Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20231229 DOCKET: COA-22-CR-0039

Miller, Paciocco and Nordheimer JJ.A.

BETWEEN

His Majesty the King Respondent

and

Korey Rudder Appellant

Counsel: Paul Socka, for the appellant Baaba Forson, for the respondent

Heard: November 17, 2023

On appeal from the convictions entered on April 22, 2022, by Justice Marquis S.V. Felix of the Ontario Court of Justice.

Paciocco J.A.:

Overview

[1] Korey Rudder was convicted of five firearm and nine breach offences after a loaded handgun and ammunition were found secreted under the front seat of a black BMW SUV (the “BMW”) that he had been driving the night prior to his arrest. The trial judge based the convictions on a constructive possession finding. Given that the handgun was not in plain view in the BMW and there was no direct or circumstantial evidence establishing Mr. Rudder’s knowledge of the handgun, proof of constructive possession required an inference of Mr. Rudder’s knowledge of the handgun to be drawn from the control he exercised over the BMW, and from his post-offence conduct in lying to the police about his connection to the BMW. For the following reasons, I am persuaded that the trial judge materially misapprehended evidence relating to each of those issues and erred by failing to respect a factual admission made by the Crown. The trial judge also erred by misapplying the “sufficient connection test”, which is used to determine whether “third party suspect” evidence is admissible. In my view, these errors affected his evaluation of whether the Crown had proved constructive possession beyond a reasonable doubt. I would therefore allow Mr. Rudder’s appeal, quash his convictions, and order a new trial.

Material Facts

[2] Trial evidence showed that on July 12, 2020, at approximately 7:00 p.m., police received information from a 911 call relating to the unlawful possession of a handgun by Mr. Rudder at a condominium building. This information was narrated during the trial to explain the investigation that followed, but the trial judge concluded appropriately that the information provided by the caller could not be relied upon as proof of Mr. Rudder’s guilt.

[3] As a result of the information received, police attended the building and reviewed live and recorded security footage. Using the security footage, they identified Mr. Rudder, earlier that day, exiting a particular condominium unit, and leaving the building parkade in the BMW that would become the suspect vehicle. Police received information that this unit was a short-term rental unit, that had been leased for the two-and-one-half weeks prior to July 12, 2020, not by Mr. Rudder.

[4] Detective Constable Jiri, who was stationed outside the building, subsequently identified Mr. Rudder operating the BMW, entering the underground parking lot at approximately 8:47 p.m. Police obtained a search warrant for the unit and the BMW, which was executed on the unit at 2:57 a.m. on July 13, 2020.

[5] The Crown presented evidence that when the police confronted Mr. Rudder, after he was found in the unit, they advised him of his right to counsel and he requested a lawyer. The police told him they had a search warrant to search for a firearm in the unit as well as in the BMW. Mr. Rudder responded, “what BMW?” The officer replied, “the one that you were driving tonight”, and Mr. Rudder doubled down, saying: “I don’t know anything about that.” This exchange was admitted at Mr. Rudder’s trial to have been voluntary and was received as evidence.

[6] Surveillance photos admitted into evidence showed Mr. Rudder was wearing a satchel when he entered the unit. A similar satchel, found in the unit, [1] proved to contain a garage door fob for the building’s underground parking lot and a key fob to the BMW on the same keychain. The police used the key fob to execute the search warrant on the BMW. During their search the police discovered a loaded handgun and ammunition inside of a sock that had been pushed under the driver’s seat. The sock containing the handgun was not in plain view. No documents were found in the vehicle linking Mr. Rudder to ownership or rental of the BMW and there was no forensic evidence linking him to the handgun.

[7] Upon arriving at the apartment building, DC Ghazarian reviewed security footage of the building and the underground garage from July 12, 2020. Detective Constable Ghazarian confirmed that no-one used the BMW between 8:47 p.m. when Mr. Rudder was observed exiting the BMW and the search of the vehicle. In addition, DC Ghazarian, supported by accompanying security footage, provided evidence of other movements by Mr. Rudder earlier that day. Specifically, video evidence showed that Mr. Rudder left the unit and then the building on foot at 9:38 a.m. It is unknown where he went, and no evidence was presented as to when he returned to the unit. Video footage admitted into evidence also confirmed that he operated the BMW on at least three occasions that same day: (1) arriving in the underground parking lot in the BMW at approximately 3:07 a.m.; (2) departing the underground parking lot in the BMW at approximately 7:00 a.m., and returning in the BMW a short time later; and (3) departing the underground parking lot in the BMW at 2:46 p.m. On two of those occasions, Mr. Rudder was accompanied by an unidentified female passenger.

[8] Detective Constable Ghazarian testified that he did not know from his review of the security footage whether the BMW was used by anyone else at other times on July 12, 2020. He was asked specifically in cross-examination whether he could say whether a female used the vehicle between 7:30 a.m. and 7:30 p.m. that day. Detective Constable Ghazarian said he did not know. He could not recall whether he observed anyone else leave the unit that day, as he was focused on Mr. Rudder. Detective Constable Ghazarian also testified that he had no idea if Mr. Rudder or any other person used the BMW on July 11, 2020, or previously.

[9] During their investigation, the police received information that the BMW was a rental vehicle owned by Relax Car Rental Inc. The Crown did not call evidence from anyone with direct knowledge of this at the trial, nor did it call evidence from the police officer or officers who secured this information during the investigation. However, during the cross-examination of the two investigating officers who testified, DC Jiri and DC Ghazarian, Mr. Rudder’s counsel explored the ownership of the BMW. When asked, DC Jiri described Relax Car Rental Inc. as the registered owner the BMW. No objection was taken by the Crown nor was the source of this information explored by anyone. Detective Constable Ghazarian subsequently testified that the BMW was not registered to Mr. Rudder, without identifying the owner. When the trial judge raised concerns about this testimony, evidently because of its hearsay nature, the parties let the trial judge know that they had no issue with the information being presented in this fashion.

