COURT FILE NO.: 10-RM1896

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Mark Peter Hutt

Counsel: Vicki Bair and Meaghan Cunningham for the Crown Lorne J. Goldstein and Leonardo S. Russomanno, for the Accused

HEARD: March 18 to April 3, 2013

RULINGS ON MOTIONS

MARANGER J

[1] The court heard three weeks of pre-trial motions in the first degree murder trial of Mark Hutt. On April 22, 2013 brief oral reasons for the rulings were delivered. At that time it was indicated that more comprehensive written reasons would be provided at a later date. What follows are those reasons.

[2] It was originally believed that there would be five contested motions each requiring rulings.

[3] During the course of the voir dire counsel agreed on the admissibility of two specific areas of evidence. The first related to the expert evidence and qualifications of Ms. Deborah Sinclair. It was anticipated that she would provide opinion evidence relating to the definition and forms of domestic violence, as well as the dynamics of an abusive relationship including traumatic bonding, coercive control, and the behaviour of victims of domestic abuse.

[4] Based upon her curriculum vitae and the proposed nature and scope of her evidence, I found that she was a qualified expert and that her evidence relating to domestic violence was admissible.

[5] The second uncontested area of evidence related to the hearsay statements of the deceased in this case.

[6] The hearsay statements of the deceased victim were clearly relevant, and were admissible using the principled approach to the admissibility of hearsay evidence.

[7] Ultimately, the admissibility of the following required adjudication: a statement given to the police by the accused on December 6, 2009: a statement given to the police by the accused on December 11, 2009: and the nature and scope of discreditable conduct evidence relating to the accused.

Factual Background

[8] The evidence presented at the voir dire consisted of the testimony of several police officers involved in the investigation, some admissions, audio/videos of two statements made by the accused and the transcripts from the preliminary inquiry. These sources allow for the following findings of fact:

• On December 6, 2009 at 9:17 a.m. the accused called 911 to report that his wife was not breathing. At 9:22 a.m. paramedics and police arrived at Mark Hutt’s residence at 1087 Barwell Avenue, Ottawa. They discovered Donna Jones in the basement, she was lying on a makeshift mattress and she was deceased. She was badly burned with obvious injuries, including black eyes. The paramedics did not attempt to resuscitate her as her mouth could not be opened because rigor mortis had already set in.
• The accused made a number of statements at the scene he explained that his wife Donna Jones went to Cornwall for a training seminar and that she was at a party and got drunk and fell on a fire. He indicated that she came home a few days ago but refused to go to the hospital.
• He also explained that they had been sleeping in the basement since she returned from Cornwall so that he could look after her. He explained that while she was undressing to take a shower she fell against the bed and hit her head. He said that on Saturday she passed out in the bathroom and he administered CPR and revived her.
• He also indicated during the statements that he knew something was going to happen if she didn't go to the hospital.
• The accused was asked to speak to Major Crimes investigators at the police station. He said he would do anything to help.
• He was cautioned to some extent by Constable McAnany just prior to the interview when he asked to speak to the officer privately.
• He was interviewed by Sgt. Mike Hudson at 12:59 p.m. The interview lasted three hours and 42 minutes. There were two cigarette breaks. During the interview Mark Hutt said that the burn injuries to his wife were caused by him hitting a pot of boiling water that drenched her on November 24, 2009. He said that Donna told him that she was going to cheat on him and he hit the pot out of anger. He indicated that he thought she left the room and didn't know she was crouched down getting tupperware out of the cabinet when he hit the pot of boiling water.
• He also indicated that his wife did not want to go to the hospital because she was afraid that he would get into trouble and that she was also afraid of doctors and didn't like hospitals. He indicated he wanted to respect her wishes, and said that she was adamant about not going to the hospital.
• He explained other injuries that were found on her. He also advised about the possibility of one or two pellets that may be found in her knee which were the result of an accidental shooting mishap at his cottage.
• During this interview it is fair to say that the information flowed freely from Mark Hutt with very little prompting from Sgt. Hudson.
• In the days that followed this interview, Sgt. Hudson’s further investigation resulted in the discovery of evidence to support the proposition that Donna Jones suffered severe abuse at the hands of her husband. Some of this included the coroner’s finding that her body was riddled with injuries some dated, some recent, which included 29 pellets from a pellet gun located throughout her body. Some of it included evidence from her family and friends about the dramatic changes in her behaviour over the last several months and their observations about the relationship.
• Mark Hutt was placed under arrest on December 11, 2009 and was charged with second-degree murder. He was interviewed by Sgt. Hudson on December 11, 2009 at 20:48 the interview ended at 00:48 on December 12, 2009.
• He was properly cautioned and advised of his right to counsel. He spoke to John Hale an experienced criminal lawyer, prior to the interview taking place. He mentioned waiting for his counsel to arrive prior to answering questions at various times during the interview.
• During the interview he smoked approximately 10 cigarettes, and he was well treated by Sgt. Hudson.
• Evidence from the preliminary inquiry supports the proposition that many of Donna Jones’ friends had grave misgivings about Mark Hutt. They tried to stop the wedding, and they staged had an intervention to try to convince her to discontinue the relationship. They testified as to their observations regarding the nature of the relationship.

