COURT FILE NO.: 15-10000564-0000

DATE: 2015/10/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

EVERTON BIDDERSINGH

Respondent

Mary Humphrey and Anna R. Tenhouse, for the Crown Applicant/Respondent

Jennifer Penman and Genevieve McInnes, for the Respondent/Applicant

HEARD: October 1, 2, 5, 6, 2015

RULING

PRIOR DISCREDITABLE CONDUCT AND ANTE-MORTEM STATEMENTS

a.j. o’marra j.

[1] Everton Biddersingh is charged with first degree murder, aggravated assault and indignity to a dead body in relation to his 17 year old daughter Melonie Biddersingh in 1994. Further, he is charged with a count of obstruct justice on the same indictment in relation to alleged statements made by him during an investigation into the death of his 14 year old son, Dwayne Biddersingh in 1992.

[2] The Crown seeks to introduce evidence of prior discreditable conduct of the accused, and certain hearsay anti-mortem statements/utterances of Melonie and Dwayne Biddersingh.

[3] On September 1, 1994 the body of a 17 year old girl was found in a suitcase which had been set on fire in an industrial area of Vaughn, Ontario. The deceased on autopsy was found to have been severely malnourished, weighing approximately 50 lbs. and having 21 healing ante mortem bone fractures. Initially, the cause of death was classified as undetermined, then later found to have been drowning as either the cause of death or a major contributing factor due to the presence of diatoms in fluid in her maxillary sinus and femoral bone marrow. The identity of the deceased remained unknown until information was received in late 2011 which led police to a DNA comparison with her biological mother in Jamaica.

[4] Melonie had come to Canada in 1991 at 13 years of age with her brother Dwayne, 12 years and older stepbrother Cleon Biddersingh, 17 years old. Melonie and Dwayne had the same mother, Opal Austin and Cleon’s mother is Beverly Scott. Melonie, Dwayne and Cleon had arrived from Jamaica to live with Elaine and Everton because of hard economic times in Jamaica and it was expected that their lives would be better in Canada.

[5] When they arrived in 1991 to live with Elaine and Everton in a one bedroom apartment at 22 Close Avenue, Toronto, #2203 Elaine and Everton had three other children, Kenroy and O’Neil, 6 and 7 years old, and infant Charmaine born later that year.

[6] Melonie’s death in 1994 or that she went missing had never been reported by the Biddersinghs. It was not until December 2011 when Elaine told her church pastor, Eduardo Cruz about the circumstances of Melonie’s death - her body having been put into a suitcase and that Everton had been involved in the disposal of her remains. The information in turn was provided by Mr. Cruz to the police, which led to the identification of Melonie through a DNA comparison with her mother, Opal in Jamaica.

[7] On June 15, 1992, Melonie’s younger brother, Dwayne Biddersingh died from a fall from the 22nd floor balcony of the family’s apartment on at 22 Close Avenue, Toronto. The police on arrival in the Biddersingh apartment found only Melonie caring for the infant Charmaine, Cleon and boys Kenroy and O’Neil. Parents, Elaine and Everton had left the building.

[8] Melonie looks like she had been beaten. She had numerous welts, scratches, cuts and swollen areas about her body. On inquiring as to how she sustained the injuries Melonie told the police that it had been Dwayne who had beaten her. Similarly, Cleon said that it had been Dwayne. Later, when the police interviewed Elaine and Everton, they too said the injuries had been caused by Dwayne. The police concluded the investigation and Dwayne’s death was classified as a suicide.

[9] After the police commenced an investigation into Melonie’s death in 2012, Elaine and Cleon gave statements in relation to Dwayne’s death. The reason they said in 1992 that Dwayne had caused Melonie’s injuries was because Everton told them to say so. He was concerned about a police investigation into Melonie’s injuries and because he had drugs hidden in the apartment.

[10] A further investigation was conducted by the police into Dwayne’s death, including a re-autopsy of his remains following an exhumation and his body repatriated to Jamaica for burial. The manner of death remains a suicide.

[11] The Crown seeks to lead evidence from Elaine and Cleon as to the events leading up to Dwayne falling or jumping from the apartment balcony including an ante mortem statement said by Cleon and several witnesses to have been made by Dwayne in fear of receiving a beating from his father, “he’s gonna kill me”, for running away.

Prior Discreditable Conduct Evidence

[12] The applicant has set out the areas of prior discreditable conduct it seeks to tender under the following headings:

1. Everton abused his children both emotionally and physically;
2. Everton was a drug dealer;
3. Everton threatened Cleon;
4. Everton possessed a gun which he used to threaten Cleon;
5. Everton mistreated Clifton Allison, also known as Pedro, in Jamaica by stealing his travel documents;
6. Everton abused Elaine; and
7. Everton instructed Melonie, Elaine and Cleon to lie about Melonie’s abusive injuries when the police investigated Dwayne’s death, so authorities would not discover his abusive and criminal conduct.

[13] The Crown asserts that the accused’s abusive conduct of his three children from Jamaica, Melonie, Dwayne and Cleon, prior to Melonie’s death is indicative of his animus towards them. It is probative of the issue of identity and the intention behind the killing. Further, the evidence would assist the jury in assessing the state of the mind and credibility of Elaine and Cleon by providing an understanding of the abusive atmosphere in the family home and why they had been unable to disclose the abuse to authorities and or the running away of Dwayne just prior to his death, and Melonie’s death or disappearance.

[14] The Crown contends the evidence is relevant to establishing context and the narrative as to their relationship with Everton. It is evidence that shows Everton’s pattern of abusive and controlling behaviour of his family and the atmosphere of fear he created, essential for the jury to understand the reasons for the delayed disclosure by Elaine and lack of disclosure by Cleon.

[15] With respect to the circumstances of Dwayne’s death, the Crown argues that the evidence they seek to tender relating to Melonie’s injuries and the alleged directions given to Melonie, Cleon and Elaine by Everton to lie about how she got those injuries is highly relevant to the unfolding of the evidence as it relates to Melonie’s death, for without it, “it would be impossible for the jury to understand the actions of Everton, Elaine and Cleon.” Further, the evidence of abuse even as early as Dwayne’s death is imperative to the narrative.