[10] This captures the heart of the evidence presented against Mr. Rudder.

[11] Mr. Rudder testified in his own defence. He admitted that he used the BMW but denied knowledge of the handgun. He testified that three other persons also drove the BMW. He said that “Laura”, a woman he was having a sexual relationship with and who was renting the apartment unit where he was arrested, used the vehicle. He also testified that the BMW belonged to or was rented by Andrew Brown, a friend of Laura. Mr. Rudder said Mr. Brown used the car on July 10 and 11, 2020, moving it on at least two occasions. Mr. Rudder testified that Mr. Brown could move the BMW without asking him or Laura for the key fob because Mr. Brown had a second key fob. And he testified that another woman he was also in a relationship with named “Brandy” (whom he later described as “Brandy Stennet”) used the BMW on July 11 and 12, 2020, and that Brandy dropped him off at “105 West Lodge” on July 12, 2020, at approximately 10:30 a.m., bringing the vehicle back “like three o’clock in the afternoon”. Mr. Rudder provided only sparse details about these three individuals, but he testified that Brandy had become upset with him during this period after learning about his relationship with Laura.

[12] After Mr. Rudder completed his evidence in chief, the Crown argued that Mr. Rudder’s testimony had engaged the law relating to third party suspects by testifying about the three other users of the vehicle, and that he failed to meet the legal requirements set out in R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27 before doing so. The Crown requested an adjournment to prepare a response to Mr. Rudder’s claims, commenting that it may choose to investigate. Defence counsel disputed the suggestion that this evidence engaged the law relating to third party suspects, but ultimately consented to the adjournment. The trial was adjourned for a week to permit the Crown time to respond to the evidence Mr. Rudder had presented about other drivers.

[13] When Mr. Rudder was further cross-examined after the adjournment the Crown did not challenge the existence of Andrew Brown as a real person, and never questioned whether “Brandy” or “Laura” existed, nor did it seek details about them, beyond asking whether Laura was involved in criminal activity. In asking about Andrew Brown, the Crown put the suggestion to Mr. Rudder that “Mr. Brown is in his 60’s, right”, and Mr. Rudder responded, “I think so”.

[14] During cross-examination, the Crown also confronted Mr. Rudder with the suggestion that he was trying to distance himself from the handgun inside the BMW when he denied knowledge of the BMW after being told that the BMW would be searched for a firearm. Mr. Rudder denied this allegation, saying he did not know about the firearm. He testified, “I didn’t have a licence to drive, so I, I asked for my lawyer first thing first”. Shortly after he said, “I was on bail. That’s why I asked for my defence lawyer too.”

Closing Submissions

[15] Defence counsel’s position in closing submissions was that the law relating to third party suspects was not engaged and that the Crown had failed to prove Mr. Rudder’s knowledge of the firearm beyond a reasonable doubt, particularly given the evidence that others had access to the BMW at the relevant time. Defence counsel also advanced the argument that the evidence about Brandy’s opportunity to plant the firearm, and her anger with Mr. Rudder, presented a plausible scenario for why she may have planted the handgun.

[16] In his submissions defence counsel also addressed Mr. Rudder’s lie to the police in denying knowledge of the BMW by highlighting an alternative innocent explanation for the lie. He accepted the trial judge’s summary of Mr. Rudder’s alternative explanation as “[n]o driver’s licence and he was on bail”, before commenting, “technically … he’d be breaching, you know, his bail. So … that’s an explanation that was provided to Your Honour and I’d ask Your Honour to accept, that he was out on a bail and he stated he wanted to speak to his lawyer.”

[17] Once again during closing submissions, the Crown submitted that the law relating to evidence of third party suspects was engaged by Mr. Rudder’s testimony about Andrew Brown, Laura and Brandy Stennet. The Crown argued that, as a matter of law, Mr. Rudder could not rely on their access to the vehicle in attempting to raise a reasonable doubt because he had not presented an air of reality to the suggestion that they were connected to the crime, as Grandinetti requires. The Crown noted, in particular, that Mr. Rudder had not provided evidence of motive, opportunity or propensity for any of the three, with the possible exception of motive relating to Brandy Stennet’s alleged animus. The Crown also argued that the evidence, including Mr. Rudder’s dishonest attempt to distance himself from the BMW, established Mr. Rudder’s knowledge beyond a reasonable doubt.

[18] When the Crown began its closing submissions, the trial judge addressed the state of the record relating to the ownership and rental status of the motor vehicle. The trial judge commented that in his experience as a former firearms offence prosecutor in comparable possession cases, “the police investigate the ownership of the vehicle” and he suggested that they did not do so here. He said the only evidence he had about ownership is Mr. Rudder’s “hearsay basis” that the BMW belongs to Mr. Brown.

[19] The Crown disputed the suggestion that the police had not investigated the ownership of the vehicle. The trial judge responded, “[n]o, they did not, on the record…but I’m limited to the evidence that was called, right.” The Crown replied, “I didn’t call that evidence. Because of the disclosure”. The trial judge continued, “the only evidence I have is that man there [Mr. Rudder] telling me Laura’s buddy Andrew Brown, could be Bugs Bunny for all I know. Don’t even know if Andrew Brown exists, but that’s what his testimony is.” The Crown responded:

Your honour, and there’s no reason to dispute that …

The combination of [Mr. Rudder’s] evidence in-chief and his cross-examination today, Your Honour, was that Mr. Brown rented that car.

Rented that car and there is no reason to have any issue beyond that. I mean, Your Honour, that’s, that’s – the Crown is content with that being the record.

[20] The trial judge replied that this is a “revelation through the defendant’s testimony,” and then continued:

So then I look at, well is there really an Andrew Brown , no disrespect, [counsel], not the first time someone lied in court facing a gun charge. Is there really an Andrew Brown? ‘Cause I haven’t heard anything about it . [Emphasis added.]

