COURT FILE AND PARTIES

COURT FILE NO.: CJ-7668
DATE: 2014/09/15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. DAVID THOMAS

BEFORE: The Honourable Justice D.A. Broad

COUNSEL:
J. Milligan and N. Wansbutter for the Applicant/Accused

K. Katzsch for the Crown

HEARD: July 21, 2014

PRE-TRIAL RULINGS #2

(A) RULING RE DEFENCE APPLICATION TO ADMIT DIARY ENTRIES OF THE DECEASED

[1] The accused has brought an Application for an order for admission of certain diary entries made by the deceased, pursuant to the “principled exception to the rule against hearsay.” He is charged with second degree murder in the death of Denise Bourdeau (the “deceased”).

Background

[2] The deceased and the accused had a romantic relationship which began shortly after they met around Christmas of 2004. The deceased moved in with the accused and lived with him at his apartment in Waterloo for most of the two year period until her disappearance early on New Year's Day 2007.

[3] On December 31, 2006 the deceased went to a local bar with a male friend David Heath to celebrate New Year's Eve. The accused subsequently entered the bar and, after an initial confrontation with the owner, he was permitted to re-enter the bar and sat with the deceased and her friend. The accused and the deceased left the bar together sometime after midnight. The Crown alleges that this was the last time the deceased was seen alive and allege that the accused killed her, probably later that night or shortly thereafter.

[4] The deceased was reported missing on January 15, 2007 and her body was found in mid April 2007 on the floodplain of the Grand River near Conestoga College. The body was unclothed and was extensively decomposed and predated upon by animals. The coroner could not ascertain the cause of death.

[5] The defence has stated that one of the possible avenues of defence is that, if in fact the death of the deceased was caused by homicide, she may have been killed by an unknown person other than the accused. In this respect, her intoxication on the night in which she was last seen might have made her more vulnerable to such an assailant and further, what the defence characterizes in its Notice of Application as the deceased’s “attraction to physically abusive men” made her more vulnerable still.

[6] The defence says that the deceased’s “predilection” for violent men is evidenced by a reading of diary entries made by her prior to her meeting the applicant.

[7] Pursuant to an earlier ruling released December 16, 2013, I ruled as admissible, on the application of the Crown, certain ante-mortem writings of the deceased describing verbal and physical abuse perpetrated by the applicant on her. These writings included extracts from the deceased's diary or journal dated February 5, 2005 and April 27, 2005. I ruled that certain writings of the deceased, including the diary entries, had great probative value in providing the jury with necessary information with respect to the nature of the relationship between the deceased and the applicant, the recurring and escalating level of violence in that relationship, largely fueled by excessive alcohol consumption, and help to establish motive or animus on the part of the applicant towards the deceased. I found that the writings which were ruled admissible passed the test for threshold reliability, and that any uncertainty with respect to the circumstances of the making of the writings, and doubts as to whether the deceased was under the influence of alcohol at the time that she made them, go to weight and ultimate reliability, which are matters to be left to the jury.

Evidence Sought to be Introduced

[8] The defence on the present application seeks admission of ten additional extracts from the deceased's diary, as follows:

(a) dedication at the first page to the diary directed to her children, and in particular one daughter in which the deceased stated "I hope she can gather from these pages not to find a loser to spend her life with” (underlining in the original)

(b) entry dated February 20, 1995 to the effect that her then partner Mr. H. insulted her and then "pulled my hair and threatened to take me down to the basement and beat the shit out of me as soon as I put [her daughter] down”;

(c) entry dated March 11, 1995 to the effect that her then partner Mr. H. lost his temper asked her about an apartment they were looking after and threatened her life and apparently said "if you ever do that again… I'll fucking kill you…";

(d) entry dated March 26, 1995 in which the deceased wrote “… second morning this week that I started the day with punches to the head";

(e) entry dated April 4, 1995 in which she described her then partner Mr. H. attacking her in the presence of friends “… the next thing I know he punches me on the side of the head and then in the mouth, splitting my lip";

