SUPERIOR COURT OF JUSTICE

Court File No. 14-246

HER MAJESTY THE QUEEN

v.

GAETAN COTE

RULING

BEFORE THE HONOURABLE JUSTICE ANDRE

on March 2, 2015, at BRAMPTON, Ontario

APPEARANCES:

A. Gauthier/J. Kingdon Counsel for the Crown

A. Mackay Counsel for Gaetan Cote

SUPERIOR COURT OF JUSTICE

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

WITNESS

Exam.

In-Ch.

Cr-

Exam.

Re-

Exam.

RULING 1.

Transcript Ordered: April 24, 2015

Transcript Completed: June 30, 2015

Ordering Party Notified: July 1, 2015

MONDAY, MARCH 2, 2015

RULING

Andre J. (Orally):

The Crown brings a pre-trial motion for a court order regarding the admissibility of the evidence of civilian witnesses. This evidence consists of antemortem statements made by the deceased to the witnesses and evidence about the deceased’s peaceable disposition. The Crown maintains that this evidence is admissible as an exception to the hearsay rule and the principled approach to the admissibility of evidence.

The defence opposes the Crown’s motion on the grounds that the evidence is irrelevant, lacks probative value, and that alternatively its prejudicial effect outweighs any probative value it may possess.

Background

On June 19^th, 2012, Mr. Cote attended the Barrie Police Station. He reported that he had been in an altercation with a friend who had then attacked him with a knife. He had subsequently managed to take the knife from the friend and had then stabbed him two to three times in the torso. The friend, according to Mr. Cote, had then keeled over and Mr. Cote left the residence. Mr. Cote had a large laceration to his neck, which he later stated had been self-inflicted.

The Barrie police subsequently contacted their colleagues in Peel Region where the incident had taken place. Upon arrival at the Mississauga residence, members of the Peel Police found a male lying on his back who appeared to have been deceased for some time since rigor mortis had already set in. The male had five stab wounds to his torso and back. A subsequent autopsy revealed that he also had other marks.

Statements of witnesses

Anticipated evidence of Mr. Todd Starr

Todd Starr, a long time friend of the deceased, spoke to the police on June 19^th, 2012, and June 26, 2012. In his second statement to the police, Mr. Starr stated that on Saturday, June the 16^th, 2012, the deceased told him that he was concerned that he might be on the top of Mr. Cote’s kill list, or words to that effect. The deceased also told Mr. Starr that he was thinking of changing the locks of his door. Mr. Starr also told the police that the deceased was generally slow to anger, and that although he had been upset with Mr. Cote as a result of an unpaid debt, the deceased had no expectation of being repaid by Mr. Cote.

Anticipated evidence of John McQuhae, brother of the deceased

Mr. McQuhae is anticipated to testify that the deceased had no expectation of Mr. Cote repaying him for monies owed to him.

Anticipated evidence of Mr. Mike Cote, brother of the accused

The Crown seeks to lead evidence from Mike Cote that the deceased was a “really nice guy”, and an “awesome guy”, and that he had never seen the deceased upset or angry.

Analysis

Admissibility of Mr. Starr’s evidence regarding the deceased ante mortem statements

The pre-mortem utterances of a deceased tendered by the prosecution to establish the truth of their contents are prima facie inadmissible given that they contravene two cannons of law, namely the hearsay rule and the bad character rule. See R. v. Moo 2009 ONCA 645, [2009] O.J. No. 3706 (Ont. C.A.) at paragraph 89. The utterances violate the hearsay rule given that an out of court statement by someone who is unavailable for cross-examination purposes is generally inadmissible.

Second, bad character evidence generally prohibits the use of evidence about the bad character or disposition of an accused as circumstantial proof of his or her guilt. R. v. Handy 2002 SCC 56, [2002] 2 SCR 908, at paragraph 31; noted in Moo, supra at paragraph 96.

