COURT FILE NO.: 50000759/12
DATE: 20121126
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
STEVEN FORDE
Sunita Malik and Sarah Leece, for the Crown
Maurice Mirosolin and Brian Eberdt, for the Accused
HEARD: November 14. 2012
R U L I N G
M. Dambrot J.
[1] Steven Forde is being tried by me sitting with a jury on a charge of manslaughter. He was previously acquitted by a jury of second degree murder but found guilty of manslaughter in relation to this matter. He appealed his conviction for manslaughter, and the Court of Appeal ordered a new trial on that charge. This is that new trial.
[2] Mr. Forde admits killing Clive McNabb, the former spouse of his common law partner, Carol Allamby. However, he will take the position at trial that he killed McNabb in self-defence by stabbing him once with a knife after McNabb moved towards him with an open knife.
[3] He brings this application for an order permitting him to adduce evidence that McNabb had violently attacked him on two previous occasions. Evidence of these two prior events was admitted at his first trial.
[4] In response, Crown counsel does not seriously take issue with the admissibility of this evidence, but seeks an order permitting the Crown to adduce evidence of the accused’s criminal convictions for violence, including the underlying facts in brief compass, in reply. Forde opposes this request.
THE EVIDENCE OF THE KILLING OF McNABB BY FORDE
[5] Forde and Allamby were involved in a long-term relationship. They lived in an apartment that Forde had leased about one month before the events giving rise to the charge. As I have noted, McNabb was Allamby’s former spouse, and the father of two of Allamby’s children. Both Forde and McNabb were drug dealers.
[6] On June 13, 2006, McNabb learned that a man named Joe Grasso was at Forde’s apartment. Grasso apparently owed McNabb a drug debt. McNabb went to Forde’s apartment with the apparent intention of collecting his money from Grasso.
[7] Once in the apartment, McNabb went into the bedroom where Grasso was hiding to confront him about the drug debt. Allamby reproached McNabb for entering her bedroom and an argument occurred between them. Forde then entered the bedroom. He and McNabb began to argue. Allamby left the bedroom. Ultimately, both McNabb and Forde produced knives, and Forde stabbed McNabb to death.
[8] It is likely that Forde will give evidence in his own defence. He will testify that McNabb pulled out a knife and threatened him with it. Forde then grabbed a knife that was hidden in a closet and stabbed McNabb once, after which McNabb slumped to the floor. McNabb died as a result of a single lethal stab wound to the chest.
[9] Although there is no dispute that both Forde and McNabb produced knives, and that Forde stabbed McNabb with his knife, causing his death, the events surrounding the stabbing are otherwise in dispute. In particular, the extent to which Forde was angry at McNabb, and acted violently towards him, and the extent to which McNabb was violent towards Forde prior to the stabbing are contested.
THE EVIDENCE OF THE PRIOR ACTS OF VIOLENCE OF THE DECEASED
[10] As I have noted, Forde asks to be permitted to adduce evidence of two prior incidents of violent behaviour by McNabb against him. One of the incidents took place approximately two-and-one-half years prior to the stabbing; the other approximately one month prior. In the earlier incident, after the two men got into an argument, McNabb struck Forde on the head with a club. In the later incident, again after getting into an argument with Forde, McNabb stabbed Forde in the arm and hand with a knife.
THE EVIDENCE OF THE PRIOR ACTS OF VIOLENCE OF THE ACCUSED
[11] The accused has a lengthy record replete with convictions for violent offences. I do not know to what extent, if at all, the accused will ask that the Crown be precluded from cross-examining him on his prior convictions. But Crown counsel wants to go beyond the proof of the date, offence and sentence for the last three of these convictions, and be permitted to establish the basic underlying facts. The convictions in question are:
• a conviction in 2005 for assaulting Allemby with a sharp object, as a result of which Allemby required seven stitches
• convictions in 2003 for assault with a weapon and assaulting a peace officer by throwing a door at an officer while fleeing from the police
• a conviction in 1998 for assaulting a woman by chasing her in the street, grabbing her by the neck and ripping a chain off her neck
ANALYSIS
Admissibility of Previous Acts of Violence Committed by Deceased
[12] The defence of self-defence found in s. 34(2) of the Criminal Code of Canada R.S.C., 1985, c. C-46 is available to persons who cause death or grievous bodily harm in repelling an assault if they do so, amongst other requirements, “under reasonable apprehension of death or grievous bodily harm.”
