ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 660/14
DATE: 2015-08-05
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Skylar Dalyk
Applicant
Marc Huneault and Natalie Boivin, for the Respondent
Robert J. Beckett and Lindsey Santerre, for the Applicant
HEARD: July 13 and 25, 2015
DECISION ON APPLICATION
CORNELL J.:
Introduction
[1] Skylar Dalyk is charged with one count of second-degree murder in connection with a fatal stabbing that took place on December 12, 2013. The accused has brought this application seeking to be permitted to lead evidence at trial of the deceased’s bad character.
[2] The bad character evidence consists of the deceased’s criminal record, his general reputation for toughness, his drug use and his intention to confront and assault the accused. In accordance with the reasons that follow, the application to present evidence of the deceased’s bad character is dismissed with the exception of the deceased’s intention to confront and assault the accused, something that was agreed to by counsel for the parties at the time that the application was argued.
Background
[3] The accused owed a drug debt to the deceased, Timothy Lamothe. Mr. Lamothe’s efforts to meet with the accused had been unsuccessful with the result that Mr. Lamothe arranged for a ruse to be used to bring about a meeting. A mutual friend contacted the accused with the stated purpose of meeting him at the Algoma Hotel in Chelmsford. Mr. Lamothe had made it known that rather than the friend attending at the hotel, it was his intention to confront the accused and teach him a lesson by roughing the accused up or having the accused walk without shoes.
[4] When the accused spotted Mr. Lamothe, the accused started running in the opposite direction. Mr. Lamothe gave chase. Witnesses observed the accused running with a knife in his hand. Both men ran around the corner of a house at which time the witnesses lost sight of them. Moments later, Mr. Lamothe emerged from behind the house and collapsed on a sidewalk. He subsequently died from two stab wounds to his torso.
The Law
[5] It has been acknowledged by counsel for the parties that this is a case of self-defence. In such cases, evidence of previous assaults by the deceased on the accused is admissible. If an accused knows of the deceased’s reputation for violence, such evidence is also admissible. The question of whether evidence of the deceased’s character or disposition for violence that is not known to the accused is admissible was considered by the Ontario Court of Appeal in Regina v. Scopelliti (1981), 1981 1787 (ON CA), 63 C.C.C. (2d) 481 (Ont. C.A.). When considering the approach to be taken in such cases, Martin J.A. stated, at pp. 493 and 495:
We were not referred by counsel to any Canadian or Commonwealth decision on the question of the admissibility of evidence of the deceased’s character (disposition) for violence, not known to the accused, as evidence of the probability of the deceased’s aggression where self-defence is raised as an issue. However the admission of such evidence accords in principle with the view expressed by this Court that the disposition of a person to do a certain act is relevant to indicate the probability of his having done or not having done the act. The law prohibits the prosecution from introducing evidence for the purpose of showing that the accused is a person who by reason of his criminal character (disposition) is likely to have committed the crime charged, on policy grounds, not because of lack of relevance. There is, however, no rule of policy which excludes evidence of the disposition of a third person for violence where that disposition has probative value on some issue before the jury: see R. v. McMillan (1975), 1975 43 (ON CA), 23 C.C.C. (2d) 160 at p. 167, 7 O.R. (2d) 750, 29 C.R.N.S. 191; affirmed 1977 19 (SCC), 33 C.C.C. (2d) 360, 73 D.L.R. (3d) 759, [1977] 2 S.C.R. 824; R. v. Schell and Paquette (1977), 1977 1939 (ON CA), 33 C.C.C. (2d) 422 at p. 426.
To sum up, the disposition of a third person, if relevant and otherwise admissible, may be proved: (a) by evidence of reputation; (b) by proof of specific acts, and (c) by psychiatric evidence if the disposition in question falls within the proper sphere of expert evidence.
[6] In order for evidence to be received, it must be relevant, material and admissible: see R. v. Palma (2000), 2000 22806 (ON SC), 149 C.C.C. (3d) 169 (Ont. S.C.), at para. 52.
[7] It has now been well established that a much more flexible approach has been established in connection with the exclusionary rules of evidence thereby creating “considerable discretion to the trial judge to admit evidence in cases where the value of the evidence outweighs its potential prejudice”: see R. v. Seaboyer; R. v. Gayme, 1991 76 (SCC), [1991] 2 S.C.R. 577, at p. 621.
[8] In R. v. Yaeck (1991), 1991 2732 (ON CA), 68 C.C.C. (3d) 545 (Ont. C.A.), leave to appeal to S.C.C. refused [1992] S.C.C.A. No. 36, the Ontario Court of Appeal approached this subject in the following manner, at p. 567:
In my opinion, Martin J.A., in Scopelliti, did not depart from the basic principles controlling the admissibility of evidence when he held that evidence of the deceased’s prior acts of violence, not known to the accused, must have sufficient probative value for the purpose which it is tendered to justify its admission. I, therefore, see no basis upon which Scopelliti should be reconsidered.