So, so on the state of the record before me, I don’t know anything about Andrew Brown…

The Decision

[21] When the trial judge released his decision, he found Mr. Rudder guilty of all charges based on a finding of constructive possession.

(1) The “Other Suspects” Ruling

[22] The trial judge began his ruling by analyzing the “Other Suspects” evidence, under that heading. He ruled that the law relating to third party suspects was engaged, saying, “I find that the defendant’s testimony, particularly his testimony as it concerned Brandy, engaged consideration of the body of law known as ‘other suspects’”. The trial judge used this body of law to analyse the evidence not only relating to Brandy, but to all three of the other persons who Mr. Rudder testified had driven the BMW, namely, Brandy, Laura and Mr. Brown.

[23] In the course of his ruling, the trial judge said, “I am satisfied that the defendant’s viva voce evidence addresses the prerequisites for admission” and that the defence was “available”. The trial judge then said that he attributed “no weight” to this evidence, finding, “[t]here is no sufficient nexus between any of the other suspects and the crime at issue – possession of the loaded firearm.”

[24] The trial judge then elaborated. He said he rejected Mr. Rudder’s evidence “about the BMW vehicle arrangements”. In coming to that conclusion, he began by noting, “[t]here was no evidence at trial concerning the ownership of the vehicle. There was no evidence at trial concerning whether the vehicle was rented, leased, or owned” (emphasis original). He also identified a number of considerations that led him to conclude that Mr. Rudder’s testimony about the communal use of the motor vehicle was implausible.

[25] The trial judge then addressed Laura specifically as an alternative suspect. He found the evidence relating to Laura to be “exceedingly sparse” and ruled, “[t]here is simply no nexus between Laura and the possession of the loaded firearm even if there is some evidence of her access to the BMW.” He described the suggestion of Laura as another suspect as “subjective speculation” that is “not relevant and or probative of the issue of knowledge possession and control of the firearm”.

[26] The trial judge then said of Brandy, “there is no objective evidence supporting the existence of a person named ‘Brandy’ associated with this case” and “no sufficient nexus” between her and the possession of a loaded firearm. The trial judge went on to reject Mr. Rudder’s testimony about Brandy’s access to the BMW, observing that his claim that Brandy drove him to 105 West Lodge on July 12, 2020 was contradicted by the security videos in the parking lot from that date, [2] and he commented that Mr. Rudder’s testimony about Brandy’s “implied motive” was unsupported by other evidence.

[27] When the trial judge turned his attention to Mr. Brown as an alternative suspect he said: “I do not accept the defendant’s evidence about Andrew Brown. Even if I assumed the evidence to be true, there is nothing substantive to support a nexus between Andrew Brown and the crime of possessing a loaded firearm”. In explaining his conclusions, he said:

First of all … there is no objective evidence for the existence of Andrew Brown.

Second, there is no evidence as to the ownership of the BWM [ sic ]. Again, the speculation on the issue inspired by cross-examination questions does not create evidence. The defendant did not expand on his belief that the vehicle ‘belonged’ to Andrew Brown. At its highest, on the evidentiary record adduced at trial I could infer that the BMW vehicle was not owned by the defendant. This is not the same as inferring that the vehicle was owned by a particular person – Andrew Brown. This issue was not addressed by the agreed facts. The issue was not addressed by direct evidence or circumstantial evidence. There is simply no objective evidence supporting the existence of Andrew Brown let alone his status as the owner of the vehicle.

[28] The trial judge went on to consider the absence of evidence about the arrangement between Laura and Mr. Brown to explain why the vehicle would be kept at a building where she was residing.

[29] And he said:

Fifth, the defendant was arrested in possession of the key fob for the BMW and the garage door fob for entry. While the defendant testified that Andrew Brown had the other car fob, and asserted that Andrew Brown could independently use the vehicle, he did not testify as to how Andrew Brown did this without the garage fob.

[30] The trial judge concluded that it would be rank speculation to find that Mr. Brown had his own fob. He then said of the third party suspect evidence relating to Mr. Brown, “[h]ad the Defendant adduced this record on a pre-trial application I would have dismissed the application. There is no nexus between Andrew Brown and the crime of possessing a loaded firearm.”

[31] The trial judge then returned to the credibility of the third party suspect evidence generally and said, “I find no probative value in the evidentiary record adduced in support of other suspects for several reasons.” He went on to say, “ there is not a hair of admissible evidence supporting the existence of any of the persons identified by the defendant ” (emphasis added). The trial judge also said that with respect to the woman seen accompanying Mr. Rudder in the two car trips captured by the surveillance video, “[s]urely if this person was one of the persons described by the defendant, he would have mentioned this in his testimony”.

[32] The trial judge concluded his “Other Suspect” analysis by recognizing that “where an other suspect defence is advanced at trial, the trial judge must assess whether on the entire evidentiary record at trial, the possible involvement of the other suspect raises a reasonable doubt”. He said that this can be done “by showing the connection between the other suspect and the crime in issue”. He said, “[t]here is no sufficient connection between any of the purported other suspects identified by the defendant and the crime in issue. Even assuming the evidence to be true, it does not establish anything more than access to the BMW vehicle.” The trial judge noted there was no evidence of their involvement in criminality or motive, and no direct or circumstantial evidence of the other suspects placing a firearm in the BMW.

(2) The Villaroman Analysis

[33] The trial judge then continued his analysis under the headings, “Proof of the Criminal Allegations” and “Constructive Possession”. He described the presumption of innocence, and correctly described the law relating to the burden of proof; the operation of R. v. W.(D.), [1991] 1 S.C.R. 742, as it applies to the evaluation of credibility and reliability of testimony, as well the principles from R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, which apply in circumstantial evidence cases. The trial judge also correctly identified the elements of constructive possession. He then found that the Crown had discharged its burden.

