COURT FILE NO.: 09-70000224-0000
DATE: July 13, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOHN MAGNO
P. McDermott, Esq. for the Applicant
M. Henein and M. Gourlay, Esq. for the Respondent
RULING ON CROWN’S APPLICATION TO ADMIT DISREPUTABLE CONDUCT
T. DUCHARME J.
I. OVERVIEW
[1] The Crown seeks to lead three instances of discreditable conduct at Mr. Magno’s trial. The defence opposes the admission of all of this evidence arguing that it is inadmissible, unless Mr. Magno should put his character in issue at the trial. In any event, the defence submits that whatever minimal probative value this evidence might have is clearly outweighed by its prejudicial effect.
[2] I will briefly outline the three areas of evidence that the Crown wishes to lead.
(A) Incident One: Fraudulent Theft Claim
[3] On October 31, 2001, John Magno filed a police report claiming that a boat, a trailer, a seadoo, a white pickup and an orange flatbed truck loaded with inventory had been stolen out of the rear parking lot of Woodbine Building Supply. He also made insurance claims regarding these items on November 5 and 6, 2001. None of these items were stolen. The Crown alleges that the trucks were disposed of at M’s request by Sam Paskalis and Chris Graham near Havelock, Ontario. The inventory on the flatbed was used at Paskalis’ cottage. The boat and trailer were stored at Medcalf Marina in Havelock, Ontario. There was never a seadoo in the bed of the pickup truck.
(B) Incident Two: Truck Insurance Claim
[4] On January 16, 2002, John Magno leased a black 2002 Dodge Ram pickup truck with commercial plates. On June 11, 2002, this vehicle was involved in an accident while being driven by Hassan Ancar, an employee of Sunrise Landscaping. A load of cement blocks in the bed of the pickup truck slid forward through the rear window, when Mr. Ancar stopped suddenly. Although the truck was registered with commercial plates, it was insured as a personal vehicle. Wiretaps reveal that Magno consulted Robert Boulerice, a friend who worked in insurance, about how to make the false claim. Boulerice advised him to say that he had been driving the blocks home to make some landscaping alterations, should an appraiser visit him. John Magno originally advised his insurance company that he had been driving when the incident occurred, transporting the blocks to his residence.
[5] However, on July 29, 2002, Magno provided a second statement to his insurance company, this time indicating that Ancar had been driving on June 11, 2002, transporting the blocks to Magno’s residence for a landscaping project. Investigation revealed that Magno had let Ancar use the truck to pick up a skid of cement blocks from a supplier for a customer.
(C) Incident Three: Strong Arm “Debt Collection” Scheme
[6] In the fall of 2001, a meeting was held at Adrian Roks’ tanning salon, Even Tan. Present at this meeting were Adrian Roks, Sam Paskalis, Shaun McMaster, Jason Regaldo, Tony Jarcevic (the deceased) and John Magno. All of these men except the deceased were later charged in relation to the Christmas Eve arson at Woodbine Building Supply. Mr. Magno needed someone to collect delinquent accounts from Woodbine Building Supply. The purpose of this meeting was for Mr. Magno to meet Messrs. Jarcevic and McMaster to consider them for that task. Mr. Magno told them that they would be paid a percentage of any of the debts they collected for him. Ultimately, they declined Mr. Magno’s offer.
(D) Crown’s Arguments for the Admissibility of this Evidence
[7] The Crown argues that this evidence is relevant for the following reasons:
(1) Incidents One and Three are properly admissible to rebut Magno’s assertion of innocent association with the alleged co-conspirators involved in the arson.
(2) Incidents One and Two are admissible pursuant to Parsons, to respond to the position that will be taken by the defence that Sam Paskalis is a fraudster who therefore is more likely to have committed this crime on his own. To exclude this evidence would, according to the Crown, present “an entirely distorted picture to the jury.”
(3) In their written submissions the Crown suggested the evidence involved in Incident One would “corroborate the testimony of witnesses whose credibility will be disputed by the defence.” In oral argument, it became apparent that this relates to a single witness, Mr. Paskalis. Indeed, Mr. McDermott suggested that this would be particularly important given the need for a Vetrovec caution about Paskalis as it would corroborate this part of Paskalis’ testimony.
(4) Incidents One and Two show a distinct pattern of similar behaviour engaged in by John Magno.
(5) Incidents One and Three are part of the narrative of events leading up to the fire and to lend context to those events.
II. THE LAW
(A) The Admissibility of Bad Character Evidence or Evidence of Extrinsic Misconduct
[8] Evidence of prior discreditable conduct is presumptively inadmissible against an accused. This is a very old rule of the common law prohibiting the prosecution from adducing “evidence of misconduct beyond what is alleged in the indictment which does no more than blacken [the accused’s] character”.[^1] However, where an accused puts his character in issue, the common law has always permitted the Crown to adduce bad character evidence about the accused to rebut the evidence of his good character.[^2] As Chief Justice Robertson explained in R. v. MacDonald, 1939 CanLII 108 (ON CA), [1939] O.R. 606 (C.A.) at p. 624:
With respect to all the evidence of the kind objected to, the rules are well established. On the trial of a criminal charge the character and record in general of the accused are not matters in issue, and are not proper subjects of evidence against him. If evidence of good character is given on behalf of the accused, then certain evidence of bad character may be given, but that is not of importance in this case for the appellant offered no evidence of good character. [Emphasis added.]
