ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 015/15

DATE: 20151019

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

Mathew Hayes
Applicant

Serge Hamel and Sharon Tysick, counsel for the Crown

James Harbic, counsel for the Applicant

HEARD: October 13, 2015, in Haileybury, Ontario

RULING ON “Innocence at Stake” Application

Gauthier J.:

Overview:

[1] Mathew Hayes (“Hayes”) seeks an Order that the Crown be compelled to disclose a Crimestopper’s tip relating to the homicide for which Hayes has been charged with First Degree Murder.

[2] The Crown opposes the request.

The Facts:

[3] The facts are not in dispute. They are correctly set out in the Applicant’s Factum, and I have reproduced them.

On June 3, 2013, Christopher Parsons, the victim, was working a shift at the Stinson’s Gas station in Haileybury. Parsons’ roommate, Laura Heavens, had been at the residence she shared with Parsons with Caitlin Willard and Mathew Hayes, whom she was helping move with the use of Parsons’ vehicle.

Ms. Heavens, Ms. Willard and the Applicant waited at the residence that evening until Mr. Parsons arrived home from work. Ms. Heavens told the Applicant that Parsons’ bank card had his pin number written on the back. Upon finishing work, Mr. Parsons entered the Scotiabank in Haileybury and checked his bank balance, before driving Ms. Heavens, Ms. Willard and Mr. Hayes to the Mikes One Stop gas station and convenience store.

Afterwards, Ms. Heavens was dropped off at the residence of Rene Dumais, when she spent the night and Mr. Parsons continued to the town of Cobalt where he dropped off Mr. Hayes and Ms. Willard at the Silverland Motel.

At roughly 11:00 p.m., Mr. Parsons then drove to the residence of Bruce Woods in Haileybury to pick up Savannah Polson and Lee Anna Fortier. Upon doing so, they returned to his residence. Ms. Polson and Ms. Fortier, who were teenage girls felt uncomfortable and asked to be driven to the residence of Jacob Evans. Mr. Parsons attempted to persuade them to stay, offering them drugs in return for their company, which they declined. At approximately 11:30 p.m., Ms. Fortier and Ms. Polson were dropped off at the Evans residence.

Around midnight, Shaylee Beaulieu contacted Mr. Parsons and asked for a ride from New Liskeard to Cobalt. Subsequently Mr. Parsons picked up Ms. Beaulieu around 12:47 a.m., and drove her to the Silverland Motel in Cobalt before returning back to Haileybury.

At approximately 5:22 a.m., on June 4, 2013, a man resembling the Applicant left the Silverland Motel in Cobalt and began walking in the direction towards Haileybury. The same man soon after appears in video from Mikes One Stop at roughly 5:37 a.m., and purchases a beverage before leaving off camera.

At approximately 5:53 a.m., a call was made from Mr. Parsons’ phone to the phone of Shaylee Beaulieu’s brother’s cell phone. The call was not answered and went to voicemail.

At approximately 6:17 a.m., a male wearing the same clothing as previously observed outside the Silverland Motel and Mikes One Stop enters the Haileybury Scotiabank, located in close proximity to the Parsons residence. While covering his face, the male proceeds to withdraw $160.00 from Mr. Parsons’ account, before exiting.

At approximately 6:41 a.m., the same male appears at Mikes One Stop and purchases cigarettes and a beverage before leaving the store.

At approximately 7:30-7:45 a.m., Mr. Dumais dropped Laura Heavens off at the Parsons residence in Haileybury, who located Mr. Parsons in the bedroom deceased and naked lying face down. Several items were strewn all over the room and there was a large amount of blood splatter surrounding the body, on the walls and ceiling.

On June 7th, 2013, the Applicant and Willard went to Kirkland Lake to pick up drugs. During an argument Ms. Willard states that the Applicant admitted to killing Mr. Parsons with a hammer and a knife.

On July 10th, 2014, the Applicant was arrested for the first degree murder of Christopher Parsons.