[13] Where self-defence is raised, evidence of previous acts of violence committed by the deceased (1) on the accused, and (2) on third persons if those acts of violence are known to the accused, is admissible to show the accused's reasonable apprehension of violence from the deceased. Evidence of the deceased’s reputation for violence, if known to the accused, is also admissible for this purpose.
[14] While evidence of (1) previous acts of violence by the deceased that are not known to the accused, and (2) the deceased’s reputation for violence not known to the accused, is not admissible to show the reasonableness of the accused's apprehension of an impending attack, nonetheless it “is admissible to show the probability of the deceased having been the aggressor and to support the accused's evidence that he was attacked by the deceased.” (See R. v. Scopelliti (1981), 1981 1787 (ON CA), 63 C.C.C. (2d) 481, 34 O.R. (2d) 524 (C.A.) at para. 30.)
[15] In his Notice of Application, the accused placed reliance on both of these grounds to support the admissibility of evidence of previous assault by the deceased on the accused, and a third ground as well. He stated, “The proposed evidence is sufficiently probative and relevant to demonstrate that Clive McNabb was the aggressor in an altercation resulting in his death and to support the Applicant’s evidence that he had been attacked by Mr. McNabb and his response to that attack was consistent with the Criminal Code definition of self-defence [emphasis added].” This tripartite basis for admission of the evidence is repeated throughout the accused’s factum. However, in oral argument, he disavowed his first prong of admissibility. He said that he no longer wishes to adduce the evidence to demonstrate that McNabb was the aggressor. He points out that the Crown does not dispute that McNabb was the initial aggressor. However, the Crown does not concede that McNabbb was the first to produce a knife, and, more importantly, the Crown and defence do not see eye to eye about the aggressiveness of the two men throughout their encounter. The details of what took place between McNabb’s initial aggression, and Forde’s final aggression, is in dispute.
[16] It is hard to pin down with precision the full extent of the remaining grounds upon which Forde argues that the evidence of McNabb’s prior acts of violence should be admitted. For example, his counsel said the following during argument:
Assuming that Mr. Forde testifies ... he is going to assert that he acted in self-defence, and obviously, in my respectful submission, this evidence that I propose to introduce would assist the jury in assessing his credibility. Mr. Forde, again subject to rulings, would say, "I know this man. On these two prior occasions he attacked me." There is evidence that corroborates that position, and indeed it would be, in my respectful submission, something that the jury could use to assess his credibility.
[17] Later, counsel expressed the grounds somewhat differently, stating:
Well, Mr. -- Mr. Forde is not seeking to introduce these prior acts of violence towards him to suggest to the jury that Mr. McNabb was the type of person who would engage in violent activity but simply to show that on these two occasions specifically, he did attack Mr. Forde and that this is an important consideration for the jury when assessing the reasonable apprehension that Mr. Forde will assert he was under at that time.
[18] I take from counsel’s submissions that, in all likelihood, Forde will testify that as a result of McNabb producing the knife (“the violence with which the assault was originally made” to use the language of s. 34(2)(a)) and as a result of McNabb proceeding to attack him with it (“the violence .. with which the assailant pursues his purpose” to further use the language of s. 34(2)(a)), Forde was under a reasonable apprehension of death or grievous bodily harm, and he stabbed McNabb in the chest because he reasonably believed that he could not otherwise preserve himself from death or grievous bodily harm. I further understand that Forde will testify that in forming these beliefs, he took into account the fact that McNabb had assaulted him on two prior occasions. Finally, counsel submits that independent proof of these earlier assaults will provide confirmation of Forde’s evidence that they did in fact take place. This in turn will enhance the credibility of his evidence that he, in effect, had the mental state required for self-defence under s. 34(2).
