COURT FILE NO.: 11-09099G

DATE: 20140707

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 Jeffrey Fisher for Jennifer Pan

Peter Bawden for David Mylvaganam

Edward Sapiano for Eric Shawn Carty

Lawrence Cohen and Erin Dunsmore for Daniel Chi-Kwong Wong

Darren Sederoff and Brian Micner for Lenford Roy Crawford

HEARD: July 3, 2014

ruling on mr. Mylvaganam’s application
to introduce propensity evidence against mr. carty and mr. carty’s application for severance

boswell j.

I.

Introduction

[1] In this application, the court is asked to determine how much, if any, propensity evidence David Mylvaganam may adduce against Eric Carty in an effort to raise a reasonable doubt about the participation of David Mylvaganam in the murder of Bich Ha Pan. If the answer is anything more than none, then Mr. Carty asks that he be severed from this joint trial.

[2] Mr. Mylvaganam’s counsel argues that the propensity evidence he seeks to adduce is necessary to ensure that his client’s fair trial right – as manifested by his ability to make full answer and defence – is protected. Mr. Carty’s counsel argues that the same evidence will, if admitted, infringe his client’s fair trial right – as manifested by his right to be shielded against prejudicial and/or inadmissible evidence.

[3] The court must, of course, do its best to balance the fair trials rights of all accused in this joint trial. In some circumstances it is impossible to achieve the appropriate balance in the context of a joint trial. If the evidence in issue is ruled admissible, Mr. Bawden and Mr. Sapiano urge the court to conclude that this will indeed be one of those times where a fair balance is not achievable; that the severance of Mr. Carty, or alternatively Mr. Mylvaganam, will be necessitated.

[4] Before proceeding any further, some brief background information about the proceeding now before the court is necessary in order to contextualize and understand the analysis to follow.

II.

The Murder

[5] At a quarter past ten in the evening of November 8, 2010, three armed males entered the Pan family home in Markham, Ontario. Three members of the Pan family were home at the time. Bich Ha Pan and Hann Pan, wife and husband, were taken to their basement and shot in the head by the intruders. Bich Ha died. Hann survived. Their daughter, Jennifer, was tied to a bannister on the second floor but otherwise left unharmed. She would later be accused of hiring the men who carried out the attack on her parents.

[6] The Crown’s theory of the case is that Jennifer Pan hired killers to stage a home invasion and execute her parents. Her motive: to eliminate her parents’ obstruction of her relationship with her former boyfriend, Daniel Wong. She is not alleged to have hired the killers directly. Instead, the Crown says she enlisted the help of Mr. Wong, who in turn called upon Lenford Crawford for help. Mr. Crawford was an associate of Mr. Wong’s in the local marijuana trade. Mr. Crawford is alleged to have brought in Mr. Carty, Mr. Mylvaganam and at least one other person to carry out the invasion and killing.

The Suspects

[7] Hann Pan has provided descriptions of the three armed males he saw in his home on November 8, 2010. While his descriptions have perhaps varied a little over time, for the purposes of this application it is enough to appreciate that he has generally described two of the suspects as having dark skin. The other, he has said, had lighter skin, perhaps even white. One of the dark skinned males he described as looking Caribbean. Mr. Wong and Mr. Crawford are not alleged to have been in the Pan residence. On the other hand, Mr. Mylvaganam is alleged to have been inside the home. Mr. Carty is alleged to have either been in the home, or to have provided assistance as a driver.

[8] Mr. Pan participated in two separate photo line-up procedures. The first included a picture of Mr. Mylvaganam; the second, a picture of Mr. Carty. Mr. Pan did not positively identify anyone in either line-up, but during the first line-up he paused at the picture of Mr. Mylvaganam and said, “I think maybe this guy.”

The Trial

[9] This is a joint trial of five accused. Jury selection commenced on February 10, 2014 and took about four weeks to complete. The evidentiary portion of the trial commenced on March 19, 2014 and continues.

[10] The Crown’s case is nearing completion. It is hoped that all of the Crown’s evidence in chief will be completed within the next three weeks.

