ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: CR 11-16
Date: 20120425

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – JOSEPH ARSENAULT Respondent

W. Beatty, for the Applicant

N. Williams and G. Sandberg, for the Respondent

HEARD: April 3 & 4, 2012

Ellies, J.

RULING ON APPLICATION TO ADMIT DOCUMENTARY EVIDENCE

[ 1 ] In this pretrial motion, the Crown seeks leave to introduce certain documents into evidence during a trial in which the accused will be facing a charge of attempt murder, amongst others. The documents consist of a number of pieces of correspondence passing between the accused and various individuals, all involving issues surrounding the accused’s employment as a teacher with the West Parry Sound Board of Education (the “Board), as it was then called. The alleged victim in this case, Brad Burt, was the Director of Education in the period leading up to the date upon which the offences are alleged to have occurred, namely July 18, 1999. The Crown alleges that, on that date, the accused attempted to kill Mr. Burt by rigging his car to explode through the use of a spark plug placed into the gas tank of the car and wired to its engine.

[ 2 ] The Crown argues that the letters are evidence of animus on the part of the accused and go to the issue of motive. The defence counters that the letters contain evidence of discreditable conduct, the probative value of which is exceeded by its prejudicial effect.

[ 3 ] In these reasons, I will first set out some general legal principles. I will then give a brief description of the documents in question and apply those general principles to each document or set of documents to arrive at a ruling.

Legal Principles

[ 4 ] All relevant evidence is admissible, subject to certain exceptions and to the court’s overriding discretion. [^1] Bryant, Lederman and Fuerst describe a three-step process to the admission of evidence in their text, Sopinka, Lederman & Bryant, The Law of Evidence in Canada, [^2] at paragraph 2.33:

To be received, evidence must meet two basic requirements. First, it must be admissible. Second, the trial judge must not have exercised his or her judicial discretion to exclude the evidence. Two further concepts make up the principle of admissibility. Evidence is not admissible unless it is: (1) relevant; and (2) not subject to exclusion under any other law or policy. Therefore, the trial judge will determine whether the proffered evidence is relevant. If it is not, it will be rejected. If it is relevant, the trial judge will consider whether it is subject to any exclusionary rule of the law of evidence. If it is not, the trial judge will consider whether he or she has a judicial discretion to reject the evidence and whether that discretion should be exercised in the circumstances. If the evidence is subject to an exclusionary rule or is irrelevant, there is no generally recognized judicial discretion to nevertheless receive the evidence.

[ 5 ] Thus, to be received, the evidence:

(1) must be relevant;

(2) must not be the subject of an exclusionary rule; and

(3) must not be excluded on the basis of judicial discretion.

[ 6 ] Evidence of discreditable conduct on the part of an accused not forming part of the charge at issue is subject to an exclusionary rule. The basis for that rule was explained by Binnie, J. in R. v. Handy: [^3]

The danger is that the jury might be confused by the multiplicity of incidents and put more weight than is logically justified on (the witness’s) testimony (“reasoning prejudice”) or by convicting based on bad personhood (“moral prejudice”)...

The policy basis for the exclusion is that while in some cases propensity inferred from (discreditable conduct evidence) may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible...

[ 7 ] Thus, evidence of discreditable conduct is not excluded on the basis that it is irrelevant. Binnie, J. acknowledged this in Handy when he wrote: [^4]

It is, of course, common human experience that people generally act consistently with their known character. We make everyday judgments about the reliability or honesty of particular individuals based on what we know of their track record.

[ 8 ] For this reason, the exclusionary rule operates only where the admission of evidence of discreditable conduct on the part of the accused is sought solely for the purpose of “blackening” the accused’s character. [^5] The exclusion will not apply where the evidence is “so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse” [^6].