[19] I have no doubt that the accused is entitled to adduce this evidence for the reasons stated. Evidence of these previous acts of violence on the part of the deceased may legitimately and reasonably assist the jury in arriving at a just verdict with respect to the accused's claim of self-defence. I am also satisfied that this is not a case where I should exercise my discretion to exclude the evidence on the basis that its potential prejudice substantially outweighs its probative value.
[20] The real issue on this application relates to the reply evidence that the Crown asks to be permitted to tender.
Admissibility of Previous Acts of Violence Committed by Accused
[21] There can be no doubt that when an accused relies on self-defence and leads evidence that the deceased was a violent person, the Crown may lead reply evidence of the accused's propensity for violence where it is necessary to enhance fairness and ensure that the trier of fact has a balanced and undistorted picture of what occurred between the deceased and the accused, and of their respective dispositions for aggression. (See R. v. Kelly, 2011 ONCA 549, [2011] O.J. No. 3610, 88 C.R. (6th) 371 at para. 31; R. v. Williams, 2008 ONCA 413, [2008] O.J. No. 2054, 233 C.C.C. (3d) 40 at paras. 58-60; R. v. Sparkes, [2005] O.J. No. 1883 (C.A.) at para. 7, leave to appeal to SCC refused, [2005] S.C.C.A. No. 408; R. v. Yaeck, [1989] O.J. No. 3002 (Sup. Ct.) at para. 21, aff'd 1991 2732 (ON CA), 68 C.C.C. (3d) 545, leave to appeal to S.C.C. ref'd 71 C.C.C. (3d) vii; R. v. Robertshaw, [1996] O.J. No. 1542 (Ont. Ct. (Gen. Div.)) at para. 19; R. v. Hines, [2001] O.J. No. 1112 (Sup. Ct.) at para. 59, aff’d [2007] O.J. No. 539, 2007 ONCA 103 without reference to this issue; R. v. Soikie, [2004] O.J. No. 2901 (Sup. Ct.) at para. 13.) A decision whether to admit such evidence is of course subject to a trial judge's overall assessment as to whether the probative value of the evidence outweighs the potential prejudicial effect. (See Sparkes at paras. 7-8; and Williams at para. 60.)
[22] Counsel for the applicant does not dispute the general proposition that in a self-defence case, when the defence leads evidence that the deceased was a violent person, the Crown may be able, in reply, to lead evidence of the accused’s propensity for violence. Instead, he attempts to narrow the circumstances when such evidence may be led by the Crown, and argues that the evidence cannot be led in this case.
[23] Specifically, the accused argues that the Crown can only lead evidence of the accused’s propensity for violence when the defence evidence of the deceased’s violence is led to support the defence position that the deceased was the aggressor. In this case, he says that he is not adducing the evidence for that purpose, as I have already explained. In addition, the accused says that he will not be putting McNabb’s “general disposition for violence” in issue because he only will adduce McNabb’s violent acts against him. He argues that this again precludes the Crown from leading Forde’s acts of violence against third parties.
[24] In my view, the accused’s arguments must fail.
[25] First, I am not sure that the case law limits the Crown’s right to lead evidence of the accused’s disposition for violence to circumstances where the defence has led evidence of the deceased’s violent nature to show that it was probable that the deceased was the aggressor. It is true that in many of the cases at least one of the reasons that reply evidence was said to be admissible was to refute the defence assertion that because of the deceased’s violent nature he or she was more likely the aggressor. Certainly that was the case in Sparkes, Yaeck, R. v. Hankey, [2008] O.J. No. 5016 (Sup. Ct.), Hines, and Soikie. On the other hand, in Robertshaw, reply was permitted where the defence led the evidence of the deceased’s violence to show that the accused had a reasonable apprehension of violence from the deceased. Ultimately, it is more helpful to examine the language of the Court of Appeal in two cases where the Court undertook a more extensive consideration of the issue: Williams and Kelly.
[26] In Williams, the accused was charged with second degree murder. At trial, he denied any involvement in the beating that resulted in the death of the victim, but there was evidence led by the Crown that provided some basis for a defence of self-defence. As a result, the trial judge permitted the accused to lead evidence of the deceased's convictions for assault causing bodily harm and his general reputation for violence. Yet, he did not permit the Crown to lead evidence of the accused’s lengthy criminal record for violence in reply. The accused was acquitted and the Crown appealed.
