ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1525/10
DATE: 2012/01/18

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – C.E. Applicant

DIANE FOSTER, for the Crown

JOHN NORRIS and DAVID STOESSER, Counsel for the Applicant HEARD: January 12, 2012

DESOTTI, J.

A. The Application

[ 1 ] Counsel for the accused brings an application to adduce evidence of John Denison and Kenneth Winters as alternative suspects.

B. The Facts

[ 2 ] The accused, C. E. Is charged with first degree murder and aggravated sexual assault. The offence occurred sometime between October 12 th , 1983 and October 14 th , 1983, (some 28 years ago) in the Town of Petrolia in south-western Ontario. The deceased, Velma Thomson, who was 70 years of age, had received multiple stab wounds and her throat had been slashed. The accused at the time was 15 years old.

[ 3 ] With respect to the individual Kenneth Winters as an alternative suspect, counsel for the accused relies on the following facts found primarily in the statements of his girlfriend at the time Diane Ringwood (now Sheppard) and his friend, John Timperley:

a. Kenneth Winters knew the deceased and helped at one point with chores such as yard work, picking up things for her, helping with groceries, and cleaning the eaves troughs.

b. Kenneth Winters indicated to his girlfriend that the deceased reminded him of his grandmother and that he also helped other elderly people in the same area.

c. Kenneth Winters was upset by Velma Thomson’s death and tried to find out who did it by talking to people and listening.

d. Kenneth Winters indicated that the person that he had replaced to do the chores for Velma Thomson was mad that he had been replaced by Kenneth Winters. This person was unnamed.

e. Kenneth Winters wouldn’t take money from Velma Thomson but he might have a cookie. He said she was a lovely lady who talked about her family.

f. Diane Ringwood, Kenneth Winters girlfriend at the time, now Diane Sheppard, never heard Kenneth Winters mention any jewellery.

g. She does acknowledge that he had a knife and that it was two feet long and that on one occasion he had stabbed a David Jones and believed he did 2 years in jail for this incident.

h. Kenneth Winters did talk about Velma Thomson and said he knew who did it but that he needed proof and that Kenneth Winters began to keep a small bat in his apartment because of all of his nosing around.

i. His suicide was a surprise to Diane Sheppard and she indicated that she did not believe that Kenneth Winters was involved because he liked older people and respected them and older women.

j. John Timperley would state that he was unaware if Kenneth Winters knew Velma Thomson.

k. John Timperley indicated that some unknown person told him that Kenneth Winters was cutting grass for Velma Thomson a couple of days before she was murdered.

l. John Timperley would state that Kenneth Winters would always have a buck knife with him and had an assortment of other knives and would sleep with a butcher knife by his bed.

m. John Timperley would also indicate that Kenneth Winters stabbed a David Jones in self-defence and that he would mutilate fish and he set a cat on fire.

n. John Timperley also indicated that Kenneth Winters liked older women.

o. While Kenneth Winters and John Timperley were drinking, John Timperley has indicated as a result of statement made to the police that Kenneth Winters, in response to a question about Velma Thomson death, stated “oh they would never find anything”; “they’ll never find the necklace or the rings”. He then went onto say that those things “were buried”.

p. John Timperley would also state that Kenneth Winters was a clever thief.

q. John Timperley stated that when he asked Kenneth Winters if he had killed Velma Thomson that he replied “no” and when he indicated to Kenneth Winters that Velma Thomson had been stabbed many times and raped, Kenneth Winters replied by saying “yeah but they will never find the stuff”.

r. When John Timperley then said that the paper had indicated that jewellery had been taken, Kenneth Winters replied that the paper had stated rings and necklaces and then went on to say “there were some pearls”.

s. John Timperley also indicated that Kenneth Winters was just babbling at the time and passed out on the couch shortly after the aforementioned conversations.

t. John Timperley also indicated that he thought that Kenneth Winters indicated “that after tonight no one will ever know who did it”.

u. John Timperley would also indicate that he never thought anything of the conversation that evening because Kenneth Winters was babbling that night and “Kenny was a good liar”.

v. John Timperley was prompted to report this conversation to detective Richardson because he saw the “Crime Stopper stuff in the paper and on the news”.

