ONTARIO
SUPERIOR COURT OF JUSTICE
INDICTMENT NO.: J-11-3244
DATE: 2013-01-17
B E T W E E N:
Her Majesty the Queen
S. O’Brien and C. Fraser, for the Applicant
Applicant
- and -
Jeremy Hall
D. Derstine and S. DiGiuseppe, for the Respondent
Respondent
HEARD: in Hamilton on January 10, 2013
LOFCHIK J.
[1] The applicant proposes to call six witnesses at the trial of the respondent who will, it is anticipated, give evidence that will disclose the commission of other offences by the respondent, or that will be generally discreditable to him.
[2] Full disclosure of all six witnesses has been made to the respondent.
[3] It is anticipated that Jason Lusted will testify that he and the respondent were partners in crime. Their primary criminal endeavours were vehicle thefts and break and enters. In 2006, the respondent asked Lusted to assist him in a matter. Lusted travelled to Hamilton from out of town and met up with the respondent. They went together in a vehicle to an apartment on Main Street East. There the respondent produced a sawed off shotgun and forced the deceased, Billy Mason, to accompany him and Lusted in the vehicle. Mason sat between the respondent and Lusted. Lusted heard the respondent accuse Mason of “setting him up” and Mason denying this. They drove to a field/wood area in Haldimand County where Mason was told to get out of the vehicle. He did, and Lusted witnessed the respondent shoot Mason with the shotgun. He also threatened Lusted and fired a second warning shot. They left the body there and subsequently burned the vehicle they had used. At the respondent’s request, Lusted assisted the respondent a few days later to retrieve the body, transport it to the respondent’s farm west of Guelph, and there incinerate the remains. The “set up” referred to was Mason referring to a “drug rip” to the respondent that went bad. Lusted has a lengthy criminal record.
[4] Carol Ann Easton is likely a hostile witness for the applicant. The applicant proposes to call her as a witness. She was in a common-law relationship with the respondent and they have three children together. She gave the police detailed evidence, under oath, that the respondent had been involved in a drug rip that had gone bad. Their house in Hamilton was shot up. They moved to a rented farm in Alma, Ontario. The respondent and Lusted burned a dead body there. She is expected to state that the murder of Billy Mason was done by the respondent in retaliation for the “set up” as the respondent characterized it. She gave the police detailed evidence about the burning of the body, the respondent’s statements to her about the killing, Lusted’s role and demeanour. She disposed of burnt logs and ashes from the incineration and took police to where she dumped that material. She gave evidence about the respondent’s guns, digging them up from their hiding place and putting them in storage. She took the police to the guns. She was/is terrified of the respondent as he has beaten her up as well as her brother. She was/is terrified that he will retaliate against her if he is released from custody.
[5] Wendy Moore is expected to testify that she knew both the respondent and Billy Mason. She knew that the respondent and Mason knew each other. She will say that in the summer of 2005, Mason told her that he had set up a home invasion for “Jeremy” and that Mason was fearful of the people who had had their home invaded.
[6] Michael Maloney was a homicide detective for the Hamilton Police Service. He interviewed the respondent on June 23rd, 2006, about the Billy Mason disappearance. In that interview, the respondent told Maloney that he had taken something from someone. That it was a set up. As a result his house was shot up and he complained that the police were doing nothing to protect him and his family. He declined to say who set him up. He was upset that his earlier offer to provide criminal-related information to the police was rejected.
[7] Paul Staats is a detective with the Hamilton Police Service. He spoke to the respondent on June 28th, 2006 at the Hamilton Detention Centre at the request of the respondent following up from the interview with Detective Maloney. At that time, the respondent provided more details about the drug rip, that the target was named Kevin Gentles and that he stole cocaine, hashish and money from him. The respondent learned later that this was the property of a biker gang and that his house had been shot up in retaliation. He was fearful for his safety and for the safety of his Carol Ann Eaton and their children who were living with him.
[8] The Crown argues that the evidence from these witnesses is either motive evidence of specific animus from the respondent toward the deceased, or necessary evidence to explain the relationship between the witness and the respondent or evidence of the respondent’s consciousness of guilt.
[9] Evidence of disreputable conduct is presumptively inadmissible. The primary concern with this type of evidence is that the jury may misuse it by inferring guilt based on bad character or disposition of the accused.