[27] While the Court declined to interfere with the trial judge's exercise of discretion in excluding the evidence of the respondent's criminal record for crimes of violence in the circumstances of that case, the Court’s reasoning is instructive. O'Connor A.C.J.O., speaking for the court, explained, at para. 58, that:
[w]hen an accused relies on self-defence and leads evidence that the deceased was a violent person, the question of whether the Crown may lead reply evidence of the accused's propensity for violence arises. The Crown will be permitted to do so where it is necessary to enhance fairness and ensure that the trier of fact has a balanced, not a distorted, picture of what occurred between the deceased and the accused and of their respective dispositions for aggression.
[28] At paragraph 59, in order to explain the basis for this proposition, he relied on what was said by Watt J., as he then was, in Yaeck, specifically:
... the prosecution should be entitled to show that the combat was between two persons of similar dispositions for violence, not one with and the other without it. The trier of fact would then have evidence bearing on the probability of each version of aggression, as well as the direct evidence thereof, thereby being in a better position to assess the legitimacy of the claim.
[29] It is noteworthy that neither O'Connor A.C.J.O nor Watt J. limited the purpose of the reply evidence to the determination of which of the accused and the deceased was the aggressor. Rather, they saw the reply evidence as ensuring that the jurors have a balanced picture to assist them in determining what happened between the accused and the deceased.
[30] In my view, this makes eminent good sense. The jurors’ task is more sophisticated than simply deciding who started the conflict. Of course, that is a part of the exercise. But, they are charged with doing their best to determine what happened, what were the contours of the exchange of violence between two persons. Once the deceased’s violent character is in evidence, it will distort the jurors’ ability to make their determination unless they also know something about the accused’s violent character, if he or she has one.
[31] This point is developed further by Doherty J.A. in Kelly. Kelly appealed his conviction for second degree murder. Kelly and the deceased Wilson lived in the same housing complex. Several weeks before the homicide Kelly became involved in a dispute with a man named Jackson, a friend of Wilson, over money that Jackson claimed Kelly owed him. Three weeks before the homicide, Kelly encountered Jackson and Wilson together. Wilson approached Kelly and demanded that he return the money to Jackson. An argument ensued. Wilson threatened to get his gun and shoot Kelly.
[32] On the day of the homicide, shortly before midnight, Kelly and a friend were on their way to purchase some marihuana when they saw Wilson, who appeared to be sneaking up on them, hunched over with his hands behind his back. Kelly testified that he was afraid that Wilson was about to carry out his earlier threat to shoot him. As Wilson continued to approach, the appellant jumped forward and tried to stab Wilson in the shoulder hoping to disarm him. In fact, Wilson was struck in the neck with sufficient force to sever his carotid artery and puncture his lung. He died soon afterwards.
[33] At trial, the accused proposed calling evidence of the deceased’s propensity for violence. Specifically, he proposed to call evidence that the deceased, to the knowledge of the accused, had recruited some young men to commit robberies for him, and offered to provide them with weapons to use in the robberies. Although counsel for the accused had no doubt that this evidence was admissible, he requested an advance ruling because he was concerned about the consequences of eliciting the evidence. He said that the evidence showed that the deceased was a person who had easy access to firearms, which in turn was relevant to the question of self-defence and to what was in the accused’s mind at the time of the incident. He asked the trial judge to hold that by leading this evidence, the defence was not putting Wilson's disposition for violence in issue and opening the evidentiary door to evidence of the appellant's disposition for violence.
[34] The trial judge ruled that this was evidence of Wilson’s disposition for violence, and if proffered, the Crown could adduce evidence of the accused’s disposition for violence. The trial judge acknowledged that if the appellant testified that he was aware of Wilson's attempt to recruit young men to commit armed robberies, the evidence would be admissible as relevant to the appellant's state of mind when he stabbed Wilson. Importantly, however, he ruled that admissibility as evidence of the appellant's state of mind would not affect the fact that the evidence also constituted evidence of Wilson's propensity for violence.