This rule has spawned an extensive jurisprudence about what constitutes putting the character of an accused in issue.[^3] The case law also makes clear that the prosecutor cannot compel an accused to put his character in issue and cannot attempt to do so during the cross-examination of the accused.[^4]
[9] Additionally, prior discreditable conduct is exceptionally admissible where the Crown proves, on a balance of probabilities, in the context of the particular case that “the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.”[^5]
[10] Discreditable conduct evidence is no longer admissible in Canada simply because it fits into one of the old categories or “catchphrases”[^6] of admissibility. In addition to being overly formalistic and rigid, “squeezing propensity evidence into a pre-authorized pigeon-hole” risks obfuscating and detracting from a principled approach.[^7] Categories of admissibility may allow for admission of highly prejudicial evidence simply because the evidence fits into one of the categories of exception to the exclusionary rule. As a result, the categorical approach was rejected in Handy in favour of a principled approach to the admission of evidence of discreditable conduct. This principled approach is that the general exclusionary rule can only be overcome where the Crown establishes that the probative value of the evidence outweighs its prejudice, regardless of what category the evidence may or may not fall into.
[11] There are two threshold issues which must be determined. First the judge must determine whether the conduct which forms the subject matter of the proposed evidence is the conduct of the accused.[^8] Second, it must be determined whether the presumptive exclusionary rule applies. The trial judge must determine whether the evidence in question is "discreditable" to the accused, in the sense that an ordinary person would disapprove of his or her conduct. Neither of these issues is usually contested. In this case, while the parties are agreed that all three incidents involve evidence of discreditable conduct that is presumptively inadmissible, the respondent disputes that there is evidence that Incident One involved Mr. Magno.
[12] Once these threshold issues are resolved, the Crown must identify the purpose for which the evidence is proffered. That is, the Crown must identify the material issue in question that the contested evidence is relevant to. This is essential to any assessment of the probative value of the evidence. Probative value cannot be assessed in the abstract. The probative value of any piece of evidence lies precisely “in its ability to advance or refute a live issue pending before the trier of fact.”[^9] Justice Binnie explained this as follows:
The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated. It is therefore incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate. If the issue has ceased to be in dispute, as for example when the fact is admitted by the accused, then the evidence is irrelevant and it must be excluded…. The relative importance of the issue in the particular trial may also have a bearing on the weighing up of factors for and against admissibility. Similar fact evidence that is virtually conclusive of a minor issue may still be excluded for reasons of overall prejudice.[^10]
This analysis, which Binnie J. referred to as an “important control”[^11] on the admission of such evidence may be conclusive with respect to admissibility, for if the proffered evidence “is not properly capable of supporting the inferences sought by the Crown, the analysis generally need go no further.”[^12] Similarly, if it relates only to a minor issue this may preclude its admission.
[13] Assuming the evidence relates to a material issue of sufficient importance and it is capable of supporting the inferences sought by the Crown, the trial judge must then balance the probative value of the evidence against the prejudicial effect of its admission. As with the analysis of similar fact evidence, the court must consider the cogency of the proposed evidence in relation to the purpose for which it is being led. In so doing the court may consider such factors as:
(a) the proximity in time of the similar acts to the offence charged;
(b) the extent to which the other acts are similar in detail to the offence charged;
(c) the number of occurrences of the similar acts;
(d) the circumstances surrounding or relating to the similar acts;
(e) any distinctive features unifying the similar acts and the offence charged;
(f) any intervening events; and
(g) any other factor which would tend to support or rebut the underlying unity of the similar acts and the offence charged.[^13]
[14] In considering the probative value of bad character evidence, the trial judge must also assess the strength of the proffered evidence of other discreditable conduct and make a determination as to whether the evidence is reasonably capable of belief. This weighing of the evidence is an important part of the judge’s gatekeeper function. As explained in Handy:
In the usual course, frailties in the evidence would be left to the trier of fact, in this case the jury. However, where admissibility is bound up with, and dependent upon, probative value, the credibility of the similar fact evidence is a factor that the trial judge, exercising his or her gatekeeper function is, in my view, entitled to take into consideration. Where the ultimate assessment of credibility was for the jury and not the judge to make, this evidence was potentially too prejudicial to be admitted unless the judge was of the view that it met the threshold of being reasonably capable of belief.[^14]
[Emphasis added.]
Therefore, the Court must consider whether there is evidence that the events that make up the prior discreditable conduct actually occurred and that the accused participated in them. The more compelling the proof, the greater the probative value of that evidence will be.
[15] Importantly this assessment of the credibility of the similar fact evidence involves a consideration of whether there has been any collusion amongst the witnesses to the discreditable conduct. Collusion can significantly undercut the probative value of the evidence as it suggests that the evidence is untrue and strikes at the principal reason for the cogency of such evidence, i.e. the improbability of coincidence. Thus, where there is an air of reality to allegations of collusion, the Crown must satisfy the trial judge, on a balance of probabilities, that the similar fact evidence is not tainted with collusion.[^15] If they cannot discharge this burden, the evidence must not be admitted. If the judge is so satisfied, the evidence may be admitted if its probative value exceeds its prejudicial effect.
[16] Having reached a conclusion with respect to probative value the judge has to then consider the potential prejudicial effect the evidence might have. This requires a consideration of the potential for moral prejudice and the potential for reasoning prejudice.
[17] The trial judge must consider the potential for “moral prejudice” against the accused, meaning the risk of convicting the accused because he is a “bad person” rather than based on proof that he committed this offence. It also refers to risk that the jury will want to convict based on a desire to punish for prior discreditable conduct rather than based on proof that he committed the offences charged.
[18] The trial judge must consider the potential for reasoning prejudice against an accused, meaning the risk of the jury being distracted or confused, of using undue court time, of the jury concentrating on resolving whether the accused actually committed the similar acts, and of the jury having difficulty disentangling the subject matter of the similar fact evidence from that of the charges before them. As Binnie J. explained in Handy at paras. 145 and 146:
Distraction can take different forms. In R. v. D. (L.E.) [citations omitted], McLachlin J.A. (as she then was) observed ... that the similar facts may induce “in the minds of the jury sentiments of revulsion and condemnation which might well deflect them from the rational, dispassionate analysis upon which the criminal process should rest.”