[ 9 ] The “misuse” of which Binnie, J. spoke is referred to in the jurisprudence as the potential “prejudice” of the evidence. Unfortunately, some misunderstanding has arisen in the case law with respect to the meaning of this term. In R. v. B.(L.), Charron, J., on behalf of the Ontario Court of Appeal (at the time), approved of the following definition offered by Professor Delisle concerning the meaning of “prejudice”: [^7]

Prejudice in this context, of course, does not mean that the evidence might increase the chances of conviction but rather that the evidence might be improperly used by the trier of fact. It is one thing for evidence to operate unfortunately for an accused but it is quite another matter for the evidence to operate unfairly. The trier who learns of an accused’s previous misconduct may view the accused as a bad man, one who deserves punishment regardless of his guilt of the instant offence and may be less critical of the evidence presently marshalled against him.

[ 10 ] It is generally accepted that the danger of misuse of discreditable conduct evidence is less where a jury is not involved, as in the present case. [^8]

[ 11 ] The relevance of a piece of evidence is a matter of common sense and human experience. For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. [^9] The strength of the inference to be drawn is referred to as the “probative value” of the evidence. The greater the potential prejudice of the discreditable conduct evidence, the greater must be its probative value. [^10]

[ 12 ] Evidence of discreditable conduct on the part of an accused that is similar in nature to the conduct alleged to form part of the charge at issue is called “similar act” or “similar fact” evidence. We are not here concerned with that type of evidence. In this application, the Crown is not seeking, for example, to introduce evidence of other acts of violence on the part of the accused or of other explosive devices set by him. However, it is in the area of similar fact evidence that much of the jurisprudence concerning discreditable conduct evidence has evolved. Although it pre-dates Handy, I find the approach elucidated by Charron, J. in R. v. B.(L.), [^11] to be very helpful. At paragraph 10 of that decision, she wrote:

Because of the inherently prejudicial nature of evidence of discreditable conduct, it is subject to a general exclusionary rule unless the “scales tip in favour of probative value”. The trial judge who is charged with the delicate process of balancing the probative value of the proposed evidence against its prejudicial effect should inquire into the following matters:

1. Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?
2. If so, is the proposed evidence relevant and material?
3. If relevant and material, is the proposed evidence discreditable to the accused?
4. If discreditable, does its probative value outweigh its prejudicial effect?

[ 13 ] It will be seen that this method of inquiry follows the three-step process I referred to above, with the addition of a preliminary question that takes on significance where the discreditable conduct alleged is similar fact evidence. It will also be seen that Charron, J. makes explicit what is always implicit in considering the admissibility of any evidence, namely that it must be material in addition to being relevant. Materiality is a legal concept. Evidence is material if it proves or disproves a fact in issue. [^12]

[ 14 ] I can dispose of the first question posed by Charron, J. very quickly. There is no issue in this case that the letters in question were either written by the accused or received by him.

[ 15 ] I can also deal in a general way with the issues of relevance and materiality before turning to the specific documents in question. Evidence of motive is always relevant. Hence, it is always admissible. [^13] In the case at bar, motive is particularly important, because the main issue is identity. Therefore, it is not only relevant, but it is material.

[ 16 ] I turn now to the particular documents in issue.

November 4, 1996 letter from Mr. Arsenault to Gary Baby

[ 17 ] This is a typewritten letter sent by the accused to a gentleman that I understand was the Superintendent of Education for the Board at the time. The letter appears to relate to a complaint made by a female student concerning the conduct of the accused. In my view, the letter is relevant for two reasons. Firstly, it contains the following paragraph:

I would also like to point out that she informed me that the Director, Mr. Burt, had talked to her father on the phone and encouraged him to pursue the sexual complaint matter and that the Board had been trying to get rid of me for a long time.

[ 18 ] This paragraph is relevant in that it shows the accused’s belief in a set of facts, i.e. Mr. Burt’s acts and words, which might lead a trier of fact to infer that the accused resented Mr. Burt.

[ 19 ] Secondly, the letter forms part of the narrative, in that it is necessary to understand the origin of the next document, namely Mr. Burt’s letter of November 25, 1996.

