ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-30325
DATE: 2012/10/30

PUBLICATION BAN IN EFFECT UNDER S. 648 OF THE CRIMINAL CODE

BETWEEN:

HER MAJESTY THE QUEEN Crown – and – TOBY LITTLE OTTER LAND Accused

David Elhadad and Carl Lem, for the Crown
Anne London Weinstein and Neil Weinstein, for the Accused

HEARD: October 22 , 2012

MID-TRIAL RULING #2 REGARDING SCOPELLiTI

AITKEN j.

Nature of the Application

[ 1 ] At the close of the Crown’s case, in addition to bringing a Corbett application, the Defence brought an application pursuant to the principles enunciated in R. v. Scopelliti (1981), 1981 1787 (ON CA) , 34 O.R. (2d) 524 (C.A.), seeking permission to tender evidence regarding the disposition of the deceased, Dominic Doyon. More specifically, the Defence wished to call police officers who would testify about an altercation between Mr. Doyon and three police officers that occurred on October 22, 2006. The purpose for which the Defence wished to call this evidence was to show that Mr. Doyon had reacted in a volatile fashion to a verbal confrontation by becoming violent and aggressive. This incident, coupled with other evidence already tendered by the Crown regarding the use of physical force on the part of Mr. Doyon, increased the probability that, on May 4, 2009, when Mr. Land verbally confronted Mr. Doyon about his sexual involvement with children, Mr. Doyon reacted in a physically aggressive manner by drawing his sword. I ruled that this evidence was admissible. These are the reasons for that ruling.

Anticipated Evidence

[ 2 ] From the police occurrence reports and investigative action report relating to the October 22, 2006 incident, it is anticipated that the police officers’ evidence will be as follows. The police received a call from Mr. Doyon’s then roommate, Melissa Larabie, to the effect that she and Mr. Doyon had argued, and she wanted him to leave the apartment. Officers Van der Zander and Koch responded to the call. When they interviewed Mr. Doyon and Ms. Larabie, they were told that no assault had occurred and that both wanted Mr. Doyon to leave the apartment. The police were there simply to keep the peace. In the process of escorting Mr. Doyon from the premises, Officer Van der Zander observed in plain view amongst Mr. Doyon’s property a quantity of contraband cigarettes, and he seized them. Mr. Doyon became angry and stated that he had a status card that allowed him to have the cigarettes. Officer Van der Zander expressed disbelief and continued walking to his cruiser. Mr. Doyon followed both officers out to the street, walking rapidly behind Officer Van der Zander with his fists clenched. He yelled out, “Hey Fuckhead, ... hey Bitch.” Officer Van der Zander ignored the taunts and continued walking to his vehicle. When Officer Van der Zander was opening his door, Mr. Doyon stood right in front of him in a confrontational stance, showing his readiness to fight. Officer Van der Zander tried to calm him down through talking, but this was not effective. Mr. Doyon said that, if Officer Van der Zander was not going to return the cigarettes, then he had better arrest Mr. Doyon. This was stated in such a way to suggest that, if efforts were made to arrest Mr. Doyon, he would resist. Mr. Doyon raised his fists and took a step toward Officer Van der Zander as if he was preparing to hit the officer. Officer Van der Zander tried to arrest Mr. Doyon. Officer Koch came up behind Mr. Doyon and put his arms around him so that Mr. Doyon could not strike Officer Van der Zander. Mr. Doyon pushed back, and Officer Koch fell on Mr. Doyon. Mr. Doyon then began wrestling with the officers. The officers had to use considerable force to gain control of Mr. Doyon. In the meantime, a third officer, Officer Bargh, arrived on the scene and assisted the other two officers in restraining and eventually handcuffing Mr. Doyon. It took the three officers to subdue Mr. Doyon. Mr. Doyon was taken to the police station. Due to Mr. Doyon’s history of mental illness and his expression of remorse, Constable Van der Zander used his discretion and did not charge Mr. Doyon.

Jurisprudence

[ 3 ] The admissibility of disposition evidence relating to the deceased in a homicide trial turns on its relevance in the context of the trial and its probative value when compared to its prejudicial effect. As stated by La Forest (in dissent) in R. v. Corbett , 1988 80 (SCC) , [1988] 1 S.C.R. 670, at 741: “All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy.”

