ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-09099G

DATE: 20140929

BETWEEN:

HER MAJESTY THE QUEEN

– and –

David Mylvaganam

Defendant

Robert Scott, Jennifer Halajian and Michelle Rumble for the Crown

Peter Bawden for David Mylvaganam

HEARD: September 26, 2014

admissibility of bad character evidence
relating to third party suspect

boswell j.

THE APPLICATION

[1] Sometimes when a person is charged with committing a criminal offence, he or she will point to a third party and say it was the third party and not the accused person who committed the offence. It is not necessary for the accused person to prove the culpability of the third party. The purpose of finger-pointing is to raise a reasonable doubt about the guilt of the accused before the court.

[2] To present a viable third party suspect defence, an accused must adduce evidence of the third party’s involvement in the offence. In other words, the accused must establish a sufficient connection between the third party and the crime. Evidence of opportunity is generally essential, coupled with direct or circumstantial evidence implicating the third party in the crime, such as identification evidence, motive, or disposition.

[3] In this case, Mr. Mylvaganam is one of four accused persons jointly charged with murdering Bich Ha Pan and attempting to murder her husband, Hann Pan, during a home invasion in Markham on November 8, 2010. He is advancing a third party suspect defence. In a prior ruling, I gave him leave to do so: see R. v. Mylvaganam, 2014 ONSC 3800. The third party at whom he points an accusatory finger is a man named Desmond Francis. To present evidence about Desmond Francis, his lawyer, Mr. Bawden, has had to call Mr. Francis as his own witness. Mr. Bawden is attempting, directly through Mr. Francis, to establish that he had both the opportunity and the disposition to commit the offences before the court.

[4] Conducting an accusatory examination-in-chief is a little awkward. Mr. Bawden has indicated to the court that he wishes to question Mr. Francis about a series of criminal charges that he has faced in the past, none of which he has been convicted of. The Crown objects to the questions and the evidence they are designed to elicit. In a moment I will set out the impugned questions, the identified purpose for them, and the basis of the Crown’s objection. But first, in order to understand how Mr. Francis fits into this case, I must provide some brief background to the offences and to the third party suspect defence.

THE OFFENCES

[5] On November 8, 2010, three armed males entered the Pan family residence in Markham, Ontario at about 10:15 p.m. They took the owners of the home, Hann and Bich Ha Pan to the basement of the home and shot them both in the head. Hann survived. His wife did not.

[6] The victims’ daughter, Jennifer Pan, is a co-accused. She lived with her parents in November 2010 and at the time was 24 years old. She is alleged to have hired killers to enter the home and end the lives of her parents. The Crown theorizes that she wanted to be free of restrictive rules they placed upon her so that she could pursue a relationship with a man named Daniel Wong. Her parents opposed the relationship. Mr. Wong is alleged to have assisted her with making the arrangements for the attack on her parents. A friend of Mr. Wong’s, Lenford Crawford, is alleged to have also provided assistance in the way of sourcing out the killers and helping in the planning stages. Mr. Mylvaganam is alleged to have been one of the three armed men who entered the Pan residence; possibly the shooter.

THE THIRD PARTY SUSPECT DEFENCE

[7] Like so many other Canadians, Mr. Mylvaganam is a cell phone enthusiast. On November 8, 2010, he had a cell phone account with Telus Communications. Telus, like Bell Mobility and Rogers Wireless, keeps careful records of the cell phone usage of its customers. Those records include the location of any cell tower sites utilized by a customer’s phone for the purpose of making a phone call across the network.

[8] In November 2010 Mr. Mylvaganam resided in Etobicoke. Telus call detail records reflect that in the hour or so before the attack at the Pan residence Mr. Mylvaganam’s phone connected, sequentially, with a series of cell towers heading in an easterly direction from Etobicoke to Markham. At 9:34 p.m. his phone made a call to a phone number used exclusively by Jennifer Pan. At 10:05 p.m. his phone made a second call to Jennifer Pan’s phone number. The call lasted 207 seconds. At the end of the call, Mr. Mylvaganam’s phone was connected to the Telus network through tower site ON1269. That tower site was the closest Telus cell site to the Pan residence in Markham.