[34] The trial judge explained, the “simple conclusion is that no evidence has been adduced in support of the legal ownership of the BMW vehicle.” He then referred to the findings he made when considering the law relating to third party suspects, saying, “I do not accept the evidence as it concerns Andrew Brown.”

[35] The trial judge went on to note that only Mr. Rudder was seen operating the BMW proximate in time to the discovery of the loaded firearm, and Mr. Rudder had a key fob and a garage fob. The trial judge referred to the absence of detail about the circumstances in which Mr. Rudder would be permitted to access the BMW, a valuable item, including the absence of evidence about why Brandy would have access. He noted that Mr. Rudder did not testify that Mr. Brown had access to another garage fob, and that there was no other evidence that he had such access. The trial judge said, Mr. Rudder “did not testify [to this] in support of this theory. There is nothing in the evidentiary record to support a reasonable inference that this was so.” The trial judge added, in an accompanying footnote, “[f]or instance, evidence from the building management as to the number of garage fobs registered to a tenant and/or the vehicles associated to the parking spot”.

[36] The trial judge then focused on Mr. Rudder’s lie about his links to the BMW, finding that this evidence “demonstrated that [Mr. Rudder’s] first impulse was to lie and disassociate himself from the BMW”. The trial judge interpreted Mr. Rudder as having offered three explanations for doing so: “he wanted to speak to his lawyer, he did not possess a driver’s licence, and he was on bail conditions.” The trial judge then analyzed these explanations separately, rejecting each of them. He said specifically that he did not believe the explanation that Mr. Rudder wanted to speak to a lawyer because he was not being interrogated and chose to respond after being advised of his right to counsel. The trial judge found that Mr. Rudder did not lie because of his bail conditions, finding that he did not explain the circumstances that provoked the lie, and there was no evidence that the bail conditions were aimed at driving offences. And the trial judge found that Mr. Rudder did not lie because he did not possess a driver’s licence, finding that Mr. Rudder showed no inhibition about driving the BMW without a licence, and had no regard for provincial licencing law. The trial judge concluded, the “defendant’s lie to the police, in the context of the entire evidentiary record I have set out, convinces me that he possessed knowledge of the loaded firearm in the BMW vehicle and that it was he who possessed it.”

[37] The trial judge then turned to the last leg of W.(D.) and whether the other suspect evidence invited plausible inferences inconsistent with guilt, and he cautioned himself not to let his other suspect analysis reverse the burden of proof, citing R. v. Gauthier, 2021 ONCA 216, 403 C.C.C. (3d) 69. The trial judge said of the law relating to third party suspects, “considering the issue again, this time through the lens of W.(D.) and Villaroman , I am not in a state of reasonable doubt”. He said:

I have detailed my analysis of the evidence concerning the three persons. I note the lack of objective evidence in support of even the existence of these persons , let alone the lack of objective evidence supporting their involvement. I also note that this evidence is highly self-serving on the part of the defendant. [Emphasis added.]

To attach weight to the suggestion that one or all of the other persons are responsible for possessing a loaded firearm, I would have to engage in speculation and draw inferences without any foundation.

[38] The trial judge concluded beyond a reasonable doubt that the only plausible scenario involved the defendant’s direct knowledge of the illicit firearm and that it was loaded.

Issues

[39] The issues Mr. Rudder raised on appeal can be described as follows:

A. Did the trial judge materially misapprehend the evidence that the car was a rental vehicle rented by Mr. Brown and/or Mr. Rudder’s explanation for his lie to the police? B. Did the trial judge misapply the law relating to third party suspects? C. Did the trial judge err in his Villaroman analysis, including by only considering the exculpatory inferences that arose from the appellant’s testimony?

[40] I am persuaded that the trial judge erred in each of these respects. There is no need to analyze issue “C” as a discrete ground of appeal. When I address grounds of appeal “A” and “B” I will address how those errors also tainted the Villaroman analysis.

Analysis

A. Did the trial judge materially misapprehend the evidence that the BMW was a rental vehicle rented by Mr. Brown and/or Mr. Rudder’s explanation for his lie to the police?

[41] “A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence.”: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538. Some misapprehensions of evidence will arise from errors of law. Where misapprehensions of evidence do not give rise to errors of law, which they generally do not, they will not ground a successful appeal unless “those errors play an essential part in the reasoning process resulting in a conviction”: Morrissey , at p. 541; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1 , 2. Where a misapprehension of evidence plays an essential part in the reasoning process, the verdict is not true, the trial has been unfair, and a miscarriage of justice will have occurred.

[42] I am persuaded that the trial judge misapprehended the evidence or record before him.

[43] First, the trial judge proceeded on the basis that there was “no evidence” as to the ownership of the BMW, or whether it was rented, and no evidence of another person associated with the vehicle. This is plainly wrong, and a mistake as to the substance of the evidence. Mr. Rudder gave direct testimony on each of these facts. I appreciate that the trial judge ultimately chose not to believe Mr. Rudder’s testimony, but that does not change the fact that it was an error for him to have found that there was “no evidence” on these issues, in the face of Mr. Rudder’s testimony. As I will note below, the trial judge relied on the absence of evidence on these issues as a reason for disbelieving Mr. Rudder.

[44] Second, the trial judge committed a related error of law by failing to accept that Mr. Brown existed, that the BMW was a rental vehicle, and that Mr. Brown was the person who rented the BMW. In my view, these facts were formally admitted by the Crown during the trial, and when formal admissions of fact have been made, as matter of law, a trial judge is obliged to accept those facts. He committed an error of law in failing to do so. I will explain.

