COURT FILE NO.: CR-12-2328
DATE: 20151013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Tatum, for the Crown
Respondent
- and -
J.B.
Applicant
R. Allman, for the Applicant
ENDORSEMENT
(ALTERNATE SUSPECT MOTION)[^1]
COROZA J.
THE ALLEGATIONS
[1] J.B. is charged with a number of indecent assaults. I am currently trying him on a five count indictment alleging a number of indecent assaults committed in the 1970s.
[2] S.L. is the complainant. Quite broadly, her allegations relate to an incident in Orangeville at the residence of S.L. (Count One); at a residence in Palgrave (Counts Two, Four and Five); and an incident after a dog show in a station wagon (Count Three).
[3] S.L. claims that she was sexually assaulted by the accused during these incidents.
[4] S.L. was born in 1965. According to her allegation, she would have been as young as six and as old as 12 at the time of the alleged sexual assaults.
[5] J.B. was born in 1940. He would have been as young as 31 and as old as 37 years old at the time of the alleged sexual assaults.
[6] In the 1970s, S.L.’s family and J.B.’s family were friends. They would attend social gatherings together.
[7] S.L. disclosed her allegations to the police over 40 years later. J.B. was charged in 2013.
NATURE OF THE APPLICATION
[8] J.B. seeks to introduce evidence that someone else committed these crimes. J.B.’s daughters, L.A. and H.B. have also come forward with sexual assault allegations in the 1970s. They allege that they were sexually assaulted by their first cousin, K.M.. They submit that he was living at the Palgrave residence at the relevant time.
[9] L.A. was born in 1965 and H.B. was born in 1970. They were young girls in the 1970s. L.A. would have been as young as six and as old as ten at the time of the sexual assaults. H.B. would have been as young as nine and as old as 11.
[10] K.M. would have been a teenager at the time of the sexual assaults. K.M. is the oldest son of G.M. and E.M.. He would have been as young as 12 and as old as 17 with respect to the alleged sexual assaults. He would have been between 12 to 18 years old during the period of the sexual assaults in the indictment.
[11] K.M’s family owned and lived at the Palgrave residence. J.B.’s family lived at the Palgrave residence for a period of time in the 1970s while they were building their own house in Tottenham.
POSITION OF THE PARTIES
[12] J.B. argues that K.M. is likely the true culprit of these crimes.
[13] Mr. Tatum, on behalf of the Crown, argues that evidence of K.M. as the culprit is irrelevant to the case at bar. The Crown submits that even if such evidence is relevant, the prejudicial effect of admitting it outweighs any potential probative value.
THE LAW
[14] The law is not in dispute. Evidence that points to a third party as a party to the offences is generally admissible provided it is (1) relevant; and (2) sufficiently probative to justify its admission.[^2]
[15] However, an accused may not simply seek to deflect attention from the evidence against him by pointing the finger at other possible suspects. Rather, a trial judge must balance the right to make full answer and defence with the need to ensure that a trial does not spiral into a “trial within a trial”. A confusing “trial within a trial” has the potential to distort the Court’s truth seeking process.
[16] To avoid distorting a trial’s truth seeking process, the Supreme Court of Canada and our Court of Appeal have held that a trial judge should be disinclined to admit alternate suspect evidence as being probative unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value.
[17] In R. v. Grant, 2015 SCC 9 the Supreme Court of Canada held that a trial judge must apply “the air of reality test” to alternate suspect evidence. The air of reality test requires me to take the proposed evidence at its greatest strength, and to determine whether the record would contain a sufficient factual foundation for a properly instructed jury to give effect to the defence.
[18] The Supreme Court also held in R. v. Cairney 2013 SCC 55 and R. v. Pappas 2013 SCC 56 that the “air of reality” test is not intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of trial.
[19] Nor, does the alternate suspect evidence have to be direct. Evidence connecting the third party to the crime charged may be circumstantial.
[20] However, if the evidence is circumstantial, the inferences must be reasonable. In R. v. Luciano, 2011 ONCA 89 Justice Watt made the following holding at para. 242:
Individual items of circumstantial evidence often give rise to competing or different inferences. That they do so is at once the very essence of circumstantial evidence and does not mean that they are or can be written off as irrelevant. To require that the inference for which the evidence is offered be the only inference available from the evidence would pose a standard of conclusiveness that very few items of circumstantial evidence could meet. Such a requirement confuses weight with relevance. Provided the inference advanced is one that is reasonably available on the evidence, the proponent has established that the evidence is relevant.
ANALYSIS
[21] J.B. must highlight evidence on the record that is reasonably capable of supporting the inferences required for the defence to succeed.
[22] J.B. must satisfy me that there is sufficient connection between K.M. and the crimes. This is essential. Without it, the evidence is neither relevant nor probative. The connection must be based on the evidence and must not amount to speculation.
[23] In assessing the record, I must also stress that that all witnesses are relating events that took place 40 years ago. None of the witnesses on this application could remember precise details as to dates and times of the sexual assaults. S.L., for instance, at her preliminary hearing, struggled to identify specific dates and times. I must keep this context in mind.
[24] It would seem to me that the defence is arguing that S. L.’s identification is flawed and that her memory will be a live issue at this trial.
[25] The defence argument appears to be that S.L.’s allegations were not brought out until November 2012 - only after her memory was triggered by her sessions with a clinical psychologist.
[26] The Crown argues that the defence submission is not accurate. There is evidence of S.L., when she was 18 years old, disclosing to her mother that she suffered abuse by the accused.