The December 6, 2009 Statement

[9] The issue of the admissibility of the December 6, 2009 statement raises three separate questions: Was Mark Hutt a witness or a suspect during the course of this interview? Was the statement voluntary? Was Mark Hutt detained so as to trigger the application of the Canadian Charter of Rights and Freedoms?

Was Mark Hutt a witness or a suspect during the interview?

[10] The question of whether or not Mark Hutt was a suspect or a witness when he was interviewed on December 6, 2009 is of concern to the overall analysis of whether the Crown has proven beyond a reasonable doubt that the statement given to Sgt. Hudson on that date was voluntary. In R v. A.D. 60 WCB (2d) 8 (Ont. Sup. Ct.), Dambrot J. provides the following analysis respecting this issue:

In considering the admissibility of statements made by persons who are not under arrest and who have not been cautioned about their right to silence, two significant questions must be addressed. The first is: whom, if anyone, other than a person under arrest, should the police caution before commencing an interview? The second is: what are the consequences of not cautioning a person who should be cautioned?…

… I note that when the admissibility of the statement is considered, the fundamental concern is whether it was made voluntarily. The mere fact that a warning was given is not necessarily decisive in favour of voluntariness and admissibility but, on the other hand, the absence of a warning does not compel a Court to rule that the statement is not voluntary, and inadmissible.

[11] Citing Watt J. in R v. Worall, Dambrot J. in R. v. A.D. stated at para 67:

…once a police officer has information that would alert any reasonably competent investigator to the realistic prospect that the death of the deceased may have been associated with an unlawful act committed by a person being questioned by that officer, the officer should tell that person that his or her answers could be used in evidence in a prosecution brought against him, even where that person is neither arrested nor detained. The informational deficit arising from a failure to caution the accused is a consideration when the voluntariness of the statement is considered at trial.

[12] For the great majority of the initial interview it is reasonable to conclude that in the eyes of Sgt. Hudson, Mark Hutt was a witness. The following factors lead me to this conclusion:

• Mark Hutt called 911 to seek help regarding his wife.
• Mark Hutt appeared distraught during the interview which suggests he was in a state of severe grief.
• The history of abuse was completely unknown to the investigator.

[13] However, once suspicious explanations for other injuries to the deceased were provided by the accused to the officer, the line between witness and suspect became difficult to differentiate. Sgt. Hudson candidly testified that he sensed that something was wrong but felt there were no grounds for an arrest.

Was the statement voluntary?

[14] While the nature of who the police officer was dealing with arguably changed during the later stages of the interview, I have absolutely no doubt in my mind that the information that was provided by Mark Hutt was done so voluntarily.