However, this evidence can nevertheless be admissible under the state of mind exception to the hearsay rule, or under the principled approach to the admissibility of hearsay evidence. Regarding the former, a deceased’s state of mind may be relevant to the question of an accused’s motive. See R. v. Griffin 2009 SCC 28, [2009] S.C.J. No. 28 (S.C.C.) at paragraph 60.

Furthermore, the evidence of motive is relevant and admissible, particularly where on the issues of identity and intention, the evidence is purely circumstantial. Griffin, supra at paragraph 60.

The state of mind of a deceased may be probative of the nature of the relation between Mr. Cote and the deceased in the period immediately preceding the murder. Both men were known to each other. The two had lived together for a long period before the deceased had asked Mr. Cote to leave his residence. Mr. Cote owed the deceased a large sum of money. The deceased sensed that Mr. Cote was hostile to him and contemplated changing the locks on his door. This was the deceased’s state of mind two to three days before his death.

However, while the deceased ante mortem utterances may reveal his state of mind and may explain his intentions or actions, evidence of the deceased’s fear of Mr. Cote cannot be used to support a conclusion that Mr. Cote intended to kill him and ultimately carried out the murder. See Griffin supra at para 55.

It is trite law that the state of mind exception to the hearsay rule does not permit or justify the admission of hearsay evidence to show the state of mind of a third party in general or the accused in particular. Griffin supra at paragraph 55.

Is the evidence regarding the deceased’s fear of being on Mr. Cote’s kill list, or of changing the locks on his door, admissible under the principled exception to the hearsay rule? In R. v. Carroll 2014 ONCA 2, [2014] O.J. No. 2 (Ont. C.A.) at para 105, the Ontario Court of Appeal noted that:

Proof of necessity and reliability or the conditions precedent of a listed exception to the hearsay rule removes the hearsay rule as an impediment to admissibility. But it does not follow that the hearsay statements will be admitted. Trial fairness factors influence the ultimate decision on admissibility. A trial judge has a discretion to exclude otherwise admissible hearsay evidence through the application of a cost-benefit analysis: Khelawon, at para. 49; Moo, at para 95; and R. v. Mohan, 1994 80 (SCC), 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 14.

There is no question that in its quest to admit Mr. Starr’s anticipated evidence regarding the deceased fears about being on the kill list, or his expressed desire to change the locks on his door, the Crown has met the necessity criteria.

In determining the reliability of the utterances, the court must consider a number of factors, including whether the utterances were contemporaneous with the death of the deceased, whether they were responses to leading questions or resulted from improper influence by Mr. Starr, or whether they were made in contemplation of any legal proceedings. Moo supra at para 104.

Regarding the utterances under consideration, these factors are conspicuous by their absence. The utterances attributable to the accused were made two to three days before his death. They were made while Mr. Starr was at the deceased’s residence. There is no evidence that they resulted from leading questions, nether is there any evidence of any impending litigation when the utterances were made. On the contrary, Mr. Starr stated that the deceased told him that he did not expect to be paid by Mr. Cote. I therefore, find that the indicia of reliability has been met and that furthermore, Mr. Starr will be available for cross-examination purposes.

The defence suggests that the reliability or credibility of Mr. Starr’s anticipated testimony is a very live issue, which should have an impact on the admissibility of this testimony. The defence submits that I should consider the following factors in exercising my discretion not to admit this evidence even if I find that the probative value of the evidence outweighs its prejudicial effect:

1. The utterances were made in Mr. Starr’s second statement to the police rather than in the first;

2. Mr. Starr had a great deal of animus towards Mr. Cote and had a great liking for the deceased;

3. Mr. Starr has indicated that Mr. Cote normally made reference to killing persons with anyone with whom he had had some type of disagreement;

4. Mr. Starr found out prior to making the second statement that Mr. Cote intended to rely on self-defence in his trial.

These concerns expressed by the defence may be addressed by recourse of the Court of Appeal’s admonition in Carroll supra at paragraph 111 to the effect that:

In large measure, the appellant’s complaints about the inadequate showing of reliability relate to ultimate rather than threshold reliability. As proponent of otherwise inadmissible hearsay, Crown counsel need not eliminate all possible sources of doubt about the perception, memory or sincerity of the declarant. All that was required in this case was that the circumstances in which the statements were made and any relevant extrinsic evidence provided the trier of fact with the means to critically evaluate the honesty and accuracy of the declarant: R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 56; Khelawon, at para. 50; R. v. M.(J), 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 54.