(f) entry dated August 27, 1995 in which the deceased set out more grievances about Mr. H. and wrote of her despair that her daughter was being raised “… to marry an abusive man";

(g) entry dated August 14, 1995 in which the deceased wrote that her then partner Mr. H. came home and beat her up and wrote further that “… I'm going to start putting some money away, pay mom for the furniature (sic), grab [her daughter] and get the hell out of here before he really does kill me";

(h) entry dated January 12, 1996 in which the deceased wrote ”also a rare occasion (sic) when a day slips by without him threatening my life or punching me in the head. Or like tonight trying to intimidate me by telling me as soon as I got out of the club I was dead meat and if I wanted to live I had better pick my bags and get out”;

(i) entry dated September 6, 1999, after the deceased had split with Mr. H. and had begun to see Mr. K., which suggests optimism on the deceased's part about the relationship;

(j) entry dated January 26, 2001 in which the defence suggests that the optimism that the deceased expressed on September 6, 1999 was unfounded. By January 2001 the deceased and Mr. K. had ended their relationship, and the deceased wrote “[K] is history” and that she was seeing another man. In the entry she wrote that Mr. K. began to "stalk” her and that "he cut my throat", being a reference to Mr. K having drawn a kitchen knife across her throat on December 28, 2000 (an incident reported in a police occurrence report on that date).

Position of the Applicant

[9] The applicant argues that the pre-2005 diary entries for which he seeks admission are relevant to the deceased's "disposition to associate with physically abusive men" which is, in turn, relevant to the possibility that she may have been killed by an abusive man other than the applicant, if she parted company with the applicant after they left the bar in the early hours of January 1, 2007, as the applicant stated when interviewed by the police.

[10] The applicant also argues that the entries bearing on the deceased’s fear of Mr. H. are also relevant in that they tend to temper the probative effect of her letter of July 18, 2006, addressed to the applicant, which was ruled admissible in my earlier ruling. In that letter the deceased wrote of ongoing issues in her relationship with the applicant, including physical, mental and emotional abuse and referred to escalating physical abuse and one or more death threats made by the applicant towards the deceased.

Unknown Third Party Suspect

[11] The Ontario Court of Appeal, in the case of R. v. Tehrankari 2012 ONCA 718 (C.A.) at paras. 35-37, recently summarized the test for admission of proposed defence evidence of a possible third party suspect, articulated earlier in the cases of R. v. MacMillan (1975), 1975 43 (ON CA), 23 C.C.C. (2d) 160 (Ont. C.A.), aff'd 1977 19 (SCC), [1977] 2 S.C.R. 824 (S.C.C.) and R. v. Grandinetti, (2005) 2005 SCC 5, 191 C.C.C. (3d) 449 (S.C.C.) as follows:

An accused charged with a crime is entitled by way of defence to adduce evidence that a third party, not the accused, committed the crime. The evidence must meet the test of relevancy and must have sufficient probative value to justify its reception. In order to be relevant and probative, the evidence must connect the third person with the crime. If there is an insufficient connection between the third person and the crime, the evidence will lack the requisite air of reality: R. v. McMillan (1975), 1975 43 (ON CA), 23 C.C.C. (2d) 160 (Ont. C.A.), aff'd 1977 19 (SCC), [1977] 2 S.C.R. 824 (S.C.C.), at pp. 167-168; R. v. Grandinetti, 2005 SCC 5, 191 C.C.C. (3d) 449 (S.C.C.), at paras. 46-48.

Evidence of a violent disposition or animus towards the deceased, standing alone, will not meet the required threshold. However, if there is evidence that the third person had a motive to commit the crime or threatened the deceased and had the opportunity to carry out the crime, then the evidence of propensity may have probative value: R. v. Murphy, 2012 ONCA 573 (Ont. C.A.), at para. 21; R. v. Baltrusaitis (1996), 31 W.C.B. (2d) 184 (Ont. Gen. Div.); R. v. McMillan, at p.168.

