ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-40000523
DATE: 20151013
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DON DANIEL JOHNSON
Sheila Cressman and Daniel DeSantis, for the Crown
Victoria Tucci and Carol Cahill, for the Accused
HEARD: September 29, 2015
REASONS FOR RULING
M. Dambrot J.
[1] Don Johnson is being tried by me, with a jury, on an indictment alleging that on February 20, 2012, he committed the first degree murder of Justin and Jerome Waterman. This is one of several pre-trial applications I heard before the selection of a jury. In this application, the accused seeks an order permitting him to adduce evidence tending to implicate three alternate suspects in the commission of these homicides: Doug Windebank, Christopher Mercer, and Terry Gram, which apparently is a reference to Terry Graham. In essence, the basis for the application in reference to each of these three individuals is as follows:
Windebank
[2] Windebank is said to have confessed to committing these murders in a statement to one Patrisha Hogan. However, when the police interviewed Windebank, he denied both committing the murders and confessing to Hogan.
Mercer
[3] In May 2012, a search warrant was executed at the residence of Mercer in Mississauga. A gun was located in his chimney and seized by the police. Mercer was charged with possession of the weapon and other offences. It was later determined that the gun seized from Mercer’s residence was the murder weapon. Mercer was called by the Crown as a witness on this application. He admitted that he had been in possession of the gun in his chimney, but denied owning it. He also denied having anything to do with the murder of Justin and Jerome.
Gram/Graham
[4] In his statement to the police, Windebank mentioned that Graham may have had a beef with Jerome because Jerome owed Graham a couple of thousand dollars for drugs. He also said that Graham had come to Windebank’s house with a gun on one occasion and threatened him over a debt.
The Narrowing of the Application
[5] In the oral argument, counsel for the accused focused exclusively on Windebank, and understandably ultimately abandoned the application in relation to Mercer and Gram/Graham.
The Evidence on this Application
[6] For the most part, counsel relied on documentary evidence and transcripts of the preliminary inquiry evidence on this application. The only viva voce evidence I heard was the evidence of Mercer.
[7] On May 31, 2012, Patrisha Hogan was arrested for obstructing a peace officer and breaching a conditional sentence order and was held in custody at 13 Division. While in custody she made it known that she wanted to speak to a detective, in her words, “to make a deal that if I give him information he can make me promise to appear instead of take – go to jail.” As a result, she was given the opportunity to speak to Det. Const. Young, an officer in the Major Crimes Unit. Hogan advised him that two weeks after the murder of Justin and Jerome someone named Doug who worked in a tattoo parlour called her and was rambling about something he wanted to tell her. She then went to see him at his shop and he told her, “I killed those fucking niggers”, referring to the Waterman brothers. He said that he had loaned a gun to the older brother, and the brother either lost it or it was stolen. In retribution, Doug had a friend contact the brothers and arrange for the delivery of some weed in a stairwell. When they arrived Doug had them get on their knees and hug each other. He then shot one in the back of the head and the other in the side of the head. Doug told her that he still had the murder weapon.
[8] After this discussion with Hogan, Young contacted Det. Sgt. Idsinga, the homicide officer in charge of the investigation of the Waterman homicides. At 3:25 p.m. that same day, Hogan was brought into an interview room to meet with Idsinga. The interview was audio and video recorded.
[9] At the outset of the interview, Idsinga told Young that he was in charge of the investigation of the murder of the Waterman brothers and that their discussion was being recorded. He explained to Hogan that he was there exclusively to investigate the murder and could not make any promises prior to her giving a statement, because that would be seen as an inducement and would undermine her credibility. She replied:
--- so um you might as well take me back to my cell then because the plan was I --- s’ --- I tell you guys everything I know, cuz I know a lot, and I get released with a promise to appear and if I’m not doin’ that I’m not sayin’ nothin’. I’m not helping you guys if you guys ain’t helping me.
[10] Hogan and Idsinga each maintained their position. Hogan said that she has “all kinds of information ‘bout a lot of stuff --- couple of murders actually and yeah,” but to no avail. Ultimately, Hogan returned to her cell.
[11] A short time later, Hogan asked to speak to Idsinga again. At 3:43 p.m. she was brought back into the interview room. She told Idsinga she had changed her mind and wanted to talk to him. This interview was also recorded. Hogan was cautioned in detail, advised that she was not obliged to give a statement and placed under oath. No promises were made by the police to Hogan.