Further, there is a risk, evidence in this case, that where the “similar facts” are denied by the accused, the court will be caught in a conflict between seeking to admit what appears to be cogent evidence bearing on a material issue and the need to avoid unfairness to the right of the accused to respond. Logistical problems may be compounded by the lapse of time, surprise, and the collateral issue rule, which will prevent (in the interest of effective use of court resources) trials within trials on the similar facts. Nor is the accused allowed to counter evidence of discreditable conduct with similar fact evidence in support of his or her credibility.... Thus the practical realities of the trial process reinforce the prejudice inherent in the poisonous nature of the propensity evidence itself.
[19] The onus is on the Crown to “satisfy the trial judge, on a balance of probabilities, that the probative value of the evidence in relation to a particular issue outweighs its prejudicial effect.”[^16] Where that test is satisfied the evidence can be admitted and it will be for the jury to determine its ultimate worth.
(B) The Proper Scope of the Parsons Principle
[20] The Crown relies heavily on the decision R. v. Parsons (1994), 1993 CanLII 3428 (ON CA), 15 O.R. (3d) 1 (C.A.). Mr. Parsons was convicted of charges relating to two separate robberies. He was arrested in the company of Mr. Miller as well as two other men, Messrs. Lesperance and Crowe. All four men were charged in relation to both robberies and the other three were discharged following a preliminary inquiry. Mr. Parsons had a similar physical appearance as Mr. Miller and he wanted to call evidence suggesting that Mr. Miller had a disposition to commit robberies suggesting that it was more probable that it was Mr. Miller rather than Mr. Parsons who committed the robberies. Specifically, Mr. Parsons wanted to call evidence that Mr. Miller had a Collins Bay Penitentiary I.D. card and a certificate stating that at the time of his arrest Miller had been released on mandatory supervision from Collins Bay. As well he wanted to call evidence that Mr. Miller had been charged with three robberies all committed since his discharge at the preliminary hearing.
[21] Mr. Parsons also had a Collins Bay Penitentiary I.D. card and a certificate of release on mandatory supervision. He, too, had a criminal record and, at the time of his bank robbery trial, was facing at least one additional robbery charge. In seeking to lead the evidence about Mr. Miller, the defence would not undertake to call Mr. Parsons. Moreover, the defence did not want to lead this evidence if it would permit the Crown to lead evidence of Mr. Parson’s own propensity to commit robberies.
[22] In upholding, the trial judge’s refusal to admit the evidence, Finlayson J.A. stated:
In my opinion, Mercier J. was correct in ruling that if the evidence relating to Miller's propensity to commit robberies was introduced into evidence, fairness dictated that the very similar evidence that the Crown possessed relating to the appellant could also be introduced. I would go further and suggest that if the appellant chose to throw sticks at Miller, the Crown should be able to counter this evidence with any similar evidence relating to the propensity to commit robbery, not only of the appellant, but of the other suspects arrested with the appellant, Lesperance and Crowe. To rule otherwise would leave the jury with the highly misleading impression that Miller alone of those arrested had a propensity to commit robberies, whereas in truth he was part of a gang that committed robberies and the appellant was part of that gang.[^17]
[Emphasis added.]
It is this passage that the Crown relies on to justify the admission of three incidents of extrinsic misconduct that Mr. Magno is allegedly involved in.
[23] The Crown also relies on R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750 (C.A.). In that case, the accused led evidence from a psychiatrist that the accused's wife had a psychopathic personality disturbance with brain damage, that she was immature, impulsive, had poor appreciation of the difference between right and wrong and that she was quick to anger. The defence also led evidence she was capable of hurting the infant, that she did not take good care of it, and that she had not wanted the baby. The trial judge refused to permit the Crown to cross-examine the psychiatrist to show that the accused was also a psychopath or to call reply evidence on that issue. Martin J.A. ruled that this was an error that required a new trial.
[24] Properly understood, however, McMillan is nothing more than a reflection of the general rule that permits the Crown to adduce bad character evidence once an accused puts his character in issue. This is clear from the following passage of McMillan:
It was implicit in the defence advanced that there were two people in the house who could have inflicted the injuries which caused the baby's death, one was a psychopath (the wife), the other was a normal person of good character (the respondent). In my view, the entire nature of the defence involved an assertion that the respondent was a person of normal mental make-up. In those circumstances, Crown counsel was entitled to show, if he could, that there were two persons present in the house who were psychopaths, not one. Any other conclusion would permit an accused to present an entirely distorted picture to the jury. The respondent, having introduced psychiatric evidence to show that it was more probable that his wife had caused the injuries to the child than that he had caused them, because he lacked her dangerous characteristics, lost his protection, in the circumstances of this case, against having his own mental make-up revealed to the jury.[^18] [Emphasis added.]
[25] Although not acknowledged explicitly in McMillan, it is worth noting the parity between the evidence the defence led and that sought to be led by the Crown, i.e. that both the accused and his wife were psychopaths. It is this parity between the two that created the distortion, i.e. both husband and wife were similarly situated but the jury would not know this if the evidence about the husband was not admitted.
[26] But Mr. Magno is not making any such propensity-based argument about Mr. Paskalis in this case. There is no dispute that Mr. Paskalis participated in the arson. Moreover, McMillan does not support the admission of this evidence because: (1) Mr. Magno is not putting his character at issue by highlighting Mr. Paskalis’ many frailties as a witness; and (2) Mr. Paskalis and Mr. Magno are not similarly situated in terms of their fraudulent antecedents or propensity. Therefore the exclusion of this evidence will not lead to the jarring distortion seen in McMillan.