Applicable Principles

[16] Evidence of an accused’s prior discreditable conduct is essentially similar fact evidence and generally inadmissible because of its great potential for prejudice, distraction and time consumption. The reason for its exclusion was succinctly stated by Sopinka J. in R. v. B (C.R.) 1990 142 (SCC), 1990, 55 C.C.C. (3d) 1 (S.C.C.) at para. 56:

The principal reason for the exclusionary rule relating to propensity is that there is a natural human tendency to judge a person’s actions on the basis of character. Particularly with juries there would be a strong inclination to conclude that a thief has stolen, a violent man has assaulted and a pedophile has engaged in pedophilic acts. Yet the policy of the law is wholly against this process of reasoning. This policy is reflected not only in similar acts cases but as well in the rule excluding evidence of the character of the accused unless placed in issue by him. The stronger the evidence of propensity, the more likely it is that the forbidden inference will be drawn and therefore the greater the prejudice.

[17] The poisonous potential for prejudice such evidence holds was outlined by Binnie J. in Regina v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57 at para. 138-147. He observed that such evidence has the potential for “moral prejudice”, the danger that the triers of fact may convict the accused because they believe the accused is a bad person deserving of punishment, rather than focusing on determining the culpability of the accused for the offence charged. The truth seeking function of the trial can be distorting by “reasoning prejudice” whereby the triers of fact accord the evidence undue weight in their deliberations; the evidence will arouse the jury’s emotions such that they are unable to make a dispassionate and rationale judgment; and it creates a distracting side issue causing the jury to lose focus on the question of the culpability of the accused for the offence charged.

[18] However, such presumptively inadmissible evidence may be admitted if it meets the test as set out by McLachlin C.J. in R. v. B (C.R.), at para 24:

[E]vidence of propensity, while generally inadmissible may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury.

[19] In seeking to admit such evidence the Crown bears the burden of demonstrating on a balance of probabilities that the probative value of the evidence outweighs its prejudicial effect (see R. v. Handy, at para. 55).

[20] The probative value of the evidence must be in relation to a live issue in question on the trial. McLachlin C.J. in R. v. B. (C.R.), at para. 21 set out the analytical framework for admission of disposition or propensity evidence:

In determining its admissibility, one starts from the proposition that the evidence is inadmissible, given the low degree of probative force and the high degree of prejudice typically associated with it. The question then is whether, because of the exceptional probative value of the evidence under consideration in relation to its potential prejudice, it should be admitted notwithstanding the general exclusionary rule.

[21] Further, in R. v. Handy, at para. 71 it was noted that the general disposition of the accused does not qualify as an issue in question. It is only admissible if the evidence goes beyond showing general propensity (moral prejudice) and is more probative than prejudicial in relation to an issue in the crime charged.

[22] In R. v. L.B. (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 (O.C.A.) at paras. 22-23, Doherty J.A. noted several considerations the Court should take into account in assessing the probative value and the prejudicial effect of the proposed evidence. In terms of the probative value, the Court must consider (1) the strength of the evidence; (2) the extent to which the evidence supports the inference sought, as to the degree of similarity between the disposition evidence and the conduct forming the offence; (3) the extent to which matters it tends to prove are in issue.

[23] The Court in considering the prejudicial effect of the proposed evidence should assess (1) how credible it is; (2) the extent to which it supports improper propensity reasoning; (3) the extent to which it would confuse the issue and the accused’s ability to respond to the issue.

Overview of the evidence the Crown seeks to lead

[24] Let me summarize the evidence the Crown seeks to tender under the headings set out above derived largely from the statements and preliminary inquiry testimony of Cleon and Elaine, and police reports relating to the investigation into the 1992 death of Dwayne.

1. Everton abused the children who lived with him

[25] The Crown seeks to lead through Cleon’s evidence that he was emotionally and physically abused by Everton. From the time he arrived in Canada to live with them, Elaine and Everton questioned whether Cleon was his biological son. Eventually a DNA test was required to prove Everton was Cleon’s biological father, but he was still treated badly.

[26] Cleon was forced to eat and sleep on the floor of the apartment as everyone else ate at the table and slept on a bed. Eventually, Melonie was similarly forced to eat and sleep on the floor.

[27] Cleon claimed that he and Melonie were in effect enslaved by Elaine and Everton. He was forced to sell drugs for Everton and to do chores in the apartment such as cooking and cleaning and Melonie was required to look after the infant Charmaine.

[28] He and Melonie were deprived of food. The food was rationed. They were not permitted to eat the same food as the rest of the family. He was provided with hot water, sugar and crackers or bread, sometimes cornmeal, “the same food they fed dogs in Jamaica.” Initially, only he was given separate utensils to eat because Elaine and Everton said he had germs. Then, later all the children from Jamaica, Dwayne, Melonie and Cleon were required to use separate eating utensils.

[29] Melonie, Cleon and Dwayne were subjected to a buzzer system to call them in the apartment. If either Elaine or Everton wanted them to perform a duty they would press a buzzer to alert the child that he or she was wanted, one ring of the buzzer for Cleon, two for Melonie and three for Dwayne.

[30] Cleon and Melonie were forced to bathe and relieve themselves on the balcony in pails in the summertime and at times locked on the balcony as a punishment. Melonie was never allowed to leave the apartment without a parent, although Cleon was permitted to leave to sell drugs for Everton. Dwayne was only permitted to leave by himself when he started delivering papers for the Toronto Sun. None of the children were registered for school.

[31] Cleon would testify that Everton would beat him, Dwayne and Melonie for any perceived misbehaviour, often rough beatings which included the use of a belt. If Everton believed that he or Melonie were not telling the truth he would force their heads into the toilet and flush it. He told Cleon that that was how the police got information. Melonie was forced to go into the closet as punishment with Everton assigning Cleon the task of watching the door so she would not open it.

[32] After Dwayne died, Cleon would say that Everton and Elaine became angry and blamed him and Melonie for ruining their lives. The beatings got rougher. Everton would inflict physical beatings. When it happened to Melonie she would scream and cry. He would hold her down and tell her to shut up. Cleon would be kicked in the stomach or slapped in the head if he did something wrong and Melonie got it worse after Dwayne died.

