Her Majesty the Queen v. Jennifer Pan et al., 2014 ONSC 3964

COURT FILE NO.: 11-09099G

DATE: 2014-07-02

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

COUNSEL: Rob Scott, Jennifer Halajian and Michelle Rumble for the Crown Jeffrey Fisher and Holly Chapman for Jennifer Pan Peter Bawden for David Mylvaganam Edward Sapiano for Eric Shawn Carty Laurence Cohen for Daniel Chi-Kwong Wong Brian Micner for Lenford Roy Crawford

HEARD: June 27, 2014

ruling on recusal application

boswell j.

[1] This is a lengthy murder trial. There are five accused. There have been many applications made by the parties during the course of the proceedings, both before and after the evidentiary portion of the trial commenced. The applications have involved evidentiary and procedural matters.

[2] Most recently, I ruled on an application brought by Mr. Bawden, on behalf of David Mylvaganam, for leave to introduce evidence of an alternate suspect as part of his defence. My ruling was released June 24, 2014. The ruling has given rise to what I think is best described as a two part severance application brought by Mr. Carty’s counsel. This ruling addresses part one of the application, in which Mr. Carty submits that he should be severed from this joint trial because my ruling gives rise to a reasonable apprehension of bias against him. For the reasons that follow, I disagree with his submission, and dismiss this first part of his application.

The Murder

[3] The murder occurred in this case during what appeared on the surface to be a home invasion. On November 8, 2010 three armed males intruded into the Markham home of Bich Ha Pan and Hann Pan and shot them both in the head. Mrs. Pan died, but Mr. Pan survived. About two weeks after the attack, the Pans’ daughter, Jennifer, was arrested and charged with the murder of her mother and the attempted murder of her father. It is alleged that she took out a hit on her parents.

[4] Over time, the four other accused were arrested and also charged with murder and attempted murder. Each accused is alleged to have played a different role in the offences. Only two of the accused – Mr. Carty and Mr. Mylvaganam – are alleged to have been present at the scene of the offences at the time of the attack.

The Suspects

[5] Hann Pan was naturally asked by the police to provide a description of the three invaders who entered his home. He has never positively identified any suspect, despite having participated in two photo line-up procedures, which included, separately, photographs of Mr. Mylvaganam and Mr. Carty. His descriptions of the invaders have arguably varied a little over time, but he has been consistent in saying that there were two dark skinned males and one lighter skinned male. He has confirmed, in his trial testimony, that he would not describe either Mr. Mylvaganam or Mr. Carty as light skinned.

The Alternate Suspect Application

[6] The Crown’s theory of this case includes the assertion that Mr. Mylvaganam was one of the intruders. Mr. Carty, allegedly, was either another intruder or he acted as the wheelman for others. Mr. Mylvaganam’s alternate suspect defence includes two elements: (1) adducing evidence that suggests that an unindicted male, a man named Desmond Francis, was one of the dark skinned intruders; and (2) adducing propensity evidence about Mr. Carty that suggests that he, not Mr. Mylvaganam, was likely the second dark-skinned intruder. The ultimate intention, obviously, is to raise a reasonable doubt about whether Mr. Mylvaganam was inside the Pan residence.

[7] The alternate suspect application proceeded over a lengthy period of time and before two judges. It began in the fall of 2013 with a voir dire before the case management judge, R.S.J. Fuerst. Oral evidence was taken from two principal witnesses, including the alternate suspect himself. In mid-December 2013, Mr. Bawden advised the court that the application had been provisionally resolved. Counsel agreed that the trial judge would have to make a determination about the admissibility of out-of-court utterances that Mr. Francis purportedly made to two former girlfriends. If the utterances were ruled admissible, the Crown conceded that Mr. Bawden had met the threshold to introduce evidence of Mr. Francis as an alternate suspect.