1) Does the probative value of the utterances outweigh their prejudicial effect?

While identity of the person responsible for the death is not in dispute, the deceased’s state of mind is probative of the nature of the relationship between himself and Mr. Cote a few days immediately preceding his death. His affairs may have some bearing on why he contemplated changing his locks. The deceased’s mental state, as noted in Griffin supra at para 60, may be relevant to the question of an accused’s motive. For all these reasons, I find that the probative value of this evidence is very high.

Defence counsel submits that the evidence is highly prejudicial in that it places Mr. Cote in an unenviable position of having to call bad character evidence against himself. In other words, he may be forced to testify that he normally issues death threats against persons with whom he has a dispute.

First, it will be up to Mr. Cote as to what evidence he calls in his own defence. Second, if he maintains that his reference to killing was merely a matter of speech, then that would not constitute evidence of bad character.

For these reasons, it is my view that the probative value of this evidence outweighs prejudicial value. Accordingly, the evidence of Mr. Starr is admissible.

2) Is evidence of the deceased’s peaceable nature admissible in the trial?

Where an accused has introduced evidence that the deceased had a violent disposition, the Crown is entitled to refute the evidence by calling evidence that the deceased had a peaceable disposition. See R. v. Scopelliti 1981 CanLII 1787 (ON CA), [1981] O.J. No. 3157 (Ont. C.A.) at para 57. Evidence of the peaceable disposition of a deceased in a murder case is not confined to cases where the accused has adduced character evidence regarding the accused, but should be allowed where the accused adduces evidence that he was acting in self-defence. R. v. Soares 1987 CanLII 6841 (ON CA), [1987] 34 C.C.C. (3d) 403 (Ont C.A.) at page 91; see also R. v. Krasnique 2012 ONCA 561, [2012] O.J. No. 4010 (Ont S.A.) at para 61.

Evidence of the peaceable disposition of a deceased may be admissible in a trial where such evidence is relevant and where its probative value outweighs its prejudicial effect. Such evidence is relevant “where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition which would appear to be in the absence of that evidence.” See Paciocco and Stuesser; Essentials of Canadian Law or The Law of evidence 1996 at page 19, noted in R. v. Clarke 1998 CanLII 14604 (ON CA), [1998] 112 OAC 233 Court of Appeal at pages 241 to 242.

Applying the law to the facts of this case, the Crown seeks to adduce the following evidence of the peaceable disposition of the deceased:

A) Evidence from Mr. Cote that the deceased was a nice guy and an awesome guy, and specifically that he had never seen the deceased upset or losing his temper;

B) Evidence from John Eaton that the deceased was not of an aggressive nature;

C) Evidence from Todd Starr that the deceased was generally slow to anger.

Regarding the anticipated evidence from Michael Cote, such evidence that the deceased was a nice guy who rarely lost his temper, appears to be related to the deceased’s good character. Such evidence, as noted by Forestell J. in R. v. Dupuis 2014 ONSC 2750, [2014] O.J. No. 1824 SCJ, has little or no probative value given that a nice guy can nevertheless become angry and lose his temper. Indeed, there is evidence that suggests that the deceased did become at some point “pissed off” by the accused and even asked him to leave his residence. To that extent, Mr. Cote’s evidence will be limited to the fact that he had never seen the deceased lose his temper.

Similarly, I am of the view that the anticipated evidence from Mr. Starr that the deceased was generally slow to anger constitutes evidence of a peaceable nature. For that reason, that evidence is admissible.