[33] The Crown seeks to lead evidence that after Melonie’s death, Everton went back to Jamaica with the family and forced Cleon and a friend of Everton, Clifton Allison, known as Pedro, to work on his “coffee plantation” like “slaves”.

[34] In terms of specific abuse of Melonie, Cleon would testify that she was not allowed to leave the apartment on her own. One day he found her outside of the apartment in the stairwell sitting on the steps crying. She said, “I can’t take it anymore”, “it better I dead, it better I go like Sabo”. After Everton found out chains were put on her legs to keep her from leaving the apartment. Cleon said that there was a handcuff at the end of the chain that was placed on her ankle and the other end was attached to a wall unit in the living room. Usually she would be chained after she was beaten or when she was sleeping as Elaine and Everton did not want her to leave the apartment. Everton kept the key. He instructed Cleon to unlock her and clean her up if she soiled herself.

[35] Cleon would testify that Melonie’s condition deteriorated. She was weak and in pain. She became incontinent. She could not keep her food down. She lost weight. “She was crawling around, she was puking”. “She would pee and poop herself”. She would complain that her foot, legs and hip hurt. When she did walk to carry the baby it was with a limp. When Everton was not around she would tell Cleon she was in a lot of pain and could not walk. She complained to Cleon, “why don’t they send me home”. She said she preferred to be dead than live this life.

[36] Elaine would tell Everton when they did something wrong and then Everton would come out and punish them. He would beat them.

[37] If Everton thought Cleon or Melonie was lying he would flush their heads in the toilet. When he did it to Cleon he would say to him that this was the way the police found out the truth from people. He knew Everton was flushing her head in the toilet because he would hear her crying and when she came out of the bathroom she would wipe her face because it was wet. Also, Melonie told Cleon that Everton put her face down in the toilet and flushed it. Melonie would say that the water gets into her face sometimes. Sometimes he saw that her clothing was wet.

[38] Everton would put them in the closet as another punishment. Melonie told Cleon she hated to be put in the closet; she was not comfortable in the closet. Whenever, Everton’s friend Pedro would come over if Melonie was bruised she would be put in the closet to hide her from him.

2. Everton was a drug dealer

[39] Cleon would testify that within months of arriving in Canada Everton enlisted him to sell cocaine and crack cocaine in a park. All the money he collected was given to Everton. The drugs were hidden by Everton behind electrical outlets in the apartment.

3. Everton threatened Cleon

[40] When Everton enlisted Cleon to sell drugs he did not want Cleon to tell people outside the home about the abuse in the home. Everton took Cleon with him to the Jane and Finch area to meet “bad people”. He told Cleon that he knew people who could take care of him if he misbehaved, “they know how to squeeze a rat”. Everton told him not to cross him because he knew people who could bring harm to his family in Jamaica. When they are in Jamaica Everton took Cleon to a neighbourhood called Waterhouse, a known bad area to prove to Cleon he knew “bad people”. He knew the “baddest man” in Jamaica. He told Cleon those men, gunmen would kick in the door and shoot everyone in the family in Jamaica. He told him, “we know where your family live like I got a connection”. Cleon had a mother, sister and brother living in Jamaica at the time and he feared for their safety as a result of Everton’s comments. When they were in Jamaica, approximately six months after Melonie’s death Everton would not let Cleon see his family.

[41] After Melonie’s death, with the help of Pedro he left and tried to hide from Everton. He never spoke to the police about Melonie’s abuse until he was arrested because he was afraid for his life and concerned for the safety of his family. His fear of Everton continues to this day.

4. Everton possessed a gun

[42] When living at 22 Close Avenue, Everton showed Cleon a gun described by him as a chrome revolver with a black handle. In the preliminary inquiry in this matter on October 28, 2013, Cleon Biddersingh testified

…he showed me a gun and he would just show me and just talk about the gun, and that he get it from his friend so that’s like telling me that he got connection to get a gun, so he have connection to send people after me if I say anything or do anything that he don’t like so he gave me the gun and I kind of hold it, so I kind of hold it away, and he take back the gun and like knock it on my knee, and he said, what are you doing, and like and that’s what I remember yeah … he gave me the gun, and I hold it, and then I was going to put my finger in the trigger and he grabbed it away and knocked me on my knee and asked me what I’m doing.

[43] After that incident he never saw the gun again.

5. Everton mistreated Clifton Allison, (Pedro) in Jamaica

[44] Clifton Allison was the only person the family permitted to enter the home at 22 Close Avenue. He was Everton’s friend and moved with the family to Jamaica in 1997 where he stayed with them for three months. Everton had property where he put Cleon and Pedro to work doing manual labour. Everton became upset with Pedro when he wanted to return to Canada. Pedro in turn became upset with Everton because he believed Everton took his documents and money when he wanted to return to Canada. His passport went missing from his suitcase. He was forced to go to the Canadian Embassy to obtain other papers to leave Jamaica. After Pedro left Jamaica he never spoke to Everton again. However, when Cleon returned to Canada Pedro made arrangements for Cleon to escape Everton’s home and live with Pedro’s relative, Aunt Cheery in Scarborough.

6. Everton abused Elaine

[45] Elaine would be expected to testify about abuse by Everton when she was married to him. She testified at the preliminary inquiry that he beat her when he thought she was lying. She was punched in the back, stomach and face. He would beat her with a belt. Sometimes she would have visible injuries. She alleged that in Jamaica he beat her head on the asphalt and chased her with a machete. In Canada, she was not allowed to leave the apartment alone, other than to go to work because Everton did not trust her. Elaine experienced emotional abuse when Everton insulted and belittled her in front of others.

[46] In the early years of their marriage, 1980-81, she called the police when he abused her, but when they came they only talked to them and left. She would leave and move in with her mother as a result of the abuse, but would return when Everton begged her to do so claiming he would change. At one time when she returned to her mother’s home he faked a heart attack in an effort to get her to return. He forced Cleon to call an ambulance and then to call Elaine and tell her that he was had a heart attack. He had not been hospitalized. She returned to him a few days later.

