ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIM 3468/09
DATE: 20120104

B E T W E E N:

HER MAJESTY THE QUEEN

R. Alexander Cornelius and Tricia Holmes, for the Applicant

Applicant

• and -

JASON OSBORNE

Ilan Neuman and Misha Feldman, for the Respondent,

Respondent

HEARD: December 12, 2011

RULING - OTHER DISCREDITABLE CONDUCT EVIDENCE

Publication restricted pursuant to s. 645(5) and s. 648 of the Criminal Code .

F. Dawson J.

[ 1 ] This ruling is a result of a late breaking motion brought by the Crown to introduce other discreditable conduct evidence against the accused, Jason Osborne, who is charged with first degree murder. It was brought by the Crown in response to an equally late breaking announcement by the defence that the accused may take the position that he is not criminally responsible due to mental disorder (“NCR”) pursuant to s. 16 of the Criminal Code , and to the concurrent release of a report from a forensic psychiatrist, Dr. Derek Pallandi, who has examined the accused. This last minute change in the defence position resulted in a delay in the commencement of the trial.

Factual Background

[ 2 ] Jason Osborne and the deceased, Karina Neff, had been in an intimate relationship. Ms. Neff was 32 years of age at the time of her death but is described as having the mental age of a 12 year old. The accused and some other witnesses also have a mental disability of one form or another.

[ 3 ] Jason Osborne gave a statement to the police, conceded to be voluntary, in which he admitted killing Ms. Neff by throwing her to the ground, strangling her by stomping on her throat, and by hitting her head against a log or tree branch. In his statement to the police Mr. Osborne explained that the deceased wanted to continue a relationship with him which he did not want. She was bothering him with her wishes and he said he suddenly lost control and killed her, without one of the intents required for murder.

[ 4 ] In contrast, Dr. Pallandi’s report indicates that Mr. Osborne told him that he lost control and killed the deceased because he was jealous of her relationships with other men. Significantly, Mr. Osborne also told Dr. Pallandi that there was no history of violence between himself and the deceased prior to the day of her death.

[ 5 ] The Crown points out that before receiving Dr. Pallandi’s report the Crown had no indication that it was part of the accused’s defence that there was no history of violence or physical abuse in the relationship. The Crown now seeks to tender evidence that there was a history of physical abuse in the relationship. The Crown takes the position that this evidence is relevant to the issue of lack of intent as well as the NCR issue. Consequently, the Crown wants to tender this evidence as part of its case in chief and not just in response to Dr. Pallandi, should he be called to raise the NCR issue. The Crown explains that as a result of the last minute disclosure of Dr. Pallandi’s report it has had to rethink the presentation of the Crown’s case.

[ 6 ] In summary, both the accused and the Crown have changed their positions and in response the court is required to consider further pretrial motions.

The Proposed Crown Evidence

[ 7 ] The Crown proposes to call evidence from five witnesses. Most of this evidence concerns conduct by the accused that can be viewed as discreditable. The proposed evidence may be briefly summarized as follows.

Gilbert Sheety

[ 8 ] Gilbert Sheety is expected to give evidence that he knew both the deceased and the accused. One day he was with them outside an entertainment complex in Mississauga known as the Playdium. He claims that he saw Jason Osborne pick Ms. Neff up and “body slam” her on the ground. Ms. Neff started to cry as a result. On a different day Mr. Sheety says he saw Mr. Osborne pull Ms. Neff’s hair. This summary is taken from Mr. Sheety’s statement to the police.

[ 9 ] I am advised Mr. Sheety functions under a degree of mental disability and is not able to say much more. He cannot put a specific time frame on these events. However, other evidence establishes that the accused knew the deceased for about one year prior to killing her, and so we know that these events, if they occurred, occurred within that time frame.

Donald Best

[ 10 ] Donald Best gave a video recorded statement to the police in which he said he knew both the accused and the deceased and that he met the accused three times. Mr. Best said on one occasion he spoke to Mr. Osborne in a shopping mall after Mr. Best had just finished working out at a gym. On that occasion the two men discussed rumours about Ms. Neff to the effect that she would “follow other guys” and have sexual relations with them. Mr. Best told the police that Mr. Osborne was “a bit mad” about the rumours.