Analysis
Criminal Record
[9] The deceased’s criminal record consists of three breaches of recognizance in 2004. Despite the fact that the convictions are temporally very remote and not indicative of any propensity or reputation for violence, counsel for the accused suggested that such convictions were properly admissible given the social stigma associated with a criminal conviction.
[10] In R. v. Jackson, 2013 ONCA 632, 301 C.C.C. (3d) 358, aff’d 2014 SCC 30, [2014] 1 S.C.R. 672, the accused appealed to the Ontario Court of Appeal from his first-degree murder conviction. The deceased’s criminal record consisted of one count of transfer of a weapon without authority and two counts of possession of a prohibited or restricted firearm with ammunition. The court upheld the trial judge’s findings that such convictions did not directly link the deceased person to acts of violence. The court noted that the convictions were dated and that the deceased had no convictions for violent offences. In rejecting the defence application to admit such convictions into evidence, the trial judge found that such convictions did not have any probative value in terms of showing that the deceased had a propensity for violence. In upholding the trial judge’s decision, the Court of Appeal stated, at para. 39:
I see no error in this aspect of the trial judge’s reasons. Possession and sale of firearms are not acts of violence. Furthermore, it will be recalled that in his reasons, the trial judge set out the underlying facts for the convictions. A review of those facts shows that they deal with the deceased’s business of selling handguns. They do not show the deceased involved in acts of violence or using weapons. And, as the trial judge noted, the convictions were dated. The deceased’s convictions were in 2002 and the shooting took place in December 2006.
[11] Social stigma is not enough. Criminal convictions must have some probative value in order to be admissible. Given the nature and date of the deceased’s criminal record in this case, it is my opinion that such convictions have no probative value. In view of this, I dismiss the application to admit the deceased’s criminal record into evidence.
Reputation as a “Tough Guy”
[12] There was no evidence of specific acts of violence committed by the deceased, nor was any psychiatric evidence presented. The remaining issue for consideration is the deceased’s reputation for violence.
[13] The accused wants to introduce evidence at the trial that the deceased had a general reputation in the community as a “tough guy”. The evidence tendered in support of this application consisted of the testimony of Michael Clance at the preliminary hearing where he agreed with the suggestion that the deceased was a “proud tough guy”. The accused also relies upon the evidence of Johnathan Annette who testified at the preliminary hearing that he had heard the deceased had been involved in fights before.
[14] Efforts were also made to rely upon hearsay evidence tendered by Johnathan Annette about what he had heard from the deceased’s girlfriend about a previous injury as well as various postings on a Facebook page dedicated to the late Timothy Lamothe. No basis was established to permit consideration of this hearsay evidence and accordingly I have placed no reliance upon it.
[15] The evidence tendered at the preliminary hearing on this subject is far too vague to support the inference advanced by the accused. There is no information contained about the nature or circumstances of such conduct including the number of fights and whether or not the deceased’s involvement in such fights was in an offensive or defensive role. Nowhere in such evidence is to be found any suggestion that such conduct on the part of the deceased was part of activity on his behalf in connection with drug debt collection.
[16] Given the vague nature of the evidence that has been tendered in support of the allegation that the deceased had a community reputation as a tough guy as well as the fact that the general nature of such allegation has not been connected in any way to conduct of the deceased as a drug debt enforcer, it is my opinion that there is no probative value in such evidence. Accordingly, I dismiss the accused’s application to tender evidence of the deceased’s general reputation in the community as a tough guy.
Drug Use
[17] The autopsy that was performed on the deceased revealed that at the time of his death, he had recently consumed cocaine and marijuana. Quite properly, the Crown indicated that it would be tendering such evidence as part of its case.
[18] The accused has brought an application to be permitted to ask witnesses about the deceased’s drug use prior to the date of the offence. There was no evidence put before me whatsoever that would provide me with any information about the deceased’s drug use, if any, other than the night in question. If I were to accede to this request, I would simply be permitting counsel for the accused to conduct a fishing expedition at the time of the trial in an effort to show the deceased’s drug habits. In the absence of the requisite evidentiary foundation, I have no information upon which to conduct the probative value/prejudice analysis that is required. Accordingly, I have no alternative but to deny the application to permit witnesses to be questioned about the deceased’s prior drug use.
Deceased’s Intentions
[19] In accordance with the agreement of the parties, the Crown has acknowledged that it is the Crown’s intention to lead evidence that Mr. Lamothe was going to try and get his money back and, in the process, teach the accused a lesson. The accused was to be roughed up or, perhaps forced to walk down the street with no shoes on. There is also evidence in the form of a voicemail message sent by the deceased to the accused that can only be characterized as threatening in nature.
Supplementary Submissions
[20] After the application had been argued, I was advised that additional information had come to the Crown’s attention in the form of additional criminal convictions together with a number of occurrence reports involving the deceased. A further hearing was conducted on July 25, 2015 to consider the matter in light of this new information.
Criminal Record
[21] It has now been determined that the deceased was convicted of theft under $5,000, possession of break-in instruments and failure to comply with a recognizance in September 2003. In addition, the deceased pled guilty to assault and possession of cocaine in August 2012. There was also conflicting evidence brought forward about an incident involving the deceased and his former partner who became upset when she saw him with another woman. The deceased also entered into a peace bond in August of 2012 in an effort to avoid further conflict with his estranged partner.