[ 4 ] In R. v. McMillan (1975), 1975 43 (ON CA) , 7 O.R. (2d) 750 (C.A.), Martin J.A., at para. 25, stated that: “[t]he tendency or disposition of a person to do a certain act is relevant to indicate the probability of his doing or not doing the act.” This applies to all individuals: the accused, third parties, and the victim. Although there are policy reasons not to tender such evidence in the normal course in regard to the accused, there are no corresponding policy reasons not to tender such evidence in regard to the victim or any third party suspects, providing there is evidence that makes that person’s disposition relevant to issues at the trial ( Scopelitti , at para. 45).

[ 5 ] As stated in R. v. Watson (1996), 1996 4008 (ON CA) , 30 O.R. (3d) 161 (C.A.), at para. 30 , evidence of the disposition of a deceased victim in a homicide case is not limited to cases in which self-defence is raised, such as in Scopelliti . It may be relevant to any number of issues, depending on the context of the case and the positions taken by counsel.

[ 6 ] Mr. Land is not advancing self-defence as a defence, as he recognizes that he had other options than to injure Mr. Doyon to the extent he did in order to extricate himself from any personal danger. Mr. Land acknowledges that he wrongfully caused Mr. Doyon’s death, but he denies that he did so with intent to kill Mr. Doyon, or with intent to cause him bodily harm that he knew would cause his death. With the assistance of the evidence of Dr. Julian Gojer, a forensic psychiatrist, Mr. Land is advancing the position that a number of factors, including fear and anger, came into play and operated to rob him of the ability to weigh options and foresee or measure the consequences of his actions. As well, Mr. Land is advancing the position that, even if he is found to have had the requisite mental state for murder, the Crown cannot prove beyond a reasonable doubt that he was not provoked. There is already evidence of provocation included in the statements Mr. Land gave to the police following his arrest.

[ 7 ] The Defence wishes to adduce evidence of Mr. Doyon’s tendency to react violently, dramatically, and out of proportion to the circumstances, when he is faced with verbal confrontations or challenges that are not yet physical. (Evidence of this nature was tendered to establish the same disposition in the case of R. v. Sinclair , 2010 ONSC 7254 .) The Defence wishes to advance the position that, on the night of May 4, 2009, Mr. Doyon reacted to Mr. Land’s verbal battering of him for being a child molester, by producing a sword, trying to pull it out of its scabbard, and advancing on Mr. Land. Increasing the probability of the circumstances having unfolded in this fashion assists in raising a reasonable doubt as to:

• Whether Mr. Land had the requisite mental state for murder and, if he did,

• Whether he had been provoked by Mr. Doyon’s threatening behaviour with the sword and his accompanying remarks.

[ 8 ] Evidence has already been tendered to the effect that the sword was in the apartment on May 4, 2009 and it was the weapon used to inflict fatal wounds on Mr. Doyon. In his statements to the police, Mr. Land has provided evidence that he started swinging the hammer and injuring Mr. Doyon, only once he saw Mr. Doyon trying to draw the sword. This is evidence of Mr. Doyon trying to respond to Mr. Land’s verbal confrontation with physical aggression and, in fact, the use of a weapon. It suffices that this additional evidence of the deceased’s aggression came from Mr. Land ( Scopelliti , at para. 32 ).

[ 9 ] Evidence of specific acts of violence can be tendered to prove a deceased’s disposition ( Scopelliti , at para. 36-37 ). The question has arisen in some cases as to whether a single incident can be relied on to establish disposition ( R. v. Yaeck , [1989] O.J. No. 3002 (H.C.) per Watt J.). Doherty J.A. in Watson , at para. 38 , stated: “[e]vidence of disposition involves an inference of the existence of a state of mind (disposition) from a person’s conduct on one or more previous occasions and a further inference of conduct on the specific occasion based on the existence of that state of mind.” [Emphasis added.] Dambrot J. in R. v. Hines , [2001] 1 O.T.C. 209 (Sup.Ct.), at para. 34 , noted that even one incident might be sufficient to establish disposition.

[ 10 ] Here, although the Defence seeks permission to tender evidence about Mr. Doyon’s physically aggressive behaviour on one previous occasion, there is already before the court evidence adduced by the Crown, in the form of Mr. Land’s statements to the police, that on a previous occasion, Mr. Doyon had physically attacked Mr. Land after Mr. Land had accused him of stealing his property. There is also evidence that, on a previous occasion when Mr. Land had threatened Mr. Doyon with a knife and had told him that if he ever dated a 14 or 15 year old again he would kill him, Mr. Doyon responded to the threat by pushing Mr. Land up against the wall and holding him there. In other words, he quickly, and without hesitation, gained the upper hand against Mr. Land when Mr. Land threatened him. Evidence relating to both of these incidents was admissible in any event to show what Mr. Land’s state of mind might have been on May 4, 2009, knowing how Mr. Doyon had reacted during two previous confrontations with him. But it is also relevant to Mr. Doyon’s disposition and therefore to the probability that he may have acted in a particular way on the night of May 4 th . I must consider the current application to tender evidence regarding Mr. Doyon’s altercation with the police, not only individually, but also in combination with evidence, already admitted, of other violent conduct on Mr. Doyon’s part.