[45] A “formal admission”, also known as a “judicial admission” is an agreement between the parties to litigation that a fact is true: R. v. Korski (C.T.), 2009 MBCA 37, 244 C.C.C. (3d) 452, at para. 121 , quoting from S. Casey Hill, David M. Tanovich & Louis P. Strezos, eds, McWilliams’ Canadian Criminal Evidence , 4th ed., looseleaf (Aurora: The Cartwright Group Ltd., 2008) vol. 1, at p. 22-30. Unlike an informal admission – such as a confession made by an accused person outside of court - where a formal admission has been made it has the effect of withdrawing that fact from issue and dispensing with the need for proof of that fact: Korski , at paras. 121-122 ; see also R. v. Lo, 2020 ONCA 622, 152 O.R. 609, at para. 69 . The Criminal Code, R.S.C., 1985, c. C-46 provides for some forms of formal admissions, including guilty pleas or formal admissions made by accused persons pursuant to s. 655 of the Criminal Code : Lo , at para. 68 . But these provisions are not exhaustive of the circumstances under which formal proof of an issue, “may be obviated by agreement of counsel”: R. v. Chang, 2002 BCCA 359, at para. 2 , quoting from David Watt & Michelle Fuerst, Tremeear’s Criminal Code (Toronto: Carswell, 2002) at p. 1001 ; R. v. Picariello, [1923] 2 D.L.R. 706 (S.C.C.). The common law, which is not ousted by these provisions, also recognizes binding formal admissions, including admissions of fact by the Crown that favour the accused: R. v. Robertson, 2021 SKCA 125, 75 C.R. (7th) 378, at para. 19 . Although such formal admissions are best made in “agreed statements of fact”, they need not be. The term “formal admission” is something of a misnomer because formal admissions need not be formalized in any technical sense. They can be made “by a statement of counsel during the course of litigation”: Rosenberg et al. v. Securtek Monitoring Solutions Inc., 2021 MBCA 100, 465 D.L.R. (4th) 201, at para. 59 . In Robertson , for example, citing principles that had developed in parallel civil litigation authorities, Caldwell J.A. found that the Crown made an admission of fact, during oral argument on a blended voir dire , that was binding on the trial judge relating to the state of a police officer’s mind: Robertson , at paras. 15-18 . And in R. c. St.-Pierre (1994), 97 C.C.C. (3d) 93 (Que. C.A.) it was found that a trial judge erred by disregarding an oral concession made by defence counsel that the substances the accused possessed were drugs, by ruling that the Crown had failed to prove this fact in evidence.

[46] Before a formal admission arises, the precise nature and scope of the agreed fact is “plainly to be stated on the record”: Chang , at para. 2 , quoting from Tremeear’s Criminal Code , (Toronto: Carswell, 2002) at p. 1001 . This does not mean that the parties must describe the formal admission as an admission. It is enough if it is evident, as a matter of substance, that the party against whom that fact operates intended to communicate that the fact is true: see Korski , at para. 125 ; R. v. Stennet, 2021 ONCA 258, 408 C.C.C. (3d) 141, at para. 56 . In Rosenberg , at para. 58, Mainella J.A. explained:

Because the rationale for a formal admission as to a fact or issue rests on the idea of an express and intentional waiver, which brings with it the consequence of a restriction of legal rights a party would otherwise enjoy, it must be ‘unequivocal’ (Chenen Resources Ltd. v. EnCana Corporation, 2006 ABQB 931, at para. 26 ) or, as Hamilton JA put it in Canadian National Railway Co. v. Huntingdon Real Estate Investments Trust et al, 2013 MBCA 3, “clear and unambiguous” (at para. 107.)

[47] In my view, it was clear and unambiguous that the Crown intentionally admitted during the proceedings that Mr. Brown existed, and that the BMW was a leased vehicle that Mr. Brown was renting. The setting in which this formal admission was made provides relevant context. First, the Crown never objected or confronted DC Jiri’s testimony about a rental company owning the vehicle, and when DC Ghazarian confirmed that the vehicle was not registered to Mr. Rudder, and the trial judge asked if this was controversial, the Crown said “no”. After being given an adjournment to prepare its response to Mr. Rudder’s claims that others also drove the BMW, including his claims about Mr. Brown and Mr. Brown’s rental of the BMW, the trial Crown did not challenge this testimony during cross-examination. Indeed, as described above, the trial Crown asked Mr. Rudder a question clearly revealing that it had information about a biographical detail of Mr. Brown’s, namely his age. It was in this context that the formal admission was made. It occurred when the trial judge confronted the Crown during closing submissions that there was no evidence before him about the ownership of the vehicle, and then made clear that he had doubts about Mr. Brown’s existence. It is worth repeating the Crown’s response, in material part:

Your honour, and there’s no reason to dispute that … The combination of [Mr. Rudder’s] evidence in-chief and his cross-examination today, Your Honour, was that Mr. Brown rented that car.... Rented that car and there is no reason to have any issue beyond that. I mean, Your Honour, that’s, that’s – the Crown is content with that being the record.

[48] In my view, by telling the trial judge after having been given time to investigate the matter that “there is no reason to have any issue” with Mr. Rudder’s evidence that “Mr. Brown rented that car”, the Crown was expressly, intentionally, clearly, and unambiguously communicating to the trial judge that it accepted the truth of this evidence. I have considered whether this statement by the Crown was rendered equivocal by the Crown’s additional comment that it “is content with that being the record” but I reject this. It would not be reasonable in the circumstances to interpret the Crown as merely admitting that this is the state of the record, given the Crown’s explicit concession to the trial judge that there is no reason to have any issue with Mr. Rudder’s evidence about Mr. Brown renting the BMW. This was a formal admission of this fact, and the trial judge should have decided the case on this basis.

[49] To be clear, when a formal admission has been made, as it was here, a trial judge is free to interpret what the admission of fact means. “But that interpretive exercise cannot morph into an analysis of the veracity of the admission”: Campoux v. Jefremova, 2021 ONCA 92, at para. 34 . I am persuaded that the trial judge erred by questioning the veracity of the formal admissions of fact and by refusing to accept them, thereby misapprehending the state of the record on a material issue.