[ 11 ] The Crown also wishes to lead evidence from Mr. Best that the accused would get mad at Ms. Neff and yell at her and make her cry. However, the Crown also agreed that if I were to conclude from my review of Mr. Best’s police interview that Mr. Best’s statements to this effect were based on hearsay - what Ms. Neff told him as to opposed to what he had observed - the Crown would not seek to tender the evidence. The Crown is not seeking to tender antemortem statements from the deceased if that is the basis for this aspect of Mr. Best’s evidence.

[ 12 ] I have carefully reviewed Mr. Best’s video recorded interview. A transcript of the interview is contained in Exhibit 5. Based on my assessment of the entire interview, but in particular on what was said by Mr. Best at pp. 51, 57, 59, 69 and 71, it appears to me that Mr. Best is relating what Ms. Neff told him on this point. As the Crown does not seek to tender this evidence as reliable hearsay, this aspect of Mr. Best’s evidence is not admissible.

Kenneth Morris

[ 13 ] Kenneth Morris gave a video recorded statement to the police. During that interview he said Jason Osborne used to reside with him. On one occasion when Ms. Neff was visiting the residence he observed the accused push her off a bed and then under the bed. He said that he also saw Mr. Osborne put Ms. Neff down on the kitchen floor outside the bedroom door.

[ 14 ] On the video one can see and hear parts of certain things Mr. Morris says quietly to himself when the interviewing police officer is out of the room. Defence counsel relies on these comments in opposing the admissibility of Mr. Morris’ evidence. These comments are not transcribed, but if they were they would fit into the transcript at p. 22 between the time noted as 10:55 and 10:59. Mr. Morris can be heard whispering something like, “Osborne in jail, arrested, yes!” He seems to be happy about this development. Defence counsel also referred to whispered comments Mr. Morris made to himself at the very end of the interview. However, those comments cannot be made out and defence counsel does not place much weight on them.

[ 15 ] There is evidence of some potential “bad blood” between Mr. Osborne and Mr. Morris. There is a police report dated March 28, 2008 which indicates that on one occasion when the men resided together Mr. Morris was alleged to have told Mr. Osborne that he better watch his back or a person named John would hurt him. There is also a police report that on November 21, 2007 Mr. Osborne told the police that Mr. Morris told him he was attracted to him and that he placed his hand down Mr. Osborne’s pants, and kissed him on the neck. Mr. Osborne then packed his belongings and left the residence. Mr. Osborne did not want charges to be brought and none were. He did ask the police to speak to Mr. Morris. These police reports were marked as exhibits on the voir dire .

Victor Davis

[ 16 ] Victor Davis is married to Karina Neff’s sister. Mr. Davis does not have a disability.

[ 17 ] In a video recorded statement to the police Mr. Davis described being at the Neff residence for a family dinner in “late 2007”. Karina Neff and the accused were downstairs in the home with some other guests, including Mr. Davis’ children. When Mr. Davis went down to check on his children he saw Gilbert Sheety tickling Karina Neff’s feet in “an innocent and playful fashion”. Suddenly the accused jumped up and put Mr. Sheety in a choke hold from behind. Mr. Davis said that he could see that Mr. Sheety was distressed and shocked. Mr. Osborne released Mr. Sheety when Mr. Davis commanded him to do so. Everyone in the downstairs recreation room was watching wrestling on television at the time. Mr. Davis said Mr. Osborne had not been protesting that Mr. Sheety should leave his girlfriend alone. Mr. Osborne just sprang into action without warning. Mr. Davis told his children to go upstairs and he and his children left the area. He said the accused had been “clamped on hard” to Mr. Sheety.

Krista Fakaua

[ 18 ] The final proposed witness is Krista Fakaua. Ms. Fakaua testified on the voir dire . She is a volunteer coordinator at the Open Door Christian Drop-In Centre. Ms. Fakaua testified she first met Jason Osborne in 2006. She became concerned about certain things she heard Mr. Osborne say, in particular, that if “he needed a woman” he would “take one”, or words to that effect. He also spoke of “Bloods” and “Crips”, and about wrestling. He was heard to say he would go and look for a fight and made reference to “bitches” and “ho’s”. He used “gross language” about what he would do sexually to a woman. Ms. Fakaua’s evidence was to the effect that such violent sexually oriented talk was repeated on more than one occasion. As a result she kicked the accused out of the drop-in centre. He frequently tried to get back in. Sometimes he would telephone and impersonate a police officer. There was a typed but unsigned letter of apology from the accused in the consolidated file the employees of the drop-in centre compiled after they learned of Ms. Neff’s death. When pressed, Ms. Fakaua was uncertain that the letter of apology had been presented to her by the accused. Consequently, the Crown is not seeking to tender that letter through Ms. Fakaua.