[11] It is unnecessary and it would be unhelpful to attempt a comprehensive overview of the evidence introduced to date. For the purposes of this ruling, I note the following:

(a) The murder of Bich Ha Pan and the attempted murder of Hann Pan appear to have occurred between 10:15 and 10:30 p.m. on November 8, 2010. A neighbour’s surveillance camera captured evidence of the arrival of three figures at the Pan residence at about 10:15 p.m. on that date, followed by the exit of all three individuals by just after 10:30 p.m. An emergency call to 911 was made almost immediately after the three figures left;

(b) Cell tower site records demonstrate that Mr. Mylvaganam’s phone, and inferentially Mr. Mylvaganam, was registered to a cell tower site in close proximity to the Pan residence just before and just after the murder. In the hour or so prior to the murder, his phone (and inferentially he) appears to have travelled by vehicle from the west end of Toronto to Markham;

(c) Evidence from Mr. Mylvaganam’s former girlfriend, Dora Reddick, has been introduced through trial testimony and through two out-of-court statements admitted as substantive evidence. Depending on the jury’s view of her evidence, they may conclude that she heard Mr. Carty speaking in the background as she carried on a phone conversation with Mr. Mylvaganam while he appears to have been en route to Markham. Furthermore, Telus Mobility call data records demonstrate that around the same time, Mr. Mylvaganam advised Ms. Reddick by SMS text, “I’m in a meeting with Kimble”. Kimble is a nickname for Mr. Carty. All this is to say that there is evidence on the basis of which the jury may reasonably conclude that Mr. Mylvaganam and Mr. Carty were together and in the immediate vicinity of the Pan residence at the time of the offences.

The Alternate Suspect Application

[12] Recently, Mr. Mylvaganam applied for leave of the court to introduce evidence of an alternate suspect, namely Desmond Francis. Mr. Francis allegedly made inculpatory utterances to two former girlfriends. One of those girlfriends told the police that Mr. Francis advised her, in the time period shortly after the index offences, that he hurt people for money, that he had done a job in Markham and that he’d messed up; he’d shot a man and woman but the man didn’t die. The other girlfriend is expected to testify that Mr. Francis went out on the evening of November 8, 2010 wearing a particular set of clothing (consistent with the clothing Mr. Pan said the intruders were wearing). She will further say that he returned home later, wearing different clothes. He purportedly handed her his original clothing, which had blood on it, and asked her to dispose of it for him.

[13] It was agreed between Crown counsel and counsel for Mr. Mylvaganam that if the out-of-court utterances of Mr. Francis were ruled admissible, then Mr. Mylvaganam met the threshold requirements for the introduction of evidence implicating Desmond Francis as an alternate suspect.

[14] On June 24, 2014 I ruled that the utterances were admissible.

The Alternate Suspect Defence

[15] Mr. Bawden has indicated that Mr. Mylvaganam’s alternate suspect defence involves more than just introducing Desmond Francis as a participant in the offences. He described the defence as consisting of the following elements:

(a) First he will seek to establish that Desmond Francis was a participant in the offences. More specifically, that Desmond Francis was one of the three intruders who entered the Pan’s home. Refined even further, that Desmond Francis was one of the two dark skinned males described by Mr. Pan, and even more particularly, the one he described as “Caribbean”;

(b) Next, he will seek to establish that, if Mr. Francis was one of the dark skinned males in the home, the other one was more likely to have been Mr. Carty than Mr. Mylvaganam. This is to say that he will utilize propensity evidence regarding Mr. Carty, together with the evidence about Desmond Francis, to raise a reasonable doubt about whether Mr. Mylvaganam was in the Pan residence at all. The propensity evidence, as I will outline momentarily, relates to Mr. Carty’s history of and propensity for extremely violent behaviour;

(c) Mr. Bawden recognizes that there are ways in which the jury may conclude that Mr. Mylvaganam participated in the offence as an aider or abetter even if he was not present inside the Pan home. He will, accordingly, after raising a reasonable doubt about whether Mr. Mylvaganam was inside the Pan residence, seek to impugn any Crown evidence that may otherwise support Mr. Mylvaganam’s participation in the offences in any way apart from being present inside the residence;

(d) Ultimately, he will urge the jury to conclude that they have a reasonable doubt about whether the Crown has established that Mr. Mylvaganam was, in any way, a party to the offences.

The Disputed Issues

[16] The dispute in this application is focussed on Mr. Bawden’s proposal to introduce propensity evidence against Mr. Carty. The following questions were raised by the application and the submissions of counsel:

(a) When may propensity evidence be adduced by one accused against another?

(b) Is the proposed propensity evidence relevant and material?

(c) If admitted, will the propensity evidence prejudice Mr. Carty, any of the other accused, or the trial process in general? If so, does any such prejudice substantially outweigh the probative value of the evidence?

(d) If the evidence is admitted, in whole or in part, will it be necessary, in the interests of justice, to sever Mr. Carty or Mr. Mylvaganam from this joint trial?

[17] I will consider each question in turn.

III.

When May Propensity Evidence Be Led by an Accused?