[50] Even leaving aside that this was an error of law that on its own would sustain this ground of appeal, the trial judge’s misapprehended “no evidence” conclusion about the status of the vehicle and his refusal to affirmatively accept Mr. Brown’s existence and his status as the person who rented the BMW resulted in a miscarriage of justice. The trial judge relied on his “no evidence” conclusions about the status of the vehicle at each of the crucial stages in his analysis: (1) when assessing the record relating to access to the BMW when considering the third party suspect rule; (2) as a reason for not accepting Mr. Rudder’s account relating to Mr. Brown; and (3) in determining whether the Crown had proved its case against Mr. Rudder beyond a reasonable doubt. His failure to accept that Mr. Brown existed and is the one who rented the BMW deprived Mr. Rudder of information crucial to his contention that the Crown had failed to prove constructive possession beyond a reasonable doubt.

[51] The rule that a trial judge is bound when a formal admission of fact has been made is an important one, not only from the point of view of the efficient resolution of cases, but also as a matter of justice. Where a formal admission of fact has been made, parties will rely upon it in making decisions about how to present their case and can therefore be prejudiced if the admission is not accepted. Moreover, a trial judge is not aware of what is in counsels’ briefs, and by rejecting a formal admission, may be proceeding on a factual basis the parties agree to be inaccurate. There are strong indications that this may have occurred here. The Crown, after receiving an adjournment to respond to these very factual issues, not only did not challenge Mr. Rudder’s claims, but during cross-examination betrayed apparent knowledge of biographical information about Mr. Brown. The Crown also disputed the trial judge’s claim that the ownership of the vehicle had not been investigated, protesting that it chose not to lead evidence on the point “because of the disclosure”, an apparent indication that it did not initiate proof on these issues as a tactical choice. In these circumstances there is real reason to be concerned that the trial judge may well have rendered his decision on a factual basis the parties knew to be inaccurate. In my view, a reasonable person in Mr. Rudder’s position would fairly wonder, after the trial judge rejected a key factual concession made by the Crown and then used that rejection as a basis for convicting him, whether he had received a fair trial.

[52] The final misapprehension of the evidence raised by Mr. Rudder occurred when the trial judge failed to give proper effect to Mr. Rudder’s explanation for lying to the police. As a matter of law, post-offence conduct cannot be used as evidence of guilt if there is an alternative explanation that is not rejected. Where there is an alternative explanation available, it is for the trier of fact to choose whether the inculpatory inference should nonetheless be drawn: R. v. Hudson, 2021 ONCA 772, 158 O.R. (3d) 589, at para. 138 ; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 112 , 124, per Martin J. (dissenting, but not on this point). In order to do so fairly in a judge alone trial, a trial judge must properly consider the evidence relating to that alternative inference. In my view, the trial judge did not do so.

[53] To be sure, Mr. Rudder was not the most articulate of witnesses, but it is plain on the record that Mr. Rudder’s explanations for lying were linked logically. His evidence was effectively that given that he was on bail, he felt he could not admit that he was driving without a licence and that is one of the reasons why he wanted to speak to a lawyer and why he lied. Yet the trial judge examined each component of that explanation in isolation without demonstrating appreciation for how these explanations fit together. In my view, by doing so, the trial judge failed to give proper effect to the evidence.

[54] There are other matters of concern with the trial judge’s rejection of the alternative explanation. First, the trial judge rejected the driving without a licence consideration because there was no evidence that any of the bail conditions had to do with driving, but one of the facts formally admitted in the Agreed Statement of Facts was that Mr. Rudder was under a bail condition to keep the peace and be of good behaviour. Driving without a licence is not good behaviour. Second, it is difficult to understand how the trial judge’s conclusion that Mr. Rudder “had no regard for provincial licencing law” would have any logical bearing on whether Mr. Rudder would lie to the police to avoid acknowledging that disregard, which was the salient issue.

[55] To be clear, had the trial judge given proper effect to the alternative explanation evidence, he would have been free to reject that explanation, and to draw a circumstantial inference that Mr. Rudder lied to avoid being linked to the handgun. But in my view, the trial judge did not give Mr. Rudder’s evidence proper effect by failing to appreciate what the alternative explanation was and by dismissing it based on problematic reasoning. These misapprehensions of evidence were critical to the outcome of the case. The trial judge relied heavily on his finding that Mr. Rudder lied about his link to the BMW to distance himself from the handgun as the basis for finding his knowledge of the handgun, beyond a reasonable doubt. Even independently of the other misapprehensions I have identified, this misapprehension was material, resulting in a miscarriage of justice.

[56] I would allow these grounds of appeal.

B. Did the trial judge misapply the law relating to third party suspects?

[57] The trial judge misapplied the law relating to third party suspects. As I will explain, in the circumstances of this case the trial judge should not have applied this body of law to the evidence about Laura, Brandy and Mr. Brown operating the vehicle, since it was not engaged by that evidence. Even had this body of law applied, the trial judge erred in assessing whether this body of law was satisfied. Specifically, he erred in using the sufficient connection test not only as a threshold inquiry but in assessing whether there was a reasonable doubt about Mr. Rudder’s guilt, and he committed a palpable and overriding error by rejecting this evidence based on its lack of connection to the crime.

The Applicable Law

[58] The law relating to third party suspects ensures that evidence or arguments are not presented about the possibility that others, and not the accused, perpetrated a charged offence unless there is evidence that raises this possibility as a material issue in the case. It provides a threshold admissibility test by requiring the accused to point to evidence of a “sufficient connection” between the third party and the crime: R. v. J.M.W., 2020 ABCA 294, 391 C.C.C. (3d) 1, at para. 28 , citing R. v. Malley, 2017 ABCA 186, 352 C.C.C. (3d) 1, at para. 56 ; Grandinetti, at para. 47 . The sufficient connection test is essentially an air of reality test: Gauthier, at para. 41 ; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 20 . To raise this air of reality, the accused must point to “some basis [in the evidence] upon which a reasonable jury, properly instructed, could acquit based on the claim of third party authorship”: R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 121 , citing Grandinetti , at paras. 47-48 ; Hudson, at paras. 181, 182, 190 . The role of this body of law is spent once this threshold test is met. Where this is so, the evidence is admissible, and the defence is a live issue in the case that must by determined by the trier of fact on the evidence as a whole: R. v. Ranglin, 2018 ONCA 1050, 370 C.C.C. (3d) 477 at para. 60 ; citing R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36 at para. 78 ; R. v. Murphy, 2012 ONCA 573, 292 C.C.C. (3d) 122.