[12] Hogan said that she knew Justin and Jerome because she grew up with their father, and the brothers hung out with her daughter Shelley. She knew Jerome, the older brother, better than Justin. She said that Jerome arrived at her home at 12:30 a.m. on the Saturday before the murder, needing a place to sleep. Hogan permitted Jerome to spend the night at her home. He left at around 9:00 a.m. and told Shelley that he was going to front some weed.
[13] Hogan said that she heard about the murders in the news a couple of hours after they happened, and attended their funeral.
[14] Hogan also knew a person named Doug who owned a tattoo parlour on Kingston Road. She didn’t know his last name. She had grown up with him in the east end. This time she said that all the young kids at Monarch Park were telling her kids that Doug was telling them that he shot the Waterman brothers. As a result she called him up and asked him to do a tattoo for her. He agreed and she went to his parlour. She didn’t want him to know the real reason she was going to see him.
[15] When she arrived at his tattoo parlour, she asked him if he had heard about the shootings. She told him that she heard that he did it. He replied, “Yeah, those fuckin’ niggers.” He explained that he lent the older brother a gun, but it was either taken from him in a robbery, or he lost it. He said he got a friend to call the older brother and ask for some weed. The friend told the older brother to meet in the staircase of the building. Doug didn’t know that the little brother was going to come as well.
[16] Then Hogan said:
So then uh I think h’ --- I --- I think he was with another guy but I think he was the shooter cuz he told me that. But anyways he said that he made them get on their knees. He made them hug each other and then he said he shot them both. And uh he kept callin’ them fuckin’ niggers and rah – rah – rah. He’s prejudiced. And he said that will teach anybody fuckin’ with me ever again. And um I didn’t say nothin’. To tell you the truth I wanted to kill ‘im myself. And I didn’t get a tattoo ‘n – and um I left. I just couldn’t believe what I heard.
[17] Later she told Idsinga that Doug didn’t tell her whether he got a “guy” or a “girl” to call the older brother. She continued, “I think someone was with him but I don’t know if they both shot, but I know he told me he shot.” Hogan didn’t know the location of the building where the shooting took place but she thought that it was in Scarborough.
[18] When asked when this conversation took place, Hogan initially said that it was well after the shootings. Doug’s house was raided for “coke ‘n stuff” and he went to jail. The conversation took place a couple of days after he was released, which she thought was two or three months after the shootings. When Idsinga pointed out that at the time of the interview, only three-and-a-half months had passed since the shootings, Hogan expressed surprise and said, “Oh it wasn’t last year?” She then said that her discussion with Doug had to be just a couple of weeks after the shooting, but she didn’t remember.
[19] Hogan was called as a witness at the accused’s preliminary hearing in this case on July 21, 2014. She testified that she had had the opportunity to watch the recording of her interview, but she neither remembered telling the police about a conversation she had with Doug nor did she remember having such a conversation with him. She had no recollection of him telling her that he shot the Waterman brothers. In fact, she didn’t remember being arrested on May 31, 2012, at all. She explained that she was “really messed up at that point in her life” and was “on a lot of drugs and methadone and everything.” Specifically, she mentioned “heroin, methadone, percs, oxys, valiums, … ecstacy.” She had been using drugs for ten years on and off but at the time of the preliminary hearing, she had been clean for almost two years. She said that she had no idea what she did when she was high. She didn’t remember days or sometimes weeks at a time. She would sometimes wake up in the hospital.
[20] She agreed that she knew Doug who used to own a tattoo shop that she attended and who grew up in the same area as she did. She denied ever being at his tattoo parlour on Kingston Road.
[21] Hogan admitted that she had a bad criminal record extending back to 2011. She has been convicted of break and enter, theft, forgery, failure to comply with a recognizance, failure to comply with a probation order, escaping lawful custody, failure to attend court, assault, assault with a weapon, assault with intent to resist arrest, public mischief, theft under, possession of property obtained by crime, possession for the purpose of trafficking, criminal harassment, uttering death threats, and other offences. She has been convicted of many of these offences several times, including two convictions for obstructing the police, at least one of which involved lying to the police.
[22] Although Hogan did not know Doug’s last name, the police ascertained that she was referring to Doug Windebank. On July 3, 2012, Det. Ogg, who had been present when Idsinga interviewed Hogan, took a sworn audio and video recorded statement from Windebank.