[8] The application proceeded, thereafter, on May 5, June 2 and June 11, 2014. Essentially, it filled in days when one or another juror was not available to sit. On May 5, the somewhat lengthy videotaped interview of one of Mr. Francis’ former girlfriends was played. As of that day, all defence counsel joined in Mr. Bawden’s application, which was opposed by the Crown. On June 2, argument began. By that point, the application was opposed by Mr. Sapiano, on behalf of Mr. Carty. Mr. Bawden made his submissions, as did all other defence counsel. The Crown responded. The application was put over to June 11 for reply. Arguably, the bulk of Mr. Bawden’s submissions came in reply and they led to additional submissions from Mr. Cooper on behalf of Ms. Pan, as well as surrebuttal from the Crown and Mr. Sapiano.

[9] In the course of submissions on June 2, Mr. Bawden outlined for the court the basis of the alternate suspect defence and included in that outline an indication that the defence involves propensity evidence against Mr. Carty, to wit, evidence that he has a criminal record for violent offences and possession of weapons, that he has a recent conviction for first degree murder, and that he has a nickname, “Sniper”.

The Alternate Suspect Ruling

[10] A ruling on the alternate suspect application was released on June 24, 2014. It included a determination that Mr. Francis’ out-of-court utterances are admissible in evidence. It went on to address an assertion that the prejudicial effect of the proposed propensity evidence will outweigh its probative value. I found that the prejudicial effect of the propensity evidence identified by Mr. Bawden would not substantially outweigh its probative value, and that the prejudice created by the introduction of such evidence could be attenuated with a clear limiting instruction to the jury.

The Position of Mr. Carty

[11] The alternate suspect ruling generated an immediate request from Mr. Carty for severance. Two separate severance applications were filed, which reflect two different routes to the same requested result. Both applications are based on the premise that, by reason of the alternate suspect ruling, Mr. Carty can no longer receive a fair trial in the context of this joint proceeding.

[12] One of Mr. Carty’s applications is what I would describe as a traditional severance application. It will fall to be determined on the basis of the interests of justice test articulated in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, S.C.J. No. 45, 247 C.C.C. (3d) 449, 311 D.L.R. (4th) 193, 2009 CarswellOnt 6137 (“Last”). There is no specific formula for determining the dispositive question: what do the interests of justice require? In Last, however, Deschamps J. did enumerate certain factors to be considered by the court in the analysis. They include:

(a) The general prejudice to the accused;

(b) Whether the accused intends to testify on one count but not another;

(c) The possibility of inconsistent verdicts;

(d) The desire to avoid a multiplicity of proceedings;

(e) The use of similar fact evidence at trial;

(f) The length of a trial having regard to the evidence to be called;

(g) The potential prejudice to the right of an accused to be tried within a reasonable time; and,

(h) The existence of antagonistic defences as between co-accused persons.

[13] None of the foregoing factors were argued on the application presently before the court. They will be argued at a later date.

[14] In this first iteration of the severance application, Mr. Sapiano submitted that the court acted prematurely in addressing the probity versus prejudice question. He argued that it was anticipated by all counsel that the alternate suspect application, as presented to the court, involved only the admissibility of Mr. Francis’ out-of-court utterances; that the question of any prejudice arising from the introduction of propensity evidence was to be assessed in a separate hearing. He expressed concern that the court had not sufficiently vetted the propensity evidence to be called and that he had not been able to make fulsome, if any, submissions on the issue; nor had other counsel.

[15] As I understand Mr. Sapiano’s submissions, they include a number of aspects:

(a) Mr. Carty has been denied his right to a fair trial, specifically by being denied the opportunity to make submissions prior to the court ruling on an issue that impacts significantly on his position;

(b) The rendering of the particular decision, which is unfavourable to Mr. Carty, in the absence of submissions, gives rise to a reasonable apprehension of bias; and,

(c) It will not be possible to correct the court’s error by conducting a further hearing on the propensity evidence issue because the court has already “tipped its hand” as to what the outcome will be, again giving rise to a reasonable apprehension of bias.

[16] Mr. Sapiano urged the court to sever Mr. Carty from the balance of the accused, as the only reasonable resolution to the application.

