COURT FILE AND PARTIES

COURT FILE NO.: CJ 7668

DATE: 2014-03-07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. DAVID THOMAS

BEFORE: The Honourable Mr. Justice D.A. Broad

COUNSEL:
K. Katzsch, for the Crown
N. Wansbutter, for the Accused

HEARD: February 5, 2014

pre-trial ruling #5 Re: post-offence conduct –addendum two -

Evidence of Witnesses Jim Bettridge and Constable Allison Curran

[1] The defence seeks a ruling that the evidence of Jim Bettridge and Constable Allison Curran relating to post-offence conduct of the accused is inadmissible, in whole or in part, on the basis that its probative value is outweighed by its prejudicial effect.

[2] The background facts relating to the charge against the accused and the evidence alleged by the Crown were set forth in my pre-trial rulings released December 16, 2013.

[3] As indicated in my earlier rulings, following the report of the disappearance of the deceased on January 15, 2007 Waterloo Region Police Service (WRPS) came into contact with the accused by telephone on January 17 and conducted a videotaped interview of him on January 23, 2007. On January 24, 2007 WRPS obtained a search warrant to search the accused's apartment and executed the warrant on that date.

[4] On January 31, 2007 the police obtained a warrant to search the accused's motor vehicle which resulted in the detection of blood and hair, subsequently found, as a result of a forensic analysis, to be that of the deceased, and evidence of an attempted cleanup of the blood.

[5] In my earlier ruling I ruled as admissible evidence of the accused's conduct when coming upon the presence of the police at his apartment carrying out a search, in driving past his building and parking his car in the lot of a nearby school, taking a circuitous route back to the vicinity of his apartment and crouching behind vehicles in the apartment parking lot so that he could watch the police without being seen.

Evidence of Jim Bettridge

[6] Jim Bettridge is the owner/operator of an automotive repair facility of which the accused had been a customer for several years. According to his will-say statement, Mr. Bettridge will testify that the accused arrived with his vehicle at his shop asking if he could park his car there for a while. He appeared “very agitated” and advised that he had "pissed off someone at the union” and they were following him around driving a black and brown Monte Carlo vehicle. The accused mentioned that an individual from the union had also threatened to kill him. He did not explain why he had to park the car at Mr. Bettridge’s location. The accused provided Mr. Bettridge with a set of car keys in the event that he had to move his car, and provided details of his cell phone number, his home phone number as well as the telephone number of his sister. Mr. Bettridge will testify that, prior to the accused leaving the shop on foot, he considered driving the accused home however, when he looked out the window he saw a black Monte Carlo drive past the building and he decided not to become involved. The accused's vehicle remained parked at the rear of the shop for approximately 3 days over the weekend and then was moved away. At the time of his statement to police Mr. Bettridge was still in possession of the keys to the vehicle given to him by the accused.

[7] The Crown suggests that the incident described by Mr. Bettridge occurred on January 24, 2007 and involved the accused moving his vehicle from the school lot in the vicinity of his residence to Mr. Bettridge’s automotive repair shop in an effort to hide it from police, knowing that, if searched, the police might detect the deceased's blood and hair in the vehicle.

Evidence of Constable Allison Curran

[8] Constable Curran was dispatched on January 31, 2007 to attend at the accused's residence in order to seize his vehicle under warrant. She was advised by an investigating officer with WRPS that the accused would bring the keys to the vehicle out to her.

[9] According to her will-say statement, Constable Curran will testify that when she pulled into the parking lot the accused had the driver's side of the vehicle open and was leaning inside. When Constable Curran approached, the accused stood up holding a coffee mug in hand. After inquiring if he could take the coffee mug, and upon being advised by Constable Curran that he could not, he returned it to the vehicle.

[10] The accused then opened the trunk and stated "I need my tools" and when told he would not be able to remove anything from the vehicle he closed the trunk. The accused returned to the driver's side door, opened it and went to get into the driver's seat. When Constable Curran advised him to get out of the vehicle, the accused stated he just wanted to look around to see if he was forgetting anything. He tried to grab a pack of cigarettes and was instructed to put them back.

[11] After Constable Curran obtained the keys to the vehicle from the accused, she stated that he then appeared "as if he was trying to cry" and he stated "just find her, please okay".