The Governing Legal Principles

[ 19 ] Evidence of an accused’s misconduct in relation to matters other than those charged in the indictment is presumptively inadmissible under the rule which prohibits the Crown from leading evidence of bad character as circumstantial evidence of guilt: R. v. Handy , 2002 SCC 56 , [2002] 2 S.C.R. 908, at para. 31 . However, this broad exclusionary rule is subject to a narrow exception of admissibility. The evidence of previous misconduct may be admitted when it is “so highly relevant and cogent that its value in the search for the truth outweighs any potential for its misuse”: Handy at para. 41 , citing R. v. B. (C.R.) , 1990 142 (SCC) , [1990] 1 S.C.R. 717 at p. 751. This test will be met where the probative value of the evidence is such that it outweighs the “reasoning prejudice” and “moral prejudice” that is usually associated with this type of evidence: Handy , para. 42 . Reasoning prejudice relates to the potential for the jury to be confused or distracted by resolving questions related to the other discreditable conduct evidence or to place too much weight on such evidence. Moral prejudice relates to the danger that the jury might convict because they feel the accused is a bad person and therefore someone who is deserving of punishment, or who is more likely to have committed the offence for that reason alone: Handy , at paras. 31, 37-40 .

[ 20 ] In determining the probative value of the evidence it is important to identify the live issue to which the evidence is said to relate, and it is helpful to assess the importance of that issue in the trial: Handy , paras. 74, 99 . It must also be remembered that the nature of the issue will have a bearing on the “drivers of cogency”: Handy , at paras. 78-80, 87 .

[ 21 ] After analysing the evidence for both probative value and prejudicial effect these different concepts must be weighed against one another. The Crown bears the burden of demonstrating on a balance of probabilities that this weighing of factors favours admissibility: Handy , para. 101 .

Analysis

[ 22 ] For the reasons that follow I have come to the conclusion that the evidence of Gilbert Sheety, Donald Best (to the extent it is not hearsay), Kenneth Morris and Victor Davis is admissible. The evidence of Krista Fakaua is inadmissible.

Donald Best

[ 23 ] I will start with the evidence of Donald Best. The Crown does not seek to tender what Ms. Neff said to Mr. Best to the effect that the accused yelled at her and made her cry. That leaves Mr. Best’s account of his discussion with the accused in the mall about the rumours that made the accused mad. In my view, this is not evidence of other discreditable conduct and for that reason it does not fall within the purview of the exclusionary rule. It is difficult to envisage that a normal person would think it was discreditable for a man to be upset or “a bit mad” about rumours that his girlfriend was sexually involved with other men. It is not that such reaction is commendable but that it is normal or expected and not discreditable. As the exclusionary rule does not apply the Crown is not required to demonstrate that the evidence falls within the narrow exception. No one suggests that any other exclusionary rule applies. Consequently, the evidence is admissible if it is relevant. In my view this evidence goes to the question of motive. Motive is a relevant consideration on the question of intent, which is anticipated to be one of the central issues in this case.

Victor Davis

[ 24 ] The evidence of Victor Davis is also relevant to the question of motive. However, his evidence does raise a matter of discreditable conduct in the form of the unprovoked choking of Mr. Sheety.

[ 25 ] Given the evidence of Mr. Davis that Mr. Sheety was tickling Ms. Neff in an innocent and playful fashion, and that there was no warning from the accused before he took sudden violent action, this evidence is capable of being viewed by the jury as an indication of extreme or unusual jealousy on the part of the accused. The fact that the evidence might be viewed in other ways does not diminish this aspect of its probative value, particularly because jealousy seems the most likely inference to be drawn.