[27] I find the defence argument to be more properly characterized as a challenge to S.L.’s account due to the fact that she delayed disclosing the abuse to the police until after she had put “the pieces together” with the help of a clinical psychologist.[^3]
[28] My sense of S.L.’s evidence[^4] is that she sought help for issues relating to her life and that her psychologist told her to bring up the bad memories in order to push them aside and move on with her life.
[29] If the defence’s position is to challenge to S.L.’s memories, then I find that evidence demonstrating that K.M. sexually assaulted L.A. and H.B. around the same time period and in the same locations to be both relevant and probative.
[30] I do not have to be satisfied beyond a reasonable doubt that K.M. did, in fact, assault L.A. and H.B. at the Palgrave residence. J.B. simply has to introduce that K.M. is sufficiently connected to these offences.
[31] I am of the view that there is an air of reality to the alternate suspect evidence and it is admissible. I conclude that the defence has established a sufficient connection to each of the counts in the indictment.
COUNT ONE
[32] According to S.L., this sexual assault took place in her home where she was with L.A. at the time. On this application, L.A. recalled an incident when K.M. came into the room where she and S.L. were sleeping. However, in cross-examination she conceded that she could not recall or did not know where and when this occurred, the time of day of the sexual assault and was a poor historian regarding this incident.
[33] I acknowledge there are some issues with L.A.’s memory. Nonetheless, for the purpose of this application, I conclude that she remained unshaK.M. in her evidence. She was confident that there was a time where she was in a room with S.L. where K.M. came in. I am satisfied that there is an air of reality to the alternate suspect defence on this count.
COUNTS TWO, FOUR AND FIVE (PALGRAVE COUNTS)
[34] S.L. has brought forward allegations that she suffered from sexual abuse in the home in Palgrave. L.A. and H.B. have also brought forward allegations about abuse in the home in Palgrave.
[35] I acknowledge that there are discrepancies and dissimilarities between the allegations of all three women. However, none of these women disputed that this was K.M’s home. Whether or not there is specific evidence that K.M. was physically present during the allegations made by S.L. is a factor to take into account. Again, the defence is going to mount a challenge as to S.L.’s memory.
[36] When I consider that there is evidence that K.M. is connected to this Palgrave house and that this is the home that L.A. and H.B. say they were also assaulted as young girls, I am satisfied that there is an air of reality to the alternate suspect defence on this count.
COUNT THREE
[37] S.L. has alleged that the accused sexually assaulted her in a tan station wagon after a dog show. According to S.L., the accused drove the station wagon. The Crown argues forcefully that there is no evidence that K.M. was connected to this dog show or station wagon in any way.
[38] L.A. testified that the accused did not drive a tan station wagon and that the family owned a blue car at the time of the sexual assault. However, there is evidence from H.B. that she believes her family had a tan station wagon at the time.
[39] However, when I consider that there is evidence from L.A. that K.M. did attend dog shows as a junior handler and that the MacDonald family had a brown station wagon, I am satisfied that there is an air of reality to the defence on this count.
[40] In my view, when I assess this record, I do not find the proposed defence evidence to be speculative. Evidence connecting K.M. in this case is primarily circumstantial. The evidence is inferential, and I am satisfied that the inferences are reasonable.
PROBATIVE VALUE AND PREJUDICIAL EFFECT
[41] I have considered the Crown’s argument that, in order to ensure a fair trial, I should exclude this evidence on the basis that its prejudicial effect exceeds its probative value.
[42] The Crown’s argument is really premised on the fact that evidence may operate unfairly in this case because it would tend to inhibit accurate fact finding. I am mindful that a fair trial is a trial that appears fair from both the perspectives of the accused and the perspective of the community.
[43] I am not persuaded by the Crown’s submission for two reasons.
[44] First, this is not a jury trial. I find that admitting L.A.’s and H.B.’s evidence will not result in a distortion of the allegations by S.L. or overwhelm me to the extent that I cannot focus on the offences in the indictment. I am confident that I can keep the big picture in mind with full knowledge that this is a case where the Crown must prove the specific counts on the indictment. I am also mindful of my role as a gatekeeper of the evidence and that I must ensure that counsel are relatively focussed in the presentation of their evidence.
[45] Second, I do not think the introduction of L.A.’S or H.B.’s evidence will complicate the narrative of this trial. It seems to me that the allegations of all three women appear to overlap and flow from the same narrative. J.B.’s family socialized with the S.L’s family. However, J.B.’s family lived with K.M’s family and S.L’s family socialized with both families. The evidence of all three women relates to the same time period. I am satisfied that there is a temporal and factual nexus between the allegations and the events as disclosed by L.A., H.B. and S.L.
[46] I conclude that the probative value outweighs any prejudicial effect and that the evidence is admissible.
CONCLUSION
[47] The application is granted.
Coroza J.
Released: October 13, 2015
COURT FILE NO.: CR-12-2328
DATE: 20151013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
J.B. Applicant
ENDORSEMENT
(ALTERNATE SUSPECT MOTION)
Coroza J.
Released: October 13, 2015
[^1]: On October 6, 2015, I released a brief oral ruling on the application. I told counsel that I may release further written reasons at a later date. These are my written reasons.
[^2]: R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27 and R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 23 CCC (2d) 160.
[^3]: Mr. Allman filed an original factum which I have reviewed as part of the record. Ultimately, the defence position appears to be that complainant ought not to be believed because of the unreliability of her memory. This is set out in paragraph 10 of Mr. Allman’s factum.
[^4]: On consent, I have reviewed the preliminary hearing evidence of the complainant, S.L..