ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-5061
DATE: 2012/09/13

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 486.4(1) OF THE CRIMINAL CODE OF CANADA

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

K.R.G.
Applicant

Brian Holowka, for the Crown

Craig W. Fleming, for the Applicant

HEARD: September 12, 2012 (Ottawa)

REASONS FOR DECISION (Post-offence conduct ruling)

PARFETT J.

[ 1 ] This trial involves allegations that on December 24, 2009 and December 27, 2009, the accused, K.R.G. sexually assaulted D.C. The Crown seeks to admit evidence of events that occurred shortly after the alleged sexual assaults as circumstantial evidence that the accused committed the sexual assaults. Defence disputes the admissibility of this evidence.

Background

[ 2 ] Crown and Defence filed an agreed statement of facts that includes the disputed evidence. This statement of facts outlines K.R.G.’s history both before and after the events in question. K.R.G. was a Royal Canadian Mounted Police (“RCMP”) officer from 1998 to 2009. He was suspended from duty by reason of ill-health. In 2006, K.R.G. was convicted of uttering death threats while in possession of a knife. As a result of this incident and a medical assessment, K.R.G. was assigned to office duties and lost his right to carry a firearm. Ultimately, in 2009, K.R.G. was asked to resign from the RCMP or face dismissal. K.R.G. resigned. However, the RCMP then indicated that they had overpaid K.R.G., and at the time of these events, K.R.G. was disputing the overpayment.

[ 3 ] As indicated earlier, the sexual assaults allegedly occurred between December 24, 2009 and December 27, 2009 when the complainant was visiting Ottawa with her mother, N.M. over the Christmas holidays.

[ 4 ] On December 28, 2009, the complainant went to work with her mother; on the way home she disclosed to her mother that K.R.G. had sexually assaulted her. N.M. left the complainant at a friend’s house and went to K.R.G.’s residence. N.M. informed K.R.G. of the allegations; K.R.G. denied them. N.M. then left K.R.G.’s home in K.R.G.’s car.

[ 5 ] Subsequent to N.M.’s departure, K.R.G. made an apparent attempt to commit suicide by stabbing himself in the neck. This attempt failed. He then cleaned up and applied bandages to his wounds.

[ 6 ] K.R.G. left the home and went to a nearby Tim Hortons restaurant. In the parking lot, he approached a young couple who was in the front seat of a Honda Accord. He brandished an imitation handgun and ordered the two people from the car. He then took the car and drove off.

[ 7 ] K.R.G. went to his father, Mr. R.G.’s house. He had a conversation with his father. He told his father that he had done something pretty stupid and if he was convicted he would be in jail for ten years. He also told his father that he had not only lost his first family, but he had also lost his second family and that he had tried to kill himself but it had not worked. He showed his father the wounds to his neck and advised him that his life was at an end; he had nothing to live for and was going to find a better way to kill himself. As he stood in the door to leave, K.R.G. said to his father that he was a bad guy, a monster, and that he had done bad things. He repeated that he was going to kill himself. R.G. noted that K.R.G. appeared emotionally dead, depressed and hopeless.

[ 8 ] R.G. did not ask K.R.G. what he meant by his statements. However, K.R.G. had spoken to his father on earlier occasions about his career with the RCMP, and the fact that he was troubled by some of the things that he had done. R.G. testified that he believed that K.R.G. was talking about those events when he said he had done bad things.

[ 9 ] K.R.G. then returned home, clothed himself in two Kevlar vests, armed himself with two knives and an imitation handgun in a holster on a belt. He drove to the Ottawa Civic Hospital. He approached a marked police cruiser occupied by a uniformed officer, Constable C. K.R.G. attacked Constable C. and killed him.

[ 10 ] The robbery and the homicide have been the subject of a completed jury trial. K.R.G. was convicted of first degree murder, robbery and use of firearm in the commission of an indictable offence. K.R.G. has appealed those convictions.

Issue

[ 11 ] Crown and Defence agree that K.R.G.’s history with the RCMP, the fact of the attempted suicide and the statements made by K.R.G. to his father on December 28 th form part of the narrative and should be admitted. They differ on the interpretation to be given that evidence.

[ 12 ] They do not agree on the admissibility of the carjacking and homicide.

[ 13 ] The issue to be determined is whether this latter evidence is relevant to a material fact in issue at the trial – whether the sexual assaults occurred.

[ 14 ] Crown argues that the entire chain of events – from the confrontation between N.M. and K.R.G. through to the homicide – creates a logical whole and therefore, certain events cannot be excised from this whole. As a whole, Crown contends that the evidence is relevant to culpability and it constitutes conduct for which there is no equally consistent explanation or theory, as a matter of logic and human experience. Finally, Crown states that the probative value of the evidence outweighs its prejudicial effect.

