SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CJ 7668

DATE: 2014-01-07

RE: R. v. DAVID THOMAS

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

COUNSEL:
K. Katzsch and N. Redgate, for the Crown

J. Milligan and N. Wansbutter, for the Accused

HEARD: November 5, 2013 and written submissions December 27, 2013 and January 2, 2014

PRE-TRIAL RULING # 5 re: Post-offence conduct –addendum

Evidence of telephone call by accused to Amy Miller and questioning by the accused as to what the deceased’s body had on

[1] The Crown seeks a ruling that evidence of the deceased's mother Ms. Miller respecting a telephone conversation she had with the accused following the discovery of the deceased's body in April 2007 be admitted as post-offence conduct of the accused from which the jury could draw an inference, or inferences, of consciousness of guilt.

[2] The relevant excerpt of the transcript of the testimony of Ms. Miller at the preliminary inquiry was included in the Crown’s Exhibit Brief, but the issue was not specifically referred to in its Application respecting post-offence conduct due to an oversight. Although the issue was raised in the Crown’s submissions on November 5, 2013, it was not addressed by the defence in its initial written submissions, and the defence was therefore invited to make written submissions by December 31, 2013. Those submissions have now been received, as have the Crown's reply submissions.

[3] The specific aspect of Ms. Miller's evidence respecting her telephone conversation with the accused which the Crown seeks to be admitted relates to the accused calling her after discovery of the deceased’s body "extremely hyper" and "what come (sic) out of his mouth was bang, bang, bang, bang, bang - five questions all in a row without taking a breath," the first question being "what did the body have on?"

Positions of the Parties

[4] The Crown’s position is that the evidence must be considered in the context of the testimony of the pathologist Dr. Fernandes at the preliminary hearing that he would have expected some items of clothing to be found on the deceased given the nature of the body of water where she was found and the number of layers she was last seen wearing. He concluded that the lack of clothing on the body indicated the possibility that the deceased entered into the water without clothing.

[5] The Crown asserts that, on the basis of Dr. Fernandes’ evidence, the triers of fact could draw an inference that the deceased was stripped of her clothing prior to entering the water and could draw the further inference that this weighs in favor of concluding that her death was in fact a homicide, rather than misadventure or suicide.

[6] The Crown states that it is therefore highly probative that the accused, upon learning that Ms. Bourdeau’s body had been located, contacted her mother and asked, as his first question, what the body had on. It says that an inference could be drawn that this question revealed that the accused knew the deceased would be found without any clothing because he had personally and deliberately removed her clothing, and that this was done to conceal physical evidence and the deceased's identity.

[7] The Crown also asserts that the probative value of Ms. Miller's evidence in this respect has added significance in light of the evidence of its blood splatter expert that he found evidence of a "clean up," consisting of wipe marks and trace amounts of blood in the accused's motor vehicle, in February, 2007.

[8] The defence argues that the probative value of the evidence of the accused's telephone call to, and his questioning of, Ms. Miller is highly tenuous and is no more consistent with guilt than it is with innocence in the circumstances. If the deceased's body had on the clothes which she wore to Jonathan's on New Year’s Eve it would be not inconsistent with the police theory that she died later that night. Conversely, if she were wearing clothes other than what she wore to Jonathan's, it could be viewed as exculpatory for the accused, as she could well have returned to where she was staying and changed before she died. The defence argues that learning what clothes the deceased's body had on reveals more about the accused's anxiety as a suspect than it does about his complicity in her death.

[9] The defence argues further that the exclusion of the involuntary statements that the accused gave to Sgt. Crook, wherein the accused came to appreciate that he was considered a suspect in the death of the deceased, has the effect of the giving the competing innocent inference much less prominence and it would therefore be unfair to admit the evidence of his question to Ms. Miller into evidence.

[10] The defence argues as well that the evidence, as "demeanour" evidence which the case-law as indicated that trial judges should carefully scrutinize and generally exclude, has significant prejudicial value. The evidence that the accused, rather than calling the deceased's mother to express his grief or condolences, called her to ask" rapid-fire" questions about what the body had on and where it was, would lead the jury to infer that the accused is a bad person, especially in view of the admission of evidence of discreditable conduct, and therefore more likely to have committed the offence or to be convicted for being so unsympathetic.

Analysis

[11] As indicated in my ruling released December 16, 2013, the question of whether post-offence conduct is admissible is, at its heart, simply a matter of relevance, as it is not fundamentally different from other kinds of circumstantial evidence. Once evidence is found to be relevant, it is generally admissible and the jury is left to decide how much weight to give the particular item of evidence in drawing conclusions about a live issue, subject to specific exclusionary rules and the trial judge's discretion to exclude evidence that is more prejudicial than probative.