Additionally, the anticipated evidence of Mr. Eaton, to the effect that the deceased was not of an aggressive nature, constitutes evidence that the deceased was of a peaceable disposition. Such evidence has relevance to the defence of self-defence. Given that the anticipated defence is that the deceased initiated the violent confrontation with Mr. Cote, such evidence has great probative value, which outweighs any prejudicial effect it may have. To that extent, Mr. Eaton’s testimony is admissible.

3) Is evidence that the deceased had no expectation of being repaid by Mr. Cote admissible as an exception to the hearsay rule, or on a principled approach to the admission of hearsay evidence?

In my view, the analysis regarding the admissibility of the evidence from Mr. Starr concerning the kill list and the deceased’s concerns about changing the locks to his door are equally applicable to this evidence. The fact that the deceased told Mr. Starr that he had no expectation of being repaid by Mr. Cote is relevant not only to his state of mind before his death, but also the defence which Mr. Cote intends to rely upon.

However, the utterance cannot be used as evidence of Mr. Cote’s state of mind or as evidence that Mr. Cote was the aggressor, but to disprove any suggestion that the deceased initiated the violence between the two men. In my view, the prejudicial effect occasioned by the admission of this evidence can be negated by proper instructions to the jury about its limited use.

The only concern that I have about the nature of this evidence is the anticipated testimony of the deceased’s brother about the deceased’s state of mind regarding the debt owed by Mr. Cote. The testimony of this witness may well evoke great sympathy from the jury and cause the jurors to view Mr. Cote in a very negative manner.

While instructions to the jury about the necessity of making their decision dispassionately and without fear or favour could mitigate these concerns, I am nevertheless concerned that such instructions may not fully eliminate the risk of prejudice flowing from the testimony of this witness. Accordingly, his evidence will not be admissible.

Admissibility Of Photographs

The defence brings a pretrial motion to exclude photograph of the deceased at the scene of the unlawful killing, the autopsy of the deceased, photographs relied upon by the Crown’s blood spatter analyst and photographs of the accused. The defence contends that given the admissions of fact it has made to the Crown, the introduction of these photographs will merely inflame the jury and compromise its ability to dispassionately render a true verdict in this trial.

The Crown opposes the defence’s motion on the ground that the photographs are not only highly relevant, but highly probative as well.

Facts

Mr. Cote attended the Barrie police station on June 19^th, 2012, and reported that after being attacked with a knife by his friend, Mr. McQuhae, he had stabbed him two to three times in the torso. Mr. McQuhae then keeled over and Mr. Cote had then left the residence. The Barrie Police contacted their Peel counterparts, who then proceeded to the Mississauga address provided by Mr. Cote.

Upon arrival, they saw a white male lying on his back in the residence. The police officers then forced their way into the residence. They then determined that the male had been dead for some time, given that rigor mortis had already set in.

A subsequent autopsy determined that the deceased had been stabbed five times and that two of the stab wounds showed marks of the hilt of the weapon used to stab the deceased. The official cause of death, which is a source of dispute in this trial, is that the deceased had been strangled after being stabbed. A blood spatter analyst has opined that the deceased had either been on his hands and knees when he was stabbed in the back, or had been bent over when that had happened.

Admitted facts

The defence admits the following facts:

1. There were two hilt marks on the deceased body;

2. The deceased had petechiae eyes suggesting that he was on his stomach for some time while bleeding and that explained why blood from a small cut had entered his eye;

3. There were five stab wounds and contusion on the deceased’s body;

4. The deceased was turned over onto his back following his death. The defence, however, does not concede that Mr. Cote was the person who did so;

5. The defence does not deny that the deceased had bruising. However, it takes issue with the conclusion that the death was on account of manual strangulation.

Legal principles

The onus is on the accused to show that the balance favours exclusion of otherwise admissible evidence. See R. v. McFarlane [2006] O.J. No. 5861 (ON SC) at para 5.