[15] It is clear on the evidence that Mark Hutt was not oppressed, and that he was of an operating mind.

[16] Furthermore, irrespective of the issue of whether he was a suspect or a witness he was in some manner cautioned not only by Constable McAnany but also by Sergeant Hudson.

[17] One of the main arguments raised by counsel for the accused against voluntariness was that at no time during the interview was Mark Hutt alerted to his real jeopardy being a murder charge. The difficulty with that proposition is that at that stage Sgt. Hudson was also unaware of the nature and extent of Mark Hutt's jeopardy. What his ultimate jeopardy was does not render the information he chose to provide to the officer during that interview on December 6, 2009 involuntary.

[18] I find that the Crown has proven beyond a reasonable doubt that the statement given to Sgt. Hudson of December 6, 2009 by the accused was voluntary.

Was the accused detained so as to trigger the application of the Charter?

[19] The determination of whether a detention has taken place for the purposes of engaging the Charter was recently described by the Supreme Court of Canada in R v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 32 in the following manner:

To answer the question whether there is a detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements. In those situations where the police may be uncertain whether the conduct is having a coercive effect on an individual it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go. It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed between police conduct that respects liberty and the individual’s right to choose, and conduct that does not.

[20] When considering the statement as a whole it seems clear to me that the continuation of the interview was as a result of Mark Hutt’s desire to keep speaking. The officer conducting the interview was allowed to continue with very little prompting on his part. I am confident that at any time during the course of the question-and-answer session had Mark Hutt stated in unambiguous terms “I do not want to talk anymore. I want to leave” Sgt. Hudson would have respected his liberty and escorted him out of the police station. I find as a fact that Mark Hutt was not detained and consequently the Charter does not apply.

The December 11, 2009 Statement

[21] This was a question-and-answer session again conducted by Sgt. Hudson. It followed the arrest of Mark Hutt for second-degree murder.

[22] The entire interview was audio videotaped. It began at 21:15 and ended at 00:40. It seems clear that Mark Hutt was of an operating mind. I further find that there is no evidence of oppression. He was offered water, food, given the police officers jacket to wear because he complained of feeling cold, and was given permission to smoke a significant number of cigarettes. He was lucid and clear when he spoke, and was treated respectfully by the police officer.

[23] The principal argument against voluntariness put forth by defence counsel was that the accused was induced into giving parts of the statement by virtue of promises or impermissible inducements made by the police officer conducting the interview. I disagree. I find that what took place here was the work of a highly skilled police officer who played on the conscience and moral culpability of the accused and in doing so was able to extricate information. Some of the information provided by Mark Hutt was true while some of the information was clearly untrue.

[24] In R v. Oickle [2000] 2 SCR at para. 57 the Supreme Court of Canada indicated the following with respect to the use of inducements and their impact on the voluntariness of a statement:

In summary, courts must remember that the police will often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to the crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other of factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.

[25] When considering the interview as a whole, I find that whatever inducements were made here were permissible. They were nothing of the kind that could be said to have overborne the will of the accused.

[26] Therefore the statement provided on December 11, 2009 has been proven to be voluntary beyond a reasonable doubt.

Charter Issue

[27] The accused was read his rights and cautioned upon arrest. In fact, he contacted and was in contact prior to his arrest with John Hale, an experienced criminal lawyer practicing in the city of Ottawa.

[28] During the course of the question-and-answer session Mark Hutt did request at various times to speak to his lawyer, or stated that he should not say anything until he speaks to his lawyer, or that his lawyer indicated to him not to say anything. Again, with very little prompting on the part of Sgt. Mike Hudson Mark Hutt decided to speak.

[29] The thrust of the argument raised by counsel representing Mark Hutt was that he was operating under a fictitious belief that his lawyer was going to attend and be present at some point during the course of the interview. Regardless, of what he may or may not have believed, his Charter Rights were never violated. He was cautioned numerous times about his right to contact counsel and his right to remain silent. Nevertheless, he chose to speak.