On July 16, 2014, a pathology report was prepared by Dr. Queen. He noted massive damage to Parsons’ facial bones, skull and brain resulting from at least 7 impacts with a hard blunt object involving severe to extreme force. There was also a sharp force incisional wound across the front of the neck which did not involve vital structures. There were injuries consistent with defensive wounds on Parsons’ fingertips.

[4] In February, 2015, the Crown was advised that the police had received a Crimestopper’s tip relating to the homicide in question.

[5] The tip had been submitted via “webtip”: an anonymous person submitted the tip in writing online. The tip was then provided to “Near North Crimestoppers Inc.”, which, in turn, provided the tip to the Temiskaming Ontario Provincial Police.

[6] On March 11, 2015, the Crown advised Hayes’s counsel, by way of letter, that the tip had been received, that the tip suggested that someone other than Hayes was responsible for the murder of Parsons, that the tip suggested a motive for the commission of the murder, and, that the Crown did not intend on disclosing the actual wording of the tip as it could divulge the identity of the tipster. The Crown further suggested that the “Innocence At Stake” exception to the Rule regarding Informer Privilege might be applicable in this case.

[7] Neither the police nor the Crown is aware of the identity of the tipster.

Issues:

[8] The issues are:

A. The extent of the Informer Privilege;

B. The nature of the “Innocence At Stake” exception;

C. Timing of the Application; and

D. Whether the exception is applicable in this case.

A. Informer Privilege

[9] Informer privilege prevents not only disclosure of the name of the informant, but of any information which might implicitly reveal his or her identity. Courts have acknowledged that the smallest details may be sufficient to reveal identity. In R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1460, Sopinka J. suggested that trial judges, when editing a wiretap packet, consider:

…whether the identities of confidential police informants, and consequently their lives and safety, may be compromised, bearing in mind that such disclosure may occur as much by reference to the nature of the information supplied by the confidential source as by the publication of his or her name.

R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281 para. 18.

[10] Informer privilege is so important that it cannot be balanced against other interests, nor is there any discretion in the police, the Crown, or the court to abridge it. See Leipert, para. 14. And see Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, para. 3.

[11] There is no issue in this case that the Informer Privilege attaches to the Crimestopper’s Tip received in February, 2015, in connection with the killing of Christopher Parsons.

B. Innocence At Stake

[12] In order to trigger the Innocence At Stake exception to Informer Privilege, the onus is on an accused person to establish that there is

…a basis on the evidence for concluding that disclosure of the informer’s identity is necessary to demonstrate the innocence of the accused.

See Leipert, para.21

[13] The accused must satisfy the two part threshold test:

(a) The information sought to be disclosed is not available from any other source; and

(b) The accused is unable to raise a reasonable doubt about his/her guilt by any other means.

See R. v. Brown, 2001 SCC 14, [2001] S.C.J. No. 13, para. 29.

[14] The Crown, at paragraph 22 of its Factum, has correctly paraphrased the above requirement as follows:

…the defence must show that disclosure of the tip and thus possibly the identity of the tipster is the only way to raise a reasonable doubt as to the Applicant’s guilt.

[15] Put another way, the threshold determination is whether the information is available from another source and whether the accused is otherwise unable to raise a reasonable doubt. See R. v. Klymchuk, [2006] O.J. No. 4168, at para. 15.

[16] The disclosure of confidential information that could tend to identify the source of the information is rarely granted on the basis of this exception.

[17] The stringency of the threshold test for the applicability of the “innocence at stake” test is described in Major J.’s reasons in R. v. Brown. As well, the nature of the test and the circumstances in which it will be met have been described in paragraph 19 of R. v. Klymchuk. I have not included all the descriptors:

• In rare circumstances;
• A rare exception and used as a last resort;
• Should be treated as an extraordinary measure;
• Successful applications will be difficult and likely rare;
• Extremely exceptional circumstances;
• Is an exception to one of our most stringent evidentiary rules.

