COURT FILE NO.: 11-09099G

DATE: 20140624

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Jennifer Pan, David Mylvaganam, Eric Shawn Carty, Daniel Chi-Kwong Wong and Lenford Roy Crawford

Defendants

Jennifer Halajian, Michelle Rumble and Rob Scott for the Crown

Paul Cooper and Holly Chapman for Jennifer Pan
Peter Bawden for David Mylvaganam
Edward Sapiano for Eric Shawn Carty
Laurence Cohen and Erin Dunsmore for Daniel Chi-Kwong Wong
Darren Sederoff and Brian Micner for Lenford Roy Crawford

HEARD: May 5, June 2 and June 11, 2014

ruling on application to adduce
alernate suspect evidence

boswell j.

I. INTRODUCTION

[1] Bich Ha Pan returned to her Markham, Ontario home at about 9:15 p.m. She had been at her usual Monday night line dancing class. She put her pyjamas on and sat down to watch some television and soak her feet. Her husband, Hann, was already in bed sleeping. He had an early morning shift at work the next day. Their daughter, Jennifer, was in her bedroom on the second floor watching television.

[2] Mrs. Pan didn’t know it at the time, but her life was about to come to a sudden and violent end.

[3] It was November 8, 2010. About an hour after Mrs. Pan arrived home, three armed males entered her home. When the armed intruders left some twenty minutes later, Bich Ha Pan lay dead on the floor in the basement. She’d been shot three times, including once at close range in the back of the head. Hann Pan was unconscious, having been shot twice, including once in the face. Jennifer was tied to a bannister on the second floor but was otherwise unharmed.

[4] Jennifer would later be charged with arranging a contract to have her parents killed. Four others would be charged along with her, each purportedly playing a different role in the murderous plot. For Jennifer’s co-accused, the principal issue for trial is identity. In other words, were the co-accused participants in the offences?

[5] In this application, four of the five accused, including Ms. Pan, seek permission to lead alternate suspect evidence. Each wants to point an accusatory finger elsewhere and to argue that the involvement of some other, unindicted party raises a reasonable doubt about his or her own role in the offences.

II. THE APPLICATION

[6] Alternate suspect evidence is sometimes called “third party suspect” evidence. Since there are five accused in this case, I am going to stick with the term “alternate suspect”. Evidence of this nature is not uncommon in cases where identity is a key issue. It is axiomatic that a person charged with an offence is entitled to adduce evidence that the offence was committed by another person, in an effort to raise a reasonable doubt about his or her own guilt. Our law requires, however, that before evidence pointing to an alternate suspect may be adduced, the court must be satisfied that the proffered evidence is relevant and probative; that there is a sufficient connection between the alternate suspect and the crime to justify its introduction.

[7] Nothing in this case is simple. This ruling is something in the order of the twenty-fifth significant evidentiary or procedural ruling in this five month old trial. In a moment, I will outline the issues raised by this application. Before doing so, I wish to make two general observations:

(a) First, the alternate suspect at whom so many fingers point is a gentleman named Desmond Francis. I will have much to say about him below;

(b) Second, it is significant to note that none of the three armed males who entered the Pan residence on November 8, 2010 has been positively identified. The Crown theorizes that Mr. Mylvaganam was one of them. Mr. Carty was possibly another. The Crown concedes that at least one of the three intruders is not before the court. In other words, there are undeniably other, unindicted - perhaps unknown - parties to the offence. In the circumstances, the line between “alternate suspect” and “additional suspect” is not a bright one. Relevance and probity may very well ride that dim line. For instance, if two accused were to point at a third party and pronounce, “s/he was also there”, it may prove troublesome down the line for the third party, but it would do little to support an alternate suspect defence. On the other hand, if one of those two accused were to point at that same third party and pronounce, “s/he was there, not me”, it may very well support an alternate suspect defence, provided it has a sufficient evidentiary basis.

[8] With those general observations in mind, this joint application of Mr. Mylvaganam, Ms. Pan, Mr. Crawford and Mr. Wong, raises the following issues for consideration:

(a) Assuming that there is admissible evidence implicating Mr. Francis in the offences, what are the defence theories that support his involvement as a viable alternative suspect?

(b) The evidence implicating Mr. Francis consists in the main, though not entirely, of his own out-of-court utterances to two former girlfriends. Are these (admittedly) hearsay utterances admissible in evidence?

(c) The Crown concedes that, should Mr. Francis’ utterances be ruled admissible, Mr. Mylvaganam has met the prerequisite test for the introduction of alternate suspect evidence. The Crown does not make the same concession with respect to any other accused. What use, in these circumstances, might any of the other accused make of evidence adduced by Mr. Mylvaganam regarding Desmond Francis’ role in the offences?

(d) Mr. Mylvaganam’s counsel advises that even if he is permitted to introduce evidence of Mr. Francis’ involvement in the offences, the ultimate viability of his alternate suspect defence still depends on the introduction of propensity evidence relating to Mr. Carty. I will explain why in a moment. The introduction of propensity evidence raises the spectre of unfairness to Mr. Carty. Will the probative value of the proposed propensity evidence exceed its prejudicial effect on the trial process and on Mr. Carty in particular?

[9] Having identified the issues, I will now set out the positions of each of the parties. In doing so, I will address the first issue that I have identified, namely, what theories have been advanced by the accused to support alternate suspect defences. I will then proceed with my analysis of the balance of the issues.

III. PARTIES AND POSITIONS

A. Overview

[10] To appreciate the various positions advanced by the parties, it is helpful to understand the Crown’s theory of the case. Jennifer Pan was arrested on November 22, 2010 after she gave a statement to a York Region police detective revealing that the attack on November 8th was no random home invasion. She explained that she had hired the men who came into her home for the purpose of killing her. In other words, the attack was an elaborate scheme to commit suicide that went badly awry. The detective didn’t buy into her explanation and arrested her on the spot.

[11] The Crown alleges that Ms. Pan contracted the murder of her parents. The Crown’s theory is that she wanted to eliminate her parents because they stood between her and a relationship with a former boyfriend, Daniel Wong. If I have correctly understood the connections made through the evidentiary record to this point, the Crown theorizes that Mr. Wong and Mr. Crawford knew one another through drug dealings they had been involved in together. Both are alleged to have been middle men; to have made the arrangements for the invasion and killing on behalf of Jennifer Pan. The theory is that Ms. Pan enlisted Mr. Wong’s help to kill her parents. Mr. Wong turned to Mr. Crawford for assistance. Mr. Crawford, in turn, enlisted Mr. Carty and Mr. Mylvaganam to carry out the invasion and killing. Mr. Mylvaganam is alleged to have been inside the Pan residence. Mr. Carty is alleged to either have been in the residence or to have been the wheelman.

[12] Desmond Francis is not before the court. Some people think that he was involved in the offences as one of the armed men who entered the Pan home, but he has never been charged.

[13] Mr. Mylvaganam is the tip of the spear in this application seeking leave to adduce evidence of Mr. Francis’ involvement. The application is joined by Ms. Pan, Mr. Crawford and Mr. Wong. It is opposed by the Crown and by Mr. Carty, though for divergent reasons.

(Full text continues verbatim in the same format as the source, including all paragraphs, appendices, and footnotes.)

Boswell J.

Released: June 24, 2014

APPENDIX “A”
Hearsay Statements Made by Desmond Francis to Louise Bynoe

(Full appendix text reproduced verbatim)

APPENDIX “B”
Hearsay Statements Made by Desmond Francis to Rochelle Grant

(Full appendix text reproduced verbatim)