarajah indirectly murdered Andrew Freake, aged 19. The Conestoga College student and former medal-winning figure skater was shot dead on October 11th, 2007 after Youvarajah and others men in an SUV drove into Clyde Park in North Dumphries Township, Ontario to buy some marijuana.

Youvarajah, Andrew Vongkham, D.S. (a young offender) and others were in then attendance at a ‘Bush Party’ at 1419 Clyde Road in North Dumfries Township in Ontario at a previous night. At this event Youvarajah was in possession of what was described as a small black Colt Mustang handgun. He had a pre-existing hatred towards Fezan Khan and it was alleged that he shot Fezan Khan at the party. D.S. was standing beside or in very close proximity to Youvarajah when this occurred, and he even stopped Vongkham from helping the victim up after he had been wounded.

At a time approximately one month before the murder and also before the ‘Bush Party’, Andrew Vongkham, Yousanthan Youvarajah, D.S. and Abhishaik Shinde attended at the home of Takshil Patel to retrieve a package at Youvarajah’s request. Vongkham retrieved the package and returned to the motor vehicle occupied by the above individuals with a cell phone box. Vongkham then opened the cell phone box and found that it contained a small black Colt Mustang handgun. He removed it from the box. D.S. handled the gun, loaded it, and then gave it to Youvarajah.

Youvarajah was an alleged drug dealer and as such had a business-like relationship with the murdered man. The relationship had soured because the deceased, Andrew Freake had ‘shorted’ Youvarajah and D.S. of some cocaine in a prior drug deal. Youvarajah was closely connected to D.S. through friendship and prior criminal enterprises.

Though just in his early 20s, Youvarajah had a lengthy history with the justice system, including firearms convictions and one for dangerous driving in connection with a 2005 crash that killed Roywinder (Roy) Sidhu, a promising basketball player and popular student at Acton District High School. Youvarajah certainly isn’t the kind of young man you would want your daughter to associate with.


The case against Youvarajah fell apart after the teenager, D.S., who pleaded guilty to second-degree murder, gave conflicting stories.

As part of an ‘agreed statement of fact’ signed by D.S. and filed in court at the time of his plea, the teenager said that Youvarajah had given him the gun and that Youvarajah told him to shoot Freake and then after shooting Freake, Youvarajah demanded the weapon back. But when he took the witness stand at Youvarajah’s trial, D.S. claimed that it was he who had shot Freake with his own gun for being disrespectful and then after shooting Freake, he threw the gun into a river. He didn’t say anything about Youvarajah ordering D.S. to shoot Freake at Youvarajah’s trial.

Justice Patrick Flynn acquitted Youvarajah since the only evidence was D.S.’s testimony, in which he had absolved Youvarajah of shooting Freake by implying that D.S. had done the shooting entirely on his own.

The Crown appealed and the matter went before the Ontario Court of Appeal. Justice Michael Moldaver joined forces with two other members of the Ontario Court of Appeal on October 20th 2011 and took the rare step of setting aside the murder acquittal. They have ordered a new murder trial for Youvarajah.

Here is where the law in this issue becomes interesting.

The prosecution wanted to let the jury in the first trial to hear about the earlier statement of facts implicating Youvarajah, but the trial judge Flynn refused, saying there were concerns about the reliability of D.S.’s ‘agreed statement of facts’.

He based his reasons on the basis that the jurors would have almost no chance of seeing D.S. cross-examined meaningfully about the statement because solicitor-client privilege would prevent questioning the youth or his lawyer about the circumstances leading to his plea. The judge felt that if D.C could be questioned about his ‘agreed statement of facts’ then his protection against his solicitor-client privilege would be non existence.

Justice Janet Simmons, writing on behalf of Moldaver and Chief Justice Warren Winkler who were members of the appeal panel said that the judge’s ruling on that issue reflects a misunderstanding of the scope of solicitor-client privilege. She said in her decision that many questions could have been put to D.S. and his lawyer without violating confidentiality rules, including the youth’s understanding of the consequences of misleading the court and his motives for lying.