[9] A neighbour’s surveillance camera recorded three figures entering the Pan residence at about 10:15 p.m. It recorded three figures leaving the residence about 15 minutes later. Jennifer Pan placed a call to 911 almost immediately after the figures had left the house.

[10] Telus call detail records reflect that there was no activity on Mr. Mylvaganam’s phone account between the call to Jennifer Pan at 10:05 and 10:46 p.m. when Mr. Mylvaganam’s phone began to make a series of calls. Telus’ records reflect that after 10:46 p.m., Mr. Mylvaganam’s phone connected with a series of tower sites moving sequentially westward back to Etobicoke.

[11] The Crown’s theory is that Mr. Mylvaganam was in possession of his phone at the time of the phone activity I just described. If the jury agrees, Mr. Mylvaganam will be placed in the vicinity of the crime scene at the time the offences occurred.

[12] Other evidence adduced during the trial places a man named Eric Carty with Mr. Mylvaganam when he travelled to Markham on November 8, 2010. Mr. Carty has also been indicted for the offences now before the court. He was a co-accused in this trial until early September when he had to be severed from the trial for reasons not germane to this application.

[13] Hann Pan has described two of the three intruders inside the Pan residence as having dark skin. The third male, he said, had lighter skin. There is no dispute that the lighter skinned man has never been identified and is not before the court.

[14] Mr. Mylvaganam has dark skin. So does Mr. Carty. So does Desmond Francis.

[15] Mr. Bawden expects to adduce evidence from one of Mr. Francis’ former girlfriends to the effect that he told her he was involved in an incident in Markham where he shot a man but the man did not die. He purportedly told her that a woman was also shot. She died, but the man did not die. Mr. Bawden expects to adduce further evidence from another former girlfriend that Mr. Francis went out with Eric Carty on the night of November 8, 2010. When he went out he was wearing clothing that matched the description given by Hann Pan of what the intruders in his home were wearing. When he arrived back he was wearing different clothes. He purportedly gave some bloodied clothes to the girlfriend and asked her to get rid of them for him.

[16] Mr. Bawden also expects to adduce evidence about Eric Carty’s propensity for violence, including a recent conviction for another murder.

[17] At the end of the day, Mr. Bawden wants to go to the jury with the theory that the two dark skinned males in the Pan residence were Mr. Carty and Mr. Francis. The hope is to at least raise a doubt about Mr. Mylvaganam’s role, if any, in the offences.

[18] Mr. Mylvaganam still faces some difficulty in that his phone records tend to place him at the scene of the crime, with his phone having contact with Jennifer Pan’s phone in the minutes prior to the attack. But there is real value in raising a doubt about whether he was in the house.

[19] It is incumbent on the Crown to demonstrate to the reasonable doubt standard that each of the accused had the mental state required for a murder conviction. Hann Pan testified that it was the two dark-skinned males who took him and his wife down to the basement. One asked the other if they should tie the Pans up or tape them. The other replied that they should just be shot. And then they were shot.

[20] Should the jury be satisfied that Mr. Mylvaganam was one of the dark-skinned males in the basement, one might reasonably describe the Crown’s case on the mens rea element of the offence as pretty strong. It is arguably not as strong if the jury is not satisfied that Mr. Mylvaganam was inside the house.

THE EVIDENCE IN ISSUE

[21] Mr. Bawden has called Desmond Francis to give evidence as part of his case on behalf of Mr. Mylvaganam. He wishes to adduce bad character evidence from Mr. Francis regarding a number of prior criminal charges he has faced, including the following:

(a) An arrest in May 1996 when he was found with pepper spray and a knife. He was charged with possession of a restricted weapon. He purportedly told the police the items were for his protection;

(b) Charges in March 1997 for dangerous operation of a motor vehicle and possession of a prohibited weapon (a loaded firearm);

(c) Charges in June 1997 for armed robbery, involving a home invasion and a firearm;

(d) A charge of possession of stolen property in January 1998. The property in issue was a bullet-proof vest stolen from a security guard in a swarming incident; and,

(e) An incident in November 2000 where Mr. Francis was found in possession of another bullet-proof vest. In addition, a .45 caliber handgun was found in a car occupied by Mr. Francis. I am not entirely clear on what charges emanated from this incident, but it matters not, for reasons I will set out momentarily.