Probative Value vs. Prejudicial Effect

[ 11 ] In determining whether the evidence of Mr. Doyon’s encounter with the three police officers is admissible to support the inference that, on the night of May 4, 2009, he responded to Mr. Land’s verbal battering by drawing a sword, I must consider the probative value of the evidence when compared to its prejudicial effect and only rule the evidence inadmissible if the risks of prejudice substantially outweigh its probative value. ( R. v. Seaboyer , 1991 76 (SCC) , [1991] 2 S.C.R. 577 at 611-612). As stated by Martin J.A. in Scopelliti , at para. 47 , and reaffirmed by the Ontario Court of Appeal in R. v. Yaeck (1991), 1991 2732 (ON CA) , 6 O.R. (3d) 293 (C.A.), at 309-310: “[s]ince evidence of prior acts of violence by the deceased is likely to arouse feelings of hostility against the deceased, there must inevitably be some element of discretion in the determination whether the proffered evidence has sufficient probative value for the purpose for which it is tendered to justify its admission.”

[ 12 ] In determining the probative value of the evidence, I must consider the strength of the inferences, the credibility of any testimonial evidence, and the reliability of the evidence (David M. Paciocco & Lee Stuesser, The Law of Evidence , 6th ed. (Toronto: Irwin Law, 2011) at 39.

[ 13 ] Mr. Doyon’s initial aggressivity toward Officer Van der Zander was striking, as was the strength and fury with which he fought all three police officers trying to subdue and arrest him. His behaviour on that day is highly probative of a tendency to overreact in a physically aggressive fashion to what initially is a verbal confrontation. The disagreement between Mr. Doyon and Officer Van der Zander arose over the officer seizing what he determined to be contraband cigarettes, and his refusal to accept Mr. Doyon’s assertion that he had a certificate allowing him to possess the cigarettes. Mr. Doyon brought on the physical confrontation by advancing on Officer Van der Zander, adopting a physically threatening stance, and making it clear that he was itching for a fight. Mr. Doyon refused to back down and, instead, became increasingly more violent – despite facing the risks of fighting with three, fully-armed, police officers. The fact that Mr. Doyon was prepared to act in this fashion toward police officers, in a public place, and being watched by numerous bystanders, could be seen by the jury as increasing the probability that he attempted to use his sword on the night of May 4, 2009 when he was in the privacy of his own living room and was being attacked verbally by someone whom he did not like and whom he had physically fought with on other occasions.

[ 14 ] Obviously there are some factors that reduce the probative value of the October 2006 incident in determining Mr. Doyon’s conduct on May 4, 2009. The first incident occurred two and a half years prior to the events in question. The first incident involved the police, in regard to whom Mr. Doyon may have had a negative animus; however, there is evidence that Mr. Doyon did not like Mr. Land. In the first incident, Mr. Doyon had no weapon, and was prepared to take on the police with his bare hands. In the second incident, there is some evidence that he had access to and tried to use the sword. But there is also the subtle similarity that, in both instances, someone was trying to take something away from Mr. Doyon that he felt entitled to: his contraband cigarettes in the first instance, and his underage girlfriend in the second instance.

[ 15 ] Evidence of the incident in October 2006 will be proffered through the testimony of the police officers who were involved in the confrontation. All officers did written reports of the event on the same day. There is also a detailed investigative action report. It is likely that the jury will find their evidence credible and reliable.

[ 16 ] In considering potential prejudice, relevant factors include the practicalities of the presentation of the evidence, the fairness to the parties and to the witnesses, the potentially distorting effect the evidence can have on the outcome of the case, the creation of distracting side issues, and the potential to confuse or overwhelm the jury with evidence of marginal relevance. I must also consider whether instructions to the jury could overcome any prejudice to the fact-finding mission. Ultimately, the question is whether the evidence will assist or impede justice being done.