The question that a judge in a new trial must decide when hearing the case against Youvarajah is whether or not an ‘agreed statement of fact’ is enough to support a murder prosecution on? While the answer in this case seems to be yes, the definitive answer may be some years away before the Supreme Court makes a ruling on this issue. Jonathan Dawe, one of Youvarajah’s lawyers, said they “will almost certainly” ask the Supreme Court to take a second look — one case Moldaver won’t be sitting on if he is chosen to be one of the new justices of the Supreme Court.

The Crown’s case will have to rely almost entirely on the testimony of witnesses who were in the company of the accused and Fezan Khan who was a shooting victim prior to the murder and those present at the scene of the murder which was done at a later date. In addition to that evidence, the Crown will seek the admission of extrinsic evidence (evidence not in the agreed statement of facts) with respect to the misconduct on the part of the accused to explain the relationship between the parties, motive, intent, access to or availability of a firearm, connection to the otherwise remote location and narrative for context.

Mr. Rodocker, for the accused, will probably concede that the cell phone box incident can reasonably be argued to assist the prosecution in establishing that the accused had access to a firearm in advance of the killing and on this basis alone, that evidence from Andrew Vongkham is arguably probative and admissible. But, Mr. Rodocker may point out that the evidence referenced by the Crown in its Factum of the evidence of Andrew Vongkham, from the preliminary inquiry, does not show that the young offender, D.S., handled the gun, loaded it and gave it to the accused, but rather that Vongkham, handed the box to the accused and and the accused pulled it out of the box and loaded it.

With respect to the evidence cited by the Crown in paragraph a, dealing with the relationships, that evidence clearly shows that the accused had business dealings with the deceased Freake, in the form of drug transactions and that there was concern on the part of the accused about the deceased having shorted him and those with him, of some cocaine in the first drug deal in which they were apparently involved, however the evidence does not stand for the proposition that the accused was a drug dealer. Nevertheless it is clear from the evidence of the transcript that the accused is no stranger to drugs, that he used cocaine and sought cocaine and marijuana from the deceased and his associates, but it would simply be too prejudicial to show from that or argue from that that he was a drug dealer. To establish that someone is a drug dealer, one would have to have proof that such a person habitually sells drugs to other drug users and there is no evidence that Youvarajah habitually sells drugs to drug users. The Crown is however free to explore and deal with the relationship between the accused and the young person, D.S.

The young person, D.S., was the shooter in the murder of Andrew Freake. It is the Crown’s theory that the accused was the puppeteer in respect of that young person. In other words, D.S. was following the directions of Youvarajah to shoot Freake. In actual fact, D.S. has already pleaded guilty to second degree murder in respect of the death of Freake and is serving his sentence in a young offender facility.

The preliminary inquiry (hearing to determine if there is enough evidence to order a trial) evidence of Andrew Vongkham referred to by the Crown shows that Vongkham had witnessed the accused with a gun at a bush party on Clyde Road and that that gun was a small Colt Mustang, which Mr. Vongkham said was the same gun he passed to the accused in the car during the cell phone box incident.

The Crown may wish to lead evidence that the accused was flashing the gun around at this bush party and that he and D.S. were looking to shoot a kid for something to do with drugs and that in fact the accused shot one Fezan Khan at that party. The Crown may go further and lead evidence that D.S. was standing in close proximity to the accused when this happened and even stopped Vongkham from helping Khan up after he had been shot.

The Crown may argue that this evidence is relevant to a number of live issues at trial, namely, motive, capacity, animus, (hatred for the victim) intent, the relationship between the parties, access or availability of a firearm, and connection to the otherwise remote location. Moreover, the Crown may also argue that this evidence is necessary to provide a complete narrative for the trier of fact (new judge hearing the case) and the requisite background with which to assess the prior relationship between the accused and the victim.

Evidence of an accused’s previous misconduct, while generally inadmissible, may ‘exceptionally be admitted’ where it is so relevant and cogent to an issue that its probative value displaces its prejudicial effect.