[ 26 ] The issue is a significant one in the case. On the evening of the killing the deceased had been with another young man, Grayson Kekewich. The accused was staying with Mr. Kekewich and two other young men at the time. These circumstances give rise to the possibility that the accused was jealous of Mr. Kekewich. The accused denied this in his statement to the police but apparently told Dr. Pallandi that he was jealous that the complainant was spending time with other men. There is also some evidence from Mr. Best that the rumours about Ms. Neff being promiscuous originated with a “Grayson Kechridge”, who may well be Grayson Kekewich. This evidence is found in the transcript of Donald Best’s, July 24, 2008, police interview, at p. 20.

[ 27 ] Mr. Osborne has admitted responsibility for causing Ms. Neff’s death. Therefore, the evidence of motive has no value in proving the accused committed the actus reas of the offence. However, it is also well recognized that the presence of a motive can be probative on the issue of intent, and on the issue of planning and deliberation. The severity and suddenness of the accused’s reaction to Mr. Sheety’s tickling of Ms. Neff gives this evidence of motive added probative value on the issue of intent. The event is proximate in time to the killing; within about nine months of the homicide. The issue of intent is central to the case and the question of jealousy arises naturally from the other evidence. I conclude the evidence of Mr. Davis has substantial probative value in this context.

[ 28 ] On the prejudicial effects side of the scale, I observe that the single act of choking Mr. Sheety pales in comparison to the violent acts the accused admits to perpetrating on the deceased. This diminishes the potential for moral prejudice, as does the fact that the choke hold was of brief duration. Mr. Sheety was not injured and the accused released Mr. Sheety as soon as Mr. Davis told him to do so.

[ 29 ] I am also of the view that there is little reasoning prejudice associated with this evidence. There is one discreet act that lasted for just a few moments. Mr. Davis was in a good position to make observations and there is no evidence of any motive to fabricate on his part. I have not been made aware of any competing evidence that has the potential to sidetrack the jury or substantially divert the jury from their main task.

[ 30 ] Weighing probative value against prejudicial effect, I find the balance tips clearly in favour of the admissibility of this evidence. This discreet evidence will be made the subject of a limiting jury instruction that should be easily understood and applied.

[ 31 ] Before leaving the evidence of Victor Davis I should mention that I have been advised that Gilbert Sheety has no recollection of this incident. I have kept that in mind but concluded that it has little bearing on the matter.

Gilbert Sheety and Kenneth Morris

[ 32 ] Gilbert Sheety and Kenneth Morris are each able to give evidence about acts of violence by the accused towards the deceased that occurred prior to the night of the killing. I will deal with the admissibility of their evidence together as the Crown seeks to tender their evidence on the same issue. The Crown submits their evidence has probative value on the issue of intent.

[ 33 ] The accused argues that the evidence has little to no value when it comes to proof of intent. He submits that having pushed Ms. Neff down on other occasions, when he clearly had no intent to kill, makes it no more likely that he had the intent to kill her on the night in question. He submits that if the jury were allowed to consider this evidence on the issue of intent they could only do so by engaging in the prohibited forms of bad character reasoning. There is considerable moral prejudice. Therefore, the accused submits that the prejudicial effect of this evidence outweighs its probative value. He also submits that there is reasoning prejudice associated with the fact that Mr. Sheety cannot provide any more detail, and by virtue of the potential animus against the accused on the part of Kenneth Morris.

[ 34 ] In my view, the primary probative value of the evidence of Mr. Sheety and Mr. Morris does not reside in its tendency to directly prove that the accused possessed either of the two intents which will satisfy the requirements of a conviction for murder. Rather, its probative value rests primarily in its usefulness as contextual evidence of the nature of the relationship between the accused and the deceased. Such evidence may assist the jury in evaluating Mr. Osborne’s claim that he suddenly lost control and did not have the intent for murder. The difference between these positions is subtle but meaningful.

[ 35 ] The value of such contextual evidence in ensuring that a jury is properly equipped to evaluate whether an accused had the intent for murder has been recognized in a number of cases of domestic homicide. Without a full understanding of the nature of the relationship the jury may not be in a position to fully or properly evaluate other evidence which could support a conclusion that the accused did or did not have the requisite intent for murder. When evidence provides context to assist in the proper evaluation of other evidence that bears on the issue of intent it has a probative value with respect to that issue.

