ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-10-2316
DATE: 20140227
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
PAUL KENYON
Respondent
Ms. G. Sang and Mr. B. Juriansz, for the Crown
Ms. J. Penman and Ms. M. Wyszomierska, for the Respondent
HEARD: January 29, 2014
RULING ON APPLICATION TO ADDUCE EVIDENCE OF THIRD PARTY SUSPECTS
RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
FUERST J.
Introduction
[1] Marion Deacon was in a relationship with Mr. Kenyon. Mr. Kenyon was addicted to crack cocaine. Mr. Kenyon stole money from Ms. Deacon and her daughters to support his drug habit. This and other behaviour flowing from his drug use, caused problems in the relationship.
[2] Some months prior to March 2010, Ms. Deacon told Mr. Kenyon that he could no longer live at her home at 6 Doner Street in Gormley [Whitchurch-Stouffville]. He moved to his parents’ home in Gravenhurst, but continued to visit Ms. Deacon, usually on weekends.
[3] Mr. Kenyon came to visit Ms. Deacon on the weekend of Saturday, March 6. On March 6, Ms. Deacon worked an evening shift at a pub on Yonge Street in Aurora. She punched out at 10:46 p.m.
[4] Shortly after 8:00 a.m. on Sunday, March 7, 2010, Paul Kenyon, clad in only his underwear, banged on the door of Ms. Deacon’s neighbour at 8 Doner Street. He told the neighbour that Ms. Deacon’s house was on fire and he could not find her. Another neighbour was alerted and called 911 for help.
[5] Firefighters found Ms. Deacon in her house, lying face down near the bottom of a flight of stairs leading to her master bedroom. She was still wearing her waitress uniform from the pub where she worked that evening, including her tip apron, and her jacket over top.
[6] Ms. Deacon was pronounced dead at hospital. A post-mortem examination revealed that she had suffered blows to the head and face. The cause of death was blunt force injuries to the head and face. There was no soot in her airway, which signified that she was dead before the fire began.
[7] Ms. Deacon would typically earn around $300 in tips on a Saturday night. No money was found with her body or elsewhere.
[8] At 12:20 a.m. on March 7, someone attempted to access Ms. Deacon’s bank account using the telephone banking system. That attempt failed because of an incorrect PIN entry. Another unsuccessful attempt to access the account was made at 6:01 a.m.
[9] Mr. Kenyon was taken to hospital for smoke inhalation after first responders arrived. Analysis of his blood revealed signs of recent cocaine use.
[10] The cause of the fire was not determined.
[11] On March 9, 2010, Mr. Kenyon was charged with Ms. Deacon’s murder.
[12] Defence counsel seeks to adduce evidence that two third parties, Marlon Jackson and Thulani Gumbs, are the persons responsible for Ms. Deacon’s murder.
The Third Party Suspects
[13] In 2010 Marlon Jackson and Thulani Gumbs were drug dealers. The both sold crack to Mr. Kenyon.
[14] Mr. Jackson told the police that he did not see Mr. Kenyon on March 6 as he had his children for the weekend.
[15] Mr. Jackson testified at the preliminary hearing that:
• He met Mr. Kenyon in early 2009, through a customer. He sold Mr. Kenyon crack, and occasionally marijuana.
• Mr. Kenyon bought drugs from him about every two weeks.
• He knew that Mr. Kenyon had a wife or girlfriend who was “strict” about his drug use.
• Mr. Kenyon bought $40 to $100 worth of crack at a time, although $100 worth less frequently. He may have bought $200 worth on one or two occasions. He bought at most $30 worth of marijuana at a time.
• Mr. Kenyon paid cash for the drugs. It was rare for him to owe Mr. Jackson money for drugs. If he did, it was no more than $40, and he always paid the debt.
• Mr. Kenyon contacted Mr. Jackson by calling his cell phone or texting him. Mr. Jackson had a cell phone number for Mr. Kenyon. He never called Mr. Kenyon at home or at his girlfriend’s home.
• Mr. Jackson never went to the homes of Mr. Kenyon or his girlfriend. He did not know where Mr. Kenyon lived.
• Mr. Jackson did not have a car and had to be driven to his drug deals.
• He did drug deals with Mr. Kenyon at gas stations. They met at a Petro Canada gas station on 16th Avenue by the Buttonville airport, and maybe twice further north at a Sunoco station in Stouffville near Highway 404.
• The last time he met Mr. Kenyon at a gas station was probably in December 2009.