w. There is some reference in police notes (Detective Inspector Connors, now deceased) that Kenneth Winters was called “The Blade” and that in the kitchen sink of Velma Thomson’s residence was found a large serrated butcher knife that was believed to be the murder weapon.

x. The most significant statement of John Timperley is not his statement to the police on April 24 th 1990, but it is his failure in his attempt to give a polygraph interview on April 24 th , 1990. The polygraph examiner indicates that Mr. Timperley appears to be constantly dozing off, his eyes were glassy and red-rimmed. Most importantly, he states about Timperley and the test:

He was not sure that he wishes to take the test because he didn’t want to be charged with something that was as a result of a dream.

[ 4 ] Later the examiner indicated that Timperley had come forward because “he was motivated by the reward money because he felt he could score on the reward money by coming to the police with this”.

[ 5 ] Of absolute significance is the final observations of the examiner as follows:

It was my opinion that Timperley was not suitable for polygraph testing, due to fatigue and also that he had a dream about the jewellery and wasn’t certain whether Winter had said that.

[ 6 ] With respect to the alternative suspect John Denison, counsel for the accused relies on the following facts:

a. A police Investigative chart reflected the similarities with the death of Velma Thomson and other women in Petrolia and elsewhere and reflected that John Denison was the prime suspect.

b. Dean Frayne a co-worker with John Denison at Holmes Foundry indicated that on October 14 1983 he observed John Denison with a bloodied knife in the locker area of work. When he asked John Denison how the blood happened to be on the knife, John Denison indicated that it had come from a rabbit. This interview came about in February of 1996 but Mr. Frayne had indicated those concerns to the police in the early 1990’s.

c. In June of 1995, OPP investigators reviewed five homicides that occurred in South-western Ontario including Velma Thomson and all investigators concluded that the similarities suggested the same perpetuator and that John Denison was a potential perpetuator.

d. John Denison was eventually convicted of second degree murder in the death of his girlfriend Evelyn Doering in Prince George, British Columbia through 29 blows to her head from an axe.

e. John Denison lived across the street from an 84 year old victim who was killed in her home, a Pearl Donald, and was found with her purse and other items of the victim in his home. He was 16 years of age at the time and although a suspect and arrested for her murder, he was subsequently released after taking a polygraph test.

C. Analysis

[ 7 ] The seminal threshold test to determine whether a court should allow evidence of alternative third party suspects is not in issue. The test that both defence and Crown counsel refer to is found originally in the decision of the Supreme Court of Canada, R. v. McMillan as follows:

Evidence directed to prove that the crime was committed by a third person, rather than the accused must, of course, meet the test of relevancy and must have sufficient probative value to justify its reception. Consequently, the Courts have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value. [p.757]

[ 8 ] Defence Counsel refers to the decision in R. v. Grandinetti and then states the law as follows at paragraph 4 of his supplementary written submissions:

Second, when proffering evidence that a third party committed the offence, the defence need show only that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence. This is all that is required by the threshold of establishing an “air of reality.” The link between the third party and the crime may be established by either direct or circumstantial evidence. The evidence may be inferential, but the inferences must be reasonable and not amount to speculation.

[ 9 ] To continue with the analysis of the Grandinetti decision Justice Abella stated at paragraphs 47and 48, the following:

The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third party evidence is neither relevant nor probative. The evidence may be inferential, but the inference must be reasonable, based on the evidence and not amount to speculation. The defence must show that there is some basis upon which a reasonable properly instructed jury could acquit based on the defence ... If there is an insufficient connection , the defence of third party involvement will lack the requisite air of reality.

[ 10 ] The Supreme Court found in Grandinetti that the trial judge’s conclusion not to allow evidence of a third party suspect was correct as matter of fact and law. I would highlight the following facts that were put forward by defence counsel in support of their application to adduce evidence of a third party’s suspect, namely Rick Papin:

a. The victim, Connie Grandinetti, was shot twice in the back of the head at close range and left in a ditch outside Fort Saskatchewan on April 10, 1997 .

b. There was significant circumstantial evidence to link the accused to the murder and clearly the accused had both motive and opportunity as he was the last one to see his aunt alive and he confessed his culpability to undercover officers.