[ 20 ] In my view, the November 4, 1996 letter does not constitute evidence of discreditable conduct on the part of the accused. Unlike some of the letters I will deal with shortly, there is no intemperate or foul language contained in it, and there is nothing discreditable in the mere fact that it was sent. Therefore, the letter is not subject to any exclusionary rule. It will be admitted.

November 25, 1996 letter from Mr. Burt to the accused

[ 21 ] This letter was apparently written in response to the letter of November 4, 1996, referred to above. In it, Mr. Burt admonishes Mr. Arsenault for suggesting in his letter to Mr. Baby that Mr. Arsenault will have to use his teaching preparation time for purposes other than preparing to teach. Mr. Burt also indicates in the letter that it will be retained in Mr. Arsenault’s file until further notice. The letter indicates that copies were sent to the Board trustees, the Superintendent (Mr. Baby) and the school principal. Does the letter involve discreditable conduct on the part of the accused? Perhaps, but to a very limited extent, if at all. The letter merely directs Mr. Arsenault to comply with the duties of his job. If it does involve discreditable conduct, there is little prejudice that could result.

[ 22 ] In any event, as with the other documents that are the subject of this pretrial application, the letter is not tendered for proof of the truth of its contents. It is being tendered as circumstantial evidence of what may have caused Mr. Arsenault to wish harm to Mr. Burt. It is also tendered as part of the narrative, in the sense that it assists the trier of fact to understand the sequence of written events.

[ 23 ] The letter will be admitted into evidence.

Typewritten letter of unknown date to Mary (Bourgeois), received February 3, 1998, together with attachments and typewritten reply of Mary Bourgeois, dated February 25, 1998

[ 24 ] The letter from the accused is very brief. It seeks reimbursement in the amount of $800 for attending a training program and attaches a copy of the application form, the certificate (presumably showing successful completion of the course), as well as a cheque drawn on the account of Mr. Arsenault to pay the costs of attending the program. There is also a very brief response from Mary Bourgeois, Manager of Human Resources, denying Mr. Arsenault’s request for reimbursement.

[ 25 ] The letter does not involve any discreditable conduct on the Mr. Arsenault’s part and forms part of the narrative. It will be admitted.

Typewritten letter dated March 11, 1998 to Mary Bourgeois and attachment

[ 26 ] This letter was obviously sent by Mr. Arsenault in response to the letter from Mary Bourgeois in which his request for reimbursement was denied. Attached to the letter is another copy of the application form that was included with Mr. Arsenault’s request received February 3, 1998.

[ 27 ] This letter does constitute evidence of discreditable conduct on the part of Mr. Arsenault. In the typewritten portion of the letter he is facetious. For example, he adds the words “remember, Mary (?)” at the end of several sentences. He also suggests that there are a number of reasons for her failure to remember, including that she is a liar, is incompetent, or underestimates Mr. Arsenault’s intelligence. Mr. Arsenault also uses foul language in the typewritten portion of the letter wherein he writes, “now quit fucking me around and send me a cheque immediately you lesbian”.

[ 28 ] There is also evidence of discreditable conduct on Mr. Arsenault’s part in handwritten notations that were made by Mr. Arsenault before the letter was sent. Those include foul language and a threat that if Mary Bourgeois did not give him his money and leave him alone he would make her look like a “stupid pussy-licker”.

[ 29 ] On behalf of the accused, it is argued that this letter does not have sufficient probative value in the sense that it does not relate solely to Mr. Burt. In the letter, Mr. Arsenault sets out his belief that it was Ms. Bourgeois, the Superintendent (Mr. Baby), and the Director (Mr. Burt) who were responsible for the fact that Mr. Arsenault was the subject of a “sexual harassment” charge.

[ 30 ] In my opinion, the fact that the letter may be evidence of animosity on the part of Mr. Arsenault towards three people does not detract sufficiently from its probative value as evidence of his animosity towards Mr. Burt to warrant exclusion.

