SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

PAUL KENYON

P R O C E E D I N G S A T T R I A L

BEFORE THE HONOURABLE MADAM JUSTICE M. FUERST and a JURY

on March 26, 2014 in NEWMARKET, Ontario

APPEARANCES:

G. Sang for the Crown

M. Wyszomierska, J. Penman for the accused Paul Kenyon

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

Exam. Cr. Re.

WITNESSES: in-Ch. exam. exam.

n/a

E X H I B I T S

EXHIBIT NUMBER ENTERED ON PAGE

Transcript Ordered: February 25, 2018

Date Submitted for Judicial Approval: February 27, 2018

Date Received after final Judicial Approval: July 31, 2018

Transcript Completed: July 31, 2018

Ordering Party Notified: July 31, 2018

WEDNESDAY, MARCH 26, 2014 (9:36 a.m.)

THE COURT: Good morning. I’ll give you then my ruling on the issue of the cross-examination.

R U L I N G

FUERST, J. (Orally):

The relationship between Marion Deacon and Paul Kenyon is central to the Crown’s allegation that he bludgeoned her to death in her home. Ms. Deacon’s three daughters will be called as Crown witnesses. They will give evidence about the history and nature of the relationship between their mother and Mr. Kenyon.

The eldest of the daughters, Laura Deacon, has begun her testimony. She recounted in examination in-chief statements her mother made to her about the relationship, including her feelings for Mr. Kenyon and the impact of his cocaine use. This evidence was given in accordance with a pre-trial ruling I made.

Ms. Penman wishes to adduce from Laura Deacon, and eventually from her two sisters as well, evidence of telephone calls and visits made to the house by unidentified individuals, which the daughters believed were attributable to Mr. Kenyon’s involvement with drugs and money he owed; that this caused concern for their safety and that of their mother; that as a result, their mother obtained caller ID on the telephone and imposed safety rules, including that the daughters were to keep the doors locked and the lights turned off in the house; and that they slept with weapons including knives, either on their mother’s instructions or of their own volition. Much of this evidence is based on information passed on to the daughters by Ms. Deacon and assumptions they made, rather than their own observations or first-hand knowledge. The evidence was given on the pre-trial motions, the transcripts of which will be made Exhibits AA and BB to this ruling.

Previously, Ms. Penman relied on this body of evidence in support of a pre-trial application to adduce evidence of third party suspects, specifically that two named men who sold drugs to Mr. Kenyon were responsible for Ms. Deacon’s murder. I ruled the third party suspect evidence inadmissible as lacking an air of reality.

On the day that jury selection was to occur, Ms. Penman disclosed that if he testifies on the trial, Mr. Kenyon will say that one of the two drug dealers, Marlon Jackson, came to Ms. Deacon’s home on the night of March 6, 2010, because of “outstanding drug money issues” between him and Mr. Kenyon, and that Mr. Kenyon saw Mr. Jackson kill Ms. Deacon. This information was not mentioned during the pre-trial motion. Ms. Penman indicated that she proposed to cross-examine Mr. Jackson and put the assertion of responsibility for the killing to him, in order to comply with the rule in Browne v. Dunn. Crown counsel Ms. Sang objected, in light of my earlier ruling. She submitted that such cross-examination was irrelevant during the Crown’s case in-chief. She suggested that in the event Mr. Kenyon testifies, the Crown would recall Mr. Jackson in reply to respond to Mr. Kenyon’s assertions, and Ms. Penman would be at liberty to cross-examine him to suggest that he was Ms. Deacon’s killer. After reflection, Ms. Penman agreed with Ms. Sang that this was the proper procedure.

Ms. Penman takes the position now that her proposed cross-examination of Laura Deacon and the other daughters is nonetheless relevant to their testimony about the nature of the relationship between their mother and Mr. Kenyon, including its cyclical pattern related to his drug use. In particular, she submits that it is relevant to the credibility of their testimony that just before her murder, Ms. Deacon decided she would give Mr. Kenyon no more chances if he used drugs again, but rather would end the relationship. The position of the defence is that Ms. Deacon made no such decision, and the daughters have given or will give this evidence because of their animus for Mr. Kenyon. Ms. Penman submits that the daughters’ concerns that the safety of the family was compromised because of Mr. Kenyon’s involvement with drugs is a driver of that animus.

Ms. Sang objects to the proposed cross-examination on the basis that it is nothing more than another attempt to adduce third party suspect evidence by another route. She submits that there is no issue that Ms. Deacon’s daughters do not like Mr. Kenyon. The proposed cross-examination adds nothing, but will invite the jury to think that Ms. Deacon was killed by someone associated to Mr. Kenyon through drugs, and, if Mr. Kenyon does testify that Mr. Jackson killed Ms. Deacon, will be improperly used to buttress the defence.

I recognize that defence evidence that is otherwise relevant can be excluded only where its prejudicial effect substantially outweighs its probative value. See, for example, R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33.

I am satisfied that the prejudicial effect of the evidence Ms. Penman wishes to adduce does substantially outweigh its probative value.

Laura Deacon has already testified that she thought Mr. Kenyon was not good enough for her mother and that her mother should break up with him; that she believed he stole her birthday money and a laptop computer from her; that at times she felt her mother sided with Mr. Kenyon over her; that she and her sisters sequentially moved out of their mother’s home after Mr. Kenyon moved in; that thereafter they preferred to visit their mother when Mr. Kenyon was not at the house; that they asked their mother not to have Mr. Kenyon present for Christmas 2009; and that by February 2010 Mr. Kenyon was no longer a topic of discussion with her mother because it was a source of friction between them. She specifically agreed in cross-examination that she disliked Mr. Kenyon.

The proposed cross-examination would add little to the evidence of animus that is already established. It would, however, create from evidence that has itself a measure of conjecture and speculation, an aura of a family living in danger from and besieged by persons associated to the drug world. There is a very real risk that the jury will improperly connect that evidence and the murder of Ms. Deacon. In other words, there is a very real risk that the jury will use the evidence for the very purpose for which it could not be adduced.

I have considered the availability of a limiting instruction, and concluded that given the nature of the evidence, such an instruction would do nothing other than to highlight and emphasize it in the minds of the jurors.

The prejudicial effect of the evidence substantially outweighs its probative value. The cross-examination is not permitted.

E N D O F R U L I N G (9:43 a.m.)