[59] Like other air of reality inquiries, the threshold admissibility determination is to be made by assuming that the evidence most favourable to the accused is true: Grant , at para. 20 . To be sure, the evidence must have sufficient probative value to justify its reception: Hudson, at para. 196 . However, this probative value assessment is limited so that the trial judge does not perform the function of the trier of fact when assessing admissibility. Therefore, where there is direct evidence supporting a third party suspect’s possible perpetration, that will be enough; the sufficient connection test is met and it will be up to the trier of fact to determine whether that direct evidence raises a reasonable doubt: Murphy, at para. 22 . Where the evidence relied upon to show the sufficient connection is circumstantial, the trial judge must inquire whether the inferences being relied upon are reasonable inferences that arise from the evidence, and not simply from speculation or conjecture: R. v. Fenton, 2019 ONCA 492, at para. 18 ; R. c. Sorella., 2022 QCCA 383, at paras. 86-87 , leave to appeal refused, [2022] S.C.C.A. No. 155. If the evidence could support a reasonable inference that someone other than the accused may have committed the crime, the evidence has the probative value required to satisfy the sufficient connection test: Grandinetti , at para. 46 , Abella J. quoting from R. v. McMillan, (1975), 7 O.R. (2d) 750 (C.A.) at p. 757, aff’d , [1977] 2 S.C.R. 824.

[60] Trial judges do have a further limited residual discretion to exclude third party suspect evidence even where the sufficient connection test is met. However, since third party defence evidence implicates the constitutional right to make full answer and defence, it cannot be excluded on this basis unless “the potential prejudice [of its admission] to the trial process of admitting the evidence substantially outweighs its probative value” Hudson, at para. 193 ; citing Murphy, at para. 17 ; Grant, at para. 38 . In this context, potential prejudice typically relates to reasoning prejudice, such as “the distraction of [the trier of fact] from their proper focus on the charge itself aggravated by the consumption of time”: Grant , at para. 39 , citing R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 144 .

[61] The “sufficient connection” test can therefore be stated as follows: Third party suspect evidence will be admissible where: (1) the accused presents or points to evidence on the record of a connection between a third party and the offence charged, that, if assumed to be true and interpreted in favour of the accused, could raise a reasonable doubt about the guilt of the accused; and (2) the trial judge has not determined that the probative value of that evidence is substantially outweighed by the risk of prejudice it presents. Where this test is met third party suspect evidence must be considered along with all of the other evidence in the case in determining whether the Crown has proved the guilt of the accused beyond a reasonable doubt.

Analysis

[62] The trial judge erred in finding that the law relating to third party suspects, including the “sufficient connection test”, was engaged by Mr. Rudder’s testimony that Laura, Brandy, and Mr. Brown also drove the BMW prior to the discovery of the handgun. [3]

[63] The Alberta Court of Appeal’s decision in J.M.W. is illustrative. As in this case, the Crown in J.M.W. sought to rely upon the control that the appellant had over the place where the contraband was discovered to establish his constructive possession. In J.M.W. that place was a computer on which child pornography was found. The appellant in J.M.W. sought to undercut the Crown’s reliance on his control with evidence that others also had control over the computer. The issue was raised at trial as to whether this evidence engaged the law relating to third party suspects. The Alberta Court of Appeal ruled explicitly that the appellant had not engaged this body of law by presenting evidence that others also used the computer: J.M.W. , at para. 26.

[64] Gauthier is a similar case in which the Crown relied upon the control the accused had over a computer as proof of his knowledge and possession of the child pornography it contained. The trial judge erred by applying the law relating to third party suspects to evidence that Mr. Gauthier led that his roommate also had control over the computer.

[65] The correctness of these decisions can readily be seen, in my view, by recognizing that the law relating to third party suspects serves as a way of ensuring that proof offered by an accused person relating to the third party’s role is relevant to a material issue in the case. Where the Crown relies upon proof of control by the accused to establish that they are the one who had constructive possession, evidence that others also had control over the relevant place is already inherently material at the trial. There is no need for an accused person to raise this issue by satisfying the sufficient connection test. The trial judge therefore erred, in my view, by imposing the law relating to third party suspects on Mr. Rudder.

[66] Moreover, even if the significant connection test applied, I am satisfied that the trial judge erred in its application.

[67] First, as I have explained, the sufficient connection test is a threshold admissibility test that is to be conducted on the premise that the evidence is true, and without close examination of the ultimate probative value of the evidence. Where this standard is met, the significant connection test is spent, the third party suspect evidence is admissible, and it must be considered along with other evidence in determining whether the Crown has proved its case beyond a reasonable doubt. In this case, the trial judge found the third party suspects evidence to have an air of reality and held that Mr. Rudder was entitled to adduce the evidence and rely on the defence, but then he went on to find that “there is no sufficient connection between any of the purported other suspects identified by the defendant and the crime in issue.” These findings are inconsistent. Properly understood, if there was no sufficient connection between these alternative suspects and the crime charged, there could be no air of reality to the third party suspect defence. It is evident that the trial judge misapprehended the test.