Let me explain the terms probative and prejudicial. The term ‘probative evidence’ means that such evidence tends to prove an issue and it tends to contribute evidence that is in favor of the one that it is being applied against. In this particular case, such probative evidence if accepted by the court could be used as proof that the accused committed the crime. In other words, the fact that the accused had the gun in his hands at a previous time could be used as probative evidence against the accused. The term, ‘prejudicial evidence’ is that that is detrimental to the fair interests of the accused. As an example, if a person had a drinking problem twenty years ago and hasn’t touched a drink since then, and twenty years later, he is charged with stealing something from a store, it would be too prejudicial to raise up the fact that twenty years earlier, he had a drinking problem because his drinking problem couldn’t be related to his current theft of an item from a store.

The Supreme Court in the Handy case said that ‘similar fact evidence’ is presumptively inadmissible and the onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case, the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and justifies it being raised in court.

It seems to me that while the Crown may very well lead evidence of the accused’s attendance at a bush party where Vongkham saw him with a gun for the purpose of fleshing out the narrative and demonstrating the accused’s prior access to a firearm, such evidence that the accused shot Khan at the bush party raises a high degree of prejudice which can reasonably be described as possessing a gravity akin to the allegation in this case of murder. The impugned evidence is not of a minor offence committed a few days before the killing of Andrew Freake. This is so highly prejudicial as to encourage a jury to believe that the accused has a propensity to kill people, not only directly but also indirectly.

However, as Mr. Rodocker (lawyer for the accused) has argued, it cannot reasonably be said that the bush party incident is strikingly similar to the killing in question later. The allegation in the present case in which Freake was killed is not that the accused shot Andrew Freake but rather that D.S. shot Andrew Freake, somehow at the behest of the Respondent. And while I agree with Crown counsel that the general principles governing the admission of extrinsic misconduct not said to be based on similarity are not substantially different from those set out in R. v. Handy and the like, even though the test for admissibility does not involve reliance on similarities, because what is critical to the reception of any of this prior misconduct evidence is relevance. But that relevance must be put onto the probative value – prejudicial effect scale, unless, of course, it is completely ruled off side by having no other available inference than that the accused has disposition of general bad character, or is such a person as is likely to commit this kind of offence.

Now clearly, it cannot be argued that the bush party incident is strikingly similar to the killing in question. In fact it is remarkably opposite, and with respect to the accused’s shooting of Mr. Khan can only be characterized as bad character evidence.

So, but for evidence of the accused shooting Mr. Khan at the bush party, which the court may find to be of very high prejudicial effect, the rest of the evidence with respect to the relationship between the accused and the young offender, D.S., and the nature of the transactions between the accused and the deceased, whether or not either of them were in the company of others, may be led by the Crown to provide a background for the jury to understand the events leading up to the homicide and to show that the accused was closely associated with D.S. It may explain the motive for the obtaining of the firearm before the meeting, which was to rob Andrew Freake of drugs. Although there may be some slight prejudice to the accused by showing his involvement in the drug subculture, the evidence which the court would permit can be seen to be relevant and is admissible to show the accused’s connections with D.S. and with the victim, Andrew Freake, as well as his accessibility to and familiarity with, as well as possession of a weapon that was used or may have been used in the homicide. The evidence does not have to point to possession of the actual murder weapon, (since it was never found by the police) but evidence of possession of a gun of similar calibre to that used in the killing is relevant and admissible.

The location of the homicide was in a remote area not far from the area in which the bush party incident occurred and the evidence of that incident should be admissible to show that the accused had familiarity with the area and had been there in that vicinity recently.

The Crown’s position, except for the incident where the accused is said to have shot Khan, has high probative value of the rest of the evidence and as such, it displaces what minimal prejudice the admission of the evidence may have. The accused is charged with the most serious offence in the Criminal Code, and a proper instruction will eliminate the risk that this evidence may confuse the jury or support an inference of guilt solely on the basis of bad character.

What the evidence does is assist in painting a complete picture for the jury in providing a comprehensive narrative for them to rely on in making a decision as to whether or not the Crown has proven its case beyond a reasonable doubt. A proper limiting instruction will minimize the prejudice, whatever prejudice there may be.
Accordingly, the Court of Appeal ruled that the Crown may lead evidence of the accused’s involvement in the drug subculture and his dealings with the victim, as well as the concerns about the victim having shorted the accused and others in one cocaine drug deal. The Crown may also lead evidence of the nature of the relationship between the accused and D.S. Except for the evidence of the accused shooting Fazan Khan at the bush party, the evidence in respect of the bush party incident and the accused’s possession of the handgun at that time may be tendered before the new jury hearing the case.