7. Dwayne Biddersingh’s death

[47] On June 15, 1992 Detective Kim Carr was working in 14 Division with partner Det. Constable Chutko when he received a radio call to attend 22 Close Avenue regarding an unknown fall or jump from the building. On arriving at apartment 2203 they found three people present, Cleon, 17, Melonie, 14 and Charmaine, a 7 month old infant. Their parents, Everton and Elaine were not present.

[48] Detective Carr separated Cleon and Melonie. Melonie had observable injuries. He instructed two female officers, Constables Zetner (Nolan) and Hussar to interview Melonie in the bedroom. Det. Carr spoke to Cleon in the living room. Cleon told him, as Carr recorded in his notebook, Dwayne, his brother had jumped from the balcony. Dwayne had been “fussed” because their parents were paying more attention to Melonie and as a result he beat her:

The next day after he (Dwayne) finished delivering papers rather than coming home he stayed away. They went and brought him home “both parents and me” around 9:00 a.m. He looked plain on his face. Not upset. They wanted to show him what he did to his sister. Melonie was sitting in the chair. I was in the kitchen. My parents called me into the bedroom. We heard the balcony door open and he came out and saw him standing on the railing and he just jumped, man, he jumped. Melonie was standing near her chair hanging some clothing up. No one else was on the balcony with him.”

[49] Cleon told the officer that his mom and dad went crazy, screaming and crying. They had to get it out of their system and they left the apartment.

[50] Constables Hussar and Zetner went into the bedroom to take a statement from Melonie. Zetner took her statement and Hussar noted the injuries to her. She noted multiple scratches and welts on her back, arms, stomach, head, legs, as well as swollen arms, bruises and abrasions on her face and swollen nose. She appeared to have difficulty moving.

[51] Melonie told Constable Zetner that Dwayne had assaulted her a couple of days before. He had been angry with her and tied her up and punched her in the stomach, tied her to a chair and beat her with a cord. When the police suggested Melonie go to the hospital Cleon came in and said she could not go to the hospital as the baby would cry.

[52] At that time the phone was answered by Cleon. Officer Hussar noted comments made by Cleon: “Ahaha, ahaha, I can’t take this, there is a female officer here. They want to take her to the hospital. I told them the baby would cry”. He said “Ahaha, ahaha” about 8 to 10 times. Then he passed the phone to Melonie. The officer noted Melonie saying “yeah” several times. Cleon took the phone back and then told the officer it was his father and he wanted to talk to the police.

[53] The phone was turned over to Det. Carr. Everton told Det. Carr that he knew what had happened and believed he knew the condition of his son. He did not want to return and deal with it yet because his wife was upset, crying, screaming and trembling. He would return to the apartment soon to speak with the police. Carr waited an hour however, the Biddersinghs did not return. Carr left his card with Cleon and instructed him to have Everton phone when he returned.

[54] Two officers from 14 Division, D.C. Ed William and P.C. Liam Murphy arranged to meet with Elaine and Everton in the parking lot of a Dairy Queen at Dundas and Jane Street. They were told that Dwayne had beaten his sister.

[55] Several days later Everton and Elaine attended 14 Division to speak with Det. Carr. At that time, Everton told police that Dwayne had beaten Melonie while alone with her in the family apartment. He caused numerous cuts and bruises to her. Elaine and Everton threatened to call the police but did not. The next night, Sunday, Dwayne stayed out all night and the family went out to look for him. They located him the following morning and returned him to the apartment. There, Everton told Elaine that Dwayne would have to go back to Jamaica because he could not let him hurt Melonie or the other children. According to Everton, after hearing what had been said about returning him to Jamaica, Dwayne opened the balcony door, stepped out onto the balcony, got both feet onto the balcony railing and then jumped off without hesitation. When it happened he said the rest of the family was in the bedroom other than Melonie, who was in the living room. Everton and Elaine left the apartment because they could not face what had just happened.

[56] The police accepted what the family members said happened. The investigation into Dwayne’s death was closed as a suicide.

[57] On the obstruct justice charge in the indictment, the Crown seeks to lead Everton’s statement to the police that Dwayne caused Melonie’s injuries. In addition, the Crown seeks to lead evidence from Cleon and Elaine as to the circumstances leading up to Dwayne falling from the balcony and Everton’s direction to them to say Dwayne caused the injuries to Melonie.

[58] Cleon is expected to testify that when Dwayne had not come home that night after delivering papers Everton beat Melonie believing she knew where he was. In his description of the beating while standing in the hallway he heard Everton say to Melonie’ “where’s Sabo, where’s Sabo”, the family name for Dwayne. He heard Melonie hit the wall and her crying out “I don’t know, I don’t know”. He heard walking sounds, then “boom, boom” like she was being hit against the wall. Afterward, Everton grabbed Cleon by the neck and held him down and demanded from him to know where Dwayne had gone. He shoved him against the wall and kicked him. Cleon said he did not know.

[59] Initially, Everton, with Elaine and Cleon drove Dwayne’s paper route looking for him. Later, they drove to a cousin’s house Cleon had never heard of before, where Dwayne was found. When he was in the car, Everton and Elaine were mad and said that the Jamaican children had ruined their lives. Everton was angry and he said to Dwayne “you think you can run from me. Wherever you go I will find you. You guys can’t run from me”. Cleon knew that Dwayne was going to get a rough beating. Dwayne was crying and worried. He said to Cleon “I’m dead now”. Cleon thought what Dwayne meant was that he knew that he was going to get a bad beating; “he was going to get his ass kicked and get beaten at home”.

[60] Back in the apartment, Dwayne was told to sit in the corner near the balcony door. Melonie was in the living room. Everton was with Elaine in the bedroom and called Cleon in. He said that they were thinking about sending Dwayne back to Jamaica or to teach him a lesson for running away. Melonie shouted “Sabo”. He ran out to the living room and saw Dwayne’s shirt “blow up like over the balcony”. Everton told Cleon to go and look to see if he jumped or went to the next door balcony. Cleon looked over the balcony and saw a crowd around Dwayne lying on the ground.