c. Rick Papin had threatened to harm the deceased. This assertion was hearsay evidence from her son, Dustin Grandinetti.

d. Rick Papin was her former lover and her former cocaine supplier.

e. Through the accused, he stated that Rick Papin had beaten up some of her customers, broke into her home and held a knife to her throat and threatened to kill her.

f. Through the accused, he stated that his aunt was gathering information to expose Rick Papin as an informant.

g. Lawrence Berlinguette, the deceased’s boyfriend indicated that Rick Papin along with an associate, a Calvin Dominique, broke into their apartment on March 27 th , 1996 . The associate broke his nose and that Rick Papin had a hunting knife and placed it to Connie Grandinetti’s throat and slapped her face a few times. Papin also accused her of owing him money, of informing on them to the police, and that she was not to deal drugs in town.

h. Although charged with offences arising from these incidents, the charges were eventually stayed by the Crown.

i. Mr. Papin’s common law partner, Elaine McGilvery, at the time testified that Mr. Papin believed that Connie Grandinetti had ripped him off for drugs and had informed on him to the police.

j. Mr. Papin was abusive to his partner and eventually was arrested and placed in custody until three days before Ms. Grandinetti’s murder.

k. Ms. McGilvery found a gun in her residence and believed it was placed there by Mr. Papin.

[ 11 ] The trial judge ruled against any third party suspect evidence at the trial. The Alberta Court of Appeal split on this determination 2-1 in favour of the judge’s ruling and Justice Abella for the entire Supreme Court affirmed the trial judge’s decision.

[ 12 ] Justice Abella indicated that any threats by Mr. Papin occurred over a year prior to her death; that the victim had stopped selling drugs for a period of eight months prior to her death; there was no contact between the alleged third party suspect and the victim for over a year; it was only speculation suggested by counsel for the accused that perhaps Papin believed that the victim had informed on him; no one of Mr. Papin’s associate had ever visited him in prison to acquire any information in that regard; and his release from prison days before the murder did not support an inference that there was a link with him and the murder.

[ 13 ] In R. v. Arcangioli , a new trial was ordered as a result of the failure of the courts to consider that a third party suspect was present at the scene at the time of the stabbing of the victim; with allegations made by the accused and some friends that they had observed this individual stab the victim; and some evidence at the same material time that another party had been stabbed by this third party a half hour earlier.

[ 14 ] In R. v. Baltrusaitis , the accused was charged with the murder of his brother. The trial judge allowed the accused to adduce evidence of a third party suspect because the deceased’s wife had motive with their stormy separation and previous physical attacks; the deceased’s stated fear of his wife; her knowledge of her husband’s movement; her access to the family home; and her contact with the deceased a few hour before his death.

[ 15 ] In R. v. Shchavinsky , again the trial judge ruled against adducing evidence against a third party suspect, and the Ontario Court of Appeal affirmed this decision (no leave was granted to the Supreme Court) . One important non-evidentiary link was that there was no evidence that the proposed third party suspect was ever in Canada at the material time of the murder.

[ 16 ] In R. v. Badgerow , a 911 call to police three days after the murder of Dianne Werendowicz that suggested that the individual who made the call knew some intimate details about the murder and that this call was traced back to a Mr. Miller was sufficient for the trial judge to allow third party suspect evidence to be adduced.

[ 17 ] In R. v. A.D ., the trial judge refused to allow the introduction of evidence of third party suspects because the evidence was at best hearsay or double hearsay and in the case of one of the individuals, there was evidence that the person was not in Canada at the material time.

[ 18 ] In R. v. Carambetsos , the accused was allow to adduce third party suspect evidence where the suspect was observed to be at the scene of the crime; the suspect gave a fabricated alibi; and the suspect had a propensity to commit robbery and assaults.

[ 19 ] What appears obvious in only those few cases cited, is that where there is a nexus and connection to the crime, a proximate and obvious link, the courts have had no difficulty in granting a third party suspect application to adduce evidence of this alternative suspect.

[ 20 ] However, what is equally apparent is that when there is a leap of logic or a speculative conclusion based solely on a possibly; or a connection based on a broad police investigation of a multiplicity of suspects; or where there is only propensity or motive, absent any other connection to the crime, the courts will not allow this type of ‘fishing’ exercise.