The Positions of Other Counsel

[17] All counsel, save for counsel to Ms. Pan, agreed that the court was premature in ruling on the propensity evidence issue. Counsel to Ms. Pan expressed the view that the court had a sufficient record on which to base the ruling and ultimately opposed the recusal application. No other counsel joined in the application, though Mr. Bawden advised the court that he will ultimately join in the request to sever Mr. Carty.

[18] The Crown opposed the application. Mr. Scott took the position that it was a mistake for the court to have ruled on the impact of the propensity evidence to be adduced by Mr. Mylvaganam. First, because there is a good deal more propensity evidence that will be in play beyond that which I identified in the June 24 ruling. Second, because counsel have not had an opportunity to make fulsome submissions on the issue.

[19] Mr. Scott went on to submit that there is a straightforward remedy for the court’s error. The court, he suggested, should conduct a voir dire, where Mr. Bawden will present all of the propensity evidence he intends to adduce and where all counsel will have a full opportunity to make argument. No prejudice, he argued, has arisen yet from the impugned ruling. Moreover, there is nothing improper, or even uncommon, about the court revisiting a prior ruling when new information arises. Revisiting the issue in these circumstances will not, he submitted, give rise to an apprehension of bias.

[20] Mr. Bawden, Mr. Micner and Mr. Cohen all supported the Crown’s suggestion that a further voir dire be conducted concerning the propensity evidence that Mr. Bawden seeks to adduce as part of the alternate suspect defence. Mr. Fisher, for Ms. Pan, did not oppose such a voir dire and agreed that it is within the court’s discretion to conduct one.

The Role of the Court

[21] Independence and impartiality are at the heart of the judicial role. Our system of justice is premised on the right of participants to have their disputes adjudicated by a dispassionate and impartial decision-maker.

[22] In this application there are allegations of bias and error on the part of the decision-maker. In adjudicating the application, the court must be very careful not to enter the arena as a stakeholder. This is not an opportunity for the court to provide any form of post facto justification for or defence of the prior ruling. The record must be permitted to speak for itself. The prior ruling as well.

[23] I will proceed, in the circumstances, to reflect on the proper procedure to be undertaken when an accused person proposes to introduce propensity evidence against a co-accused. I will consider whether the proper procedure was followed in this instance and, if not, what remedial action should be taken. Finally, I will assess whether the remedial action proposed by the Crown will give rise to an apprehension of bias against Mr. Carty.

The “Pollock” Voir Dire

[24] Propensity evidence is presumptively inadmissible at the behest of the Crown. The presumptive rule is not a reflection of a lack of relevance. Bad character evidence is frequently relevant. Instead, the rule that presumptively prohibits evidence of the prior disreputable conduct of an accused person is a reflection of policy. As Justice Binnie held in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, the policy basis for excluding propensity evidence is that it may “capture the attention of the trier of fact to an unwarranted degree.”

[25] When propensity evidence is introduced by a co-accused in an effort to raise a reasonable doubt about his or her guilt, the underlying policy considerations against propensity evidence do not carry quite as much force. In such instances, the proffered evidence is probative of something other than the guilt of the party whose disposition is brought into play. Nevertheless, the law does not permit a co-accused to simply introduce propensity evidence at will. The proper procedure to be followed when an accused person seeks to introduce bad character evidence about a co-accused was discussed by Rosenberg J.A. in R. v. Pollock, [2004] O.J. No. 2652, 187 C.C.C. (3d) 213:

[S]ince evidence of propensity or bad character can carry a very grave risk of prejudice to the fair trial of the accused against whom the evidence is led, it is incumbent on the trial judge to examine closely the probative value of the evidence and the purposes for which the evidence is tendered. In my view, in a joint trial, counsel's mere assertion that the evidence is necessary for the accused to make full answer and defence is not sufficient given the grave potential for prejudice to the fair trial of a co-accused. There must be some evidentiary foundation to support this assertion. That foundation may come during the Crown's case through evidence of Crown witnesses in chief or through cross-examination. In some cases, the evidentiary foundation may not be laid until the defence case. If so, the prejudicial character evidence would only be admissible, if at all, at that time. The need for this evidentiary foundation is not simply to avoid irrelevant evidence entering the record. An evidentiary foundation is essential to ensure fair management of the trial. The need for the highly prejudicial evidence can be properly assessed only when the accused demonstrates through evidence the contours of the defence. Until then, the trial judge is left to speculate on the importance and necessity of this evidence.