[18] “Propensity evidence” is a general term used to describe a broad spectrum of evidence with a common feature: its tendency to prove that a person has a disposition to act in a certain way. It is evidence about a person’s prior conduct; evidence from which one might infer a particular character. In criminal cases, it’s almost invariably evidence about bad character.

[19] As a matter of human experience, character is often relevant to our everyday judgments about other people. Indeed, common sense suggests that past behaviour may very well be a strong predictor of future behaviour. As Justice Binnie observed in R. v. Handy, 2002 SCC 56, at para. 39,

It is, of course, common human experience that people generally act consistently with their known character. We make everyday judgments about the reliability or honesty of particular individuals based on what we know of their track record. If the jurors in this case had been the respondent's inquisitive neighbours, instead of sitting in judgment in a court of law, they would undoubtedly have wanted to know everything about his character and related activities. His ex-wife's anecdotal evidence would have been of great interest.

[20] Though frequently relevant, Canadian criminal law presumptively precludes the Crown from introducing propensity evidence against an accused person. While bad character evidence has vexed jurists for centuries, the modern common law exclusionary rule has its roots in the Privy Council’s decision in Makin’s Case, cited as Makin v. Attorney-General for New South Wales, [1894] A.C. 57. There, Lord Herschell famously said, at p. 65,

It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.

[21] The presumptive exclusion is based on policy considerations. As Binnie J. explained in R. v. Handy, the policy basis for the exclusion of propensity evidence is that it may “capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value.” (para. 37).

[22] The exclusion is presumptive but not absolute. Propensity evidence may be adduced by the Crown where the court is satisfied that its probative value to a live issue in the case exceeds its prejudicial effect: R. v. Handy, as above, at para. 55.

[23] While the presumptive rule prohibits the Crown from adducing propensity evidence against an accused, it does not operate in the same way against an accused who seeks to tender similar evidence against a co-accused in an effort to raise a reasonable doubt about his or her own guilt. That said, even when tendered by an accused person, the ride through the admissibility gateway is not entirely free and unfettered. Though the evidence may be relevant to the defence of one accused, it may yet result in prejudice, distraction and unwarranted time consumption. In the result, the court must take great care in assessing the evidence on offer and in balancing the interests of all of the accused.

[24] When one accused intends to introduce propensity evidence about another, it is incumbent upon counsel to advise the court of that intention, to precisely describe the evidence to be called and to identify the live issue to which the evidence relates. Only through a careful examination of the evidence and its likely impact, can the court sufficiently weigh its probity, consider the prejudicial effect it is likely to have and, ultimately, balance the fair trial rights of all accused. As Rosenberg J.A. held in R. v. Pollock, 2004 16082 (ON CA), at para. 106:

[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…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.

[25] Once the accused person tendering the propensity evidence has clearly identified it, established the requisite evidentiary foundation for it, and established its relevance and materiality, the onus shifts to the party seeking to exclude the evidence to satisfy the court that it ought to be excluded, despite its relevance to a live issue in the trial. Typically, exclusion is sought under the court’s residual discretion to exclude evidence pursuant to its trial management function.

[26] As former Chief Justice Dickson observed in R. v. Corbett, 1988 80 (SCC), at para. 98, the organizing principles of the law of evidence are straightforward. He stated them as follows:

All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy.

[27] The court’s discretion to exclude otherwise relevant and material evidence is circumscribed, as Justice Dickson’s ruling indicates. The limited circumstances in which the discretion be invoked were described again by Watt. J.A. in R. v. Spackman, 2012 ONCA 905, at paras. 115, as being where:

(a) the probative value of the evidence is overborne by its prejudicial effect;

(b) the introduction of the evidence would involve an inordinate amount of time not commensurate with its value to the determination of the dispute; or

(c) the evidence is misleading because its effect on the trier of fact, especially a jury, is disproportionate to its reliability as proof.

[28] The court’s residual discretion to exclude otherwise relevant and material evidence is even further circumscribed when that evidence has been tendered by an accused. Where evidence tendered by an accused person is sought to be excluded on the basis of its prejudicial impact, the court must be satisfied that the prejudicial effect of the evidence substantially outweighs its probative value: R. v. Seaboyer, 1991 76 (SCC); R. v. Pollock, as above, at para. 110.

[29] Having regard to the legal framework I have just outlined, I conclude that propensity evidence tendered by one accused against another is admissible provided it is relevant to a live issue in the trial and provided that its probative value is not substantially outweighed by the prejudice its admission will engender.

[30] It is necessary, therefore, that I now explore the evidence on offer in some detail, with a view to determining its relevance and materiality, and ultimately so that I might weigh its probative value against its prejudicial impact.