[18] If the threshold test is met, and, if the timing of the application is suitable, then the accused must successfully complete the following two-stage process:

Stage 1: The accused must provide an evidentiary basis to conclude that the tip contains information that could raise a reasonable doubt as to the accused’s guilt.

Stage 2: If such an evidentiary basis exists, the privileged information should be examined by the judge to determine whether, in fact, it is likely to raise a reasonable doubt.

[19] Disclosure of the privileged information should not be ordered to corroborate or support evidence the accused otherwise has. See R. v. Brown, 2002 SCC 32, [2002] S.C.J. No. 35.

[20] If it is determined that the information is likely to raise a reasonable doubt and that disclosure is necessary as the accused has made out that his innocence is at stake, then the court should conduct an in camera proceeding to determine what essential information should be revealed to allow proof of innocence. R. v. Leipert; R. v. Brown.

C. Timing of the Application

[21] The Crown suggests that it is generally preferable to delay the “Innocence At Stake” application until the end of the Crown’s case, given the difficulty in assessing the ability of the defence to raise a reasonable doubt in some other way.

[22] It is the Crown’s submission that it is premature, at this stage of the proceedings, to predict the outcome of certain evidence, or, to assume that the defence will not be able to raise a reasonable doubt without the privileged information.

[23] For his part, the Applicant points out that the offence was committed more than two years ago, the trial date is still more than one year away, and, already, one of the witnesses is no longer available, having died in an automobile accident. He stresses that the persons connected to both himself and to Christopher Parsons live “on the edge” and it may be difficult to ensure their attendance at the trial.

[24] The Applicant points out as well that, to delay the Application until the close of the Crown’s case would likely result in significant disruption to the conduct of the jury trial.

D. Analysis

[25] I begin the analysis of this case by indicating that I will not dismiss the Application as being premature, nor will I postpone the hearing of the Application until the trial has begun and the Crown has called its case.

[26] I have the information necessary to evaluate the accused’s Application and will proceed to do so.

[27] The Applicant is the only person who has been charged with the homicide of Christopher Parsons. The case against him is a circumstantial one. The Applicant, for purposes of the within Application, characterizes the Crown’s case as a “strong, compelling circumstantial case.”

[28] The Crown’s evidence includes a videotape showing a person matching the Applicant’s description using the deceased’s bank card at an ATM located near the deceased’s residence, in the hours within which the homicide is said to have been committed.

[29] In addition to the above evidence, the Crown has the statement of Caitlin Willard (the accused’s girlfriend at the time of the homicide) to the effect that the accused admitted having killed Christopher Parsons with a knife and a hammer. This statement was given by Willard shortly before the Preliminary Hearing, and followed two earlier statements which exculpated the Applicant. The Crown concedes that the strength of that alleged confession will be a live issue at the trial.

[30] The Crown’s evidence does not include any scientific evidence, i.e. DNA evidence. No DNA of the Applicant was found on the person of Christopher Parsons, nor in his residence. Likewise, no DNA of Christopher Parsons was found on the Applicant, nor on any of his clothing or possessions.

[31] In addition to the lack of scientific evidence, there is no evidence of a weapon, nor any eye witness evidence. This lack of evidence could give rise to a reasonable doubt.

[32] It is and will be the defence theory that someone other than the Applicant killed Christopher Parsons.

[33] There has been much talk about persons other than the Applicant being responsible for the death of Christopher Parsons, for a host of reasons, most of which are related to drugs and/or money.

[34] Mr. Harbic for the Applicant prepared a six page précis of (a) information about an alternate suspect and (b) the source of that information.

[35] Much of the information points to the following persons as possibly being responsible for the killing of Christopher Parsons: (a) Laura Heavens; (b) R.J. Busch; (c) Savannah Polson; (d) Chantal Bujold; and (e) Tessa Mercier. Much of the information is inadmissible hearsay.

[36] I will not go through each item of information listed in the six page précis, but will highlight some of the more pertinent items.

