COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Murphy, 2012 ONCA 573

DATE: 20120905

DOCKET: C52369

Laskin, Rosenberg and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Murphy

Appellant

Dirk Derstine and Mariya Yakusheva, for the appellant

Rick Visca, for the respondent

Heard: April 23, 2012

On appeal from the convictions entered on January 14, 2010 by Justice Guy P. DiTomaso of the Superior Court of Justice, sitting with a jury.

Laskin J.A.:

A. introduction

[1] After a two-week jury trial, the appellant, Andrew Murphy, was convicted of unlawful possession and storage of a loaded handgun, possession of cocaine, and possession of cocaine and ecstasy for the purpose of trafficking. He was sentenced to six years and five months in jail, less 52 months credit for pre-sentence custody. He appealed his convictions.

[2] At the conclusion of oral argument, we advised counsel that the appeal was allowed, the convictions were set aside, and a new trial was ordered, with reasons to follow. These are the reasons.

[3] Mr. Murphy advanced numerous grounds of appeal. I will deal only with his first and main ground as it is decisive of the appeal. He submits that the trial judge erred in law in refusing to allow the defence to call a witness who was expected to admit culpability for the offences charged. I agree with this submission.

B. background facts

(a) How the charges arose

[4] The police obtained a warrant and conducted a search of an apartment unit in a rooming house in Orillia.[^1] The police entered the apartment early one morning, using a battering ram to get inside. When they entered, they found the appellant and two others. The appellant was standing on the main floor; the other two individuals were huddled in the loft area of the apartment.

[5] The police seized a variety of controlled substances, a loaded handgun, a replica handgun, drug paraphernalia and $1,250 in cash.

(b) The Crown’s theory

[6] The Crown’s theory was that the appellant had knowledge of and control over the handgun, cocaine and ecstasy found in the main area of the apartment. The two individuals in the loft area were merely drug users. The Crown’s evidence included expert evidence from a police officer that the quantity of narcotics and the presence of the implements of the drug trade suggested possession of the narcotics for the purpose of trafficking.

[7] The trial judge also ruled that the police officer could give opinion evidence about the behaviour of drug traffickers in relation to the storage of drugs and drug paraphernalia and about the connection between loaded handguns and drug trafficking. One of the appellant’s grounds of appeal was that the trial judge erred in allowing the officer to give this expert evidence about the behavioural traits of drug traffickers and about the relationship between drugs and guns. As it is unnecessary to deal with this ground of appeal, I express no opinion on whether this aspect of the trial judge’s ruling was correct.

(c) The defence

[8] The appellant did not testify. However, he sought the right to call Alvin MacLellan as a witness. MacLellan was expected to testify that the gun and narcotics found in the apartment belonged to him, not the appellant.

[9] The trial judge required defence counsel to bring an application for the admission of third party or alternate suspect evidence. He then ruled that the defence could not call MacLellan. According to the trial judge, his proposed evidence was inadmissible because “there is no evidence linking the third party suspect to the crime”. This ruling is the subject of my reasons.

C. the trial judge erred in law in refusing to permit the defence to call maclellan

(a) How the issue arose

[10] MacLellan’s name initially surfaced during defence counsel’s cross-examination of the Crown’s first witness, a police officer. She asked the officer whether he had arrested MacLellan for trafficking in drugs. When asked to justify this line of cross-examination, defence counsel said that she considered MacLellan to be “possibly an alternate suspect” but said that she wanted to further consider the matter. She agreed that the trial judge should instruct the jury to disregard her questions concerning MacLellan and he did so.

[11] Defence counsel then determined that she wished to keep open the possibility of calling MacLellan to testify. The trial judge directed her to bring a formal application for the admissibility of this evidence. Defence counsel objected to doing so. She maintained that “the evidence that I may choose to call in defence is presumptively admissible and therefore not subject to a third party suspect”. However, because the trial judge had directed her to do so, she brought an application framed as an alternate suspect application. She filed a brief affidavit by Anitra Stevens, a secretarial and administrative assistant in her office, and one page of a police officer’s notebook, which referred to MacLellan’s arrival at the apartment after the police had conducted their search. The material part of Stevens’s affidavit stated:

I am advised by a member of the firm that they have spoken to Alwin MacLellan who will say that on August 27, 2007 a number of the illegal articles which form the subject matter of charges in the indictment belonged to and were in the sole possession of this witness.