[12] When Constable Curran advised the accused that the police were doing everything possible with their investigation, the accused responded, in part, "this is such bullshit. This is just a joke man." When Constable Curran replied "this is not a joke" the accused stated “well yeah, to me it is.”

[13] Constable Curran related that the accused had watery eyes at this point and went back into the apartment building.

[14] Once the tow truck was on the scene, the accused returned outside and was smiling and laughing and was attempting to tell the tow truck driver how to hook up the vehicle. The accused asked again if he could get his tools back by Monday since he needed them for work. When Constable Curran advised him to speak to Detective Crook he responded "I just brought the car back."

[15] Constable Curran described the accused as appearing “very nervous, pacing around the vehicle" and was still attempting to joke with the tow truck driver. When she was making notes in her notebook, Constable Curran observed the accused attempting to look over her shoulder to see what she was writing.

[16] In her hand-written notes, Constable Curran noted that when the accused tried to get into the driver seat he started to dust it off and was instructed by her to stop doing so.

[17] The Crown states that the significance of the evidence of Constable Curran relates to the accused's vehicle as physical evidence, rather than necessarily in reference to his demeanor in his interactions with her. Specifically, the Crown indicates that the evidence relates to the accused attempting to withhold or conceal the contents and condition of his vehicle from police.

Analysis

[18] The guiding principles governing the treatment of post-offense conduct evidence were set forth in my earlier rulings at paras 353 to 362.

[19] The general rules with respect to post-offence conduct evidence were succinctly stated in the case of R.v. Trochym 2004 1262 (ON CA), [2004] O.J. No. 2850 (C.A.) at paras. 17 to 19. (overturned on other grounds 2007 SCC 6, [2007] 1 S.C.R. 239). MacPherson, J.A., writing for the Court and citing R. v. White (1998), 1998 789 (SCC), 125 C.C.C. (3d) 385 (S.C.C.), stated that, as a general rule, it is for the jury to decide, on the basis of the evidence as a whole, whether post-offense conduct of the accused is related to the crime before them and to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in the process will, in most cases, constitute a usurpation of the jury's exclusive fact-finding role.

[20] MacPherson, J.A. went on to identify two exceptions to the general rule, the first in reference to evidence that has no probative value at all, and the second arising when the prejudicial effect of the evidence outweighs its probative value.

(a) Evidence of Jim Bettridge

[21] The Crown argues that it may be open to the jury to find that the conduct of the accused, as related by Mr. Bettridge, is a continuation of his conduct in parking his vehicle at a nearby schoolyard upon coming upon the police presence at his apartment, which has already been ruled admissible. The Crown submits that it will be open to the jury to draw an inference that the accused in both instances was attempting to hide his vehicle from police, knowing that incriminating evidence was present in it.

[22] The defence argues that the evidence lacks probative value and carries with it a substantial risk of jury error, by tempting the jury to jump to an inference of guilt, without giving proper consideration to alternate explanations for the conduct in question (see White at para. 23). The defence argues that it is not clear that the accused’s stated reason for his request to store his car at Mr. Bettridge’s establishment, relating to his being followed by someone from the union, was untrue. They point to the fact that he was, in fact, being followed under surveillance by the police, but there is no evidence that the accused knew it was the police who were following him, leaving open the possibility that he believed that what he told Mr. Bettridge was true.

[23] I do not agree that the evidence lacks probative value. It is relevant to a live issue, namely whether the accused was attempting to hide his vehicle, with evidence of the deceased’s blood in it, from the police. Given the timing of the evidence, it was part of a continuous course of conduct of the accused beginning with his parking his vehicle at the school yard, and then moving it to Mr. Bettridge’s establishment, rather than simply parking it in the parking lot of his apartment.

[24] I similarly do not agree that the jury would be unable to draw an inference that the accused was aware, or had reason to suspect, that he was under police surveillance and scrutiny, and was therefore motivated to hide his vehicle from them. By the time of his encounter with Mr. Bettridge he knew that his live-in girlfriend had been reported missing to the police, he had been contacted by and had spoken to police regarding her disappearance, and he had encountered the police carrying out a search of his apartment.