In R. v. Currie 2000 CanLII 22822 (ON SC), [2000] O.J. No. 392, Dambrot J. described the general principles governing the admissibility of graphic depictions of a deceased in a murder case as follows:

1. The judge must determine the probative value of the evidence by assessing its tendency to prove a fact in issue in the case, including the credibility of a witness;

2. A judge must determine the prejudicial effect of the evidence because of its tendency prove matters which are not in issue, or because of the risk that a jury may use the evidence improperly to prove a fact in issue;

3. The judge must balance the probative value against the prejudicial effect having regard to the importance of the issues by which the evidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions. R. v. Currie O.J. No. 392.

In R. v. Schaefler [1993] O.J. No. 71, Chadwick J. enumerated the following list of reasons for which photographs could be properly admissible in a criminal trial:

1. To illustrate the facts on which experts base their opinion and to illustrate the steps by which they arrive at their opinions;

2. To illustrate minutia of objects described in the testimony of a witness. Example, to show the nature and the extent of the wounds;

3. To corroborate testimony and provide a picture of the evidence and to assist the jury in determining its accuracy and weight;

4. To link the injuries of the deceased to the murder weapon;

5. To provide assistance as to the issues of intent and whether the murder was planned and deliberate;

6. To help the jury determine the truth of the theories put forth by the Crown or defence. Example, as to which accused committed the crime, as to whether the crime was committed in self-defence.

It has been traditionally held that photographic depictions of a deceased and an autopsy would inflame the minds of a jury, thereby engendering or exacerbating feelings of enmity towards the accused, or engendering feelings of sympathy for the victim or his or her family as a result of the horrific nature of the crime. McFarlane supra at para 7.

That said, it has been recognized by many courts that jurors’ ability to dispassionately weigh evidence in a trial would not automatically be adversely affected by the viewing of disturbing photographs of an autopsy or body of a deceased. As noted by LaForme J., as he was then, in R. v. Kinkead [1999] O.J. No. 1498, para 17 to 18:

All of the oral evidence in this trial will describe the brutality of this crime and the jury will know its nature. They will know there was a crime committed that resulted in a considerable amount of blood, damage and death to the two sisters. Indeed, they will know this probability exists when they hear Mr. Kinkead arraigned. In my view, and in my experience, juries are generally not surprised, horrified or inflamed to the point of hatred by the scenes they expect to see from a horrific crime. It is certainly true that we live in a time when communications are extraordinarily rapid, comprehensive and complete. The public is deluged with graphic accounts of horrible and dreadful news delivered both in orally pictorial detail assisted by visual depictions. Movies and television shows leave nothing to the imagination. While I would not go so far as to say the Canadian public is totally numb to violence and brutality, I have no hesitation in arriving at the conclusion that it is not always surprised or stunned by it. All of which is to say; I nonetheless continue to believe that we must remain cautious and accept that people can still be horrified and inflamed by what they see. Consequently this exercise continues to be necessary, however, any prejudice alleged must be based upon contemporary common sense and have an air of reality to it.

It is not sufficient, without proof, to allege a prejudice that is one of mere speculation or conjecture. As I said above, I am of the view that juries are intelligent, well meaning and conscientious citizens who take their oaths very seriously. Unless common sense or some other proof indicates the contrary, I believe that juries respect and abide by their sworn duties and comply with the instructions of the court.

The Ontario Court of Appeal has manifested an attitude of deference to a trial judge’s discretion to permit the introduction of coloured photographs either of a crime scene, the body of a deceased or photographs of a deceased taken during an autopsy. See R. v. Kendall 1987 CanLII 180 (ON CA), [1987] O.J. No. 388 (Ont C.A.); Two, R. v. Bonds [1991] 49 O.A.C. 156 (Ont C.A.); Three, R. v. Whitwell [1991] A.J. No. 1068.

That said, concessions made by the defence regarding the cause or manner of death can obviate the necessity of introducing evidence of a crime scene or photographs taken during an autopsy, and allow the Crown to rely on diagrams and/or a mannequin to demonstrate the wounds on a deceased. McFarlane supra, at para 21.

Additionally, while it may be permissible to enable the Crown to show one or a few photographs of a deceased, multiple images of the deceased may well have a potentially cumulative prejudice on the jury, thereby justifying their exclusion. McFarlane supra at para 26.