[12] During argument on the application, defence counsel summarized what she expected MacLellan to say and what her position was on the admissibility of his evidence:

The evidence at issue is an admission by a Mr. MacClelland that he was in possession of the illegal articles for which Mr. Andrew Murphy stands charged. That’s the evidence at issue. In my respectful submission, the defence is not seeking to tender any hearsay evidence. The defence is not seeking to tender any propensity based evidence. Defence is not seeking to tender any evidence based on motive.

And:

Because the focus of the defence of the anticipated potential defence evidence is simply direct evidence that would be received from the party claiming ownership of the illegal articles. In my respectful submission there is no rule of law that finds this type of evidence presumptively inadmissible.

(b) The trial judge’s ruling

[13] In reasons reported at 2010 ONSC 156, the trial judge ruled that the defence had not established a sufficient connection between MacLellan’s proposed testimony and the offences with which Murphy was charged:

[49] I find that the defence has not satisfied the sufficient connection test set out in R. v. McMillan and R. v. Grandinetti. The defence has not established a sufficient connection between the third party, Mr. MacLellan and the crimes with which Mr. Murphy has been charged. Without this link, the third party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on the evidence and not amount to speculation.

[14] The trial judge gave no weight to Stevens’s affidavit as he said it had no probative value:

[53] The affidavit coming from Ms. Stevens is double-hearsay and not probative on any issue. It does not indicate who spoke with Mr. MacLellan and when. It gives no particulars in respect of what Mr. MacLellan will say regarding which of the illegal articles belong to him or were in his sole possession. The best affidavit would have and should have come from Mr. MacLellan. That affidavit was not forthcoming, notwithstanding the fact that the defence knew of Mr. MacLellan’s whereabouts.

[15] In concluding his ruling, the trial judge reiterated the absence of any connection between MacLellan and the offences charged.

[60] I conclude that there is no evidence linking the third party suspect to the crime in this case. The sufficient connection test has not been satisfied as the proposed third party evidence is neither relevant nor probative. There is nothing connecting Mr. MacLellan to the offences before the court. The Applicant has failed to demonstrate a sufficient connection between the crimes alleged and Mr. MacLellan. The proposed admission is not contemporaneous in time to the commission of the offence. We are now dealing with Mr. MacLellan’s proposed admission some two-and-a-half years after the event. There is no evidence linking Mr. MacLellan to 42 Nottawasaga Street, Apt. 13, Orillia. There is no evidence that Mr. MacLellan possessed the drugs. There is no evidence that Mr. MacLellan possessed the handgun. There are no eyewitnesses. There is no evidence Mr. MacLellan was located inside 42 Nottawasaga Street, Orillia, on August 27, 2007. There is no evidence Mr. MacLellan was located inside Apt. 13 at 42 Nottawasaga Street, Orillia, on August 27, 2007. There is no evidence specifically identifying any of the generically described “illegal items” which Mr. MacLellan claims to either own or possess.

(c) Discussion

[16] The appellant submits that the trial judge erred in refusing to permit the defence to call MacLellan because he misapprehended the nature of his evidence and misapplied the test for its admission. I generally agree with this submission.

[17] The law governing the admissibility of defence evidence in a criminal trial is well-established. In her majority reasons in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at pp. 611-12, McLachlin J. wrote that Canadian courts have been reluctant to limit the defence’s right to call evidence. She explained:

The Canadian cases cited above all pertain to evidence tendered by the Crown against the accused. The question arises whether the same power to exclude exists with respect to defence evidence. Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law.

These principles and procedures are familiar to all who practise in our criminal courts. They are common sense rules based on basic notions of fairness, and as such properly lie at the heart of our trial process. In short, they form part of the principles of fundamental justice enshrined in s. 7 of the Charter. They may be circumscribed in some cases by other rules of evidence, but as will be discussed in more detail below, the circumstances where truly relevant and reliable evidence is excluded are few, particularly where the evidence goes to the defence. In most cases, the exclusion of relevant evidence can be justified on the ground that the potential prejudice to the trial process of admitting the evidence clearly outweighs its value.

[18] In R. v. Clarke, (1998), 1998 CanLII 14604 (ON CA), 18 C.R. (5th) 219 (Ont. C.A.), at para. 33, Rosenberg J.A. elaborated on the court’s narrow power to exclude relevant defence evidence:

In Seaboyer, McLachlin J. clarified the test for exclusion of otherwise relevant evidence. She held, at p. 611, that the judge has the power to exclude relevant evidence tendered by the Crown on the basis simply that its prejudicial effect outweighs its probative value. The power to exclude relevant defence evidence, however, is narrower and constrained by the fundamental tenet that an innocent person not be convicted, a tenet which now has constitutional protection. As she said at p. 608, “The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on being able to call evidence necessary to establish a defence and to challenge the evidence called by the prosecution.” McLachlin J. held, at pp. 611-12, that defence evidence may be excluded where the prejudice substantially outweighs the value of the evidence. In the result, “the circumstances where truly relevant and reliable evidence is excluded are few, particularly where the evidence goes to the defence” (at p. 611). Exclusion of defence evidence can be justified only where the “potential prejudice to the trial process of admitting the evidence clearly outweighs its value" (at pp. 611-12).