[ 36 ] As stated in R. v. Moo (2009), 2009 ONCA 645 , 247 C.C.C. (3d) 34 (Ont. C.A.), at para. 98 :

In prosecutions for domestic homicide, evidence is frequently admitted to elucidate the nature of the relationship between the accused and the deceased. This evidence, which often discloses misconduct other than that charged, not only demonstrates the nature of the relationship between the parties, but also may afford evidence of motive and animus relevant to establish the identity of the deceased’s killer and the state of mind with which the killing was done. [citations omitted]

[ 37 ] In R. v. Cudjoe , 2009 ONCA 543 the court upheld the trial judge’s determination to admit evidence that the accused had assaulted his wife twice in the month prior to her death. The accused was charged with her murder. At para. 68 the court said:

The evidence was relevant and material. It tended to show the true nature of the relationship between the appellant and deceased contemporaneously with her death. Further, this evidence demonstrated animus and motive, and thus was relevant to prove the identity of the deceased’s killer (which had not been admitted when this evidence was received) and the mental state that accompanied the killing.

[ 38 ] Similar explanations of the value of such evidence are found in R. v. F.(D.S.) (1999), 1999 3704 (ON CA) , 43 O.R. (3d) 609 (C.A.)

[ 39 ] I find that the proffered evidence has considerable probative value. Should Dr. Pallandi testify it has direct relevance to rebut statements Dr. Pallandi attributes to the accused to the effect that there was no prior violence in the relationship. This could assist the jury in deciding whether to accept Dr. Pallandi’s opinion or in determining how much weight to put on it.

[ 40 ] Counsel for the accused has stated that he hopes to have the matter proceed as a bifurcated trial, with the NCR issue being raised only after the jury reaches a verdict: R. v. Swain 1991 104 (SCC) , [1991] 1 S.C.R. 933. However, as it is anticipated that Dr. Wiseman will testify at the first stage of a bifurcated trial that the accused is mentally retarded, there is a possibility that I may conclude that the NCR issue has emerged prior to the conclusion of the main trial: Swain , pp. 975, 986-87. Given the uncertainty about whether this will occur, and whether Dr. Pallandi will be called prior to the jury being called upon to reach an initial verdict, I have assessed probative value on the assumption the NCR issue will not be raised initially and that Dr. Pallandi will not testify until the second stage of a bifurcated trial.

[ 41 ] In my view, the evidence has considerable probative value even if Dr. Pallandi does not testify or the NCR issue is not raised. The jury will benefit by having this evidence when they consider the video recorded statement the accused gave to the police. The Crown intends to tender that evidence as part of its case in chief. The jury will have Mr. Osborne’s statements before them that he suddenly lost control when Ms. Neff was pestering him about continuing a relationship he said in the statement he did not want to continue. The jury will be assisted in the evaluation of this evidence by having a complete and accurate account of the nature of the previous relationship between the accused and the deceased. They will also benefit from having this evidence at their disposal when evaluating the expert evidence anticipated from Dr. Wiseman, also on the crucial issue of intent. Consequently, I conclude the evidence has considerable probative value in relation to a centrally important issue.

[ 42 ] Turning to prejudicial effect, it is clear that there is considerable moral prejudice associated with this evidence. The fact that the accused body slammed the deceased, or put her down on the ground on prior occasions, much as he says he did on the night he caused her death, does tend to blacken his character and have inflammatory effects. I also agree that there is the potential for some reasoning prejudice associated with the fact that there is a history of some acrimony between the accused and Kenneth Morris.

[ 43 ] Once again, however, the violence involved in these other discreditable acts is considerably less than the violence the accused admits to in association with the killing. This tends to reduce the prejudice associated with the evidence, particularly in light of a proper jury instruction on the limited use the jury may make of this evidence combined with a direction on how they must not use the evidence.

[ 44 ] On the question of animus against the accused on the part of Mr. Morris, I observe that Mr. Morris gave a video recorded statement. During that statement he had ample opportunity to say many more things that would have been harmful to the accused but did not do so. For example, he was asked if the accused ever said anything about intending to hurt Ms. Neff. Mr. Morris said that he did not hear the accused say such things.