(C) The Ratio of Parsons
[27] In my view, the Crown’s submission is not supported by a proper reading of Parsons nor is it consistent with the way our Court of Appeal has subsequently interpreted Parsons. As I will explain below, Parsons, properly understood, does not support the admission of this evidence.
(a) Parsons is a Case about Propensity Evidence, Not Merely Evidence of Bad Character
[28] Parsons was a case in which an accused wanted to argue that a third party had committed the relevant crimes on the basis of propensity evidence. Our Court of Appeal has consistently interpreted Parsons as applying to such circumstances. Moreover, Parsons has been interpreted as permitting the introduction, not just of any bad character evidence, but only of propensity evidence, should any exist. Thus, in R. v. Rodgers the Court said the following in relation to Parsons and McMillan:
Once the accused introduces evidence relating to the propensity of a third party, usually to establish that third party as an alternate suspect, the Crown may in reply offer propensity evidence relating to the accused. Otherwise, the trier of fact would be left with a distorted view of the facts.[^19]
[Emphasis added; citations omitted.]
Similarly, in R. v. Truscott, the Court described McMillan and Parsons as applying to cases in which “an accused ... points to a third party as the perpetrator and leads evidence of that third party's disposition to commit the criminal act in issue.” In such cases, “[C]ourts have held that an accused has put his own disposition to commit the criminal act in issue.”[^20]
[29] But the case before me is not a propensity case in the sense contemplated by Parsons. The defence will not be arguing that the jury should find that Mr. Paskalis committed the arson based on his propensity for fraud or for criminal activity. There is no dispute that Mr. Paskalis was involved in the arson. This is precisely why he is such an important witness for the Crown. There is no doubt that the defence will rely on Mr. Paskalis’ criminal antecedents, prior perjured testimony and prior false statements to myriad people to suggest that he is an inveterate liar who is not worthy of belief. While this suggests that he has a propensity to lie, this is not the type of propensity evidence involved in Parsons. Rather this is precisely the sort of cross-examination that a suspect witness such as Mr. Paskalis demands.
[30] It is likely that the defence will cross-examine Mr. Paskalis on the fact that he has committed numerous frauds that had nothing to do with Mr. Magno. But again this is not using propensity in the way described in Parsons. It is simply making the legitimate point that Mr. Paskalis has proven himself capable of a wide range of fraudulent activity without the need for Mr. Magno’s involvement.
[31] Thus, as the defence will not be making the sort of propensity argument discussed in Parsons with respect to Mr. Paskalis, as in Truscott, the evidence of discreditable conduct is not admissible on that basis.
(b) Parsons Requires that the Evidence about the Accused Be Similar to That Led About the Third Party
[32] In Parsons, Finlayson J.A. explicitly referred to the evidence the defence wanted to lead about Mr. Miller in order to emphasize that “very similar evidence” was available with respect to Mr. Parsons. In Parsons, withholding the bad character evidence about Mr. Parson’s distorted the trial because it prevented the jury from seeing that Mr. Parsons and Mr. Miller were very much alike in terms of their criminal propensities. Thus, the point in Parsons is not that a distorted picture results any time the defence points at a third party suspect and some evidence of the accused’s bad character exists and is not put before the jury. Rather the distortion Finlayson J.A. was concerned with only results when the accused and the person they are attacking are similarly situated in terms of bad character evidence. Where that sort of equivalence exists, the “very similar evidence” about the accused can properly be put before the jury.
[33] Determining what the necessary degree of parity should be or what evidence is “very similar” will often be straightforward. If the proposed evidence was that Mr. Magno, on occasion, had stolen a newspaper from a neighbour’s porch, no Crown should seek to lead it, nor would any court admit it. On the other hand if Mr. Magno had a checkered past similar to that of Mr. Paskalis then it would distort the trial to exclude that history. But between these two extremes there will be situations where the assessment of parity and the potential for distortion will be far more difficult.
[34] As mentioned above, Mr. Parsons and Mr. Miller had similar criminal propensities. Likewise, in McMillan the accused husband had similar psychopathic tendencies to those the defence had identified in his wife. There is no such equivalence here between the circumstances of Mr. Paskalis and Mr. Magno. Mr. Paskalis is a career criminal, a chronic fraudster and an inveterate liar. At most the evidence the Crown seeks to lead suggests that Mr. Magno has been involved in two criminal frauds.[^21] While this suggests that Magno is capable of insurance fraud they do not support the broader inference that he and Mr. Paskalis are largely similar in that regard. Thus, I reject the Crown’s contention that to exclude the evidence of Incident One will not distort the trial by suppressing evidence that Mr. Paskalis and Magno are the same. They clearly are not. Indeed, what would distort the trial process would be to admit the evidence and suggest on that basis that Mr. Paskalis and Mr. Magno are comparable in terms of their character, veracity or propensity for fraud. This is another reason not to admit the evidence.
(c) The Crown’s Interpretation of Parsons is Inconsistent with the Proper Role of Defence Counsel in our Adversarial Criminal Process
[35] But the primary reason I reject the Crown’s reading of Parsons is that it would seriously overextend the ratio of the case. In effect it would mean that any time the Crown called an unsavoury witness and the defence took appropriate and necessary steps to explore and expose the frailties of the witness, the Crown could lead bad character evidence of the accused. This cannot be correct as it would permit the Crown to circumvent the requirement that the accused must first put his character at issue before leading bad character evidence that is not otherwise relevant to a material issue in the trial. Parsons has never been interpreted this broadly and it is not the law in Canada that an accused puts his character in issue simply by attacking the character of a witness in cross-examination, thereby permitting the Crown to lead bad character evidence.