[10] There are three exceptions under which evidence of bad character of the accused can be adduced:
Where the evidence is relevant to an issue in the case;
Where the accused puts his or her character in issue;
Where the evidence is adduced incidentally to proper cross-examination of the accused.
[11] Evidence which incidentally demonstrates bad character can also be directly relevant to a key issue of the Crown’s theory of the case. Evidence of motive for example is always relevant in that it makes it more likely that the accused committed the crime, although it is not an essential element of criminal responsibility.
Lewis v. The Queen, 1979 19 (SCC), [1979] 2 S.C.R. 821
[12] Evidence which is directly relevant to the Crown’s theory of the case is admissible even though it may also demonstrate the bad character of the accused, as long as its probative value outweighs its prejudicial effect.
R. v. S.G.G., 1997 311 (SCC), [1997] S.C.J. No. 70 (S.C.C.) at para. 65.
[13] While emphasizing the general rule of exclusion, courts have recognized that an issue may arise in the trial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse.
R. v. Handy, 2002 SCC 56, [2002] 2 SCR 908 (S.C.C.) at para. 41.
[14] In R. v. Arp, 1998 769 (SCC), [1998] 3 SCR 339 Cory J. at para. 41 stated the rule as follows:
…evidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule, inadmissible. Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value of the proposed evidence outweighs its prejudicial effect.”
[15] It is for the Crown to establish on a balance of probabilities that the likely probative value of the evidence will outweigh its potential prejudice.
[16] “Prejudice” for the purposes of the inquiry, is used in the legal, procedural sense. The fact that the evidence tendered may be powerful evidence for the prosecution does not lead to a conclusion of prejudice. The inquiry into prejudice focuses not on the effect that the evidence may have on the outcome of the trial, but on its effect on the accused’s right to make full answer in defence. The question is not whether the evidence may tend to convict the accused, but whether it is likely to convict him unjustly. A just or fair trial is one which gets at the truth, while respecting the fundamental right of the accused to make full answer and defence. (See R. v. S.G.G., supra, at para. 100)
[17] In the case before me the evidence sought to be admitted falls into six categories:
Evidence of previous criminal behaviour of the accused and of his having been in prison;
Evidence of a drug rip off where the accused Hall and Billy Mason carried out a home invasion and stole drugs and cash which turned out to belong to the Hells Angels. After this “drug rip” Hall’s home was shot up and he was very concerned for his family. The Crown argues that this evidence goes to the motive and it is their theory that Hall killed Mason as punishment for having got him involved in this situation;
Evidence that after the police visited his house, Hall had Carol Ann Eaton, his common-law spouse, dig up some guns which he buried in the backyard and dispose of them;
An ante-mortem statement made by Billy Mason about setting up a home invasion for a “Jeremy” and being afraid of the people who they ripped off;
Carol Ann Eaton’s evidence of Hall beating her and her brother resulting in her fear of him;
Evidence of Hall making arrangements with Edmond Huard to have Jeremy Lusted killed.
[18] The principle driver of probative value is that connectedness of the evidence to the alleged offence. As the evidence becomes more focused and specific to the charge its probative value becomes more cogent.
[19] The evidence of prior criminal activity of Hall, which the Crown seeks to introduce, the evidence of the drug rip set up by Billy Mason and the fact of being in prison with Hall is evidence probative of motive for the murder of Billy Mason and of the specific animus which Hall had toward Mason or necessary evidence to explain the relationship between the witness Lusted and Huard and Hall.
[20] The evidence of motive is generally relevant to an issue in a criminal trial, namely the identity of the perpetrator, the doing of an act, and the intent with which the act was done.
R. v. Lewis, [1979] S.C.J. No. 71 (S.C.C.)
R. v. Jackson (1980), 57 C.C.C. (3d) 154 (Ont. C.A.) at p. 167.
[21] In R. v. Moo the Ontario Court of Appeal commented that evidence of motive may necessarily disclose unrelated misconduct of the accused for the sake of explaining the nature of the relationship between the accused and the deceased.