[61] During the 2012 investigation into Melonies death, Elaine told the police she had lied during the investigation into Dwaynes death when she said Melonie’s injuries had been caused by Dwayne. She did so because Everton told her to. The reason she lied to the police was because the police had failed her in the past when she reported Everton’s abuse. They had fled the apartment the night Dwayne died because Everton had panicked. The police would come to investigate. There were two major issues of concern. First, Melonie was covered in abusive injuries, and second, Everton had drugs in the house.

[62] Before leaving the apartment, Everton told Melonie and Cleon in her presence, to tell the police that Melonie`s injuries were caused by Dwayne during a fight the previous night. Further, Cleon was told to tell the police that Dwayne did things to make him look like a bad child.

[63] Ava Stewart, 44 years is another witness the Crown seeks to call with respect to the circumstances of Dwayne’s death. Dwayne had stayed at her apartment that night.

[64] She knew Dwayne in Jamaica as the little brother of his older sisters, Jackie and Joy Ann, her school friends. She met them at school and became friends with them and their entire family including Opal, the mother of Dwayne and Melonie. Dwayne would visit her at her house in Jamaica. She came to Canada in 1988. One day in 1992 just Dwayne showed up at her door and continued to drop in when he delivered papers.

[65] Dwayne came to visit her in her basement apartment on Winona Avenue, approximately one hour bus ride from Parkdale where he lived with his family. At the time, Ms. Trisha Palmer was there on vacation from Jamaica as was Ms. Stewart’s sister, Jackie. That day he asked if he could sleep over. She said yes, but he should call his father and let him know.

[66] The next morning she answered a knock at the door and found Dwayne’s father Everton who had come looking for him. She went into the bedroom patted Dwayne on the shoulder to wake him up and told him that his father was there. He appeared frightened and said “he’s gonna kill me”. He did not want to go with him and appeared frantic. In her view, he had no choice but to leave with his father.

[67] The next day Everton came back to Ms. Stewart’s apartment and asked her a lot of questions about what Sabo had discussed with her. She had no idea why Everton was questioning her and she felt it was an uncomfortable situation. She did not have any information to give him. Surprisingly, Everton did not tell her Dwayne had died. She only learned about a few days later when her mother called from Jamaica told her Dwayne was dead. She had just heard it herself about it from Opal, Dwayne’s mother, who had just been told.

[68] The Crown wants to call Dr. Maria Nagy, the Biddersingh family doctor. Sometime after Dwayne’s death Elaine took Melonie and infant Charmaine to see her. Everton remained in the waiting room when the three were seen by Dr. Nagy in the examination room. Elaine showed Dr. Nagy rope marks on Melonie’s body and told her Melonie’s deceased brother had inflicted the injuries. It was the only time that Dr. Nagy saw Melonie as a patient. She did not report the abuse because the family member who purportedly caused the injuries was dead.

[69] The accused is opposed to any of the evidence relating to Dwayne’s death being introduced as being highly prejudicial prior discreditable conduct with no relevance to the charges relating to Melonie’s death. In addition, the accused has cross applied for severance of the obstruct justice count on the indictment under s. 591.3 of the Criminal Code.

The Crown’s Position

[70] The Crown relies on R. v. B. (F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697 (S.C.C.) in support of its position that the evidence summarized above is relevant to an issue other than the accused’s character with a propensity to use violence. It is necessary to rebut a defence of innocent association and to demonstrate a system of violent control he exercised over the children and to explain why Melonie’s disappearance or death was not disclosed by Cleon and Elaine.

[71] In B. (F.F.), the accused was alleged to have sexually assaulted his niece, P.A.L. when she was approximately six years through to age sixteen. The accused, an uncle of the complainant cared for her and her siblings during the 50’s and early part of the 60’s, while their parents were absent frequently. The accused only left the family household in 1964 after being discovered in the act of intercourse with the complainant. In 1990, the complainant saw the accused in a store and decided then to report the alleged assaults to the police.

[72] During the trial, the judge decided on a voir dire not to admit evidence of the complainant’s sister D.M.L. that she had been sexually assaulted by the appellant as well on the ground that it fell within the similar fact evidence rule and its prejudicial effect was not outweighed by its probative value. However, testimony of the complainant’s brothers and sister was admitted as to the violent control the accused exerted within the household. Lamer C.J. in B. (F.F.) at para. 41 described the nature of the evidence provided by the siblings:

It is in the context of all this evidence, that we must consider the evidence of L.L. He gave evidence of being beaten, hung from the bannister by a rope, deprived of food, burned with cigarettes, walked outside in the winter wearing only shorts, tied up and locked in a small dark room, made to stand naked in the corner, of violent games played with knives and hammers. It should be noted that this evidence, as outrageous and unbelievable as it seems, was supported by the evidence of other witnesses. T.B. testified that the accused had burned the children with cigarettes and carved his initials on the children’s hands with razor blades. D.M.L. told of the violent games with knives and straps, of children locked in dark rooms, of standing naked in the corner. She told of the accused’s threatening to kill her if she spoke of these things. W.L. spoke of the violent environment, of the control exerted over the children by the appellant, of children hung on coat hooks by their belts, of scars on his arm where the appellant had carved his initials.

[73] The Court observed that there are two questions to be answered in considering the admissibility of the evidence: first, is the evidence relevant to some issue other than the appellant’s character, and second, does the probative value of the evidence outweigh its prejudicial effect? With respect to the first question, the Court observed that the evidence of L.L. and T.B. was relevant to several important issues on the trial and not tendered solely to show that the appellant was the sort of person to commit the offences charged. It went to rebutting the defence of innocent association, and to demonstrate the system of violent control that F.F.B. exercised over the family to explain why the abuse was allowed to occur and why the complainant was too frightened to disclose until much later. Also, in that instance it went to counter any suggestion that the mother of the children was responsible for the complainant’s physical injuries.

[74] As to the second question, the Court observed that “where the evidence sought to be adduced by the prosecution concerns “a morally repugnant act committed by the accused, the potential prejudice is great and the probative value of the evidence must be high indeed to permit its reception”.