The evidence may be direct or circumstantial. Inferences based on the evidence may be drawn, but speculation is not permitted. The evidentiary burden on the accused is discharged if the defence shows that there is some evidence upon which a reasonable, properly instructed jury could acquit based on the proposed defence: R. v. Grandinetti, at paras. 47-48; R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702 (S.C.C.), at para. 70.

[12] The applicant submits that the court should not apply the test in McMillan and Grandinetti, which dealt with proposed evidence of a known third-party suspect, to proposed evidence of an unknown third-party suspect such as in the present case. He argues that the court would be wise to adopt what he characterized as the "all-embracing test for the admissibility of evidence offered by the defence,” namely that it ought to be admitted as long as its probative value is not substantially outweighed by its prejudicial effect (see R. v. Seaboyer (1991) 1991 76 (SCC), 66 C.C.C. (3d) 321 (S.C.C.))

[13] The applicant points to the decision of the Manitoba Court of Appeal in R. v. Grant 2013 MBCA 95 (Man C.A.), leave to appeal allowed 2014 CarswellMan 119 (S.C.C.), which dealt with proposed evidence of an unknown third party suspect. Monnin J.A., writing for the Court, observed in Grant that the law respecting third-party suspects, as represented by cases such as Grandinetti and McMillan, has generally been shaped by cases involving known individuals as opposed to unknown third parties, indicating that evidence related to a possible unknown third-party suspect is more akin to similar-fact evidence and calls for a consideration of the law with respect to such evidence.

[14] It must be noted that in Grant the evidence that the defence sought to introduce was of a separate criminal act than that which was the subject of the prosecution, involving another victim, allegedly bearing the hallmarks of the offence that the accused was charged with, committed during the time that the accused was in custody and which the accused therefore could not have committed. In this context the reference by the Manitoba Court of Appeal to the law related to similar-fact evidence is understandable. In R. v. Perrier 2004 SCC 56, [2004] 3 S.C.R. 228 (S.C.C.), at para. 22, the Supreme Court of Canada stated that the similarity between or amongst acts must be decided on a case-by-case basis by considering all relevant factors, including but not limited to, proximity in time and place, number of occurrences and similarities in detail and circumstances.

[15] What the applicant seeks to have admitted into evidence in the present case is not evidence of a separate offence from that with which he is charged, as in Grant, but rather constitutes evidence of disposition or predilection on the part of the deceased, to support the possibility that her death may have been caused by some unknown abusive man, in order to raise a reasonable doubt that the applicant caused her death.

[16] In my view, insofar as Grant may be taken to retreat from the requirement in Grandinetti, and McMillan that the proposed evidence must connect the third person with the crime, it is distinguishable from the present case on the basis that it deals with proposed evidence of a separate criminal offence which, by necessity, must have been committed by someone other than the accused. Grant does not stand for the proposition urged by the applicant, namely, that there should be no check or limitation on the admissibility of evidence of an unknown third-party suspect apart from the general rule that its probative value must not be substantially outweighed by its prejudicial effect. The Court in Grant did apply an exclusionary rule by holding that, in the particular circumstances of the case, the law relating to similar-fact evidence applied.

[17] In the recent Ontario case of R. v. John 2011 ONSC 4161 (S.C.J.) the defence sought to tender evidence that an unknown third-party had a motive, founded on revenge, to kill the deceased, which it submitted would lead the jury to a reasonable inference that the unknown person was responsible for the deceased's death. A.J. O’Marra, J., at para. 20, rejected the defence contention that it was not required to meet the third-party suspect test for the admissibility of the evidence proffered where it sought to rely on an unknown third party's motive in order to raise a reasonable doubt. In doing so, O’Marra, J. stated that "the evidence of a third-party suspect, whether identified or not, must still be sufficiently connected by something in the circumstances of the crime to make the evidence of that person's involvement relevant and probative" (emphasis added).