[35] On appeal, the appellant argued that the defence wished to adduce the evidence solely on the issue of the appellant's state of mind, and that as a result, it did not open the door to reply evidence. That is similar to what the defence argues in this case. The Court did not agree that the defence position at trial was so limited. But, significantly for this case, the Court did not accept that the position of the defence could be limited in this way. Doherty J.A. stated, at paras. 29-31:
29 ... Counsel further submitted that the inference that Wilson was armed was available without any reference to Wilson's general character or propensity for violence. Like the trial judge I think the distinction defence counsel struggled to make was an untenable one.
30 The proffered evidence invited the jury to conclude that Wilson had ready access to and a willingness to use firearms. In short, he was a violent person. His willingness to obtain and use firearms reflected his propensity for violence. On the defence argument, Wilson was the kind of person who would carry a gun and would be prepared to use it. This propensity supported the inference that he was carrying a gun at the time of the homicide.
31 I agree with the trial judge that the line of reasoning relied on by the defence was in reality an argument based on Wilson's disposition to use firearms in a criminal and violent manner, as reflected in his attempt to recruit Chrisjohn's brother. That evidence amounted to evidence of Wilson's disposition for violence and would have, if elicited by the defence, opened the evidentiary door to evidence of the appellant's disposition for violence.
[36] Similarly, in this case, the accused cannot avoid the reality that the evidence he proposes to adduce amounts to evidence of McNabb’s disposition for violence, which opens the door to evidence of the accused’s disposition for violence. Put simply, Forde proposes to lead evidence that McNabb has acted violently in the past towards him, and that this knowledge affected the reasonableness of his apprehension of violence from Forde as well as the reasonableness of his belief that he could not preserve himself from death or grievous bodily harm without stabbing him. The fact that the accused disavows the use of this evidence to establish that the deceased was the aggressor cannot somehow preclude the jury from reasoning in that way. In assessing this reasoning, the jury is entitled to take into account, and so the Crown is entitled to adduce, evidence that the accused is also a violent man.
[37] Indeed, I am of the view that the position taken by the defence before me is an effort to make an untenable distinction. On the one hand, Forde says that he is not adducing the evidence of the deceased’s past violence to show that the deceased was the aggressor. On the other hand, Forde says that he is adducing that evidence to corroborate his position that he thought he was being attacked, and, in turn, to bolster his own credibility. In my view, the jury’s consideration of these issues cannot be parsed so finely. The jury cannot be asked to assess whether or not Forde believed he was being attacked, or whether or not he was credible, by examining McNabb’s prior violent acts in isolation. They must measure that evidence along with all versions of the on-going aggression between the two men that are led in evidence in order to reach their conclusions. While Forde may not be adducing the evidence to show that McNabb was the initial aggressor, he is in fact adducing it to show that McNabb remained the aggressor throughout the encounter, and that this provided him with the justification to kill McNabb. As a result, the jury is entitled to a balanced picture – they are entitled to know that Forde is also an aggressive man.
[38] I note that at the accused’s first trial, he advanced this evidence, in part, to show that the deceased was the aggressor. In its reasons for ordering this new trial (see 2011 ONCA 592, [2011] O.J. No. 4049, 277 C.C.C. (3d) 1, 87 C.R. (6th) 409), the Court of Appeal stated, at para. 7:
7 At trial, the defence led evidence of two prior incidents of violent behaviour by McNabb against the appellant. One of the incidents took place approximately two-and-one-half years prior to the stabbing; the other approximately one month prior. This evidence was tendered by the defence in support of the assertion that McNabb had a propensity for violence against the appellant and was the aggressor in the fatal confrontation between them. Although the Crown disputed the nature, extent and responsibility for the prior two incidents between McNabb and the appellant, there was ample evidence of animosity between the two men before the date of the killing. (Emphasis added.)
[39] Of course, the accused is entitled to change his position at this second trial. However, as I have already noted, in his Notice of Application at this trial the accused stated, “The proposed evidence is sufficiently probative and relevant to demonstrate that Clive McNabb was the aggressor in an altercation resulting in his death and to support the Applicant’s evidence that he had been attacked by Mr. McNabb and his response to that attack was consistent with the Criminal Code definition of self-defence.” This dual basis for admission of the evidence is repeated throughout the accused’s factum. The new position taken in oral argument is simply the old position dressed in new clothes. The accused wants the same benefit from the evidence of the deceased’s violent nature as he always has. He simply hopes to avoid having his own violent nature lead in reply. In my view, this effort must fail. As Doherty J.A. stated in Kelly at para 29, “the distinction defence counsel struggled to make was an untenable one.”