[36] The Crown’s argument would have negative systemic consequences. It must be remembered that, as Fish J. stated in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 at para 2:
[W]here the guilt of the accused is made to rest exclusively or substantially on the testimony of a single witness of doubtful credit or veracity, the danger of a wrongful conviction is particularly acute.
This is precisely why our adversarial process demands that the defence thoroughly and carefully test and challenge such witnesses. But if I were to accept the Crown’s submission, it would create a powerful disincentive for the defence to perform this essential role.
[37] One might, as the Crown does in this case, argue that excluding such evidence is somehow unfair as the Crown has no choice as to who their witnesses are. Thus, as in this case, they have to rely on an unsavoury witness despite his obvious frailties as a witness. This is often the case especially in criminal conspiracies as, not surprisingly, those who conspire to commit crimes often have criminal or unsavoury backgrounds. It is also true that such unsavoury witnesses can tell the truth and without the testimony of such witnesses many serious crimes might go unpunished. But the Crown does have a choice. The Crown decides whether or not they should present a witness as someone whose testimony should be believed. The Crown must then accept the consequences of their decision. Having made the choice to call an unsavoury witness does not automatically entitle the Crown to lead bad character evidence about an accused. Rather, the overwhelming interest in guaranteeing the accused a fair trial requires that any such evidence be excluded unless it satisfies the test in Handy.
(D) Relevance of the Vetrovec caution
[38] While not necessary, independent corroboration is always helpful when assessing the credibility of any witness. This common sense notion becomes that much more important when, as here, the Crown’s case relies principally upon an unsavoury witness. In such cases, a trial judge may be required to give a Vetrovec caution to the trier of fact telling them, amongst other things that they should look for other independent evidence which tends to confirm material parts of the untrustworthy witness’ testimony. As Dickson J. said in Vetrovec, what is required in cases such as this is “a clear and sharp warning to attract the attention of the juror[s] to the risks of adopting, without more, the evidence of the witness.”[^22]
[39] There is no dispute that Mr. Paskalis is an unsavoury witness. He has a lengthy and persistent criminal record, he has committed numerous crimes of dishonesty, he has lied under oath and he has lied before me. In short, Mr. Paskalis is an inveterate liar who cannot be trusted to tell the truth under oath. The Crown agrees that he must be subject to a strong Vetrovec warning. Mr. McDermott suggests that this makes the evidence about Incident One that much more important as it provides an example where Mr. Paskalis’ testimony can be corroborated by independent evidence.
[40] Vetrovec made it clear that evidence can corroborate the testimony of an unsavoury witness even if it does not implicate the accused. But Dickson J. also made it clear that not just any evidence is capable of corroborating the testimony of the suspect witness, nor is corroboration on just any point what is required. Thus in analyzing the corroborative value of the distraught emotional condition of a sexual assault complainant Dickson J. observed, “[E]ven though there was no evidence implicating Butt, there was evidence confirming the story of the complainant and thus it was safe to convict.”[^23] At another point, in the context of a hypothetical he said evidence was corroborative where it “relates to a vital issue in the case.”[^24] This is why in Trudel the court said a proper Vetrovec warning should caution the jury, “to look for other independent evidence which tends to confirm material parts of the evidence of the witness”.[^25] Similarly, in R. v. Kehler Fish J.A. for the unanimous court concluded that, “confirmatory evidence should be capable of restoring the trier's faith in relevant aspects of the witness' account”.[^26]
[41] The need for material corroboration makes sense. In a case such as this, Mr. Paskalis’ credibility per se is not what is important. Indeed, it is precisely because of legitimate concerns about Mr. Paskalis’ general credibility that the Crown has agreed that he must be the subject of a Vetrovec warning. Rather what is important is whether there is other evidence that might confirm Mr. Paskalis’ testimony with respect to the particular charges before the Court. While the evidence need not implicate Mr. Magno to corroborate Mr. Paskalis, it must be both independent and material.
[42] Both of these concepts were explained by Fish J. in Khela. The requirement of independence is straightforward as, “Where evidence is ‘tainted’ by connection to the Vetrovec witness it cannot serve to confirm his or her testimony”.[^27] As for materiality, Fish J. reiterated that corroborative evidence need not implicate the accused, but emphasized that:
[W]hen looked at in the context of the case as a whole, the items of confirmatory evidence should give comfort to the jury that the witness can be trusted in his or her assertion that the accused is the person who committed the offence.[^28] [Emphasis added.]
III. ANALYSIS
[43] The Crown’s application for admission of evidence of discreditable conduct is based on an assertion that the tendered evidence falls into four old categories of admissibility: (1) to rebut “innocent association”; (2) to counter “third party propensity”; (3) as part of the “narrative”; and (4) to “corroborate the evidence of unsavoury witnesses”. Despite the fact that this pigeon-hole approach was disapproved of in Handy, I will discuss the admissibility of these incidents in the terms set out by the Crown. However, my focus remains on the ultimate question of whether the probative value of this evidence exceeds its prejudicial effect
(A) Admissible to rebut an assertion of innocent association. [Incidents One and Three]
[44] There is no dispute that Mr. Magno admits to knowing Mr. Paskalis and the others involved in the arson. The Crown says evidence of these two incidents is necessary to demonstrate the nature and quality of their relationship and, in particular, that Mr. Magno would be comfortable seeking them out to engage in arguably criminal behaviour.