[18] At paragraph 21, O’Marra, J. echoed the stipulation by Abella, J. in Grandinetti at para. 47, that "the requirement that there be a sufficient connection between the third-party and the crime is essential,” for without it the evidence is neither relevant nor probative. Abella, J. went on to state that, although the evidence may be inferential, inferences must be reasonable, based on the evidence, and not amount to speculation. The obligation on the defence is to show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence. If there is an insufficient connection, the defence of third-party involvement will lack the requisite air of reality (see also R.v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3).

[19] In my view, the need to guard against the dangers to which the rule requiring a sufficient connection is directed, including avoiding prolongation of the proceeding and distraction of the jury from their central task, namely the determination of whether the Crown has proven the guilt of the accused of the offence charged (see R. v. Brown 2010 ONSC 6057 (S.C.J.) at para. 22), applies with equal force regardless of whether the proposed third-party suspect is known or unknown.

[20] In my view, the inferences that the applicant would seek the jury to draw from the evidence from the deceased's diary are based solely on conjecture and speculation, and lack an air of reality. The proffered evidence is not probative on the issue of identification of the perpetrator, on the assumption that the deceased's death was a homicide.

[21] The applicant would seek to have the jury draw the inference that, because the deceased had previously been in relationships with men who abused her, she had a predilection for abusive men, and therefore it was possible that she found herself in the company of an abusive man who caused her death after she parted from the applicant on the night of her disappearance.

[22] It is to be observed that the writings in the deceased’s diary which the defence seeks to introduce describe instances of abuse of the deceased in two domestic relationships of some duration. From the context of the writings, Messrs. H. and K. were not abusive towards the deceased initially, but they each became abusive towards her sometime later. The evidence simply does not support an inference that the deceased was drawn to abuse and therefore would likely have been drawn to someone she consciously or unconsciously perceived or expected would abuse her on the night of her disappearance.

[23] The diary entries do not describe or deal with all of the relationships with men that the deceased had over her adult life and therefore it cannot be said that the they support an inference that she had a predilection for abusive men. Indeed the evidence indicated that the deceased in 2005 and 2006 developed a relationship with David Heath who was not in any way abusive towards her, but was, on the evidence, caring and nurturing towards her. To permit the defence to introduce this evidence to support the inferences put forward would, using the words of O’Marra, J. in John, “serve to confuse the issues, open collateral matters, distract the jury unnecessarily, prolong the proceeding, [and] lead to conjecture, speculation and impermissible reasoning.”

[24] In Brown at paras. 23 and 24, Nordheimer, J. cautioned against the adoption of a laissez-faire approach to the admission of evidence which fails to take into account the risk associated with jury distraction, and against permitting the introduction of evidence which invites the jury to speculate, noting that speculation is not evidence and is not probative of anything. As he observed “speculation is also something very different from having a doubt. Doubt, specifically reasonable doubt, is based on reason and common sense, not conjecture and speculation.”

[25] The entries from the deceased’s diary sought by the applicant to be introduced to support a defence of the existence of an unknown third-party suspect are therefore not admissible, as there is no evidence connecting an unknown third-party suspect to the circumstances of the deceased’s death. Since the proffered evidence does not satisfy the test for admission of third party suspect evidence in Grandinetti, McMillan and Tehrankari, and is therefore neither relevant nor probative, it is not necessary to carry out an analysis of whether it satisfies the test of threshold reliability for admissibility notwithstanding its hearsay nature.

Evidence of the April 14, 1995 Entry to Temper the Effect of the Deceased’s Letter of July 18, 2006

[26] The applicant also argues that the entries from the deceased's diary bearing on her fear of Mr. H., and in particular the entry of April 14, 1995, are also relevant as they tend to temper the probative effect of her letter of July 18 2006 to the applicant which was ruled admissible in my earlier ruling. The applicant described that letter, in which the deceased expressed her fear for her life in view of the applicant’s pattern of abuse and death threats towards her, as “chilling” and likely the most damaging single piece of evidence in the Crown’s case.