THE IDENTIFIED PURPOSE

[22] Mr. Bawden has identified three purposes for the evidence on offer:

(a) To impeach Mr. Francis’ credibility generally;

(b) In the case of the May 1996 incident, Mr. Francis’ purported statement that he had the pepper spray and knife for his protection is offered as circumstantial evidence to support the credibility of a statement made by a prior girlfriend, Louise Bynoe. Ms. Bynoe said that Mr. Francis had a gun when they dated. He named it “Karma”. He told her he had it “for my protection”; and,

(c) As disposition evidence; evidence that Mr. Francis had access to firearms and was just the sort of person who might commit a murder.

THE OBJECTIONS

[23] The Crown objects to the questioning of Mr. Francis on the issues identified by Mr. Bawden for reasons which include the following:

(a) Mr. Bawden is not entitled to impeach his own witness by adducing bad character evidence from him;

(b) Mr. Francis has no criminal convictions. Adducing evidence of a number of charges as evidence of disposition tends to undermine the presumption of innocence and prejudices all of the accused in this case; and,

(c) There is very little probity to any of the evidence. The Crown asserts that because this is propensity evidence, it is incumbent upon Mr. Bawden to demonstrate that its probative value exceeds its prejudicial effect. The probative value of the evidence is slight. On the other hand it creates prejudice by distracting the jury and by wasting time.

[24] Ms. Pan and Mr. Wong support Mr. Bawden’s application. Mr. Crawford takes no position.

DISCUSSION

Basic Principles

[25] In my view, the admissibility of the evidence Mr. Bawden seeks to adduce is governed by basic principles of the law of evidence.

[26] I want to first address the Crown’s assertion that Mr. Bawden bears an onus to establish that the probative value of the proffered evidence exceeds its likely prejudicial effect. Mr. Francis is not an accused person. I am not aware of any rule of Canadian evidence law that creates an obligation upon an accused person to establish, as a pre-requisite to the admission of propensity evidence against an unindicted third party, that the probative value of the evidence exceeds its prejudicial effect. I reject that submission.

[27] Rather, to be admitted in this trial, Mr. Bawden’s proposed evidence must meet the usual basic requirements: it must be relevant, material and not otherwise excluded by the operation of a rule of evidence: R. v. Candir, 2009 ONCA 915, at para. 46.

[28] Where identity is a live issue in a criminal trial, as it is here, evidence that points to an unindicted person as a party to the offences is generally admissible provided it is relevant and has sufficient probity to the live issue of identity: R. v. Tomlinson, 2014 ONCA 158; R. v. Grandinetti, 2005 SCC 5.

[29] The court does, of course, have a residual discretion to exclude otherwise relevant and material evidence where the probative value of the evidence is overborne by its prejudicial effect, where the introduction of the evidence would involve an inordinate amount of time not commensurate with its value to the determination of the dispute, or where the evidence is misleading because its effect on the trier of fact, especially a jury, is disproportionate to its reliability as proof: see R. v. Spackman, 2012 ONCA 905.

[30] The court’s residual discretion to exclude defence evidence is even more circumscribed. To exclude otherwise relevant and material evidence offered by an accused person on the basis of prejudice, the court must be satisfied that the prejudicial impact of the evidence will substantially outweigh its probative value: see R. v. Seaboyer, 1991 76 (SCC).

[31] In this instance, the Crown identified concerns about both moral and reasoning prejudice that may arise from the introduction of the evidence in issue, asserting that the court should find that the evidence is not sufficiently probative to justify its admission. The moral prejudice identified is the potential to undermine the presumption of innocence applicable to all accused persons by the assertion that Mr. Francis managed to escape justice by avoiding acquittals on numerous prior criminal charges. The reasoning prejudice identified is the potential expenditure of significant time and resources on evidence of only very slight probative value, with the concurrent risk of distracting the jury.

[32] For reasons set out below, I find that Mr. Bawden may not question Mr. Francis about prior criminal charges. In the result, the Crown’s concern about moral prejudice will be attenuated. But whether Mr. Bawden may question Mr. Francis about the underlying facts associated with the prior charges is another matter. The admissibility of evidence relating to the underlying facts of the prior charges will turn on the application of the basic rules of evidence.