In deciding whether to admit evidence on behalf of one accused of the co-accused's disposition, the trial judge is required to balance the fair trial-rights of the two accused. In some cases, the trial judge will conclude that a fair balance cannot be struck within the confines of a single trial and the judge will grant severance. In most cases, however, it should be possible to balance the fair trial rights of both accused. (paras. 106-107).

[26] Counsel spoke, during submissions on this application, of the necessity of conducting a “Pollock” voir dire. In my view, Justice Rosenberg’s directions do not require any particular form of proceeding. He highlighted the mischief that propensity evidence creates: it can significantly prejudice the fair trial right of an accused; it can derail a trial entirely. Justice Rosenberg observed, quite sensibly, that it is important for the trial judge to have a proper understanding of any proffered propensity evidence so that the appropriate balancing of interests can be conducted. He did not, however, establish any particular method of proceeding. What is clear is that whatever process is followed, the court must have a full appreciation of the evidence to be tendered, why it is proposed to be tendered, and what its impact is likely to be. Only then will the court be in a position to properly balance the probative value of the evidence against its prejudicial impact. Only then will the court be able to balance the fair trial rights of all accused in a joint trial.

[27] In this instance, it is apparent to me that the full breadth of propensity evidence sought to be adduced by Mr. Bawden is not before the court. Mr. Bawden seeks to adduce a great deal more propensity evidence than I referred to in the June 24 ruling. For instance, not only does he wish to refer in evidence to Mr. Carty’s criminal record, he seeks to explore the facts and circumstances giving rise to the conviction for first degree murder. He also wishes to adduce evidence about a lengthy period of time during which Mr. Carty was hiding from the authorities while wanted on a warrant for murder.

[28] In the result, I must agree with the submissions of counsel that my June 24 ruling was premature, insofar as it touched upon the propensity evidence issue. Three problems are immediately apparent:

(a) The court does not yet have the benefit of fulsome disclosure of all of the propensity evidence in issue;

(b) Counsel have not yet had an opportunity to make submissions on the impact of the totality of such propensity evidence; and,

(c) Without a clear and fulsome indication of what the propensity evidence will be, and without the benefit of counsel’s submissions on the issues of probity and prejudice, it is not possible for the court to conduct the close examination mandated by the Court of Appeal in R. v. Pollock.

[29] Having said all of that, it is clear that the court must revisit the propensity ruling. Indeed it is absolutely necessary that a further voir dire be conducted, that Mr. Bawden identifies the full scope of propensity evidence he seeks to adduce and that counsel be given a full opportunity to make submissions. In the result, the admissibility of any propensity evidence affecting the interests of an accused person, including but not limited to Mr. Carty, will necessarily have to await the outcome of that further voir dire.

[30] The only remaining issue on this application is whether the prior ruling and/or the proposed voir dire, give rise to a reasonable apprehension of bias against Mr. Carty. I find that they do not.

The Apprehension of Bias Assertion

[31] As I noted, impartiality is at the heart of the judicial role.

[32] “Impartiality” was described by Justice Cory in the leading case of R. v. R.D.S., [1997] 3 S.C.R. 484, at para. 104 as follows:

In Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 685, Le Dain J. held that the concept of impartiality describes "a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case". He added that "[t]he word 'impartial' . . . connotes absence of bias, actual or perceived". See also R. v. Généreux, [1992] 1 S.C.R. 259, at p. 283. In a more positive sense, impartiality can be described -- perhaps somewhat inexactly -- as a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions.