Incident One
[45] In assessing the probative value of this incident, I note that it is proximate in time to the arson and involves a scheme to defraud an insurer to obtain money. I accept that this evidence, if believed, would illuminate the nature of the relationship between Mr. Magno and Mr. Paskalis, although I note it says nothing about Mr. Magno’s relationship to the other alleged co-conspirators. However, the scheme is far less complicated and involved far less money than the arson. While there are some generic similarities with the arson, this is also a single, isolated incident. More seriously, in terms of its probative value, the suggestion that Mr. Magno was involved in a fraud is supported only by the evidence of Mr. Paskalis, Chris Graham and Jimmy Georgievski. As I have already mentioned Mr. Paskalis is a witness of extremely dubious veracity. However, that alone is not a reason to exclude the evidence. Far more seriously, Mr. Paskalis, who gave five statements to the police, not only contradicted himself on important points but in one statement said he had taken the vehicles himself and did not tell Mr. Magno he had done this until long after Mr. Magno had filed both his police report and his insurance claim. Chris Graham has also given several inconsistent versions of the events. He provides virtually no evidence of Mr. Magno being involved in the scam other than what he was told by Mr. Paskalis.[^29] Finally, Mr. Georgievski has some relevant evidence but it had minimal probative force with respect to the involvement of Mr. Magno and it was contradicted in important respects by independent employment records. Thus, even without more, the probative value of this evidence is limited.
[46] The probative value of this evidence is undercut further by the indisputable fact that Mr. Paskalis and Mr. Graham colluded with respect to what they would tell the police during the investigation into the arson and frauds. Mr. Graham changed his statement, he lied at Mr. Paskalis’ behest and he is charged with perjury. Indeed, Mr. Graham admitted under oath that he has perjured himself on three separate occasions. This collusion taints both their evidence and renders it valueless in terms of their ability to corroborate one another. Thus, this significantly reduces the already limited probative value of this evidence.
[47] As for the prejudicial effect of the evidence it is straightforward. The moral prejudice is that this evidence suggests not only that Mr. Magno is a dishonest person but also someone who commits insurance frauds. Thus, on this basis, the jury might conclude that he is a person of bad character who is therefore more likely to have committed the offences charged, without a dispassionate consideration of the evidence before them.
[48] There is a real risk of significant reasoning prejudice here. The discreditable conduct is very much contested. Mr. Magno vehemently denies his complicity in this scheme. If the evidence is admitted, the defence will spend much court time discrediting it. An already lengthy trial will be further prolonged by a contested inquiry into the truth of collateral allegations. This will be further complicated by the inconsistent evidence of Mr. Paskalis and Mr. Graham, the collusion between them and Mr. Paskalis’ many frailties as a witness. The defence’s limited ability to call evidence in reply (as a result of the collateral evidence rule and the prohibition on calling similar fact evidence in support of Mr. Magno’s credibility and good character) underscores the prejudice that would result from the admission of the proffered evidence.
[49] For the foregoing reasons, it is obvious that the prejudicial effect of admitting this evidence will exceed its probative value and, for that reason, it is not admitted on this basis.
Incident Three
[50] Unlike Incident One, Incident Three does involve other alleged co-conspirators of Mr. Magno. The evidence, at its highest, is that there was a meeting in which Mr. Magno explored hiring Mr. McMaster and Mr. Jarcevic to collect delinquent accounts for him. Mr. Paskalis set up the meeting. At the meeting, Mr. Magno complained about delinquent accounts. Mr. Jarcevic and Mr. McMaster were interested in doing debt collection. However, its probative value is limited. First, there is conflicting evidence about whether or not Mr. Magno was suggesting the use of violence or other criminality. Second, nothing came of the discussion, amorphous as it was, indeed according to Jason Regaldo, Mr. Magno became disinterested during the conversation at the tanning salon. Thus, before the end of the meeting, Mr. Magno had decided not to use the two men for debt collection and the matter ended there. Given these limitations this evidence is of very limited relevance to any material issue in this case. On this basis alone I would not admit the evidence on this basis.
[51] The prejudicial effect is primarily that it could lead the jury to conclude that Mr. Magno is a thug who is willing to hurt people to advance his business interests. Given the lack of any real probative value, this confirms the wisdom of excluding the evidence.
(B) Admissibility Pursuant to Parsons [Incidents One and Two]
[52] As mentioned above, Parsons does not automatically permit the leading of such evidence. Certainly, Parsons is not a free-standing basis to admit this evidence.
[53] While both Incidents One and Two show a willingness to engage in insurance fraud, the complexity and quantum of the frauds is markedly different than that alleged in the arson. This is especially true of Incident Two. While not excusing the dishonesty it apparently involved, Incident Two has, at most, Mr. Magno, at the instance of his insurance broker, telling some lies in order to obtain coverage for damage actually incurred to his vehicle. It is probative of nothing other than suggesting that Mr. Magno has stretched the truth when making an insurance claim, something even the Crown concedes is a common occurrence.
[54] As already discussed the prejudicial effect of admitting the evidence of Incident One exceeds it probative effect. Nothing in Parsons, properly understood, changes this conclusion.
(C) Admissible to Corroborate the Testimony of Mr. Paskalis [Incident One]
Incident One
[55] The Crown is relying on this argument principally with respect to Incident One. It is obvious that this evidence is problematic both in terms of its independence and materiality. As for independence, the only direct evidence of Mr. Magno’s involvement in the fraud comes from Mr. Paskalis. As for other evidence suggestive of Magno’s involvement it comes primarily from Mr. Graham.[^30] Like Mr. Paskalis, Mr. Graham gave multiple statements which were inconsistent in many important respects. Most seriously, as already discussed, there is undisputed evidence of collusion between Mr. Paskalis and Mr. Graham. Given this collusion between them, I am of the view that Mr. Graham’s testimony with respect to Incident One would lack the independence necessary to corroborate Mr. Paskalis’ testimony in this regard. This alone defeats the Crown’s rationale for the admission of the evidence about Incident One on this basis.