[75] The Court concluded that it was clearly probative of those aspects of the case which the Crown wished to prove in response to issues raised by counsel for the appellant. However, the failure of the trial judge to properly instruct the jury as to the limited purpose for which the evidence could be made required a new trial

[76] Here, the Crown argues that the acts of violence committed by the appellant in B.(F.F.) relating to L.L. and T.B. and the fear he exerted over the children to control them was similar to the account given by Cleon and of Melonie as related by Cleon of the physical abuse she suffered and the fear they had of the accused.

Position of the Accused

1. Everton’s alleged abuse of Melonie

[77] Defence counsel submits that although alleged historical acts of abuse by the accused against Melonie fall under the prior discreditable conduct umbrella and are presumptively inadmissible it is conceded that such evidence commencing in 1991 at the time of her arrival in Canada is admissible as vital narrative with two exceptions: (1) the observation of injuries to Melonie in 1992 during the investigation into Dwayne’s death; (2) Cleon’s account and Melonie’s alleged hearsay utterance about the accused flushing the toilet when Melonie’s head was placed in the toilet bowl on the basis the Crown intends to utilize it for similar fact inference in their theory that the accused drowned Melonie.

2. Everton’s abuse of Dwayne and Cleon

[78] Counsel’s position is that any alleged abuse of Dwayne is inadmissible as overwhelmingly prejudicial.

[79] With respect to Cleon none of the physical abuse perpetrated against Cleon should be admitted as not having any relevance to the offences charged in relation to Melonie. However, the counsel concedes that Cleon may testify to “emotional abuse” as it is likely a matter that would be referenced in cross-examination. Further, Cleon may testify to the alleged food rationing he was subjected to, his emotional abuse in the home by way of the required DNA testing to prove Everton’s parentage, his having to use separate eating utensils, bathing area and being required to sleep on the floor. Counsel submits that Cleon’s evidence about Everton flushing his head in the toilet has no relevance.

3. Everton Threatening Cleon

[80] Defence Counsel concedes the admissibility of Cleon’s evidence that Everton told him if he misbehaved he knew people who knew “how to squeeze a rat”; that Cleon was introduced by Everton to “bad people” in the Jane and Finch area of Toronto and later in Jamaica; Everton told him that he knew people in Jamaica who knew where his family lived and that he had connections who could “just kick the door in and shoot everyone in the family”. Counsel concedes admissibility as the evidence relates directly to portions of Cleon’s testimony the defence intends to attack by a cross-examination to impugn his credibility by his failure to report Melonie’s disappearance, her abuse and his complicity and/or involvement in the abuse.

4. Everton and Cleon sold drugs

[81] Counsel submits that Cleon’s evidence about selling drugs for Everton is admissible for the limited purpose of narrative in order to explain Cleon’s daily activities and whereabouts. She does not agree that it is relevant to any material issue on the trial or that it be admitted as part of the Crown’s larger discreditable conduct theme that Everton allegedly utilized his children to “make money”.

5. Everton possessed a gun used to threaten Cleon

[82] The defence position is that evidence about Everton possessing a firearm is inadmissible as a single incident. In the absence of any threats it is not vital to the jury’s understanding of the relationship between Cleon and Everton. Moreover, the inherent prejudice of such evidence is obvious – gun ownership suggests a significant degree of criminality on the part of the accused without a nexus to any material issue with respect to the offences charged.

6. Everton abused Elaine

[83] A The Crown’s purpose to introducing the evidence of Elaine that Everton would regularly beat her is to assist the jury in “assessing the state of mind and credibility” of Elaine, as well as to establish the context and narrative of her relationship with Everton. Defence counsel concedes that Elaine may testify as to specific incidences of physical abuse insofar as it is necessary to provide context to the jury as to why she did not call the police and report Melonie’s death. The concession is based on an acknowledgement that Elaine’s credibility will be challenged and such evidence would be elicited in cross-examination. Specifically, counsel for the accused concedes the alleged acts of physical abuse that led Elaine to call police prior to Melonie’s death and specific acts of physical abuse in the time period Melonie was residing with Everton and Elaine from 1991 to 1994 are admissible. However, any alleged abuse said to have occurred after Melonie’s death such as her allegations of incidences that took place in Jamaica in 2008, such as being chased by Everton holding a machete, are not relevant to any material issue on the trial. Similarly, counsel does not concede that the Crown may lead evidence of alleged emotional abuse of Elaine by the accused.

7. Dr. Marie Nagy

[84] Counsel does not oppose the evidence of Dr. Maria Nagy about seeing Melonie following the death of her brother Dwayne.

8. Everton mistreated Clifton Allison in Jamaica and stole his travel documents.

[85] Counsel submits that the evidence relating to Clifton Allison involves a time post offence and is irrelevant to any material matter.

9. Dwayne’s death and Everton’s instruction to Melonie, Elaine and Cleon to lie about Melonie’s abusive injuries

[86] Counsel submits the details of Dwayne’s death are irrelevant to any material issue on this matter. Although the Crown can lead witnesses on the bare fact of Dwayne’s death as a chronological marker in the general narrative of events, the details alleging Everton planned to beat Dwayne immediately before he fell or jumped from the balcony and Everton’s subsequent direction to Melonie, Elaine and Cleon to lie as to the nature of Melonie’s injuries are matters which would only serve to distract the jury in consideration of the offences alleged and could lead to moral prejudice. Further, the obstruct justice count relating to the injuries observed on Melonie during the course of the investigation into Dwayne’s death should be severed.

Melonie’s Ante Mortem Statement

[87] The Crown seeks to introduce the following ante mortem statements made by Melonie to Cleon:

1. “I can’t take it anymore”.
2. “It better I dead, it better I go like Sabo”.
3. “Why don’t they send me home”.
4. She preferred to be dead, rather be dead than live this life.
5. She complained she was weak, her legs, foot and hip hurt.
6. She complained she couldn’t stand up holding Charmaine for long because her leg hurt.
7. She complained about her stomach as she couldn’t keep food down.
8. She told Cleon that Everton put her face in the toilet and flushed it. She would say water gets into her face sometimes.
9. She told Cleon that she didn’t like going into the closet, it was like punishment. She was not comfortable in the closet.
10. In 1992 when Everton beat her trying to find out where Dwayne was she yelled “I don’t know, I don’t know”.