[ 21 ] To attempt to ‘cover off’ all possibilities creates an obvious mischief. There is no merit to this type of analysis nor is there any probative value in the exercise. The distraction of such a collateral attack undermines the criminal trial process.

[ 22 ] In this case, the two proposed individuals, John Denison and Kenneth Winters , do not meet the threshold test, as neither have any connection to the crime, the murder of Velma Thomson.

[ 23 ] With respect to John Denison, based on the materials filed by the respondent both initially in the Crowns’ factum and then in her “Supplementary Written Submissions” he was probably living in Sarnia at the material time of the death of Velma Thomson in 1983. There is no evidence that he knew Velma Thomson nor is there any evidence that he was seen at or near her residence at any time. There is no evidence of his fingerprints or DNA at the crime scene.

[ 24 ] Nevertheless, counsel for the accused submitted that John Denison may have lived near the victim at the time of her murder. Counsel relied on information found in a search warrant, that the accused was said to have lived mere blocks from the victim, Velma Thomson. Furthermore, his address at 4160 Portland Avenue, was said to be his residence in August or September of 1983 by his wife Shirley Denison, as reflected in an officer’s notes through a phone conversation he had with Shirley Denison.

[ 25 ] However, Mrs. Denison, in a later written statement to the police affirmed that she moved to Portland Ave. in 1984. This fact is also confirmed by her cousin, who moved in with her, and the records of an employee (Wendy) at Bluewater Power in 1996 who confirmed that there records showed that it was March 1984 when the Denisons began to utilize Bluewater’s power. There is also some less direct evidence with respect to John Denison’s driver’s licence that seems to suggest a later 1984 residence in Petrolia.

[ 26 ] In short, I am satisfied that the evidence establishes that John Denison was residing in Sarnia and not Petrolia at the material time that Velma Thomson was murdered.

[ 27 ] In addition to this unsuccessful attempt to place John Denison proximate to the victim, is the unequivocal evidence that the investigating police force placed him as a potential suspect based on his background, criminal record and his previous residence across the street from an elderly lady that was murdered in Oil Springs, a Mrs. Pearl Donald. In fact, in that case he was at times a prime suspect.

[ 28 ] We also know now that the victim Mrs. Donald was not sexually assaulted and that while some of her personal items were missing, other monies were found in the residence along with her jewellery. Furthermore, we know that some of the personal items of Pearl Donald were found by Mr. Denison’s parents in John Denison’s bedroom.

[ 29 ] Although initially arrested, he was subsequently released. A polygraph test was administered and his assertion that he found the items on a lawn proximate to his residence while waiting for his school bus and that he then brought to his bedroom, was seemingly affirmed by the polygraph tester.

[ 30 ] John Denison was also convicted of break and enter with intent into the premises of Lorraine Mavity. Mrs. Mavity was 43 at the time of this ‘break and enter’. She caught the accused in her residence. There was some discussion between the parties and a request by the accused not to tell her husband. The accused was attempting to steal money from Mrs. Mavity and was eventually convicted of this offence.

[ 31 ] Furthermore, John Denison was convicted of killing his common law partner and is presently serving a fourteen year prisoner sentence for second degree murder. No one disputes that John Denison is bad person and has a propensity to criminal conduct that makes him a potential suspect.

[ 32 ] However, while the fact that John Denison was the prime suspect in the Pearl Donald murder is of some interest, the reality of Mrs. Donald’s death and that of Velma Thomson is not at all similar except that both of deceased are women and elderly. Velma Thomson was sexually assaulted and sodomized, while Mrs. Donald was not. There were no fingerprints at the scene of the Donald murder and inconsequential DNA but there was a fingerprint of the accused, C.E., at the Thomson residence and his DNA.

[ 33 ] Mr. Dean Frayne’s account of what he observed at work on October 15 th , 1983 is not reliable as it makes no sense except if you want to obtain a reward for information that might lead to the arrest of someone. The date is clearly wrong as the 14th of October is a Friday. Why anyone would bring a bloody knife to work in clear view of other workers makes little sense if it had been part of a horrific crime that day or earlier that weekend.

