SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

PAUL KENYON

E X C E R T O F P R O C E E D I N G S A T T R I A L

R U L I N G

BEFORE THE HONOURABLE MADAM JUSTICE M. FUERST

on March 17, 2014 in NEWMARKET, Ontario

APPEARANCES:

G. Sang for the Crown

J. Penman for the accused Paul Kenyon

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

Exam. Cr. Re.

WITNESSES: in-Ch. exam. exam.

n/a

E X H I B I T S

EXHIBIT NUMBER ENTERED ON PAGE

Ruling 1

Transcript Ordered: August 15, 2016

Transcript Completed: November 28, 2016

Ordering Party Notified: November 28, 2016

MONDAY MARCH 17, 2014

R U L I N G

FUERST, J. (Orally):

Prior to the commencement of jury selection this morning, defence counsel, Ms. Penman, told me that she anticipates the accused Paul Kenyon will testify that he saw Marlon Jackson kill Ms. Deacon. Ms. Penman provided no further details, other than that she anticipates Mr. Kenyon will testify that he was not involved in the killing.

Ms. Penman submits that on the authority of R. v. Murphy, 2012 ONCA 573, Mr. Kenyon should be permitted to give this evidence without the need for a formal third party suspect application. She further submits that she should be permitted to cross-examine Mr. Jackson, who will be called by the Crown in any event, about the assertion that he killed Ms. Deacon, to satisfy the rule in Browne v. Dunn.

Several weeks ago in January 2014, I heard a formal application by the defence “to adduce evidence that third parties, Marlon Jackson and Thulani Gumbs, are the individuals responsible for killing” Ms. Deacon. The evidence at issue on that application was circumstantial. Neither the defence factum, nor Ms. Penman’s submissions on the application suggested any expectation that additionally, Mr. Kenyon would testify that he

saw Mr. Jackson commit the murder.

On February 27^th, 2014, I ruled that there was no evidence to connect either Mr. Jackson or Mr. Gumbs to the murder, and that the defence that they were responsible lacked an air of reality. I dismissed the defence application. My ruling was released in writing in open court.

I asked if counsel wished an opportunity to review it, along with other rulings released the same day, and reconvene in case there were issues that needed to be addressed. Ms. Penman declined this opportunity and said there were no other matters she wished to raise.

Last week, Ms. Wyszomierska for the first time told Crown counsel that it was anticipated that Mr. Kenyon would testify that he saw Mr. Jackson kill Ms. Deacon. There was reference to providing Crown counsel with an affidavit of an articling student. That affidavit was not provided.

Crown counsel, Ms. Sang, contends that Murphy does not stand for the proposition that an accused can testify he witnessed someone else commit the murder, without bringing a third party suspect application. She submits that Mr. Kenyon’s anticipated evidence should have been raised as part of the third party suspect application I heard in January.

In Murphy, the evidence at issue was that of a third party whom defence counsel expected would testify that he was the perpetrator of the offence. Laskin, J.A. on behalf a unanimous panel, said at paragraph 24:

I accept the Crown’s submission that the requirement to show some nexus or connection between the third party and the offences applies whether the proposed evidence is direct or circumstantial or a combination of both.

He continued at paragraph 25,

However, where the defence proposes to call direct evidence from another person taking responsibility for the crimes charged, that proposed evidence itself constitutes a sufficient nexus or connection. Nothing more need be shown and no formal application is necessary.

This is not a case where the defence proposes to call the third party to take responsibility for the murder. To the contrary, based on the materials filed on the earlier application, it is anticipated Mr. Jackson will deny any involvement in the killing of Ms. Deacon.

It is unclear, however, whether the holding in

Murphy is restricted to evidence of the third party, or whether it extends to the evidence of an accused, in which case the defence could always proceed without bringing a formal application, which has implications for the manner in which the trial is conducted by both Crown and defence.

Absent clear direction from the Court of Appeal, I am inclined to err on the side of caution and permit the defence to adduce the evidence outlined by Ms. Penman. However, in light of the failure of defence counsel to make any reference at all to Mr. Kenyon’s anticipated testimony during the third party suspect application or during the course of the extended judicial pre-trial conference on this issue, in light of my ruling, and given the fact that this case was mistried previously after Mr. Kenyon’s then counsel indicated that a third party suspect defence he had previously assured the trial judge would not be raised in fact was to be raised, before making a final decision, I require defence counsel to provide a written outline of the allegations that she wishes to put to Mr. Jackson to satisfy the Browne v. Dunn test, so that I can assure myself in the particular circumstances of this case that the proposed evidence constitutes a sufficient nexus or connection.

E N D O F R U L I N G

TRANSCRIBER’S NOTE: Further submissions were made by counsel in response to this Ruling, on March 18, 2014. They have not been ordered by appellate counsel and have not been transcribed.