[27] The applicant asserts that, in her August 14, 1995 diary entry, the deceased related her fear of her then domestic partner Mr. H., stating that she needed to “get out before he really kills me.” The applicant argues that, insofar as she did not leave Mr. H right away after that entry and the death threats levelled by him towards her were not carried out, one conceivable interpretation that may be placed on the entry is that, even when she had reason to be fearful of abusive men, the deceased became, at least to herself in her diary entries, “unduly alarmed and perhaps melodramatic” as submitted by the applicant. He argues that the jury should have the benefit of hearing that the deceased was in a previous relationship with a man she feared and to have this conceivable interpretation of the entry made available to it, which would have the effect of dampening the letter of July 2006 of some of its forcefulness.

[28] In my view there is nothing in the August 14, 1995 diary entry, or in the surrounding circumstances, which would support an inference that the deceased was, on that occasion, “unduly alarmed” or “melodramatic.” There is similarly no basis to draw an inference from the entry that the deceased had a propensity to become unduly alarmed or melodramatic in a way that may have manifested itself in her letter of July 18, 2006.

[29] The fact that the deceased expressed her fear of a previous domestic partner in her diary, eleven years prior to her letter to the applicant respecting the applicant’s abuse and death threats towards her, is neither relevant nor material. Moreover, even if it could be considered to have some degree of relevance and materiality, its negligible probative value is substantially outweighed by the prejudicial effect of distracting the jury from its central task (see Seaboyer). The diary entry of August 14, 1995 is devoid of context by itself. To admit it could require the Crown to lead evidence detailing the nature of the relationship between the deceased and Mr. H., thereby prolonging the trial and could lead the jury to engage in distracting speculation on the nature of that relationship and whether the deceased’s expressed fear of Mr. H. was well-founded or exaggerated.

Disposition

[30] The application of the defence to admit entries from the deceased’s diary in the period prior to the commencement of her relationship with the applicant is therefore dismissed.

(B) RULING RE DEFENCE APPLICATION TO ADMIT TOXICOLOGY RESULTS ON DECEASED’S ADMISSION TO HOSPITAL JUNE 26, 2005

[31] The applicant has brought a further application for order admitting into evidence a copy of the toxicology results for the deceased's admission to hospital on June 26, 2005. These toxicology results are included in the hospital records associated with the deceased's admission to hospital on that date which were ruled inadmissible in my earlier ruling of December 16, 2013 on the basis that there were insufficient guarantees of trustworthiness to support the admission of those records into evidence. The applicant did not seek, on the argument of the Crown's application for admission of the hospital records, to remove the toxicology reports from consideration for exclusion.

[32] Subsequent to delivery of my rulings on the pretrial applications on December 16, 2013 of the applicant brought a motion for leave to bring four further pre-trial applications, including an application for admission of the toxicology results on the deceased's admission to hospital on June 26, 2005. In my ruling of January 16, 2014 I granted leave to the applicant to bring the application for admission of the toxicology results, provided that argument of the application was deferred until the matter arises during the course of the trial. I observed that should the defence seek to introduce this evidence as part of its case it will likely be appropriate to revisit the exclusion of the hospital records relating to the deceased's admission on June 26, 2005 if it is necessary to give appropriate context to the reasons for her admission to hospital on that date. I held that that determination is most appropriately made in the context of all of the evidence led to that point in the trial.

[33] The trial did not proceed as scheduled on January 21, 2014 and had to be adjourned as a result of the applicant bringing forward an application for disclosure from the Waterloo Region Police Service relating to its investigation of another homicide. That application has now been withdrawn. The trial is now scheduled to commence on January 5, 2015.

[34] The applicant has brought forward its application for admission of the toxicology results of June 26, 2005, in advance of the trial, on the basis that the delay in the commencement of the trial has afforded an opportunity for the matter to be argued and disposed of prior to trial.

