CITATION: R. v. Dalzell, 2010 ONCA 590

DATE: 20100914

DOCKET: C43644

COURT OF APPEAL FOR ONTARIO

MacPherson, Rouleau and Karakatsanis JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Allan Dalzell

Appellant

Richard Litkowski and Emily Morton, for the appellant

John Pearson, for the respondent

Heard and released orally: September 9, 2010

On appeal from the conviction entered by Justice Michael Dambrot of the Superior Court of Justice dated December 1, 2004.

ENDORSEMENT

[1] The appellant appeals his conviction, on December 1, 2004, for the first degree murder of his cousin, Patrice Bailey, before Dambrot J. sitting with a jury. He appeals his conviction on the ground that the trial judge erred in admitting prejudicial evidence and he seeks to introduce fresh evidence.

[2] The appellant’s semen was found in the victim’s vagina and his DNA under her fingernails. His semen was also found on a comforter in her apartment. The appellant testified that they had been involved in a consensual but secret sexual relationship and that they happened to meet two days prior to the victim’s death in a fast food restaurant where they had consensual sex in a stall in the men’s washroom. The trial judge permitted the Crown to lead evidence to refute the appellant’s testimony about the existence of a consensual sexual relationship between himself and the victim.

[3] First, the appellant argues that the trial judge erred in admitting the evidence of the appellant’s alleged sexual assault on the victim’s best friend. The appellant challenges the trial judge’s evaluation and balancing of the probative value and the potential prejudice of the evidence.

[4] In thorough and careful reasons, the trial judge clearly articulated and applied the law concerning the admissibility of evidence of bad character and discreditable conduct by the accused. He determined that the victim’s knowledge of the sexual incident involving her best friend was powerful evidence that the victim would not likely have consented to sex with the appellant and concluded that the relevance of the evidence was sufficiently high, and its cogency sufficiently strong, such that its probative value outweighed any potential for misuse.

[5] We conclude that the trial judge did not err in evaluating the relevance and probative value of the evidence, in assessing the potential moral and reasoning prejudice of the evidence or in his balancing of the probative value of the evidence against its prejudicial impact. Nor do we find that he erred in concluding that the victim’s best friend should be allowed to testify as to some details of the sexual incident even though it was unclear how much the victim knew. This was necessary to avoid confusing the jury or leaving the jury with an unfair or artificial impression of the evidence. The exercise of his discretion was reasonable. Further, the trial judge clearly instructed the jury on three different occasions regarding the limited use of this evidence. We give no effect to this ground of appeal.

[6] The appellant’s second ground of appeal is that the trial judge erred by permitting the Crown to adduce the victim’s ante mortem statements about her hostility or discomfort with the appellant, primarily through the evidence of Mark Martin, the victim’s boyfriend and an alternate suspect at trial. The appellant submits that, in light of all the surrounding circumstances, the evidence did not meet the threshold reliability. The surrounding circumstances include the lack of corroborating evidence as well as the lack of an opportunity to cross-examine the victim as to whether she made the statements and her motives in making such statements. The appellant argues that the trial judge failed to exercise his gate keeping function, that he overstated the relevance and that he understated the prejudicial impact of the evidence. The appellant’s submission is that Mr. Martin’s status as an alternate suspect made the evidence inherently suspect and untrustworthy.

[7] Once again, the trial judge found that the evidence had significant probative value to the victim’s state of mind and the likelihood that she would have consented to sex with the appellant. He considered the arguments the appellant is making again on appeal about the accuracy and reliability of the evidence. He found that the evidence of the victim’s best friend strengthened the evidence of Mr. Martin. He considered whether the weaknesses of Mr. Martin’s evidence impacted on the threshold reliability of the hearsay statements and concluded that while these would be live issues for the jury, they did not preclude admission of the evidence. He recognized his discretion to exclude the evidence and weighed the probative value against the potential for prejudice. He found that Mr. Martin’s motive to lie could be fully explored in cross-examination and would be a matter for the jury to consider. We find no basis to disturb these conclusions.

[8] Finally, the appellant seeks to introduce fresh evidence of Anh Trinh’s telephone conversation with a prosecutor that took place two days after the verdict that she “was seeing Mark”. The appellant also seeks to introduce the post trial examinations of Anh Trinh and Mark Martin permitted on application by this court. The appellant submits that the statement to the prosecutor undermines the testimony of Mr. Martin and Ms. Trinh that they were ‘just friends’; that this in turn is significant to Mr. Martin’s description of a serious monogamous relationship with the victim; and that any evidence bearing on the credibility of an alternate suspect must be a decisive or potentially decisive issue in this case.

[9] In our view, the meaning and the significance of the statement to the prosecutor is far from clear. The issue of the relationship between Mr. Martin and Ms. Trinh was vigorously explored in cross-examination at trial. Their subsequent testimony on this application was consistent with their evidence at trial. There was before the jury evidence that raised questions about the nature of the relationship between Mr. Martin and Ms. Trinh. It did not go to a decisive or potentially decisive issue in this case. Even if believed, Ms. Trinh’s statement to the prosecutor, when taken with the other evidence in the trial, could not reasonably be expected to have affected the result. The key issues in this case were the DNA evidence, the appellant’s explanation for the presence of the semen and the appellant’s relationship to the victim. The jury clearly did not find that the appellant’s explanation for the presence of his semen raised a reasonable doubt. Accordingly, the application to admit fresh evidence is denied.

[10] The appeal is dismissed.

“J.C. MacPherson J.A.”

“Paul Rouleau J.A.”

“Karakatsanis J.A.”