[19] Within this framework, the defence has always been permitted to call or adduce evidence that some other person committed the crime with which the accused has been charged. However, before this third party or alternate suspect evidence can be admitted, the accused bears the burden of showing that the proposed evidence has “some nexus with the alleged offence”. Without the nexus, the evidence would lack probative value. In R. v. McMillan, (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750 (C.A.), at p. 758, Martin J.A. explained the test for the admission for the alternate or third party suspect evidence and its rationale:

It follows that evidence of the disposition of a third person to commit the crime in question, like other circumstantial evidence, is admissible, if relevant, to prove that the crime was committed by the third person.

Where the character is that of a third person, not a party to the cause, the reasons of policy (noted ante, subsection 64) for exclusion seem to disappear or become inconsiderable; hence, if there is any relevancy in the fact of character, i.e. if some act is involved upon the probability of which a moral trait can throw light, the character may well be received. (Wigmore at p. 488.)

Obviously, unless the third person is connected with the crime under consideration by other circumstances, evidence of such person’s disposition to commit the offence is inadmissible on the ground of lack of probative value. For example, if A is charged with murdering X, in the absence of some nexus with the alleged offence, evidence that B has a propensity or disposition for violence, by itself, is inadmissible to prove B is the murderer because standing alone it has no probative value with respect to the probability of B having committed the offence. If, however, it is proved that A, B and X all lived in the same house when X was killed, and that B had a motive to kill X, then evidence that B had a propensity for violence may have probative value on the issue whether B, and not A, killed X, and is accordingly admissible.

The Supreme Court of Canada affirmed this test in R. v. Grandinetti, 2005 SCC 5, at paras. 46-48.

[20] This is the test the trial judge applied in dismissing Murphy’s application to call MacLellan as a witness. The trial judge held that Murphy had not made out a sufficient nexus between MacLellan’s proposed evidence and the offences. In so holding, he misapplied the test in McMillan.

[21] Both McMillan and Grandinetti deal with the defence’s ability to call circumstantial evidence pointing to another person’s culpability for the crime – be it evidence of propensity or motive or opportunity. Without the sort of connections the trial judge found to be absent, this kind of circumstantial evidence would likely not have any probative value.

[22] However, Murphy was not seeking to call circumstantial evidence pointing to another suspect. He was seeking the right to call direct evidence from another person, who was expected to take responsibility for these crimes. Why, I ask rhetorically, should he not have been permitted to call MacLellan to say, “It is I, not Murphy, who owns the gun and the narcotics the police seized”? Obviously, it would be for the jury to decide whether to accept that evidence or whether it at least raised a reasonable doubt about Murphy’s guilt. On its face, however, the proposed evidence was sufficiently probative and relevant that the defence should not have been precluded from calling it.

[23] It seems to me that the trial judge misapprehended the nature of the proposed evidence and, therefore, at para. 60 of his reasons, erred by requiring Murphy to show other circumstances connecting MacLellan to the offences charged.

[24] I accept the Crown’s submission that the requirement to show some nexus or connection between the third party and the offences applies whether the proposed evidence is direct or circumstantial or a combination of both. In all cases, the connection gives the proposed evidence its probative value: see Watt J.A. in R. v. Candir, 2009 ONCA 915, at paras. 131-132.

[25] However, where the defence proposes to call direct evidence from another person taking responsibility for the crimes charged, that proposed evidence itself constitutes a sufficient nexus or connection. Nothing more need be shown and no formal application is necessary. To impose an additional burden on the defence, as the trial judge did, would be at odds with the passages in Seaboyer and Clarke emphasising the very narrow restrictions on the defence’s right to call evidence.

D. conclusion

[26] The appeal is allowed, the convictions are set aside, and a new trial is ordered.

Released: Sept. 5, 2012 “John Laskin J.A.”

“JL” “I agree M. Rosenberg J.A.”

“I agree David Watt J.A.”

[^1]: Apartment 13 at 42 Nottawasaga Street.