[ 17 ] In regard to moral prejudice, there is, of course, the danger that the jury will use this evidence improperly to conclude that Mr. Doyon was a bad person who got what he deserved. I consider it highly unlikely that this evidence would have that effect. First, what Mr. Doyon “got” was 83 injuries and 4 stab wounds from a vicious and unrelenting assault. The damage inflicted on him was grossly beyond what anyone could possibly consider justified for anything. Second, the incident itself gets downplayed by Officer Van der Zander who stated in his report that he decided not to charge Mr. Doyon as a result of Mr. Doyon’s mental health issues and his apparent remorse. Third, the Crown has already placed before the jury evidence of disreputable conduct on the part of Mr. Doyon that likely carries the risk of greater prejudice than the incident with the police; namely, evidence of his having a sexual relationship with a child. Fourth, the whole context in which the events of May 4, 2009 have been placed is one where all of the participants: Mr. Land, Mr. St-Cyr, Mr. Doyon, J.G-M., and others, are living on the fringes of society. The jury is already well aware of the extent to which all of the occupants of apartment 512 were involved in illegal activities which, in the normal course, would result in some contact with the police. The jury has already heard evidence about how the occupants of this apartment drank to excess, smoked marijuana, and got into physical confrontations. The jury has already heard that Mr. Doyon was in possession of “Indian” cigarettes. The jury will be hearing more about the criminal convictions of Mr. Land and Mr. St-Cyr when they testify. In short, in the context of the evidence that the jury has already heard or will hear, evidence of Mr. Doyon’s encounter with the police in October 2006 does not carry a high risk of moral prejudice.

[ 18 ] I distinguish this case from the circumstances in R. v. Coke (1996), 6 O.T.C. 147 (Ct. J. Gen. Div.) , a murder trial where self-defence was at play. Caswell J. would not admit evidence that the deceased had violently resisted arrest on an earlier occasion as evidence of a violent disposition, though she did admit evidence of other instances of violent behaviour on the part of the deceased. In her view, the evidence of the encounter with the police only tended to show the deceased’s lack of respect for the police. It carried significant risk of prejudice through arousing feelings of hostility to the deceased. In the very specific circumstances of our case, where a live issue is how Mr. Doyon tends to act when verbally confronted, the evidence of his interaction with the police is probative beyond showing his attitude to the police. As well, in Coke , due to the seriousness of the deceased’s actions, he was charged with two counts of assaulting a police officer and two counts of threatening death. Here, no charges were laid against Mr. Doyon. Finally, there was no indication that the deceased in Coke ever showed any remorse regarding how he responded to police. In our case, the police reported that Mr. Doyon was very remorseful for his actions.

[ 19 ] The risk that this evidence poses for reasoning prejudice is also low. The evidence will not take long to present. The evidence relates to one specific event that is not complex or controversial. That evidence is unlikely to distract the jury from a proper consideration of the events of May 4, 2009. I am confident that a proper direction to the jurors as to the use to which they can put this evidence will go a long way to address any lingering possibility of prejudice.

Disposition

[ 20 ] For these reasons, on October 23, 2012, I ruled that the Defence could tender evidence of the encounter between Mr. Doyon and the police on October 22, 2006.

[ 21 ] After my rulings were released in regard to the applications regarding Corbett , Scopelitti , and cross-examination of Carl St-Cyr, the Crown brought a similar fact evidence application. The outcome of that application was that the Crown will be permitted to cross-examine Mr. Land and Dr. Gojer on statements Mr. Land made to Dr. Gojer regarding (1) his intervening physically when he perceived that individuals were going to molest children or women; (2) his assaulting his brother, Randy, when Randy told him that Randy had sexually assaulted their sister; and (3) his hitting up to 50 different men for assaulting adult females. The Crown will also be permitted to cross-examine Mr. Land in a general way as to whether any of the incidents in which he physically assaulted other individuals for molesting children had been unprovoked. The Crown was prohibited from adducing evidence specifically in regard to Mr. Land’s assault on another inmate at the Regional Detention Centre approximately two years after Mr. Doyon’s death, as the

prejudicial effect of that evidence would significantly overshadow its probative value. This evidence regarding Mr. Land’s disposition for violence more than balances the evidence tendered to date, or to be tendered pursuant to this Scopelitti ruling, in regard to Mr. Doyon’s disposition to act violently. It ensures that the jury will not be misled when considering the respective dispositions of both men.

Aitken J.

Released: October 30, 2012

ONTARIO SUPERIOR COURT OF JUSTICE PUBLICATION BAN IN EFFECT UNDER S. 648 OF THE CRIMINAL CODE BETWEEN: HER MAJESTY THE QUEEN Crown – and – TOBY LITTLE OTTER LAND Accused MID-trial ruling #2 regarding scopelliti Aitken J.

Released: October 30, 2012