R. v. Moo, 2009 ONCA 645, [2009] O.J. No. 3706 (Ont. C.A.) at para. 98.
[22] Evidence of discreditable conduct that provides a narrative or context of events that gave rise to animus or motive on the part of the accused does have relevance to prove that animus and thus has probative value. R. v. T.J.D., [2004] O.J. No. 1444 (Ont. C.A.) at para. 4.
[23] An antidote for the potential prejudicial effect of discreditable conduct is a limiting instruction to the jury on the use of the evidence. Specifically, the trial judge may instruct the jury that they could not use the evidence of discreditable conduct to conclude that the accused is the type of person who would be disposed to commit the offences with which he is charged.
R. v. D.S.F., 1999 3704 (ON CA), [1999] O.J. No. 688 (Ont. C.A.) at para. 16
[24] Limiting instructions to the jury can cure the moral prejudice (potential stigma of “bad personhood”) or reasoning prejudice (confusion and distraction of the jury from the crime charged) potentially resulting from evidence of discreditable conduct that establishes a relationship between the accused and the deceased relevant to the motive to kill.
[25] I adopt the words of Laforme J. in R. v. Kinkead, [1999] O.J. No. 1498 at para. 18 where he said:
“[18] It is not sufficient, without proof, to allege a prejudice that is one of mere speculation or conjecture. As I said above, I am of the view that juries are intelligent, well meaning and conscientious citizens who take their oaths very seriously. Unless common sense or some other proof indicates the contrary, I believe that juries respect and abide by their sworn duties and comply with the instructions of the court.”
[26] In the case before me, the evidence relating to the criminal activities of Hall together with the witnesses Lusted and Huard, and the evidence of previous incarcerations of Hall and evidence of the drug rip off shows the relationship between the parties and is necessary to show the connection of the various parties with the crime underworld a relevant issue here. This evidence is also directly related to motive and is really about a narrative of events leading to the death of Billy Mason and following that event relating to what happened to Billy Mason and why it happened. That story cannot be told without the background of criminal activity in which the players were involved and how they came into contact with each other. I find that this evidence is necessary for the trier of fact to come to grips with what happened in connection with this case. The prejudicial effect of this evidence is relatively mild compared to the evidence of the actual crime.
[27] Defence counsel argues that the evidence of Edmond Huard about the plot to kill Lusted is extremely prejudicial. However, it is also powerful probative evidence of Hall’s consciousness of guilt. If the jury accepts the evidence that Hall plotted to do away with the only witness to Billy Mason’s murder giving the reason for such action as being that Lusted had information that would put Hall away for a long time, it is open to the jury to draw the inference that Hall is the killer of Mason.
[28] This evidence of the plot to do away with Lusted is not similar fact evidence or propensity evidence unrelated to the murder charge before the court but rather part of the continuing narrative of the events surrounding the murder of Billy Mason and directly related to the involvement of Hall. The fact that this evidence maybe powerful evidence for the prosecution does not lead to a conclusion of prejudice. The evidence may be unfortunate for the accused but not prejudicial in the legal sense.
[29] Doing my best to balance the probative value of the evidence in question against the prejudicial effect, having regard to the importance of the issues for which the evidence is legitimately offered against the risk that jury will use it for other improper purposes, and taking into the account the effectiveness of any limiting instructions I can conclude that the probative value of the evidence proffered by the Crown outweighs the prejudicial effect and that the evidence proffered is admissible.
[30] The only limitation with respect to the admissibility of the evidence set out above is the evidence of Carol Ann Eaton concerning being told by Hall to dig up some guns buried in the backyard and dispose of them, and her evidence concerning the assaults by Hall upon her and her brother, which evidence I find to be of marginal relevance and therefore questionable probative value.
[31] Another exception to my ruling is the evidence of Wendy Moore concerning her ante-mortem conversation with Billy Mason concerning setting up a home invasion which again I find to be of marginal relevance and therefore inadmissible.
[32] The admissibility of the evidence which I have allowed is of course dependent upon the evidence being from the direct observation of the witness or matters which were told to the witness by Hall.
LOFCHIK J.
Released: January 17, 2013
INDICTMENT NO.: J-11-3244
DATE: 2013-01-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Applicant
- and –
Jeremy Hall
Respondent
REASONS FOR JUDGMENT
LOFCHIK J.
TRL:mg
Released: January 17, 2013