Finally, but for evidence that D.S. handled the handgun, loaded it and gave it to the Respondent, the cell phone box incident is conceded by the accused and for this reason, it may be led provided that the evidence called shows that Vongkham handed the gun directly to the accused, who loaded it.

The evidence clearly shows that the accused was present in the vehicle at the time that Freake was shot and killed, but the accused is not said to have been the person who shot Freake. The Crown’s theory is that D.S., the young offender, shot Freake at the behest of the accused, making the accused a party to the homicide and as such, he was directly involved with the murder of Freake.

Based on the Crown’s theory that the accused is the operating mind, the Crown will point out to the jury that D.S. did the shooting but that the accused cleaned up and altered the weapons, either the murder weapon or a weapon very similar to the murder weapon bearing the same description as the weapon contained in the cell phone box and as shown at the bush party according to the evidence of the witnesses that were there, at the very least according to Andrew Vongkham.

If the jury believes that aspect of the evidence and not that Youvarajah directed D.S. to shoot Freake, than he will be convicted of the lesser crime of being an accessory after the fact of the murder.

Indeed, the probative value is high and the jury, but the Crown will argue that it should be able to use evidence of the accused’s actions and his state of mind right after the murder to assess his level of involvement and degree of some degree of culpability. Moreover, this materially relevant evidence will give the jury a complete context about what happened.

I agree with the argument of the accused that the three pieces of evidence sought to be led by the Crown are not probative of planning and deliberation. Indeed, the Crown concedes that, but inferences may be drawn with respect to the degree of involvement and hence culpability. Was the accused merely a bystander or was there some kind of active participation, such that he would be a party to the offence of murder?

Post-offence conduct is admissible where it is relevant and probative of a fact in issue and, further, where the impugned conduct is logically probative of the inference sought to be supported by the said evidence. In my view, the three pieces of evidence sought to be led by the Crown are directly related and relevant to the issue of whether or not the accused was in essence the guy in charge or the puppeteer in this killing: the day following the homicide, the accused viewed online articles about evidence left at crime scenes; the next day he cleaned the vehicle he was in at the time of the shooting; then he was seen spray painting two guns like the murder weapon and selling one or two of them to people from outside the region.

The crown will argue that he will ask the jury to infer from this conduct the level of involvement that the accused had in the actual murder and he relies on the Supreme Court of Canada case of R. v. Jacquard, where Justice Lamer, for the majority of the court in dealing with an evaluation of the Appellant’s “not criminally responsible” defence in that case, says this:

“Evidence of concealment or flight may not speak to a particular level of offence, but it certainly has some bearing on whether the Appellant was capable of appreciating that what he had done was wrong. Indeed, just as a party would be unlikely to hide a murder weapon or flee a crime scene if he or she was not responsible for the act, a person would be most unlikely to attempt to cover up his or her actions if there was no appreciation of the nature and quality of those actions or no understanding that they were wrong. This sort of evidence clearly does have probative value in a case of this sort.”

In my view, this circumstantial evidence of post offence conduct should be left with the jury for their consideration. It is for the jury to weigh the evidence, make findings of fact and draw inferences. They ought to do this with respect to the post offence conduct in light of all the other evidence presented during the trial to determine whether the evidence is consistent with guilt and inconsistent with any other rational explanation.

It will be for the jury to determine whether the post offence conduct is logically probative of the inference the Crown is seeking to establish. If it is not, the trial judge will be required to instruct the jury that the evidence has no probative value. However, on the brief touching of the facts which were encountered during pre-trial motion, it seems to me that the evidence sought to be led by the Crown can logically support the inferences sought.

This will be a very interesting case. If the jury believes that Youvarajah really did direct D.S. to shoot Freake, then he is as guilty of the murder of Freake as is D.S. who was the one that fired the fatal bullet. If he only tried to cover up the evidence of the shooting, then he is guilty only of being an accessory after the fact of the murder.