[68] More importantly, the trial judge based his finding that there was no sufficient connection on an evaluation of the credibility and ultimate probative value of the underlying evidence, considerations that have no place when applying the significant connection test. I appreciate that in a judge alone trial, the trial judge, as trier of fact, would be required to evaluate the probative value and credibility of the third party suspect evidence after admitting it, but the trial judge’s method of proceeding by examining the probative value of this evidence through the lens of the significant connection test was not harmless, even leaving aside the misapprehension of evidence and other issues I have identified.

[69] First, he committed a palpable and overriding error by concluding that evidence linking Laura, Brandy and Mr. Brown to control of the BMW was not evidence of a sufficient connection between them and the crime. In a constructive possession case, evidence of control over the place where the contraband is found is invariably important circumstantial evidence linking that person and the offence charged, namely, the possession of contraband that was found in that place. It was a palpable and overriding error of the trial judge to conclude otherwise.

[70] Moreover, the trial judge reasoned unfairly in this regard. Not only did the Crown proceed on the basis that Mr. Rudder’s control over the BMW was incriminating evidence connecting him to the crime of the possession of the handgun, but the trial judge himself relied on Mr. Rudder’s control of the BMW as critical incriminating evidence connecting Mr. Rudder to the crime. It is difficult to see how proof of Mr. Rudder’s control over the BMW is sufficiently connected to the crime to serve as probative, incriminating evidence, yet evidence of control by others of the same BMW would not sufficiently connect them to the crime to be available as defence evidence.

[71] I am also of the view that the trial judge’s mode of proceeding by examining the probative value of the other suspect’s evidence in isolation before considering whether the Crown established Mr. Rudder’s guilt beyond a reasonable doubt affected his reasonable doubt evaluation. A similar outcome occurred in Gauthier, after the trial judge in that case unnecessarily applied the significant connection test before going on to consider whether the Crown had proved its case beyond a reasonable doubt. In Gauthier , Harvison Young J.A. found that the unwarranted application of the law relating to third party suspects “set the stage for the risk of an improper shifting of the burden of proof to the accused”: Gauthier , at para. 41 . It did so in this case, as well. Although the trial judge cautioned himself not to permit the application of the law of third party suspects to reverse the onus of proof, his reasoning did so. The trial judge’s evaluation of the sufficiency of the connection is replete with references to things that Mr. Rudder had failed to show, and comments about the absence of evidence. For example, even though Mr. Rudder provided direct testimony about Mr. Brown’s existence, his status as the renter, his use of the vehicle, his possession of a key fob to the BMW, and about the use of the BMW by Laura and Brandy, claims the Crown never challenged in cross-examination, the trial judge expressed doubt about whether these individuals even existed because Mr. Rudder presented no confirming evidence. And the trial judge chose to disbelieve Mr. Rudder’s evidence about Mr. Brown’s use of the vehicle because he had not presented evidence explaining how Mr. Brown could have accessed the vehicle in the garage. In my view, the trial judge effectively reversed the burden of proof because of an expectation that it was for Mr. Rudder to prove his claims that others drove the BMW.

[72] Moreover, in Gauthier , Harvison Young J.A. went on to find in that case that “once the trial judge concluded that [the third party suspect] could not have committed the offences, that left the appellant as the remaining possible perpetrator. The defence evidence was considered against this backdrop”: Gauthier , at para. 41 . The same thing appears to have occurred in this case. When the trial judge went on to consider whether the Crown satisfied the Villaroman test in this circumstantial evidence case, he considered again whether Mr. Rudder’s testimony about Laura, Brandy and Mr. Brown raised a reasonable doubt, decisions he had already made when applying the substantial connection test. The trial judge incorporated these findings by reference. Having rejected this evidence, the trial judge then proceeded as if Mr. Rudder was left as the only remaining possible perpetrator. Even leaving aside the misapprehensions of evidence I have identified, this mode of analysis resulted in an inadequate evaluation of whether on the evidence the trial judge did accept the Crown had proved Mr. Rudder’s constructive possession beyond a reasonable doubt.

Conclusion

[73] I would allow Mr. Rudder’s appeal, notwithstanding the “in the alternative” reasoning the trial judge engaged in on the assumption that the third party suspect evidence was available, and notwithstanding the credibility evaluations the trial judge undertook. There are simply too many deficiencies in the manner in which the analysis was undertaken, including the credibility analysis and the apparent reversal of the burden of proof, to do anything other than set aside the convictions.

[74] Since I am not persuaded that verdicts of guilty were not available on this trial record had it been evaluated correctly, a substituted verdict of acquittal is not appropriate. I would order a new trial.

Released: December 29, 2023 “B.W.M.”

“David M. Paciocco J.A.”

“I agree B.W. Miller J.A.”

“I agree I.V.B. Nordheimer J.A.”

Footnotes

[1] Narrated information was that Mr. Rudder was found wearing this satchel when the search warrant was executed. Defence counsel for Mr. Rudder objected to this as hearsay evidence. The Crown undertook to call this evidence but did not do so. The testimony of officers with personal knowledge established only that the satchel was found in the unit.

[2] This finding was not challenged during the appeal, but an examination of the record raises concern about whether this finding is supported by the evidence. Detective Constable Ghazarian testified that he was unable to say whether the BMW was used by a woman on July 12, 2020, and he accounted for the vehicle only during the times when Mr. Rudder was observed using it. His evidence also confirmed that Mr. Rudder had left the building at 9:38 a.m. on foot. He was next seen taking the BMW at 2:46 p.m., close to the time Mr. Rudder estimated that Brandy had brought the BMW back. Put simply, instead of contradicting Mr. Rudder’s account about Brandy’s use of the BMW and his claim about Brandy having dropped him off, the evidence appears to have left the BMW and Mr. Rudder unaccounted for that entire period.

[3] It is arguable that this body of law was engaged by Mr. Rudder’s submission that Brandy may have planted the gun. I need not determine whether this is so, but even if it was, in my view the threshold admissibility test would have been met by Mr. Rudder’s testimony about her motive, her opportunity, and the nature of the phone call to the police.