[12] In my view, the evidence that the accused, upon learning of the discovery of the deceased's body, called Ms. Miller, not to express his grief or condolences, but to ask, in an agitated manner, a series of questions regarding the circumstances surrounding the discovery, including what the body had on, is relevant to a live issue or issues, that is, whether the deceased was stripped of her clothing prior to entering the water, thereby pointing towards homicide and away from misadventure or suicide, and if so, whether the accused was responsible for the removal of the clothing.

[13] The Crown acknowledges, in its submissions, that the question by the accused as to what the deceased body had on it was highly unusual. If the deceased had personal knowledge that the deceased was naked because he had stripped her clothing from her, one has to wonder why he felt compelled to ask the question of Ms. Miller.

[14] However, I agree with the Crown's submission that the fact that competing inferences could be drawn does not lead to the conclusion that the evidence must be withdrawn from the jury's consideration. As I indicated in my earlier ruling, rather than excluding the evidence, it will often be appropriate for the trial judge to warn the jury of the risks associated with certain types of evidence in order to alert the jury to the danger, but then allow the properly informed jury to evaluate the evidence with care. As the finders of fact, the jurors should be trusted, with proper instruction, to weigh relevant evidence and to make findings respecting the proper inference or inferences to be drawn from it. Indeed, that is the jury’s function.

[15] I also agree that the defence would be clearly permitted to put forward any suggestion with respect to competing inferences that could be drawn from the evidence, and the jury should be instructed to consider any and all inferences in their deliberations. The exclusion of the statements that the accused gave to Sgt. Crook will not preclude the defence from proffering the competing inference relating to his anxiety about being considered a suspect in her death. The jury will hear about the search of the accused’s apartment and his vehicle under warrant and his conduct upon coming upon the police carrying out the search of his residence. That the accused may have appreciated that the police viewed him as a suspect does not depend upon the evidence of his interviews by Sgt. Crook. Moreover, the defence chose to seek the exclusion of the evidence of the video-taped interviews with Sgt. Crook. The exclusion of that evidence does not, in my view, impact on the admissibility of the evidence of Ms. Miller respecting the telephone call in a manner that creates unfairness to the accused in the trial process.

[16] It is acknowledged that demeanour evidence, such as an accused’s calm reaction or lack of emotion when confronted with allegations relating to the offence, should not, except in exceptional circumstances, be put before the jury (Bryant, Lederman, Fuerst. The Law of Evidence in Canada (2009 - 3rd ed.) at para. 6.440). Rosenberg, J.A., in R.v. Levert 2001 8606 (ON CA), [2001] O.J. No. 3907 (C.A.) observed, at para. 27 that “perceptions of guilt based on demeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal.”

[17] In my view the evidence of the accused’s telephone call to Ms. Miller and the question that he posed to her in this case is not of the same nature as the demeanour evidence under consideration in Levert. The evidence does not consist of a response or lack of response on the part of the accused, to an allegation of complicity in the offence which would be more subjective and equivocal, but rather consists of a telephone call and interchange with the deceased’s mother initiated by the accused.

[18] The authors of The Law of Evidence in Canada (citing R.v. Bennett (2003), 2003 21292 (ON CA), 67 O.R. (3d) 257 (C.A.)), pointed out, at para. 6.437, that it is for the trial judge to carefully instruct the jury to ensure that post-offence conduct is not misused, and that they should exercise caution in inferring guilt because the conduct might be explained in an alternative manner. They also observed that the jury should be instructed that they must not use the post-offence conduct to support an inference of guilt unless they rejected any innocent explanation for the conduct.

[19] Although the evidence of the accused's conduct in his telephone call to Ms. Miller could be considered to be prejudicial to the accused in the sense of being harmful to his case at trial, it is not, in my view, unfairly or unjustly prejudicial to him.

[20] The telephone call was initiated by the accused, and he chose how to behave in the course of it and the questions he asked of Ms. Miller. There was no element of coercion or inducement leading to the conduct of the accused during the telephone call. This evidence is unlike the evidence of the accused failing to respond to police at his door or failing to contact police regarding the disappearance of the deceased, which was excluded in my earlier ruling as engaging policy issues respecting a person's right to choose not to cooperate with police. Moreover, unlike that excluded evidence, the initiation of the telephone call and his questioning of Ms. Miller was active and not passive behavior on the part of the accused.

[21] I am unable to find that the evidence has no probative value, or that its probative value is outweighed by its prejudicial effect. Accordingly, to remove it from the jury’s consideration altogether would usurp its fact-finding function and would be an error. The dangers associated with this post-offence conduct may be adequately addressed by an appropriate instruction on the proper use of the evidence to be given to the jury in the context of all of the evidence introduced at trial.

Disposition

[22] The evidence of Ms. Amy Miller respecting the telephone call to her from the accused following the discovery of the deceased's body in April 2007, and specifically the question that he posed to her respecting what the body had on it, shall be admitted at trial.

D.A. Broad, J.

Date: January 7, 2014