[35] The applicant seeks only the admission of toxicology information and such other information that may be necessary to give context to that evidence, but not including hearsay statements of the deceased made upon and following her admission to hospital. The applicant argues that admission of evidence of the deceased's blood alcohol content on June 26, 2005 establishes a long-standing habit on the part of the deceased of becoming very intoxicated which is, in turn, relevant to a habit of risk-taking. The toxicology results indicate blood alcohol levels which could lead to loss of consciousness and death. The applicant suggests that evidence that the deceased would be intoxicated to that degree suggest dangerous, risk-taking behavior such that she was more vulnerable to death by accident or at the hands of an unknown predator, and makes it more likely that she suffered an injury such that her blood got innocently into the applicant's vehicle.

[36] With respect to the argument of the applicant that the “risk-taking behavior” of the deceased suggested by the toxicology results supports an inference that she was vulnerable to death at the hands of an unknown predator, I have already ruled that third-party suspect evidence is subject to the rule in Grandinetti, McMillan and Tehrankari requiring a sufficient connection between the alleged third-party suspect and the crime. The applicant cannot point to any such evidence of a sufficient connection.

[37] The remaining inference from the evidence sought to be admitted that the applicant points to is that the deceased was vulnerable to death by accident. However, evidence that the deceased was dangerously intoxicated on June 26, 2005, some 18 months prior to her disappearance in the early hours of January 1, 2007, does not constitute evidence that she was dangerously intoxicated at the time of her disappearance. Evidence as to the deceased's state of intoxication at that time will be available from witnesses, including David Heath, who were in a position to observe the deceased's condition prior to her departure from Jonathan's bar.

[38] Although the applicant acknowledges that some context should be provided to the jury for the toxicology results, he argues, as indicated above, that it should not include the statements of the deceased that she had been assaulted by the applicant. In my view, to admit the toxicology results of June 26, 2005 without the contextual evidence of what led to her admission to hospital on that date could lead to the jury to engage in distracting speculation. Given the statements made by the deceased, as recorded in the hospital records, that she was physically assaulted by the applicant, which have been ruled inadmissible, speculation by the jury as to the possible causes for her admission to the hospital could lead to serious jury error. The fact that the deceased's statements that the applicant assaulted her prior to her admission to hospital on June 26, 2005 have been ruled inadmissible does not open the way to invite or permit the jury to engage in speculation about other possible causes for her admission, such as an accident or from becoming extremely ill from drinking, and to draw inferences therefrom which may be misleading and inaccurate.

[39] For the trier of fact to draw an inference that heavy drinking equates to risk-taking behavior would require it to take “judicial notice” of that correlation. The Supreme Court of Canada in R. v Find, 2001 SCC 32, [2001] 1 S.C.R. 863 confirmed at para. 48 that the threshold test for judicial notice is strict, requiring facts that are either so notorious or generally accepted as to be not the subject of debate among reasonable persons or that are capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. Neither of those requirements are met in relation to the toxicology results under consideration. The probative value of the toxicology results under consideration would therefore be negligible or non-existent.

[40] Even if the toxicology results of June 26, 2005 may be considered to have some probative value with respect to the deceased's state of intoxication in the early morning hours of January 1, 2007, supporting an inference that she engaged in a risk-taking behavior making her more vulnerable to death by accident, or to support an inference that she may have sustained an injury while intoxicated on another occasion which may have led to her blood being found in the applicant’s vehicle (for which there is no other supporting evidence), any such marginal probative value is substantially outweighed by the prejudicial effect of distracting the jury from its central task, particularly in the absence of contextual evidence of what led to the deceased's admission to hospital. In my view, the risk of the jury engaging in impermissible speculation is not capable of adequate mitigation by the giving of limiting instructions.

[41] The toxicology results included within the hospital records relating to the admission of the deceased to hospital on June 26, 2005, ruled to be inadmissible in my earlier ruling, shall therefore remain inadmissible. In light of this finding is not necessary to deal with the Crown's argument that the application seeking their admission is barred by the application of the doctrine of issue estoppel.

D.A. Broad, J.

Date: September 15, 2014