Ante Mortem Statements

[88] Charron J. in R. v. Khelawan, 2006 SCC 57, [2006] 2 S.C.R. 787 described the functional approach for a trial judge to determine the admissibility of such hearsay statements. If it is tendered for the truth of its contents and there is no opportunity for contemporary cross-examination it is presumptively inadmissible. However, if the statement falls into a recognized exception, like state of mind, its admissible. If not, it may still be admissible if it is assessed to be both necessary and reliable. Notwithstanding, the trial judge still maintains a residual discretion to exclude the hearsay if its probative value is outweighed by its prejudicial effect.

[89] The defence concedes Melonie’s utterances made prior to her death, such as: “I can’t take it anymore”; “it better I dead” (with the omission of “like Sabo”) and her complaints about having to go into the closet, being in pain, and that her stomach hurt are admissible on the basis of the “state of mind” hearsay exception. However, Melonie’s utterances to Cleon about Everton putting her face down in the toilet and flushing it and that the “water gets into her face sometimes” does not fall into the state of mind hearsay exception and are inadmissible.

[90] Further, her alleged utterance, “I don’t know, I don’t know” while being beaten allegedly by the accused in 1992 in his effort to find out where Dwayne was is irrelevant and inadmissible. Lastly, defence counsel submits any of Dwayne’s alleged ante mortem utterances, such as “he gonna kill me” are inadmissible.

Assessment

[91] Let me deal first with the circumstances of Dwayne’s death in 1992. The Crown seeks to tender evidence of the investigation into his death to show that the accused caused Melonie’s injuries – that he was abusive of her, and obstructed justice by lying to the police and by directing others to lie to the police that Dwayne caused her injuries.

[92] The accused has applied for severance of the obstruct justice count on the indictment, which relates to the investigation into the death of Dwayne.

[93] Under s. 591(3) of the Criminal Code where the court is satisfied that the interests of justice so require may order the accused to be tried separately on one or more of the counts. The Crown’s position is that even if the obstruct justice count is severed it still seeks the admission of the prior discreditable conduct as evidence of a pattern of abusive conduct and animus of the accused toward Melonie, premised on the theory the accused would not be able to derive an income from Dwayne as a successful singer if he ran away or died.

[94] The accused bears the onus to show on a balance of probabilities that the interests of justice require severance. In R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, the Court at para. 18 set out a number of considerations in terms of whether severance should be granted:

1. The general prejudice to the accused;
2. The legal and factual nexus between the counts;
3. The complexity of the evidence;
4. Whether the accused intends to testify on one count and not another;
5. The possibility of inconsistent verdicts;
6. The desire to avoid a multiplicity of proceedings;
7. The use of similar fact evidence at trial;
8. The length of the trial having regard to the evidence to be called;
9. The potential prejudice to the accused with respect to the right to be tried within a reasonable time; and
10. The existence of antagonistic defences as between co-accused persons.

[95] On the obstruct justice count, the Crown would be asking the Court to find that the accused (1) lied to the police as to the circumstances leading to his son’s death, and (2) he directed the others including Melonie to do so as well. Further, the Crown claims the relevance to the aggravated assault and murder charge involving Melonie is he misled the police and directed others to say it was Dwayne because he caused the injuries to his daughter Melonie. Establishing that he caused serious injuries to Melonie on an earlier date and lied in the circumstances of his son’s death is relevant to whether he caused the later serious injuries to Melonie as discerned later on autopsy, 21 healing fractures.

[96] However, the difficulty is that the Crown has to prove that the accused was responsible for the injuries to be relevant to an issue in question. The only witness to Everton’s involvement with Melonie is Cleon who initially told D/S Ryan Melonie had not been beaten prior to Dwayne’s death. Later, Cleon’s description of Everton’s questioning of Melonie as to Dwayne’s whereabouts and the sounds he says he heard, involved her being pushed or banged against the wall. However, the injuries observed and noted by the officer were extensive. In her notes she describes them as being welts, scratches, bruising, abrasions and swelling all over her body. If Cleon’s evidence was accepted his description of the accused’s involvement with Melonie on that occasion does not appear consistent with the injuries noted by the officer.

[97] Further, the officer who noted the injuries understandably has no recollection of them 20 years later. No pictures were taken. Counsel for the accused notes that critical aspects of the injuries will never be known. The notes of the officer are insufficient to allow “for an educated and potentially expert guess about the age of the injuries”. What were the sizes of the welts, bruises, scratches? What could have caused the welts? Were all of the injuries at the same stage of healing? Defence counsel’s ability to cross-examine in the area is inhibited significantly by these deficiencies.

[98] In effect, he would be on trial for causing the injuries to his daughter in 1992. He is not charged with causing Melonie’s injuries on that occasion, or with Dwayne’s death. Yet, to determine whether he lied to the police or directed others to do so to protect himself, the jury would be drawn inextricably to consider those implications.

[99] In my view, the introduction of such evidence has great potential for moral prejudice. The jury would be more than likely inclined to hold him responsible for Melonie’s death on the improper basis that he is a bad parent who must have been responsible for Dwayne’s death, otherwise why would he have lied and directed others to lie in circumstances where the police were investigating his son’s death.

[100] Further, there is a great potential for reasoning prejudice causing the jury to lose focus with respect to the circumstances of Melonie’s death. The factual circumstances leading to Dwayne’s jump or fall from the balcony is not entirely clear. Indeed, the police reopened the investigation into Dwayne’s death in 2012. His body was exhumed and re-autopsied. It remains classified as a suicide.

[101] In the circumstances, the accused would be defending against alleged involvement in two deaths of his children. It would be more than just a distracting aside issue. Rather, in effect it would be asking the jury to try to determine whether the accused was responsible for an entirely separate fatality. In my view, any instruction to the jury in these circumstances would fail to prevent the prejudice that would inure to the accused.

[102] There is more than general prejudice to the accused in the circumstances to allow the obstruct justice count to remain on the indictment. It is obvious that the probative value of the evidence the Crown seeks to tender regarding the circumstances of Dwayne’s death is outweighed by its great prejudicial effect. The accused is not charged with the circumstances of Dwayne’s death. However, he would in effect be standing trial with respect to it.