• He last saw Mr. Kenyon on the evening of Thursday, March 4, 2010, when Mr. Kenyon drove him to the Scarborough Town Centre. He did not speak to Mr. Kenyon after that.
• As of March 4, 2010, Mr. Kenyon owed him no money.
• He has known Thulani Gumbs for over 10 years. He never went with Mr. Gumbs to sell drugs to Mr. Kenyon.
[16] The police obtained Mr. Jackson’s cell phone records for the first week of March 2010. Those cell phone records show that on March 6, 2010:
• Mr. Kenyon’s cell phone called Mr. Jackson 5 times from 4:41 p.m. to 5:02 p.m.
• Ms. Deacon’s home phone called Mr. Jackson 12 times from 6:15 p.m. to 10:31 p.m. Mr. Jackson called back at 10:34 p.m. Based on cell tower sites, he was in the east end of Toronto at that time.
• The Deacon home phone called Mr. Jackson at 10:56 p.m. Based on cell tower sites, Mr. Jackson had travelled north from Toronto to the area of Highway 404 and Major Mackenzie Drive.
• At 11:00 p.m. Mr. Jackson called the Deacon home phone. Based on cell tower sites, Mr. Jackson was in the area of Highway 404 and Stouffville Road at that time.
• At 11:04 p.m. the Deacon home phone called Mr. Jackson. Based on cell phone sites, Mr. Jackson was still in the area of Highway 404 and Stouffville Road.
• At 11:24 p.m. Mr. Jackson received a call. Based on cell tower sites, he was by then back in the north end of Toronto.
• The cell phone records also show that on March 7 the Deacon home phone called Mr. Jackson 7 times from 5:40 a.m. to 6:53 a.m.
• The cell phone records also show that on March 7 the Deacon home phone called Mr. Jackson 7 times from 5:40 a.m. to 6:53 a.m.
[17] Mr. Jackson testified that he would call Mr. Kenyon back from whatever number Mr. Kenyon used to call him, and would not know that he was calling a home number.
[18] Mr. Jackson said that he did not meet Mr. Kenyon and sell him crack on March 6.
[19] On March 6, 2010, there were two gas stations at the corner of Woodbine Avenue and Stouffville Road, east of Highway 404. One was a Petro Canada, and one was a Sunoco. Both were in close proximity to 6 Doner Street. Both were within the range of the cell tower that Mr. Jackson’s cell phone used at 11:00 p.m. and 11:04 p.m. on March 6, 2010, as was 6 Doner Street.
[20] After the preliminary hearing, the police re-interviewed Mr. Jackson, under oath, on October 17, 2012. When asked about the phone records, Mr. Jackson said that:
• Once or twice he went to a house and by arrangement with Mr. Kenyon left drugs in the van in exchange for cash. He did not go into the house.
• There were times he met Mr. Kenyon to sell him drugs at the Petro Canada gas station at Buttonville, a Petro Canada gas station at Stouffville Road, and the Sunoco gas station at Stouffville Road.
• He probably sold Mr. Kenyon drugs on the night of Saturday, March 6, but he could not remember.
[21] A police officer did a test drive from the pub where Ms. Deacon worked on the evening of March 6, to 6 Doner Street. He left the pub at 10:50 p.m. and arrived at 6 Doner Street at 11:03 p.m.
[22] Thulani Gumbs testified at the preliminary hearing that he met Mr. Kenyon in 2009. He sold him marijuana at first, and then crack. Mr. Kenyon would regularly buy $30 to $50 worth of crack at a time. On four or five occasions, he bought $100 worth.
[23] Mr. Kenyon would meet Mr. Gumbs in the north end of Toronto. Once they met at a gas station at Highway 404 and 16th Avenue. Mr. Gumbs never went to a gas station in Stouffville. He never went to any place where Mr. Kenyon lived or stayed.
[24] Mr. Gumbs could not remember when he last sold crack to Mr. Kenyon, but there were a series of texts and phone calls between them on March 6, 2010, from 6:21 p.m. to 7:24 p.m. Mr. Gumbs said these would have occurred before his last sale to Mr. Kenyon.
[25] He remembered that when he last sold Mr. Kenyon crack, Mr. Kenyon paid him $30 for $50 worth of crack. Mr. Kenyon said he would pay the balance later and Mr. Gumbs agreed. Mr. Kenyon had owed him $20 once before and paid off the debt quickly.
[26] Mr. Gumbs’ phone records show that on the night of March 6, his phone used cell towers in Toronto.