IV.

The Proffered Evidence

[31] On July 3, 2014, and in accordance with the process generally described in R. v. Pollock, a full day voir dire was conducted on the issue of the admissibility of the propensity evidence sought to be introduced by Mr. Mylvaganam against Mr. Carty. Mr. Bawden described the evidence he seeks to adduce in four categories:

(a) Mr. Carty’s lengthy and unenviable criminal record, which includes convictions for offences of extreme violence;

(b) Mr. Carty’s additional interactions with police; interactions that did not lead to charges and/or convictions;

(c) Mr. Carty’s nickname, “Sniper”; and,

(d) Mr. Carty’s tattoos.

[32] It is necessary to go through these four categories in some detail in order to get a true flavour of the evidence on offer. The evidentiary record submitted by Mr. Bawden consisted of a copy of Mr. Carty’s criminal record, a copy of the report of a “person search” conducted in February 2011 by a member of the Toronto Police Service, and a number of occurrence reports relating to some, but certainly not all, of the incidents referenced in the person search. The person search was a search of the name Eric Carty in the following databases: ECOPS, CIPS, COPS, MANIX, FIR, RICI, CPIC and CNI.

Mr. Carty’s Criminal Record

[33] Eric Carty was born on March 7, 1980. He is presently 34 years old. His criminal record dates back twenty years. He has spent a good portion of his adult life behind bars.

[34] His record of convictions is unenviable, but not particularly voluminous. He has three Youth Court convictions between 1996 and 1998, for theft under $5,000, possession of stolen goods, fail to comply with a recognizance and uttering threats.

[35] As an adult, his record contains five entries.

[36] In January 1999, he was convicted of possession of a prohibited weapon and discharge of a firearm with intent to endanger life. A synopsis of the offences, filed by Mr. Bawden, indicates that on July 12, 1998, Mr. Carty was a party to a minor dispute between two groups of males at a local theme park. Both groups of males left the park in separate automobiles. The vehicle in which Mr. Carty was a passenger pulled up alongside the vehicle holding a number of males from the other group. Mr. Carty pulled out a sawed off .22 calibre rifle and fired a shot into the other vehicle, striking one of the occupants in the forehead. On conviction, Mr. Carty was sentenced to five years in prison, in addition to six months’ pre-trial custody. He thus entered the penitentiary system at age 18.

[37] In May 2008, Mr. Carty was convicted of failing to comply with the conditions of a probation order. He had been on probation when the weapons offences took place in July 1998. He was sentenced to 45 days consecutive to the penitentiary sentence he was serving for the weapons offences.

[38] In February 2006, Mr. Carty was convicted of failing to comply with a recognizance.

[39] In January 2009, he was convicted of carrying a concealed weapon, possession of a restricted or prohibited firearm with ammunition, and unauthorized possession of a firearm in a vehicle. These offences relate to an incident that occurred early Christmas morning 2007. Mr. Carty got involved in a dispute at a nightclub and apparently lifted his shirt to reveal that he had a handgun tucked into his pants. He subsequently left the scene with a friend in an SUV. The police were called. The SUV was pulled over and the gun recovered. It was a loaded, .40 calibre, high point, semi-automatic handgun. Mr. Carty was sentenced to 9 months in prison, in addition to the equivalent of 25 months in pre-trial custody.

[40] On December 6, 2009, Kirk Matthews was murdered in Toronto. Mr. Carty was convicted of the murder in December 2013. Mr. Bawden advised that he has been unable to locate any reliable synopsis of the offence. He described it briefly, however, as follows. Mr. Matthews was sitting in a car with his girlfriend. A male approached the vehicle and tapped on the window. Mr. Matthews rolled down the window and the male asked for a light for a cigarette. The male then asked Mr. Matthews to step out of the car. He did. The male shot him dead with a handgun. The issue for trial was identity. The Crown asserted the shooter was Mr. Carty. The jury agreed and Mr. Carty was convicted of first degree murder and sentenced to life in prison.

[41] The offences presently before the court were committed in November 2010, at a time when Mr. Carty was wanted by the Toronto Police Service for the murder of Mr. Matthews. Mr. Carty was ultimately arrested in Brampton on January 25, 2011 and has been in custody since that time.