[ 15 ] Defence counsel takes the position that the proposed evidence has significant prejudicial effect and that there are equally consistent – if not more consistent – explanations for the evidence of attempted suicide. In addition, Defence argues that no reasonable inference can be drawn from the evidence of the carjacking and homicide that K.R.G. was conscious of his guilt in relation to the sexual assaults.

Analysis

[ 16 ] Post-offence conduct is a type of circumstantial evidence that looks backward from the accused’s later conduct and connects it to the alleged criminal act. As with any circumstantial evidence, to be admissible it must be relevant and material.[^1] Evidence of post-offence conduct will satisfy the standard of relevance if it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition would be in the absence of that evidence.[^2] As noted in R. v. White,[^3]

Whether or not a given instance of post-offence conduct has probative value with respect to the accused’s level of culpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial. There will undoubtedly be cases where, as a matter of logic and human experience, certain aspects of the accused’s post-offence conduct support an inference regarding his level of culpability.[^4]

[ 17 ] Post-offence conduct that is relevant can nonetheless be excluded if the prejudicial effect outweighs its probative value.[^5] Evidence that is said to prejudice the accused may be assessed by considering both moral prejudice and reasoning prejudice. Moral prejudice refers to the risk of convicting the accused using a prohibited inference rather than one based on proof that the elements of the offence were committed. Reasoning prejudice refers to the risk of distracting or confusing the jury or the undue consumption of court resources associated with the presentation of the post-offence evidence.[^6] The risk of prejudice is substantially reduced when the accused is being tried by judge alone.

[ 18 ] In this case, the allegations involve the sexual assault of a child. The post-offence conduct involves an attempted suicide, statements to R.G., a carjacking and a homicide. Defence contends that the attempted suicide is equally consistent with the actions of someone who has lost their job and is destitute. In addition, he argues that the statements to R.G. could refer to events that occurred during K.R.G.’s tenure as a police officer as R.G. believes.

[ 19 ] If these two events are looked in isolation, those inferences are at least as possible as the inferences that the Crown would have the court draw. However, they cannot be looked at in isolation. In his statement to his father, K.R.G. specifically alludes to the fact that his attempted suicide is in direct response to the ‘bad things’ that he had done. He refused to tell his father what he had done, but he did say that if he was convicted, he would serve a significant jail sentence. Furthermore, the timeline of these events – the confrontation between N.M. and K.R.G., followed almost immediately by the attempted suicide and then the statements to his father – suggests strongly that all these events are closely connected in K.R.G.’s mind.

[ 20 ] It has long been noted that attempted suicide can, in appropriate circumstances, be construed as an attempt to escape forever from the consequences of criminal actions.[^7] In the Williams case, the court stated,

… in my view, the evidence of attempted suicide was admissible for consideration by the jury as corroborative of the complainant’s evidence providing the jury were satisfied beyond a reasonable doubt in all the circumstances that the attempted suicide reflected a consciousness of guilt and was not undertaken for other reasons.

[ 21 ] In my view, when this sequence of events culminating in the statements to R.G. is looked at as a whole, the evidence is reasonably capable of supporting the inference that the Crown wishes the court to draw – that K.R.G. is conscious of his guilt – and there is no other equally consistent inference that could be drawn. Consequently, this evidence is admissible.

[ 22 ] As noted earlier, Crown contends that it is not possible to excise certain events from the whole series of events that ends with Cst. Czapnik’s death. As is clear from the above analysis, I disagree. In my view, the carjacking and the homicide can be excised from the sequence of events and looked at separately. The question that has to be asked with respect to these events is: does the fact that the carjacking and homicide occurred make it more likely as a matter of human experience that the sexual assaults took place? The answer is obvious. No, they do not. There is no logical connection between these events. As a result, this evidence is not admissible.

Conclusion

[ 23 ] The evidence of the attempted suicide and the statements by K.R.G. to his father are already before the court and it is relevant to the issue of K.R.G.’s ultimately culpability for sexual assault. The remaining evidence of the carjacking and the homicide is not admissible.

Madam Justice Julianne A. Parfett

Released: September 13, 2012

[^1]: Watt, D. Watt’s Manual of Criminal Evidence (2012) at p. 61.
[^2]: D.M. Paciocco and L. Stuesser, The Law of Evidence (5 th ed. 2008) at p. 26.
[^3]: 2011 SCC 13, [2011] 1 S.C.R. 433.
[^4]: At para. 42.
[^5]: R. v. Trochym (2004), 71 O.R. (3d) 611 (C.A.) at para. 19.
[^6]: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 100.
[^7]: R. v. Williams (1973), 1 O.R. (2d) 474 at para. 9, citing Wigmore on Evidence, 3 rd ed. (1940), vol. 2, s. 276, p. 118.