[27] On the evening of March 7, 2010, there were eight calls between Mr. Gumbs and Mr. Jackson. Mr. Gumbs said he had known Mr. Jackson for a year or two.
The Evidence of Occurrences at the Deacon House
[28] Ms. Deacon’s oldest daughter, Laura Deacon, said that in late 2006 or early 2007 her mother got caller ID on the home phone. She understood from her mother that men were calling the house and coming around, because Mr. Kenyon owed money for drugs. Her mother said that if she and her sisters were home alone, they were to keep the doors locked and have a weapon with them, just in case. There was an incident when someone put a neighbour’s propane tank in her mother’s van. Her mother also told her that someone threw a bag with a brick or rock in it through a window of the house. She did not hear anything about calls or visits to the house for the last year or so before her mother died.
[29] Amanda Deacon, the middle daughter, said that phone calls were made to the house, including in the middle of the night, by people asking to speak to “Paul”. Sometimes there were cars on their street at night. The last call she picked up was in 2007 or 2008. The last time she saw a car on the street was in that same time frame. The last time her mother mentioned receiving phone calls or seeing someone on the street was in the summer of 2008. Once or twice in the summer of 2008, they found a neighbour’s propane tank in her mother’s vehicle.
[30] Natasha Deacon, the youngest daughter, told the police that there were times when people called the house for Mr. Kenyon, or hung around outside, as he apparently owed money. A black man once came to the door of the house and politely asked for “Paul”. As a result of these incidents, her mother told her and her sisters that when they were home alone, they were to lock the doors, turn off the lights and keep a bat or a knife with them. All of this happened about three years before the murder.
[31] On one occasion a propane tank belonging to a neighbour was left in her mother’s vehicle. On another occasion, a rock was thrown through the window of the house.
[32] Linda Sider, Ms. Deacon’s neighbour, said that when Mr. Kenyon went missing in the month of January, Ms. Deacon told her that she was getting phone calls threatening harm to her if Mr. Kenyon did not pay a drug debt. A York Regional Police Missing Persons report would suggest that this occurred in January 2007. Ms. Sider said that she was at the Deacon house once when Ms. Deacon received a threatening call. That was about a year before the murder. Ms. Deacon told Ms. Sider that a rock with a note was thrown through the dining room window, but she did not say that it was related to drugs.
The Positions of the Parties
[33] On behalf of Mr. Kenyon, Ms. Penman submits that there is evidence that Marlon Jackson and Thulani Gumbs had the opportunity and motive to commit the murder of Ms. Deacon, and that their conduct in lying under oath, distancing themselves from Mr. Kenyon and the Deacon residence, and in the case of Mr. Jackson, giving a false alibi to the police suggests a consciousness of guilt that supports an inference they were responsible for the murder.
[34] On behalf of the Crown, Ms. Sang submits that there is no evidence that Mr. Gumbs was at or near the Deacon residence the night of March 6, 2010. The cell phone records of Mr. Jackson put him in the area of the house at 11:00 p.m., but there is no evidence that he was at the house, and he was back in Toronto by 11:24 p.m. There is no evidence that either man had any animus toward Ms. Deacon or a motive to kill her. Untruthfulness to the police cannot be treated as consciousness of guilt of the murder, absent any evidence of involvement in the murder.
The Governing Legal Principles
[35] The admissibility of evidence of possible third party involvement in the commission of an offence was addressed by the Supreme Court of Canada in R. v. Grandinetti, 2005 SCC 5, at paras. 17 to 18. The court reiterated that evidence of the potential involvement of a third party in the commission of an offence is admissible. However, there must be a sufficient connection, or nexus, between the third party and the crime. Otherwise, the evidence is neither relevant nor probative. The connective evidence may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation.
[36] The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence of third party involvement. Where there is insufficient connection between the third party and the crime, the defence of third party involvement will lack the requisite air of reality. See R. v. Tehrankari, 2012 ONCA 718.
[37] The air of reality test is not, however, intended to assess whether the defence is likely to succeed: R. v. Cinous, 2002 SCC 29. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, not how the jury should decide the issue. The trial judge considers the totality of the evidence and assumes the evidence relied upon by the defence to be true. The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences.
ANALYSIS
[38] There is no evidence that either Mr. Jackson or Mr. Gumbs had a motive to kill Ms. Deacon.
[39] There is no evidence that Mr. Kenyon owed Mr. Jackson anything as of March 6. At its highest, the evidence is that as of that date, Mr. Kenyon owed Mr. Gumbs $20, and that Mr. Gumbs had no concern about the debt.