Application of the Basic Principles

[33] The first, and most basic, pre-requisite to admissibility is relevance. Mr. Bawden has identified several ways in which he says the proffered evidence is relevant. The first way relates to Mr. Francis’ general credibility. The Crown objects to the questioning of Mr. Francis by Mr. Bawden on matters tending to impeach his credibility.

Impeaching Credibility

[34] As I mentioned, Mr. Francis is Mr. Bawden’s own witness. It is not generally permissible to impeach one’s own witness, whether through bad character evidence or otherwise. Indeed, s. 9(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5, begins, “A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character…” Mr. Bawden would very much like to be in a position to cross-examine Mr. Francis at large. At present, there is no basis on which he could proceed to do so. I am unable, under the circumstances, to conclude that the proffered evidence is relevant to Mr. Francis’ credibility generally, given that it would be improper for Mr. Bawden to ask questions of Mr. Francis intended to impeach his credibility.

Relevance as Evidence of Disposition

[35] Apart from the issue of credibility, Mr. Bawden asserts that the proffered evidence is relevant as evidence of Mr. Francis’ disposition. His disposition is, in turn, relevant to the issue of identity and the third party suspect defence.

[36] The evidence of Mr. Francis’ prior involvement with the justice system is, in my view, potentially relevant as evidence of disposition. I say potentially relevant because the value of propensity evidence is always a function of its ability to support a double inference: first, that the target of the evidence has a disposition to act in a certain way; and second, that the target acted in accordance with that disposition on the occasion in question: see R. v. Handy, 2002 SCC 56.

[37] Here, the offences are murder and attempted murder, involving gun violence. To have any probative value as evidence of disposition, the proffered evidence must be capable of supporting the inference that Mr. Francis has, or at least had in November 2010, a disposition or propensity to commit violent offences involving firearms. Evidence that he had some other propensity, for instance to set fires, or to wear women’s clothing, would have no relevance to the live issue of identity in this case.

[38] The Crown objects to the introduction of the proffered evidence as evidence of disposition on two bases: first, that it is improper to question a witness about prior charges that did not lead to convictions; and second, that the probative value of the facts underlying the charges is so slight that it does not justify the time it will take to go through the exercise.

Evidence of Prior Charges

[39] The evidence in issue involves a series of alleged criminal offences which led to various charges against Mr. Francis across an almost 15 year period from May 1996 to November 2000. Mr. Francis has never been convicted, however, of any criminal offence.

[40] Evidence that Mr. Francis was charged with a series of offences, even though he was never convicted, is problematic on more than one level.

[41] First, in Canada, a person charged with a criminal offence is presumed innocent of that charge. The presumption of innocence remains intact unless and until it is displaced through evidence that establishes the guilt of the accused person beyond a reasonable doubt. In Mr. Francis’ case, the presumption of innocence has never been displaced. The calling of evidence that he has been charged on numerous occasions and has “gotten off”, undermines the presumption of innocence. It asks the jury to reason improperly. It prejudices all accused persons and it generally has no place in our criminal justice system. Occasionally, the fact that a witness is facing an outstanding charge may be relevant to a motive to fabricate, or to give evidence more favourable to one side than the other. But that is not the case here.

[42] Second, the fact that Mr. Francis has been charged on numerous occasions but never convicted, in my view supports only an inference that he is the sort of person who regularly comes into contact with the criminal justice system. It does not support the inference that he is the sort of person who would commit a gun-related murder.

[43] For the foregoing reasons, I find that Mr. Bawden may not ask Mr. Francis about his prior charges.

Evidence of Underlying Facts

[44] Having said that, the law recognizes that examination on the underlying facts of the prior charges is permissible, so long as the underlying facts are relevant to a live issue: see R. v. Gassyt, 1998 5976 (ON CA).

[45] It is necessary, as part of the assessment of relevance, to examine the underlying facts and circumstances of the prior charged conduct. I note that the evidentiary record is quite thin. It exists of short police synopses relating to each prior charge. The synopses were filed, collectively, as an exhibit – the only exhibit – on the application.

[46] Relevance, in the context of an admissibility analysis, refers to logical relevance. Logical relevance is a low threshold to meet. It relates to the tendency of a piece of evidence “as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence”: R. v. Abbey, 2009 ONCA 624.