[37] A. Information implicating Laura Heavens:

i. Mark Bearisto would say that Christopher Parsons was helping Heavens pay off a debt she owed to two people;

ii. Lee-Ann Fortier was with Savannah Polson when Parsons texted Polson saying that Heavens had stolen his car on the day before the murder;

iii. Peter Plante would say that he was told by Rene Dumas that Heavens found a wallet on Parsons when she found him dead in his apartment. The wallet had money in it. (Apparently, the wallet was subsequently never located).

iv. Steve Belanger observed Heavens when she entered the restaurant to call 911 after having discovered Christopher Parson’s body. She appeared calm, did not seem upset whatsoever, and appeared to be at the establishment primarily to buy cigarettes, not report a murder. As well, Heavens was insistent about retrieving a bag of hers from the Parsons residence.

[38] B. Information implicating R.J. Busch:

i. Kelly Loach would say that Busch was bragging around town that he had killed Parsons and he tied it to Heavens and Tessa Mercier;

ii. Carole Kennedy would say that Heavens was dating Busch, a scary looking guy who was jealous of Heavens hanging around Parsons;

iii. Carole Guilbeault would say that Tessa Mercier went to Parson’s residence to get away from Busch. Busch showed up and struck Parsons in the head;

iv. Maxine Bonney would say that she received information from Tessa Mercier that Mercier and Busch killed Parsons over drugs.

[39] According to the Applicant, he will be unable to find a way to get any of this (and some other) information before the jury, given its nature and character as inadmissible hearsay.

[40] The accused’s submission is that, without disclosure of the Crimestopper’s tip, he will be unable to raise an alternate suspect defence.

[41] The Crown disagrees and responds that, indeed, the defence will likely be able to get this information before the court. The Crown will be calling Heavens as a witness as she is the person who first found Christopher Parsons and reported his death. Defence can then cross-examine Heavens about her dealings with Parsons, her getting money from him, and using his bank card. Heavens could be asked about Parsons’s involvement with Social Services and how that resulted in Heavens’ benefits being terminated. If she denies such involvement, then the defence can call the witnesses who say she told them otherwise, as well as the officials from Social Services.

[42] As well, defence could ask the court to call Busch as a witness to permit cross-examination of this person regarding his involvement with Parsons and possibly with Parsons’ death.

[43] In addition to the information reviewed in the précis, the Applicant’s Factum sets out, at paragraphs 31 to 37, certain facts that could provide an evidentiary basis for bringing an application for the admission of evidence of an alternate suspect (or suspects). Such evidence may raise a reasonable doubt about the guilt of the Applicant.

[44] As the Applicant points out in his Factum, all of the above information supports the plausibility of a person or persons other than the Applicant being responsible for the killing of Christopher Parsons.

[45] Evidence of a third party suspect will be permitted at trial provided the evidence in question sufficiently ties the third party suspect to the crime. R. v. McMillan (1975), 1975 43 (ON CA), 23 C.C.C. (2d) 160 (Ont. C.A.), aff’d, (1977), 1977 19 (SCC), 33 C.C.C. (2d) 360 (S.C.C.).

[46] The connection between the alternate suspect and the offence need not be established by direct evidence, but may be inferential; the inferences must be reasonable and not amount to speculation. R. v. Grandinetti (2005), 2005 SCC 5, 191 C.C.C. (3d) 449.

[47] The issue of the admissibility of alternate suspect evidence is not before me, however, I note that the Applicant himself suggests that there is an evidentiary basis for the admissibility of alternate suspect evidence, which, in turn, is capable of raising a reasonable doubt. If that is the case, then, it is inaccurate to say that, without the privileged information, the Applicant is unable to raise a reasonable doubt about his guilt.

[48] The Applicant has therefore failed to meet the threshold test to trigger the “Innocence at Stake” exception to Informer Privilege and the Application fails.

The Honourable Madam Justice Louise L. Gauthier

Released: October 19, 2015

COURT FILE NO.: 015/15

DATE: 20151019

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

Mathew Hayes

RULING ON “Innocence at Stake” Application

Gauthier J.

Released: October 19, 2015