In evaluating the prejudicial effect of photographs of a deceased, a court should assess the “moral prejudice (the improper inference of guilt from evidence of general disposition or propensity), reasoning prejudice (distraction of the jury flowing from inflammatory evidence, the creation of a distracting side issue or the undue consumption of time) on fairness to the witness and on fair trial considerations. R. v. Wills, 2011 ONCA 468 (Ont C.A.)

Analysis

I will assess the admissibility of the photograph evidence under the following categories:

1. Photographs of the crime scene;

2. Photographs of Mr. Cote at the hospital;

3. Autopsy photographs; and

4. Photographs relating to the blood pattern analyst report.

1) Photographs of the crime scene

The defence seeks the exclusion of a number of photographs which show the deceased lying on the floor in his residence beside a pool of blood. The defence maintains that showing these photographs have little or no probative value given the defence’s concession that Mr. Cote was responsible for the death and that a sketch showing the location of the body on the floor could easily suffice rather than the photographs.

While the photographs are troubling, they are not as graphic and disturbing as would justify a conclusion that their prejudicial effect exceeds their probative value. The photographs enhance the juror’s ability to visualize the scene of the incident. It is important for the jury to see the location of the body in relation to the front door of the dwelling and the pool of blood in the room. This may be significant given that one of the live issues in this trial will be whether, as the Crown suggests, Mr. Cote moved the deceased after his death. The photographs are also probative in that they may be germane to the issue of intention and self-defence in this trial.

That said, the jury should not be bombarded with numerous photographs of a deceased at the scene of the death. Neither is it necessary to show the jury multiple images of the deceased’s open eye.

On the other hand, there is no harm in the jury seeing photographs of the door to the deceased’s residence. It is not prejudicial in any way given that there is no indication that Mr. Cote caused the damage to the door.

The defence is seeking the exclusion of the following photographs of the crime scene: numbers 5683, 5684, 5681, 5699, 5701, 5745, 5767 and 5768.

The following photographs are excluded: 5684, 5701 and 5767.

2) Photographs of Mr. Cote at the hospital

The defence objects to photograph 4330046, which shows Mr. Cote’s head while he was lying on a hospital bed. There are three photographs showing Mr. Cote’s face. One of the photographs is a close up shot of Mr. Cote’s face while the other gives a frontal view of his face. The photographs which the defence seeks to exclude provides a full view of the left side of Mr. Cote’s face.

In my view, this photograph, along with the others, has probative value given the defence of self-defence raised by Mr. Cote. It may be relevant to this issue for the jury to determine whether or not Mr. Cote suffered any facial injuries during his fatal encounter with the deceased. There is little or no prejudicial effect if this photograph is admitted during the trial.

To that extent, photograph 4330046 is admissible.

3) Autopsy photographs

The autopsy photographs which the defence seeks to exclude are photographs showing the deceased’s stab wounds and his open eyes. The Crown is not seeking to show the jury full naked photographs of the deceased or his internal organs.

There are five photographs depicting the petechiae eyes of the deceased. The defence does not dispute that the deceased had petechiae eyes. The defence does not dispute that the deceased had petechiae eyes resulting from the flow of blood into the eye. It is simply not necessary for the jury to see all of these images when two can suffice to enable the jury to visualize what the Crown’s expert is referring to.

As a result, photographs 7259, 7260 and 7261 are excluded.

Similarly, there are five photographs in the autopsy report showing stab wounds on the deceased’s body. Two of these photographs are close up shots of the two stab wounds where the hilt marks are visible. The defence takes no issue that the photographs show the hilt marks. In my view, there is nothing inflammatory about this photographs. The jury will hear evidence that the deceased had been stabbed five times.

While a diagram or sketch may suffice to show where the deceased had been stabbed, neither would show the hilt marks in question. The photographs help the jury visualize the evidence. They constitute some evidence of the degree of violence inflicted on the deceased, which may support the Crown’s theory that this was a deadly incident fueled by anger or animosity.