[22] The 2003 convictions are dated and are not convictions for violence. In view of this, they are not admissible as was conceded by counsel for the accused.
[23] It was suggested on behalf of the accused that the 2012 convictions for assault and possession of cocaine were relevant and admissible. The transcript taken at the time of the guilty plea indicates that the deceased’s stepson had been “acting up and misbehaving”. The deceased threw the twelve-year-old stepson on a bed and pinned him to the mattress. The trial judge had serious reservations about whether he should accept the guilty plea in those circumstances, however, he was eventually persuaded to do so by the deceased’s counsel. The facts indicate that the conviction was for the use of excessive force in connection with disciplining an unruly child. The amount of force used was quite minimal. Given the circumstances and the amount of force used, it is my view that the prejudice associated with this evidence far exceeds its probative value. I am of the same opinion with respect to the solitary conviction for possession of cocaine.
Occurrence Reports
[24] Eight occurrence reports involving the deceased were provided for my consideration. The occurrence reports were taken in a variety of settings and circumstances. While it is clear from a review of these reports that, if true, they would indicate that the deceased was lacking in social skills, was rude to others and engaged in behaviour that might be well characterized as boorish, the fact of the matter remains that such behaviour on the part of the deceased fell short of criminal conduct in view of the fact that no criminal charges were laid, let alone convictions registered.
[25] As set out earlier in these reasons, Scopelliti does nothing to alter the requirement that evidence of bad character not known to the accused must still be relevant and admissible. The unsubstantiated allegations contained within the occurrence reports fall well short of these requirements and accordingly these reports are inadmissible as was said in R. v. D.S., 2010 ONSC 7254, [2010] O.J. No. 5747, at para. 45:
As with the occurrence reports, the MANIX and F.I.R. reports have no probative value with respect to the deceased’s propensity for violence. Moreover, the information contained within [is] hearsay and [does] not fall under any known exception at common law or on a principled basis to establish the truth of their contents.
Drugs
[26] The accused wishes to introduce the deceased’s conviction for possession of cocaine in order to establish the deceased’s bad character. This one conviction for possession of cocaine stands in isolation apart from the evidence that will be tendered about the deceased’s drug use on the night in question. As previously stated, it is my opinion that the prejudice associated with this conviction outweighs any probative value associated with it.
Conclusion
[27] On no less than three occasions, I asked counsel for the accused to tell me what purpose the jury would make of the bad character evidence that the defence was proposing to elicit. As it had already been agreed that the Crown’s case would establish that the deceased was the aggressor, counsel was eventually forced to concede that the only purpose for which such evidence could be used by the jury would be to disparage the character of the deceased. This raises the possibility that the jury might be predisposed to use such evidence for an improper purpose and acquit on the basis that the deceased got what was coming to him.
[28] An effort was then made to suggest that this evidence was important in terms of the accused’s knowledge of the deceased’s character as confirmed by his efforts to avoid the deceased and then flee when the accused spotted the deceased at the Algoma Hotel. The difficulty with this argument is that no evidence was provided to me about the accused’s knowledge of the deceased’s propensity for violence or the accused’s knowledge of any of the evidence that the defence wishes to tender. Apart from that, Scopelliti was concerned with “the probability of the deceased’s aggression where self-defence is raised as an issue”. To permit evidence of this nature to be introduced where the deceased’s aggression is no longer in issue would do nothing but create side issues and distract the jury from the main issue of self-defence with the added possibility that the jury may use such evidence for an improper purpose as previously outlined. Given these concerns, it is clear that such evidence is inadmissible: see R. v. Jackson.
[29] In cases of this nature, evidence of bad character is used in order to assist the jury in determining who the aggressor was. In this case, the jury will not be faced with that task as the Crown has made it clear that the evidence to be called will show that the deceased tricked the accused into an attempted meeting for the sole purpose of confronting the accused about a drug debt that was owing. There is also evidence to show the deceased had made prior threats of violence to the accused during the deceased’s various efforts to contact him. In these circumstances, the introduction of the dated and unrelated criminal record, evidence of a vague and unsubstantiated general reputation in the community as a tough guy and evidence about the deceased’s drug use will be of no assistance to the jury in the task that lies before them. The prejudice associated with this proposed evidence far exceeds the probative value of such evidence.
[30] The application by the accused to tender the deceased’s criminal record, evidence of the deceased’s reputation as a tough guy and evidence about the deceased’s drug use, apart from the night in question, is dismissed.
[31] The application by the accused to permit evidence to be tendered about the deceased’s intention on the night in question is granted.
The Honourable Mr. Justice R. Dan Cornell
Released: August 5, 2015
COURT FILE NO.: 660/14
DATE: 2015-08-05
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty the Queen
Respondent
– and –
Skylar Dalyk
Applicant
DECISION ON APPLICATION
Cornell J.
Released: August 5, 2015