[33] When a party asserts that an adjudicator lacks impartiality, the court must determine whether the circumstances of the case give rise to a reasonable apprehension of bias. The test to be applied is well settled. Proof of actual bias is not required. The proper test was set out in the oft-cited dissenting reasons of de Grandpre J. in Committee for Justice and Liberty. v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. . . ."

[34] As Cory J. went on to explain at para. 111 of R. v. R.D.S.,

This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case…Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold.” (internal citations omitted).

[35] No one asserts that the June 24 ruling manifests any bias on the part of the court against Mr. Carty personally. In other words, the issue isn’t whether a reasonable person would reasonably view the court as “out to get” Mr. Carty. Instead what is asserted is that the court made a mistake in ruling prematurely on the propensity issue. That mistake, from Mr. Carty’s point of view, cannot be corrected because a reasonable person would apprehend that the court has already made up its mind about the admissibility of any proffered propensity evidence and its effect on Mr. Carty.

[36] While I respect Mr. Sapiano’s application and the manner in which it was approached, I am unable to agree with his position. In my view, a fully informed, reasonable person would not consider it reasonable, under the circumstances, to effectively declare a mistrial insofar as the prosecution of Mr. Carty goes. Such a person, imbued with knowledge of the traditions of impartiality and integrity on the part of the judiciary, would view the court’s premature ruling as a mistake and would seek the best way to correct that mistake. A mistrial is a remedy of last resort and one not called for in this instance.

[37] There is an obvious and simple manner of correcting the mistake: a fulsome voir dire can still be conducted. To date, Mr. Carty has not suffered any prejudice as a result of the ruling. He points to the fact that one witness was asked in cross-examination about Mr. Carty’s nickname, “Snipes”. But that same witness acknowledged that virtually everyone in their social circle had a nickname. Moreover, she did not elaborate on the meaning of the name, “Snipes”. In my view, any prejudice arising from the introduction of that evidence is miniscule.

[38] I appreciate Mr. Carty’s concern that the court has already “tipped its hand” on the propensity issue by virtue of the June 24 ruling. But the reasonable observer, fully informed, would understand that the ruling was based on incomplete and inadequate evidence and submissions. In other words, any future ruling on propensity evidence will be made on a more fulsome record. One in which a great deal more disclosure will be made about what the proffered evidence is. One in which counsel will have an unfettered opportunity to make submissions about the impact of the totality of the proffered evidence. The application will look very much different than it did prior to June 24. The result may be the same. Or it may be different. But it is not predetermined by the June 24 ruling.

[39] This is not a perfect trial. It never has been. A perfect trial is an impossibly high standard to achieve. An accused is not entitled to a perfect trial, but rather a trial that is fundamentally fair: R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 193. In a joint trial, it is clearly necessary to balance the fair trial rights of all of the accused. Under the circumstances, the only fair and reasonable way to balance those interests and to best ensure a fundamentally fair trial for all of the accused, is to provisionally prohibit the introduction of any propensity evidence, pending a full voir dire on the issue. This method of proceeding does not in any way preclude Mr. Carty from pursuing his application for a severance, in the interests of justice, based on a consideration of all of the factors enumerated in Last.

The Further Severance Application

[40] Mr. Carty may persuade the court that, should propensity evidence ultimately be admitted against him, that his fair trial right can no longer be achieved or protected in the context of a joint trial. He appears to have some support in that assertion from Mr. Mylvaganam’s counsel. His traditional severance application remains outstanding. It is presently scheduled to be heard July 3, 2014. In my view, it would be best to hear the application for severance as part of the propensity voir dire (referred to by counsel as the Pollock voir dire). The main thrust of the traditional severance application is the manner in which the introduction of propensity evidence will impact upon Mr. Carty’s fair trial right. Until there is a determination of what, if any, propensity evidence will be admitted, and in what circumstances, the traditional severance application appears to me to be premature.

Boswell J.

Released: July 2, 2014