[40] Finally, I turn to Forde’s effort to distinguish this case from the cases against him on the basis that because the evidence he proposes to adduce relates only to acts of violence by the deceased on the accused it should not be seen as evidence of a general disposition for violence. Rather, he says, it is evidence of a specific disposition for violence relating only to the deceased that does not open the door to evidence of his own disposition for violence.
[41] I am unable to find support for the distinction that the accused makes between a general disposition for violence and a specific one. I do not understand how a disposition for violence can be sub-divided in this way. A man who beats his wife and no one else is still a violent man. The pertinent cases do not open the door to Crown reply when the defence adduces evidence of the deceased’s “general disposition for violence”. Rather, they open that door when the defence adduces evidence of the deceased’s violent character or disposition for violence, either by proof of specific acts, psychiatric evidence or reputation. As Martin J.A. stated in Scopelliti at para. 36, “I agree with the view of Dean Wigmore that a disposition for violence may be evidenced by specific acts of violence …” There is no suggestion in Scopelliti or any of the subsequent self-defence cases brought to my attention that reply is foreclosed when the defence adduces only acts of violence by the deceased against the accused. Neither the cases nor logic support the distinction advanced by the accused.
[42] I am of course aware that in R. v. Vanezis, 2006 37954 (ON CA), [2006] O.J. No. 4515, 83 O.R. (3d) 241, 213 C.C.C. (3d) 449 (C.A.), a case where a third party suspect defence was advanced, the Court of Appeal was of the view that the accused could adduce evidence of the third party’s threats towards the deceased without opening the door to his own acts of violence being adduced in reply. But in that case, the third party had been the boyfriend of the deceased for the past year, their relationship was stormy, the third party regularly threatened to beat the deceased and these threats formed direct evidence of the third party’s motive to kill her. In that case, it was truly possible to say that the evidence about the third party’s misconduct was not led to show that the third party was the kind of person that was likely to kill the deceased. Rather it was led to prove that he had a specific motive to do so. I cannot see how that case helps the accused. Here aggression between the accused and the deceased is directly in issue, and it is hard to imagine how evidence of the violent character of one of them can fairly be taken into account in deciding the issues encompassed by the defence of self-defence without evidence of the violent character of the other also being taken into account.
[43] As a result, I am of the view that the Crown can adduce the evidence in question, subject to anything that may remain to be said about the weighing of prejudice against probative value.
[44] Two final words. A ruling about the admissibility of reply evidence at the outset of a case is necessarily a preliminary one. It must remain open to consider this issue further as the evidence develops, not in order to permit the re-litigation of the issue, but to consider whether unanticipated developments have any impact on it.
[45] Finally, I am not certain how the Crown proposes to prove most of the prior acts of violence by the accused other than through the cross-examination of the accused. In R. v. Williams (1985), 1985 113 (ON CA), 18 C.C.C. (3d) 356 (Ont. C.A.), Martin J.A. emphasized the requirement that disposition may only be proven by admissible evidence. He made particular reference to the hearsay rule. At p. 366, he said:
Where the disposition of a third person is sought to be proved by specific acts, those acts must be proved by admissible evidence and may not be proved by hearsay unless the hearsay evidence proffered falls under one of the exceptions to the rule excluding hearsay evidence.
[46] The phrase "one of the exceptions to the rule excluding hearsay evidence" must now be taken to refer to any common law or principled exception.
[47] Accordingly, before evidence of the incidents that I have provisionally admitted can be led, Crown counsel will have to apprise me of the nature of the evidence that they actually intend to adduce.
M. DAMBROT J.
RELEASED: November 26, 2012
COURT FILE NO.: 50000759/12
DATE: 20121126
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
STEVEN FORDE
REASONS FOR JUDGMENT
DAMBROT J.
RELEASED: November 26, 2012