[47] As I noted, the Crown asserts that even if logically relevant, evidence of the underlying facts connected to Mr. Francis’ prior charges are of such limited probity that “the game is not worth the candle” in the words of Mr. Scott.

[48] In my view, and based on the manner in which the argument was framed, the extent to which Mr. Bawden should be permitted to question Mr. Francis about the underlying facts relating to his prior criminal charges falls to be determined through an exercise of the court’s gatekeeping function – an approach described by Doherty J.A. in R. v. Abbey, as above.

[49] The gatekeeping approach requires an assessment of both logical and legal relevance. I have already described the concept of logical relevance. “Legal relevance” refers to a requirement that “evidence be not only logically relevant to a fact in issue, but also sufficiently probative to justify its admission despite the prejudice that may flow from its admission”: R. v. Abbey, as above. Legal relevance engages a limited weighing of the costs and benefits of admitting the evidence in issue. Such a limited costs/benefits analysis is all that is called for in the circumstances of this application, since the only real prejudice in issue is the risk of wasting time.

The May 1996 Incident

[50] In May 1996, Mr. Francis was apparently pulled over by the police while driving a motor vehicle. Inside the vehicle was a prohibited style of knife. Attached to Mr. Francis’ keychain was a container of pepper spray. Possession of these two items some 14 ½ years before the offences in this case occurred is not, in my view, logically relevant as disposition evidence. It could not reasonably be said to make it even slightly more likely that Mr. Francis committed the offences now before the court.

[51] Having said that, Mr. Francis is alleged to have made a comment to the arresting officer that he had the knife and pepper spray “for my protection”. Louise Bynoe told the police that Mr. Francis had a gun and that he told her he had it “for my protection”. Accordingly, the “for my protection” statement is offered as part of a chain of reasoning: that Ms. Bynoe should be believed when she said Mr. Francis had a gun because he said it was “for my protection”, a phrase he had used in the past; in turn that having a gun puts Mr. Francis in the relatively small circle of people who could have committed the offences in this case.

[52] The “for my protection” statement is, in my view, logically relevant to the issue of identity as part of the chain of reasoning I just described. It makes the existence of another fact in the chain more likely. Just slightly more likely, mind you, but the law does not recognize degrees of relevance.

[53] On the other hand, I am not satisfied that the “for my protection” statement is legally relevant. Although I cannot say that it would take up any significant amount of time to review with the witness, its probative value is virtually nil. It involves an incident some 14 years prior to the offences now before the court. Mr. Francis was perhaps 21 years old at the time. Moreover the phrase “for my protection” is hardly distinctive.

[54] I conclude that the facts underlying the 1996 charges are not admissible.

The Remaining Incidents

[55] I am somewhat leery of the balance of the incidents Mr. Bawden wishes to refer to, principally because the incidents are so dated. That said, when considered cumulatively, I am satisfied that they have both logical and legal relevance. Possessing loaded, prohibited firearms, or at least being in a vehicle where a firearm is present, being involved in a home invasion/robbery, and even being in possession of bullet-proof vests, tend, when viewed together, to support an inference that Mr. Francis had a disposition towards involvement in illegal, gun-related activities.

[56] The individuals who attacked the Pans on November 8, 2010 clearly had access to prohibited firearms. The proffered evidence – if believed – would place Mr. Francis in that limited circle of folks who have access to illegal handguns, thereby making it more likely that he was the sort of person who would commit the offences now before the court.

[57] The incidents in issue are dated and for that reason their probity is reduced. That said, I am mindful that this is defence-led evidence. The costs/benefits analysis tilts in favour of admission of defence evidence unless the costs substantially outweigh the benefits. Here there is, in my view, sufficient probity to the evidence that I conclude it has legal relevance as well as logical relevance. Again, it will take minimal time, in the overall scheme of this trial, to introduce.

[58] In the result, I conclude that Mr. Bawden may question Mr. Francis about the facts underlying all prior charges save the May 1996 incident.

[59] Mr. Bawden has indicated his appreciation that he will not be in a position to call contradictory evidence should the witness not be forthcoming about the facts and circumstances underlying the former charges. Doing so, he acknowledges, would offend the collateral facts rule. He is stuck with whatever answers Mr. Francis gives him.

Boswell J.

Released: September 29, 2014