ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13660/14
DATE: 2015/08/24

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHARON BAKSH

Defendant

Jinwon Kim & Michael Malleson, for the Crown

Paul Burstein & Anne Marie Morphew, for the Defendant

HEARD: August 14 / 2015

Justice B. Glass

CROWN APPLICATION FOR THE ADMISSION OF EVIDENCE OF DISCREDITABLE CONDUCT

[1] The Crown’s application involves a request to introduce evidence of mail allegedly belonging to the deceased. The mail was located in the apartment that had been occupied by Sharon Baksh and Glen Gould.

[2] The documents involved were items of Christmas mail alleged to be being sent by the deceased and a Bell account with a cheque payable to Bell. They were located in the apartment of Ms. Baksh and Mr. Gould when the daughter of Glen Gould attended for the purpose of retrieving her jacket. When the daughter picked up the jacket, the mail items fell from the pockets to the floor. Ms. Baksh was reported to have worn the jacket at times.

[3] The deceased lived across the hall from Ms. Baksh and Mr. Gould at the time of her murder on June 1, 2013. There is no suggestion that Ms. Rusnell, the deceased, attended the Baksh / Gould apartment or vice versa as friends might. The people were not known to be friends of each other. In other words, there was no justifiable reason for the mail of Ms. Rusnell to be in the apartment of Ms. Baksh and Mr. Gould.

[4] Identity of the person who killed Ms. Rusnell is an important issue in this case. The pieces of mail are alleged not to have been brought to the apartment by Mr. Gould or his daughter. The only other person in the apartment had been Ms. Baksh.

[5] The evidence at trial is expected to show that Ms. Baksh was not a friend of Ms. Rusnell so that she would not have been expected to attend the Rusnell apartment nor to have been asked by Ms. Rusnell to deliver her mail that was being sent or to have picked up mail coming to Ms. Rusnell.

[6] At this application, a trial judge does not weigh the evidence; rather, the admissibility of the evidence must be determined before presentation to the jury who will decide the meaning of the mail pieces. At the admissibility stage, the trial judge must be satisfied that the evidence is capable of being reasonably believed and supporting the inferences the Crown seeks to ask the jurors to make.

[7] The mail in question is relevant and material to the issue of the identity of the person who caused the death of Ms. Rusnell. The evidence of possible theft of mail from an elderly person’s living accommodation is discreditable. The persons from the Baksh / Gould apartment who might have taken the mail of Ms. Rusnell without her permission are Glen Gould, Korrie Williams or Sharon Baksh. There has been testimony in the past from Mr. Gould and Ms. Williams that they did not take the mail. That leaves Ms. Baksh for consideration. I note that Mr. Gould is a possible third party suspect so that consideration by the jury will no doubt take into account any possible involvement by Mr. Gould in the death of Ms. Rusnell.

[8] The threshold for determining relevance is a low one.

[9] There is not a danger of jurors becoming engrossed with moral or reasoning prejudice about Ms. Baksh with respect to this evidence. Rather, the evidence is part of all evidence to be tendered at the trial. It is not a smoking gun type of evidence that would send a jury off on a tangent of negative thought about Ms. Baksh.

[10] The mail of Ms. Rusnell carries a probative value for a jury to consider when the jurors determine whether or not the identification of the person who caused the death of Ms. Rusnell has been established. I do not see a prejudicial impact of this evidence upon a fair trial being presented to the jury. It does not load the scales of justice against Ms. Baksh so that she cannot have a fair trial. The only prejudice that might be noted for a Defendant is that it is not favourable to Ms. Baksh, but that is not a proper consideration of prejudice to Sharon Baksh when addressing discreditable conduct.

[11] This analysis falls within the guidance provided in R. v. L.B., 1997 3187 (ON CA), [1997] O.J. No.3042 and R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57.

[12] I am satisfied that the Crown has established that this evidence should be admitted because it has passed the hurdles of what is normally inadmissible evidence.

Conclusion

[13] The evidence of discreditable conduct may be admitted at trial.

Justice B. Glass

Released: August 24, 2015