[23] Windebank acknowledged that he had met Jerome, who he knew as Germzz, once or twice. He recalled seeing him briefly on one occasion in the home of Terry Graham, with whom Windebank had done home renovation work. He was aware that Jerome was the boyfriend of Graham’s stepdaughter, Tasha. He had also seen Jerome with his younger brother, whose name he did not know, in a car with Tasha on another occasion. He was aware that they were involved in drug dealing, but he never bought drugs from them. He heard that they had been killed in a news report. Windebank denied killing Justin and Jerome, and denied boasting that he had killed them. He hardly knew them, and had no “beefs” with them. He also said that the last time he spoke to Graham, Graham told him that Germzz owed him a few thousand dollars for drugs.
[24] The police took a number of investigative steps to follow up on the information provided by Hogan in addition to interviewing Windebank. The police were aware that the information she provided that Jerome spent the night at her residence beginning late on the Friday night and into Saturday before the murder did not correspond with Jerome’s phone records. They apparently also knew that Jerome’s baby was born that same day. In addition, in the course of taking Windebank’s statement, it was confirmed that his cellphone number at the time of the murders was (647) 403-7135. Det. Sgt. Idsinga obtained information from Rogers Communications that based on the tower locations of calls made from and received by that cellphone between 2:00 p.m. and 5:00 p.m. on February 20, 2012, the cellphone was not located anywhere near 325 Bogert Avenue around the time of the murders.
[25] Finally, although the application with respect to Mercer has been abandoned, I note that the police obtained the phone records for (289) 936-9023, a phone number associated with Mercer. The records show that on February 20, 2012, at 3:25 p.m., a call made from this phone hit a cellphone tower at 1477 Mississauga Valley Blvd., Mississauga, which is very far from 325 Bogert Avenue. Similarly, with respect to Graham, the police ascertained that he was in custody at the Metro West Detention Centre on February 20, 2012.
Analysis
[26] The defence wants to adduce third party suspect evidence before the jury that tends to show that Windebank may have murdered the Waterman brothers, and in turn raises a reasonable doubt about the accused’s guilt. Before an accused can put such evidence before the jury, the trial judge must be satisfied that there is an air of reality to the defence position: the proffered evidence must be reasonably capable of supporting the inference that the third party was the murderer. In the case of a known third party suspect, the evidence must show a sufficient connection between the third party and the crime for which the accused is charged: see R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475. Most commonly, this sufficient connection is shown by evidence that the third person had the motive, the means, or the propensity to commit the crime.
[27] Needless to say, where a third person is actually prepared to testify that he or she committed the crime, nothing more is needed to show a sufficient connection between that person and the crime. The logical relevance of the evidence is axiomatic. Similarly, if the third person denies committing the offence, but has previously confessed to it, the confession, if otherwise admissible, would satisfy the sufficient connection requirement. If Hogan’s statement to Idsinga is admissible, that would be this case.
[28] As a result, the accused easily overcomes the hurdle of showing a sufficient connection between Windebank and the murders if Windebank’s confession is admissible. But other, very high hurdles must be overcome before that confession can be admitted. It must be recalled that Hogan gave a statement to the police asserting that Windebank confessed to her, but now says that she remembers neither the confession nor telling the police about it. In addition, Windebank denies confessing to Hogan, and of course denies killing Justin and Jerome. If Hogan is called as a witness and maintains her position that she has no recollection of Windebank confessing, and if Windebank is called as a witness and maintains his position that he did not commit the murders, then the only way that the accused can get evidence of a confession by Windebank before the jury is if I admit Hogan’s statement despite the confession then being double hearsay, as a double exception to the hearsay rule.
[29] The position taken by the defence is that Windebank’s confession to Hogan is admissible either as a declaration against penal interest, or under the principled exception to the hearsay rule. Further, in order to prove the confession, the defence says that the police recording of Idsinga’s interview with Hogan in which she claimed that Windebank had confessed to her is admissible under the principled exception to the hearsay rule. As a result, I must undertake two distinct, but interrelated hearsay analyses. I will begin with the messenger.
(Decision continues exactly as in the source text through paragraph [60] and concluding release lines.)
M. Dambrot J.
RELEASED:
COURT FILE NO.: CR-14-40000523
DATE: 20151013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
DON DANIEL JOHNSON
REASONS FOR RULING
DAMBROT J.
RELEASED: October 13, 2015