[40] Some of the evidence about previous phone calls to and activity around the Deacon house is hearsay. I will assume for the purpose of this analysis that that evidence is admissible at the behest of the defence. There is nothing that connects the previous phone calls and activity around the Deacon home to either Mr. Jackson or Mr. Gumbs. It is not clear that all of the incidents were related to Mr. Kenyon’s drug activity, as opposed to other debts he owed. Even if the calls and other activity are properly characterized as “threatening”, there is no evidence that Mr. Jackson or Mr. Gumbs were responsible for them. On the evidence, neither of them dealt drugs to Mr. Kenyon before 2009. There is no evidence that either of them was ever concerned that Mr. Kenyon owed money for drugs. To the contrary, the evidence is that Mr. Kenyon seldom received drugs without paying in full and that when he did, he always satisfied the debt. The evidence about previous phone calls to and activity around the house provides no evidence of motive on the part of Mr. Jackson or Mr. Gumbs.
[41] There is no evidence of propensity on the part of Mr. Jackson or Mr. Gumbs.
[42] Ms. Penman contends that the cell phone records of Mr. Jackson showing two calls around 11:00 p.m. put him in close proximity to Ms. Deacon’s residence at the time of the murder, and support an inference that he was there at the relevant time. Taken in context, they do not. At its highest, the evidence is that on occasion, Mr. Jackson left drugs in a van outside Ms. Deacon’s house, but that Mr. Kenyon tried to hide his drug activity from Ms. Deacon, did not do drug transactions at the house itself, and usually met Mr. Jackson at gas stations. Two of the gas stations were on the Stouffville Road, within range of the cell tower used by Mr. Jackson’s phone. Further, the later of the two calls, at 11:04 p.m., was made from the Deacon home to Mr. Jackson’s phone, from which it can reasonably be inferred that Mr. Kenyon was at the house but Mr. Jackson was not. By 11:24 p.m., Mr. Jackson was back in the north end of Toronto. On that evidence, Mr. Jackson would have had to arrive at the Deacon home, Ms. Deacon would have had to arrive home from work, Mr. Jackson would have had to murder Ms. Deacon by inflicting multiple blows to her head and face, and Mr. Jackson would have had to leave the home and drive from Stouffville to the north end of Toronto, all within 20 minutes. This is not evidence of opportunity to kill Ms. Deacon. To the contrary, it demonstrates a lack of opportunity on Mr. Jackson’s part to commit the murder. The only reasonable inference that can be drawn from the evidence is that Mr. Jackson is not responsible for the murder.
[43] There is no evidence of opportunity on the part of Mr. Gumbs to commit the murder. His phone records put him in Toronto at the relevant time.
[44] Ms. Penman contends that both Mr. Jackson and Mr. Gumbs lied to the police, and in particular that Mr. Jackson gave a false alibi and then lied under oath at the preliminary hearing when he said he was never at the house. She argues that the lies constitute evidence of “consciousness of guilt” of responsibility for Ms. Deacon’s murder.
[45] Even assuming that a finding could be made that either or both men lied, the argument that these men, who engaged in drug dealing at the street level, and for whom no propensity for violence has been demonstrated, did so because of a consciousness of guilt of the murder is nothing more than speculation. This is especially so in the absence of evidence of opportunity to commit the murder.
[46] Ms. Penman suggests that there was “an unusual pattern of calls” between the two men later on March 7. Each of Mr. Jackson and Mr. Gumbs admitted to knowing the other, although they differed as to the extent of the relationship. The phone records are for a one week period only. No reasonable inference can be drawn from such limited records as to whether the timing, number, or duration of the calls on March 7 was usual or unusual for two people who knew one another and who were street level drug dealers.
[47] Finally, the evidence of Mr. Wideman that he heard a noisy car between 1:00 a.m. and 1:30 a.m. on March 7 has no probative value on this application. The phone records show that neither Mr. Jackson nor Mr. Gumbs were in the area at that time.
[48] There is no evidence that connects either Mr. Jackson or Mr. Gumbs to the murder of Ms. Deacon. The defence that they were responsible for the murder lacks an air of reality.
Conclusion
[49] The application to adduce evidence of Mr. Jackson and Mr. Gumbs as third party suspects is dismissed.
FUERST J.
Released: February 27, 2014
COURT FILE NO.: CR-10-2316
DATE: 20140227
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
PAUL KENYON
REASONS FOR JUDGMENT
FUERST J.
Released: February 27, 2014