[25] It is fair to say that Mr. Bettridge’s evidence that the accused seemed “agitated” does represent a subjective impression on his part. However, it is not prejudicial in the same sense as the type of “consciousness of guilt” demeanour evidence that the Court of Appeal warned about in R.v. Levert 2001 8606 (ON CA), [2001] O.J. No. 3907 (C.A.) at para. 27. The fact that the accused appeared agitated is consistent with both possible inferences, the first being that he was being followed by someone from the union, having received a death threat, as the accused described to Mr. Bettridge, or secondly, that he was attempting to hide his vehicle from the police, as alleged by the Crown.

[26] The accused’s mental state, as observed by Mr. Bettridge, was a part of the conduct of the accused in his interaction with him, and is evidence which should properly be put before the trier of fact. To remove it from consideration by the jury would, in my view, usurp its fact-finding role. It may be appropriate to warn the jury of the risks associated with this type of evidence, leaving it to the jury to evaluate it with care (see White at para. 33).

(b) Evidence of Constable Curran

[27] In my view, different considerations apply to the evidence of Constable Curran. As observed by the authors of Bryant, Lederman, Fuerst The Law of Evidence in Canada (3rd ed.) at para. 6.427 “evidence of an accused’s acts following the crime with which he or she is charged is commonly admitted to show that the accused has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.”

[28] When considered in the context of the stated purpose for which evidence of post-offence conduct of the accused is commonly admitted, the evidence of Constable Curran lacks probative value. The fact that the accused wished to retrieve his coffee mug, his cigarettes and his tools upon the police taken control of his vehicle under warrant may be viewed as a quite natural and innocent reaction. There is no evidence that the accused had any prior experience with police investigations, and could not be taken as being aware of a requirement that all of what he would consider as his personal belongings, such as his mug, cigarettes and tools, should be left in his vehicle. Similarly, his appearing agitated and nervous in these circumstances may be considered to be a natural reaction to his vehicle being seized by police for a search under warrant and not indicative of a consciousness of guilt. The accused dusting off the driver’s seat with his hand before entering the vehicle was, in my view, not indicative of an attempt to conceal incriminating evidence from the police, but rather is consistent with an innocent and perhaps habitual mannerism. Its relative lack of significance is highlighted by the fact that Constable Curran entered the reference to it into her notes at the end as an apparent afterthought, out of chronological order, and it was not carried forward and referenced in her will-say statement. The accused looking over Constable Curran’s shoulder to see what she was writing in her notebook may also be considered to have been a natural reaction to a stressful situation, and not indicative of a consciousness of guilt.

[29] In the The Law of Evidence in Canada, the authors state, at para 6-436, that post-offence conduct evidence must be analysed with care and not over-emphasized, as it is easily misinterpreted. Quoting the case of R.v. S.(C.D.)2002 BCCA 565, 2003, 169 C.C.C. (3d) 247 (B.C.C.A.) at para. 28, the authors state that the trial judge “must consider any innocent explanation for the conduct, because people react differently to different situations, and their behaviour may be motivated by any number of reasons.”

[30] As indicated above, the Crown attaches significance to the evidence of Constable Curran in relation to the accused's vehicle as physical evidence, rather than in reference to his demeanor in his interactions with her. In my view the probative value of the evidence in relation to the accused's vehicle as physical evidence is extremely low. The evidence of Constable Curran interpreting the accused’s demeanour as “trying to cry" and his characterization of the police investigation into the deceased’s disappearance as “bullshit” and a “joke”, and then later appearing to laugh and joke with the tow truck driver has prejudicial value by depicting the accused as initially feigning concern about the deceased’s disappearance and thereafter exhibiting a seemingly uncaring attitude towards it, which, in my view, outweighs any probative value that Constable Curran’s evidence may have. The evidence of Constable Curran respecting post-offence conduct of the accused should therefore be excluded. Her evidence that she was dispatched to take possession of the accused’s vehicle under warrant and the steps that she took to do so remains admissible.

Disposition

[31] For the foregoing reasons the evidence of Jim Bettridge is admissible in its entirety at trial and the evidence of Constable Curran respecting her interactions with and observations of the accused is to be excluded from trial.

D.A. Broad J.

Date: March 7, 2014