[ 31 ] The letter will be admitted as its probative value with respect to the accused’s state of mind concerning Mr. Burt exceeds its prejudicial effect.

Handwritten letter from the accused to Ray Rheault of unknown date, together with attachment from Revenue Canada

[ 32 ] The next letter was handwritten by the accused and sent to Ray Rheault. It does not contain a date. However, attached to the letter is a document from Revenue Canada dated January 23, 1998. For that reason, the handwritten letter must have been sent and prepared afterwards, as it includes a reference to the typewritten document from Revenue Canada.

[ 33 ] In my view, the letter is relevant to Mr. Arsenault’s state of mind. On the second page of the letter he poses a question as to why he should have to “give up my perks for the principals, Superintendent, Director and Board’s fuck-up”. The letter is also signed, “thrown in jail, fired from job, lost wife and kids, flat broke”. These statements by Mr. Arsenault are circumstantial evidence of his state of mind with respect to Mr. Burt, and others. In my view, the probative value of the letter exceeds the prejudicial effect of the language contained in it. The letter will be admitted.

Letter dated February 26, 1998 to Ralph Smith from the accused

[ 34 ] This document consists of a three-page typewritten letter, together with one handwritten page, as well as what appears to be a copy of the back of the envelope, showing the name of the accused and his address. In my view, the letter has significant probative value.

[ 35 ] On the first page of the letter, the accused indicates that the Director (Burt) came to his door after receiving directions from another teacher and stated, “I tried to get rid of you, you little prick. Now I’ve (illegible) and this time I’m going to fire you. So you better get a good lawyer”. The accused also indicates that Mr. Burt was present in the courtroom on three occasions while Mr. Arsenault was being arraigned and even sat behind him once. He also accuses the Director of having whispered in his ear something that he would not repeat. He further indicates he saw the Director leaving the Crown Attorney’s office and says that the Director provided a written statement to the OPP, although he says the Director denied calling the police.

[ 36 ] The letter is again signed by the following words underneath his name:

Thrown in jail
Fired Twice
Lost Family
Broke and homeless.

[ 37 ] In the handwritten attachment to the letter, the accused writes the words to which I have referred above, indicating that he wants, amongst other things, the Director’s head “on a platter”.

[ 38 ] This letter is probative of the accused’s state of mind towards the alleged victim and the probative value of that evidence outweighs the prejudicial effect of the accused’s discreditable conduct by writing the letter and in using the language that he did while doing so. It will be admitted.

Weight of the evidence and revisitation of the ruling

[ 39 ] I wish to add that this ruling is not intended to be any indication of the ultimate weight to be attached to the documentary evidence in question. Further, if any of the factual assumptions that I have made based on the submissions of counsel are unproven or prove to be unfounded at trial, it may be necessary to revisit my rulings concerning each document.

Ellies, J.

Released: 20120425

[^1]: See R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2, per Charron, J., for a recent reaffirmation of this principle.
[^2]: 3rd Ed., 2009, LexisNexis.
[^3]: 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31 and 37.
[^4]: At para. 39.
[^5]: Handy, at paras. 31 and 41.
[^6]: Handy, at para. 41.
[^7]: 1997 ONCA 3187, [1997] O.J. No. 3042, at para. 22.
[^8]: R. v. M.(J.), 2010 ONCA 117, [2010] O.J. No. 585 (Ont. C.A.), at para. 88.
[^9]: R. v. Cloutier, 1979 SCC 25, [1979] 2 S.C.R. 709, at 731.
[^10]: R. v. B.(C.R.), 1990 SCC 142, [1990] 1 S.C.R. 717, at p. 735.
[^11]: Supra.
[^12]: Bryant, Lederman and Fuerst, supra, at para. 2.50.
[^13]: R. v. Lewis, 1979 SCC 19, [1979] 2 S.C.R. 821, at p. 833, per Dickson, J.