[103] It is in the interest of justice that Count No. 4 obstruct justice be severed from the indictment due to the overwhelming prejudice it would cause the accused in defending himself against the counts involving Melonie’s death.

[104] Further, I am not satisfied that the probative value of the evidence the Crown seeks to tender as to the circumstances of Dwayne’s death outweighs the grave prejudicial effect and as a result the evidence is inadmissible on the trial involving circumstances of Melonie’s death.

[105] Having severed count No. 4 and directing that the evidence concerning Dwayne’s death is inadmissible, any ante mortem statements attributed to Dwayne are correspondingly inadmissible.

[106] Similarly, Dwayne’s ante mortem comment attributed to him by Ava Stewart and Cleon that “he’s going to kill me” in reference to Everton is inadmissible as a result of count No. 4 being severed and finding that the probative value of the evidence of the circumstances of his death are outweighed by the prejudicial value.

[107] The accused having conceded that the fact of Dwayne’s death is a chronological marker in the general narrative of events as provided by Cleon and Elaine Biddersingh, the Crown may lead the witnesses on the topic of his death to the extent that it forms part of the narrative.

[108] In terms of Cleon’s evidence, he may testify as to the alleged threats he received from Everton as well as the physical abuse he endured prior to Melonie’s death as relevant to the control exerted by Everton and why he failed to disclose Melonie’s disappearance. Further, Cleon may testify to the abuse he and Melonie endured physically, as well as the alleged food rationing and having their heads flushed in the toilet, as relevant to Everton’s abusive control of his children and his animus towards Melonie. The evidence of the accused’s alleged abuse of Melonie from the time of her arrival in Canada in 1991 through to the time of her death in 1994 is admissible as vital narrative. It includes Cleon’s observations as to what happened between Everton and Melonie in 1992 as he observed leading to the return of Dwayne to the apartment.

[109] Everton’s alleged physical abuse of Elaine is admissible to assist the jury in assessing her state of mind and credibility and to establish the context and narrative of her relationship with Everton. The accused has indicated that Elaine’s credibility will be challenged with respect to why she did not call police regarding the abuse to Melonie and her death. She may testify as to specific acts of abuse which formed the basis for her not having disclosed or reported Melonie’s death.

[110] The Crown may lead evidence that Everton used Cleon to sell drugs as part of the narrative to explain Cleon’s activities. The Crown’s theory that Everton used his children to earn income, and thereby as a foundation for his animus towards Melonie as having some role in Dwayne’s death is purely speculative. As such, the issue of selling drugs and Cleon’s involvement is not to be introduced as part of the theory Everton utilized his children “to make money”.

[111] Cleon’s evidence that Everton threatened him is admissible on the basis that counsel for the accused has declared his credibility will be attacked on cross-examination. That Everton possessed a gun is not admissible in that there is no indication within Cleon’s evidence as testified at the preliminary inquiry that he perceived it as a threat. It has no relevance to any of the offences charged or any issue in question, but is highly prejudicial.

[112] Based on Cleon’s testimony, there is some similarity with respect to the abuse Everton administered to both Cleon and Melonie. In terms of the physical abuse administered to Melonie, Cleon described Everton stomping her, kicking her in the stomach, kicking her in the head, punching and dragging her by the hair. He describes being kicked and beaten by Everton. There was food deprivation as a form of punishment. Both Melonie and Cleon at times were required to sleep on the floor. She would be locked in a closet. They were required to bathe and relieve themselves on the balcony. At times they were locked on the balcony for not telling the truth. Everton would hold their heads in the toilet and flush the water. Cleon described it happening to him and Everton saying “this is how cops find the truth”. The head flushing occurred when it was believed by Elaine and Everton that they were not telling the truth. Cleon testified that he never witnessed directly Melonie’s head being flushed in the toilet, although he heard her in the bathroom with Everton crying as the toilet was being flushing. She would exit the bathroom and her face would be wet. There is a similarity with respect to the alleged treatment and abuse administered to both youths. It is distinctive and particular in nature and relevant to Everton’s pattern of abusive and controlling behavior, the atmosphere of fear and animus toward Melonie. Cleon’s evidence as to his observations is admissible.

[113] With respect to Melonie’s ante mortem statements, the following are admissible on a state of mind hearsay exception: “I can’t take it anymore”; “It better I dead”, with the exception of “like Sabo”, the circumstances of his death being ruled inadmissible. Melonie’s statements that she did not like going into the closet and her complaints about being in pain and that her stomach hurt are admissible on the same basis as conceded by counsel for the accused.

[114] Cleon’s evidence that Melonie said Everton flushed her head in the toilet and that water sometimes got into her face is relevant to the Crown’s theory that Everton drowned her or drowning was a contributing cause in her weakened malnourished state. It was a manner of punishment and abuse that involved water, albeit water which was unlikely to have diatoms, which only occur in open fresh water exposed to sunlight. However, the Crown intends to advance the possibility of diatom transfer from exposed water on the balcony to the toilet, or she drowned in water on the balcony. Everton’s use of water as a form of punishment has relevance to the issue of animus for the deceased and possibly as to the identity of her killer.

[115] Melonie’s purported comments to Cleon with respect to Everton putting her face in the toilet and flushing it and that water “gets into her face sometimes” is admitted as part of the overall description of Cleon’s observations of Everton’s alleged abuse of conduct towards Melonie. Her utterance is admissible as a categorical hearsay exception as evidence of her state of mind.

[116] The alleged ante mortem statements in 1992 of Melonie, “I don’t know, I don’t know” when Everton was trying to find Dwayne is inadmissible as irrelevant to any issue in question.

[117] Any evidence relating to events in Jamaica following Melonie’s death, in particular the allegation that Everton stole Clifton Allison’s documents and mistreated him while he worked on his “coffee plantation” is irrelevant and not admissible

[118] The Accused not having disclosed a defence, as is his right, some of the evidence considered inadmissible may be revisited during the course of the trial, should it be required.

A.J. O’Marra J.

Released: October 15, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

EVERTON BIDDERSINGH

Respondent

REASONS FOR JUDGMENT

A.J. O’Marra J.

Released: October 15, 2015