[ 34 ] In addition to the delay of Dean Frayne in bringing forward his information to the police about the strange thing he observed the day of or after the murder, I infer from the police account in the Mavity ‘break and enter’ that John Denison attempted to avoid prosecution. He asked Mrs. Mavity not to tell her husband about his presence and theft in her residence. Why he would blatantly and stupidly bring a murder weapon in plain view to work is absurd in light of his awareness of potential police involvement from other criminal occurrences.

[ 35 ] I can hypothetically conjure up facts or suppositions that could stretch credibility to bring John Denison into this trial as an alternative suspect. However, since I am unable to find anything of evidentiary value that connects John Denison to the death of Velma Thomson, no evidence that seeks to convey to the jury that he is a potential alternative suspect shall be allowed.

[ 36 ] Mr. Kenneth Winters committed suicide. His suicide note is a rambling account of strange creatures from another planet taking him away with them and then returning him to earth. He speaks of toking and smoking dope in his account. His friend John Timperley describes Mr. Winters shortly before his suicide as “babbling” from the consumption of alcohol and drugs. He uses a 22 calibre rifle to commit suicide.

[ 37 ] Even if some of what Diane Sheppard indicated to the police is inaccurate, such as Mr. Winters serving time in jail as a result of a stabbing incident, I find that her account of Mr. Winters conduct and attitude towards elderly people generally and Ms. Velma Thomson in particular, negate any propensity or motive to harm this person. From this witness’s account, he was fond of the victim and instead of taking pay from her for any of his assistance to her he would accept some cookies in appreciation by Ms. Thomson of his endeavours.

[ 38 ] Her account of Mr. Winters attempting to find out who killed Velma Thomson and then on one occasion indicating to her that he knew who had committed the murder but need proof does not place him at the murder scene nor connects him to the crime. More significantly, Ms. Sheppard relates that Mr. Winters began to keep a bat with him just in case his snooping might attract some contact from the perpetuator.

[ 39 ] While one could speculate that Mr. Winter was the perpetuator, equally one could speculate that Mr. Winters was a free spirit who had many unusual quirks not the least was his frequent use of liquor and drugs and was genuinely attempting, in his own peculiar way, to discover evidence of the perpetuator of the murder.

[ 40 ] John Timperley came forward after Crime Stoppers increased the reward to $5,000.00. Mr. Winters was dead and Timperley did not know that his good friend had any connection to Velma Thomson. The attempt to have him take a polygraph interview is frustrated because he is falling asleep.

[ 41 ] The sense of the interview that is relied on by counsel for the accused is that apparently Winters indicated to Timperley that he knew who had killed Velma Thomson; that he was not the perpetuator and most importantly that he had buried some jewellery, or rings maybe even pearls of the victim Velma Thomson.

[ 42 ] The inference is that if this was correct or accurate or reliable that would suggest that at some point in time around the death of the victim, Mr. Winters had entered her house and stole her jewellery and hid it. The obvious other inference is that he may have been the murderer if he was also present in the residence and had taken the jewellery.

[ 43 ] There is no indication by the beneficiaries that anything was taken from Velma Thomson. There is some indication from these same beneficiaries that everything appeared to be in place although I infer that they were not totally cognizant of all of Velma Thomson’s possessions.

[ 44 ] What is most troubling is that this evidence from Mr. Timperley did not present itself until almost five years after Winters death. Most significantly, Mr. Timperley indicated to the investigating officer that his version of events came to him in a dream and that he was clearly motivated by the reward that was published in the newspaper for the Region.

[ 45 ] This hearsay about what the deceased Winters stated to John Timperley is decidedly not reliable in those circumstances. There is no way to test this dream. There is no sudden discovery of a cache of jewellery that can be traced to the victim. More significantly, there is the more likely conclusion that this dream was concocted to assist Mr. Timperley to reap some reward for this information. His concern about being charged for revealing that he believed that he had dreamt of these events that he had conveyed to the police is most disturbing and decidedly unreliable as hearsay evidence sought to be adduced for its veracity.

[ 46 ] In the result, no evidence shall be sought to be adduced to the jury that alleges that Kenneth Winters is an alternative suspect.

“Justice John A. Desotti”

The Honourable Mr. Justice John A. Desotti

Released: January 18, 2012