Additional Involvement with Police

[42] In addition to the offences Mr. Carty has been convicted of, he has also been suspected of, investigated for, and/or charged with a number of others. They include:

(a) A robbery charge in February 1996. I have no indication of what the underlying facts were, or what the disposition of the charges was, though no conviction appears to have been registered;

(b) A charge of assault with a weapon in September 1996. Again, there is no indication of what the underlying facts were and no indication of the disposition;

(c) In March 1997, Mr. Carty was a suspect in an assault, but no charges were ever laid;

(d) In December 1997, Mr. Carty was suspected of assaulting a female, but again, no charges were laid;

(e) In May 1998, Mr. Carty was charged with assaulting a witness in a robbery proceeding. An occurrence report was filed by Mr. Bawden. It indicates that Mr. Carty and another male encountered a third male playing ball hockey at a school. They called him over. When he approached, either Mr. Carty or the male he was with grabbed the hockey stick and hit the victim in the head with it. Someone said to the victim, “don’t call the police because we know where you live. You put our brother in jail.” It is not clear what happened with this charge. Mr. Bawden suggests this offence indicates Mr. Carty’s gang affiliation;

(f) In July, 2003, Mr. Carty was investigated for being involved in a car-jacking. Two males were using a phone booth when a masked, black male approached them, armed with a handgun. He stole their vehicle. The vehicle was later recovered in the parking lot of a residence where Mr. Carty resided. Two pit bulls were living in the car. The dogs were at one time owned by Mr. Carty, though he told the police that he had sold them recently to a Frenchman. No charges were laid;

(g) On September 24, 2003, Mr. Carty was charged with possession of cocaine and possession of the proceeds of crime. There is no indication of what happened to these charges;

(h) On June 9, 20014, Mr. Carty was charged with possession under $5,000 and possession of marijuana for the purposes of trafficking. Again, it is not clear what became of the charges;

(i) On November 29, 2004, Mr. Carty was stopped by the police. At the time he was wearing an earring depicting a .45 calibre firearm. Mr. Bawden asserts that this earring is “emblematic of a fascination Mr. Carty has with guns”;

(j) On April 29, 2005, Mr. Carty was investigated in relation to a gun that was found hidden in a bar washroom, but no charges were laid;

(k) On June 2, 2005, Mr. Carty was investigated in relation to a person sighted with a shotgun and body armour. No charges were laid;

(l) On June 4, 2005, Mr. Carty was charged with threatening death. No further information is known about the charge;

(m) On June 8, 2005, he was suspected of possessing a gun and discharging a firearm. He was not charged;

(n) On July 31, 2006, a number of charges were withdrawn against Mr. Carty, including possession of a loaded firearm, careless use of a firearm, uttering threats, and others. There is no indication in the materials filed on the application as to when these charges were laid, or in what circumstances;

(o) In June 2007, he was suspected of stabbing a man in London, Ontario, in relation to a drug debt. No charges were laid;

(p) In October 2007, Mr. Carty was allegedly involved in the assault of a police officer. No charges were laid;

(q) In July 2009, a London Police Service Occurrence Report noted Mr. Carty as being a person of interest in a 2005 homicide in Toronto. No other details are known; and,

(r) Again in July 2009, Mr. Carty was involved in a traffic stop. He was noted as being in a vehicle with a known Hells Angels gang member.

Nicknames and Tattoos

[43] I will combine my review of the last two categories of evidence identified by Mr. Bawden, given that they are related and can be briefly dealt with.

[44] Mr. Carty appears to have at least two nicknames. One, “Kimble”, is already in evidence. Another is “Sniper”. He has been referred to by one witness, Shavaughn Thompson – a former girlfriend – as “Snipes”. But no evidence has been provided, or is indicated, as to the genesis or history of that nickname.

[45] Mr. Carty has a tattoo on his left calf that consists of the name, in large letters, “SNYPA”. Beneath the lettering is a picture of an AK-47 assault rifle.

[46] Mr. Carty has the following additional tattoos:

• On the underside of his left forearm: “Ride Wit Us Or Collide Wit Us”;
• On his left front forearm: “Outlaw”;
• On the left side of his neck: “God Bless”. Mr. Bawden suggests that the location of this tattoo may suggest why the intruders into the Pan residence wore turtleneck sweaters;
• On his right upper back he has a large lettered tattoo that counsel suggests is related to a gang known as the San Pietro Way Killers;
• On his right inner forearm: “Soulja”.

V.

Weighing Probative Value Against Prejudicial Effect

Probity

[68] There can be no doubt that the alternate suspect defence is extremely important to Mr. Mylvaganam. The Crown’s theory of the case is that he was inside the residence and, quite possibly, the shooter. Mr. Pan participated in a photo line-up where he paused at Mr. Mylvaganam’s picture and said, “I think maybe this guy”. Clearly he did not positively identify Mr. Mylvaganam, but his response remains significant given the cell phone evidence that tends to place Mr. Mylvaganam in the vicinity of the Pa