[30] I find as a fact that the lead investigator in this case did everything he could do to be certain that the accused’s Charter rights were protected. Therefore the application under the Charter is dismissed.

Discreditable Conduct Evidence

[31] The history of the relationship between the accused and the victim disclosed that for three years prior to her death, Donna Jones was abused in an extreme manner: emotionally, psychologically and physically. The nature and degree of abuse was shocking.

[32] The Ontario Court of Appeal in R v. Moo 2009 ONCA 645, [2009] O.J. No. 3706 (Ont. CA) at para. 98 described the relevance of discreditable conduct in the context of domestic homicides in the following manner:

In prosecutions for domestic homicide, evidence is frequently admitted to elucidate the nature of the relationship between the accused and the deceased. This evidence, which often discloses misconduct other than that charged, not only demonstrates the nature of the relationship between the parties, but also may afford evidence of motive and the animus relevant to establish the identity of the deceased’s killer and the state of mind with which the killing was done.

[33] In R v. Cudjoe 2009 ONCA 543 (Ont.C.A.) at para. 64, the Ontario Court of Appeal indicated the following regarding domestic homicides:

In a prosecution for a crime of unlawful homicide, such as murder, evidence of an accused’s prior abuse of the deceased may illuminate the nature of the relationship between the principals, demonstrate animus and establish a motive for the killing. This circumstantial evidence, used prospectantly, may assist in proving complicity in an unlawful killing and in establishing the state of mind that accompanied it.

[34] Counsel representing Mark Hutt conceded that some of the discreditable conduct was admissible and relevant. However, they requested that a limit be placed upon this evidence because they submitted that it was highly prejudicial.

[35] This is a case where the history and nature of the violence and the control that the accused exerted over the victim, are material and probative to virtually every issue that the jury has to consider.

[36] While counsel did not specifically say so, the evidence they really wanted to have excluded was that of Dr. Milroy the forensic pathologist who would testify that post-mortem x-rays disclosed that there were 29 air pellets located at various locations inside the deceased’s body. The history and circumstantial evidence overwhelmingly supports the proposition that this woman was shot by her husband at various times with a pellet gun. While counsel asked that evidence of other injuries be excluded, the real issue here were the 29 air pellets.

[37] I find that this evidence is highly probative, and although it operates clearly against the accused, its probative value vitiates any concern a court might have regarding its prejudicial effect. I make this conclusion based upon the following reasons:

• The fact that Donna Jones chose to stay and continue to live with Mark Hutt, after being shot at various times with a pellet gun is compelling evidence of the degree of control he had over her. This goes to the issue of psychological unlawful confinement, as well as ongoing criminal harassment.
• There is expert evidence to support the proposition that at least two of the pellets shot into Donna Jones were shot after she was scalded by boiling water. This goes to the issue of the state of mind of the accused following the burning, i.e. if he cared about her welfare and really wanted her to live, why would he shoot her with a pellet gun after she had been burned?
• The defence in this case hinges on a finding that the accused while criminally negligent in causing the death of his wife did not have the requisite state of mind for murder. The depth and degree of animus that the accused had for his wife, and what he did to her leading up to the events that caused her death are material and relevant to that fundamental issue. How he treated her throughout the marriage, how much violence he perpetrated upon her throughout the marriage, including the graphic and horrifying nature of the violence is all relevant to his state of mind.

[38] This is one of those unusual cases where all of the evidence of discreditable conduct is material and relevant to the issues for the jury to determine, the highly probative nature of this evidence neutralizes any prejudicial effect.

[39] Therefore, the statements provided by Mark Hutt on December 6 and 11, 2009 as well as the discreditable conduct evidence being proffered by the Crown are all ruled admissible.

Mr. Justice Robert L. Maranger

Released: July 22, 2013

COURT FILE NO.: 10-RM1896

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

MARK PETER HUTT

Applicant

RULINGS ON MOTIONS

Maranger J.

Released: July 22, 2013