[ 45 ] The authorities recognize that in determining the admissibility of this type of evidence the court must engage in a limited weighing of the evidence that ventures into what is usually the realm of the jury: Handy at para. 105 , citing R. v. Arp , 1998 769 (SCC) , [1998] 3 S.C.R. 339 at paras. 47-48 . Having read the entire transcript of Mr. Morris’ police interview and having viewed the video recording, I am not of the view that Mr. Morris’ account is tainted by animus towards the accused. His demeanour during the interview and the content of the interview are to the contrary. This is not a situation, as in Handy , where the trial judge found evidence of actual collusion and did not take it into account on the question of admissibility but simply left it for the jury. I have considered the question of whether Mr. Morris’ statement to the police was motivated by animus and I am unable to say that it was, although I recognize this remains an issue for the jury.

[ 46 ] This brings me to the question of reasoning prejudice. The jury will have to consider the question of animus in evaluating the evidence of Mr. Morris. Two police reports and a brief soliloquy have been brought to my attention. The matter is reasonably well circumscribed as far as I have been made aware. The video may become available to assist the jury depending upon how counsel approach the matter. I do not see this as a serious form of prejudice in all the circumstances.

[ 47 ] Weighing the probative value against the potential prejudice I conclude the evidence is admissible. A clearly articulable basis for the proper use of this evidence exists. That is of assistance in explaining to the jury how they may and may not use the evidence. It ensures that a jury instruction can be crafted that will be easily understood, will aid in proper use of the evidence and minimize prejudice. Given this conclusion I find the need for the jury to have the complete picture of the nature of the relationship predominates at the balancing stage. The probative value of this evidence outweighs its prejudicial effect and it is admissible.

Krista Fakaua

[ 48 ] I reach a different conclusion with respect to the evidence of Krista Fakaua. I find that her evidence has relatively little probative value. However, it is highly prejudicial in terms of both moral and reasoning prejudice.

[ 49 ] The Crown has filed photographs of the body of Ms. Neff as it was found in a Mississauga park. Her shirt and bra are pushed up over her breasts. The button on her jeans is undone but her pants, although low on her hips, have not been pulled own. The Crown submits that Ms. Fakaua’s evidence of the sexual violence the accused spoke of, in combination with this photographic evidence, shows that the proffered evidence has considerable probative value in proving that Ms. Neff was killed while being sexually assaulted, thereby making it more likely that if the killing was intentional it was first degree murder.

[ 50 ] While there may be some probative value to the evidence on this line of reasoning I am not persuaded it is such that it overcomes the obvious prejudice that arises from such inflammatory evidence. I observe that there is a lack of “connectedness” between the proffered evidence and the crime charged. In particular, the context is different. The comments that Ms. Fakaua overheard were made by the accused to male associates he may have been trying to impress. I formed the view from Ms. Fakaua’s evidence that an element of bravado was involved. Ms. Neff was not present and the comments were not directed at her. While Ms. Fakaua knew Ms. Neff, she never saw the accused and Ms. Neff interact. Indeed, it appears that the comments were made in 2006 prior to the accused’s relationship with Ms. Neff. That relationship was one that involved consensual sexual intimacy. With the exception of the photographic evidence I have been referred to there is no evidence of a sexual assault perpetrated by the accused against Ms. Neff.

[ 51 ] In addition, the description of the killing given to the police by the accused involved his grabbing Ms. Neff in the chest area and throwing her to the ground. Grabbing Ms. Neff in that fashion could have caused what is shown in the photographs. There is no other evidence of sexual assault that I have been made aware of. In these circumstances the proffered evidence would bear most of the burden of proving there was a sexual assault. Given the lack of other connecting factors I am very concerned that the jury will use prohibited chains of reasoning on this issue. This is the type of situation in which I am of the view that it is more difficult to formulate an easily understood and applied jury instruction that will be effective in reducing prejudice to the point where the probative value of the evidence exceeds prejudicial effect.

[ 52 ] When I apply the balancing test after considering the degree of probative value and obvious potential for prejudicial effect I find the Crown has failed to persuade me on a balance of probabilities that Ms. Fakaua’s evidence should be admitted. The evidence of Krista Fakaua is inadmissible.

F. Dawson J.

Released: January 4, 2012

COURT FILE NO.: CRIM 3468/09
DATE: 20120104

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Applicant - and – JASON OSBORNE Respondent REASONS FOR JUDGMENT F. Dawson J.

Released: January 4, 2012