[56] Even if there was evidence capable of corroborating Mr. Paskalis’ testimony about Incident One, a more serious problem with the Crown’s submission is that this evidence is simply not material.[^31] I reject the Crown’s suggestion that the jury can find some comfort in the fact that evidence exists to corroborate Mr. Paskalis’ account of an unrelated fraud. At most, this would be some evidence that Mr. Paskalis is capable of telling the truth about something. But the question for the jury is not whether Mr. Paskalis is capable of ever telling the truth. Rather it is whether Mr. Paskalis is telling the truth when he implicates Mr. Magno in the charges before the court. The evidence of Incident One has no probative value with respect to the question of whether Mr. Paskalis has told the truth about the charges before the court.
(D) Admissible as evidence of a distinct pattern of similar behaviour engaged in by John Magno. [Incidents One and Two]
Incident One
[57] The Crown is relying on this argument principally with respect to Incident One. The similarities between Incident One and the arson, which the Crown calls “common threads” are so generic as to be almost meaningless. To the extent there is any similarity, it does not approach the level set in Arp where the likelihood of coincidence becomes objectively improbable. As Justice Cory explained at para. 64 of Arp:
The probative value of similar fact evidence is based on reasoning through probability. The force of the evidence subsists in the proposition that it is unlikely that the accused would be implicated more than once in offences which are unique or markedly similar. It is the unlikelihood of coincidence that gives the evidence its probative force.[^32] [Emphasis added.]
Thus, evidence of Incident One is not admissible on this basis.
Incident Two
[58] The similarities between Incident Two and the arson are even less compelling. Frankly, I am astonished that the Crown would submit that this is admissible as evidence of a distinct pattern of similar behaviour engaged in by John Magno. It is evidence of nothing more than dishonesty, a dishonesty that the Crown concedes is sadly commonplace. There is certainly no distinct pattern of behaviour similar to that involved in the arson.
(5) Admissible to complete the narrative of events leading up to the fire and to lend context to those events.
[59] The Crown’s submission is that this evidence of discreditable conduct is admissible as part of “the narrative of events surrounding the fire at Woodbine Building Supply.” While claiming that it is necessary to “lend context to those events”, the Crown really wants this evidence in to illuminate the nature of the relationship between Mr. Magno, Mr. Paskalis, Mr. Roks, Mr. McMaster, Mr. Regaldo and the deceased. Specifically the Crown submits:
That evidence shows both that John Magno was associated with the other arsonists and engaged in criminal conduct, particularly frauds, with them. It also shows Sam Paskalis’ knowledge of Magno’s willingness to engage in frauds out of Woodbine, making less likely the claim that Sam Paskalis did not tell him about the arson fraud. The jury would be left to assess the case in an evidentiary vacuum if the Crown were not permitted to lead narrative evidence regarding their relationship leading up to the fire.
[Emphasis added.]
[60] Far too often narrative is a last gasp justification used by an evidentiary scoundrel when there is no other legitimate basis to support the admission of evidence. Narrative evidence is not admissible simply because it is somehow part of a story that a party, usually the Crown, wishes to tell. Rather, it is admissible because it provides contextual information necessary to the proper understanding of the admissible evidence. Thus, it may involve the relationship between the various individuals in the case or the events leading up to the commission of the alleged offence. As Finlayson J.A. explained in R. v. J.E.F. (1993), 1993 CanLII 3384 (ON CA), 16 O.R. (3d) 1 (C.A.) at p. 18:
[N]arrative is justified as providing background to the story -- to provide chronological cohesion and eliminate gaps which would divert the mind of the listener from the central issue. It may be supportive of the central allegation in the sense of creating a logical framework for its presentation.
In this way, the inclusion of evidence to “complete the narrative” will make it easier for witnesses to recount their evidence and, more importantly, will permit the trier of fact to more fully understand the evidence led at trial.
[61] While the “basic requirement of relevance is somewhat attenuated in the context of narrative evidence”[^33] there is no similar relaxation of the Handy requirements when the narrative evidence is evidence of prior discreditable conduct. Such evidence must be subjected to the same analysis. That is, evidence of extrinsic misconduct remains presumptively inadmissible and, where the Crown seeks its admission to complete the narrative, it should only be admitted where its probative value outweighs its prejudicial effect.[^34] Otherwise, the invocation of narrative could be abused as “a specious manner of outflanking the exclusionary rule.”[^35]
[62] In assessing the Crown’s submission, I note that they have grossly overstated the significance of this evidence. The evidence does not demonstrate that Mr. Magno “engaged in criminal conduct, particularly frauds” with the other alleged co-conspirators. Incident One only involved Mr. Paskalis and Mr. Graham. Incident Two does not involve the co-conspirators at all and Incident Three did not involve a fraud. It is not necessary in order for the jury to understand the relationship between Mr. Magno and the other men and, just as I would not admit this evidence to rebut innocent association, I would not admit it as narrative.[^36] While the probative effect of this evidence is no greater when characterized as necessary to complete the narrative, the prejudicial effect remains the same. Thus, applying the analysis in Handy, I would not admit any of this evidence under the rubric of narrative evidence.
IV. CONCLUSION
[63] For all of the foregoing reasons, the Crown’s application to adduce this evidence of prior discreditable conduct is dismissed.