Accordingly, all five photographs will be admitted.

4) Blood stain analyst report

The defence objects to photographs on page two, three, four and five of the blood stain analyst’s report. The photographs on page two show the deceased lying on the floor of his residence. Page three shows two close up photographs of the deceased’s face with his right eye, and another showing his eye, nose and mouth. Page four contains four photographs, two of which show the deceased’s bloody chest and torso, while the other two show the deceased’s hands. Page five contains photographs showing the bloodied sleeves of the deceased’s shirt, while the third photograph on that page shows the body of the deceased from his chest to his feet lying on the floor of his residence.

In my view, there is little or no probative value of these photographs. The jury will be shown photographs of the deceased’s eyes, and these additional photographs do not enhance their ability to visualize the evidence in any way.

Furthermore, there is no dispute that the deceased was face down when he was bleeding. Neither is there any dispute the deceased was on his stomach while bleeding for some time before he ended up on his back. It is also conceded that the deceased had carpet hairs on his hands. This evidence clearly indicates that the deceased’s hands were in contact with the carpet before he ended up on his back, a fact conceded by the defence.

Additionally, the photographs on page five showing the bloodied sleeves of the deceased’s shirt and the lower part of his body has little probative value. The jury will have already seen photographs of the deceased lying on the floor and there is no need to show close up photographs of the deceased in that position.

Accordingly, the photographs on page two, three, four and five of the blood analyst report will be excluded.

The defence objects to close up photographs of blood stains on page nine of the report. The location and nature of the blood stains found at the scene is important to the conclusions drawn by the blood stain analyst concerning what transpired in the deceased’s residence on the 18^th and 19^th of June, 2012. To that extent, the Crown will be allowed to tender those photographs as part of its case against Mr. Cote and the others on pages 10 to 19 of the blood analyst report.

Supplementary report of the blood stain pattern analyst

The analyst examined the blood stains on the shirt worn by the deceased and concluded that the only position that exposed all areas at once was found to be a prone position leaning over at the waist, or a prone position with hands on or near the ground. The analyst also opined that the damage to the shirt did not align with any of the wounds when the shirt is worn open and hanging naturally in a vertical position.

The defence objects to the photographs showing the blood stained shirt worn by a model while demonstrating the positions the deceased may have been when he was stabbed.

In my view, the Crown should be allowed to rely on the photographs of the shirt worn by the deceased and photographs of the model used to demonstrate the possible anatomic positions of the deceased to explain his conclusions about the position of the deceased when he was stabbed by the accused. This evidence is probative with respect to the issues of intention and self-defence. There is little moral or reasoning prejudice if that evidence is admitted.

Accordingly, the photographs on page one to eight of the supplementary report of the blood stained analyst report will be admitted.

On the other hand, I am unsure why it is necessary for the Crown to enter additional photographs showing that the shirt worn by the deceased did not align with any of the wounds when the shirt was worn open and hanging naturally in a vertical position.

In my view, the additional photographs are all unnecessary given the analyst’s earlier conclusion on page seven of his supplementary report that the flow pattern on the shirt was inconsistent with the vertical stance or vertical position of the shirt during bleeding. Admission of the photographs on pages 10 to 17 inclusive, in my view, increases the risk of reasoning prejudice in that it may create a distracting issue and, along with other photographs of the deceased’s bloodied shirt, may well have a “potentially cumulative prejudice on the jury” to use the typology in McFarlane supra.

Accordingly, the photographs from page 10 to 17 of the blood analyst supplementary report are excluded.

...WHEREUPON THESE PROCEEDINGS WERE ADJOURNED

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Ryan Easson, certify that this document is a true and accurate transcription of the recording of R. v. Cote, in the Superior Court of Justice held at 7755 Hurontario St., Brampton, Ontario, taken from Disk No. 3199_404_20150302_101735__30_ANDREI.dcr, which has been certified in Form 1.

(Date) (Ryan Easson)