T. Ducharme, J.
Released: July 13, 2012
COURT FILE NO.: 09-70000224-0000
DATE: July 13, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
John Magno
RULING ON crown’s application to admit disreputable conduct
T. Ducharme J.
Released: July 13, 2012
[^1]: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at para. 31; The rule can be traced back to R. v. Rowton (1865), 169 E.R. 1497 (C.C.A)
[^2]: John Sopinka, Sidney N. Lederman, and Alan W. Bryant, The Law of Evidence in Canada, 2nd ed (Markham: LexisNexis, 1999) at § 10.56 [“Sopinka”]; Casey Hill, David M. Tanovich, and Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 4th ed. (Aurora: Canada law Book, 2010) at 9:40.50.10 [“McWilliams”]; R. v. S.G.G., 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716 at para. 63; R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129 at para. 26; R. v. McNamara (No. 1) (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.) at p. 352, leave to appeal granted on other grounds (1981), 1981 CanLII 3394 (SCC), 56 C.C.C. (2d) 576 (S.C.C.); R. v. Gottschall (1983), 1983 CanLII 3596 (NS CA), 10 C.C.C.(3d) 447 at 466-467 (N.S.C.A.); R. v. A.(W.A.) (1996), 1996 CanLII 3087 (MB CA), 112 C.C.C.(3d) 83 at 86-87 (Man. C.A.); R. v. Rowton (1865), 169 E.R. 1497.
[^3]: Sopinka at §10.37ff; McWilliams at 9:40.20ff
[^4]: R. v. Bricker (1994), 1994 CanLII 630 (ON CA), 90 C.C.C. (3d) 268 (Ont. C.A.) at p. 278, leave to appeal to S.C.C. refused (1994), 92 C.C.C. (3d) vi, [1994] S.C.C.A. No. 331.
[^5]: Handy at para. 55. While Handy dealt with similar fact evidence the ratio of the case also governs the admission evidence of bad character or extrinsic misconduct of the accused: R. v. Luciano, 2011 ONCA 89; R. v. Earhart, 2010 ONCA 874 at para. 71; R. v. Yumnu, 2010 ONCA 637 at para. 303; R. v. Pollock (2004), 2004 CanLII 16082 (ON CA), 187 C.C.C. (3d) 213 at paras. 100 to 102, 110 (Ont. C.A.).
[^6]: McWilliams at 10:40.10.20.
[^7]: Handy at para. 57.
[^8]: R. v. L.B. (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35 (C.A.) at para. 8; R. v. Sweitzer (1982), 1982 CanLII 23 (SCC), 68 C.C.C. (2d) 193 (S.C.C.) at p. 197.
[^9]: Handy at para. 73.
[^10]: Handy at para. 74.
[^11]: Handy at para. 69.
[^12]: Handy at para. 136.
[^13]: R. v. K. (C.P.) (2002), 2002 CanLII 23599 (ON CA), 62 O.R. (3d) 487 (C.A.) at para. 30.
[^14]: Handy at para. 134.
[^15]: Handy at para. 112,
[^16]: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228 at para. 18.
[^17]: Parsons at pp. 12-13.
[^18]: McMillan at pp. 767-68.
[^19]: R. v. Rodgers (2000), 2000 CanLII 2144 (ON CA), 144 C.C.C. (3d) 568 (Ont. C.A.) at para. 21. In R. v. Mullins-Johnson, 1996 CanLII 1214 (ON CA), [1996] O.J. No. 4459 at para. 13 (C.A.) the Court spoke of evidence pointing to the “propensity for violence” of a third party as justifying the reception of “evidence respecting the accused's make-up.”
[^20]: R. v. Truscott (2006), 2006 CanLII 60337 (ON CA), 213 C.C.C. (3d) 183 (Ont. C.A.) at para. 33 [Emphasis added.]. It is instructive that in this passage the Court of Appeal did not suggest that this put the accused’s character simpliciter in issue. In R. v. Dhillon,(2002), 2002 CanLII 41540 (ON CA), 166 C.C.C. (3d) 262 (Ont. C.A.) at para. 44, the Court also spoke in terms of disposition evidence, “[I]f an accused leads evidence that a third person had the disposition to commit the crime alleged, the Crown may be entitled to lead evidence to show that the accused also had the disposition to commit the crime. To preclude the Crown from doing so would keep from the jury relevant evidence and would thus give them a distorted picture.” [Emphasis added.]
[^21]: In saying this I would reiterate that the fraud in Incident Two is comparatively trivial and neither of these are particularly similar to the arson in any but the most generic way.
[^22]: Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, at p. 831.
[^23]: Vetrovec at p. 828 [Emphasis added.]
[^24]: Vetrovec at p. 827 [Emphasis added.]
[^25]: R. v. Trudel (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.) at para. 82.
[^26]: R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328 at para. 15 [Emphasis added.]
[^27]: Khela at para. 39.
[^28]: Khela at para. 42.
[^29]: At its highest Mr. Graham says that Mr. Magno was at Woodbine when they picked up the boat and spoke to Mr. Paskalis before they left with the boat.
[^30]: Mr. Georgievski also had some relevant evidence but it had minimal probative force with respect to the involvement of Mr. Magno and was contradicted in important respects by independent employment records.
[^31]: Indeed, if Mr. Paskalis was cross-examined about Incident One, the collateral facts rule would apply to prevent defence from leading independent evidence to contradict his account: R. v. A.R.B. (1998), 1998 CanLII 14603 (ON CA), 41 O.R. (3d) 361 (C.A.)
[^32]: 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339
[^33]: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 at para. 47.
[^34]: McWilliams at p. 10-40.
[^35]: Boardman v. Director of Public Prosecutions, [1974] 3 All E.R. 887 (H.L) This language of Lord Wilberforce was directed to the use of evidence tendered to rebut innocent association but the logic is equally applicable to the improper use of narrative.
[^36]: Supra, paras. 44 to 49.