ONTARIO SUPERIOR COURT OF JUSTICE

CR 14-127

HER MAJESTY THE QUEEN

• v. –

PAUL ALVES FARIA

RULING - THIRD PARTY SUSPECT APPLICATION

BEFORE THE HONOURABLE JUSTICE G. MULLIGAN

On AUGUST 5th, 2015 , at BARRIE, Ontario

APPEARANCES:

R. Williams

J. Janiuk Counsel for the Crown

C. Hanson

G. Dorsz Counsel for P. Faria

August 5th, 2015

Mulligan, J: (Orally)

Paul Alves Faria is charged with first degree murder in connection with the death of Victoria Doyle. The defence has brought a Third Party Suspect Application, seeking to lead third party suspect evidence that a jury ought to hear that Bradley Elliott may have committed the murder of Victoria Doyle. The defence called Bradley Elliott to give evidence in connection with this pre-trial motion. Mr. Elliott’s girlfriend at the time, Samantha Walton, was also called to give evidence.

The Crown opposed this application on the basis that presenting such evidence to the jury would be mere speculation and conjecture. The Crown submits that there is no evidence of any animus between Bradley Elliott and Ms. Doyle, or any motive to commit murder. Further, there was no nexus between Bradley Elliott and Ms. Doyle. Finally, there was no DNA or other evidence linking him to the scene of Ms. Doyle’s murder.

Evidence of Bradley Elliott

Bradley Elliott was 31 years of age when he gave his evidence and he relies on ODSP for his income. He has a learning disability and resides in Wasaga Beach. He acknowledged his lengthy criminal record which began in youth court. He is facing current charges, including failure to appear and obstructing justice. His previous convictions consist of assaults, robbery and drug charges, including trafficking.

He acknowledged using drugs, including using cocaine and crack cocaine. He denied being a drug dealer and denied selling drugs, but he acknowledged that he acted as a middle man, sometimes putting together people who wanted drugs with people who had drugs for sale. He acknowledged that he knew Victoria Doyle’s two sons, and had used drugs with them. He denied knowing Victoria Doyle in any other capacity than as the mother of his friends. He denied ever visiting her home. He was aware of her cocaine use; this was information he received from his friends, Victoria Doyle’s sons.

On New Year’s Eve of December 2012, Mr. Elliott was residing at his uncle’s house in Wasaga Beach, but would often visit with his girlfriend, Samantha Walton. Samantha resided near a woman with whom Mr. Elliott had had a previous relationship. They had a child. His relationship with that woman was often difficult. Mr Elliott did not have a car. He used taxis as his mode of transportation. The home of Victoria Doyle was about a 15 minute drive from his uncle’s residence. He denied visiting Victoria Doyle’s home that night or at any time, but he knew where she lived.

Mr. Elliott was examined and cross-examined about various accounts he gave to the police regarding his knowledge of Mr. Faria’s involvement in the death of Victoria Doyle. Mr. Elliott was originally interviewed by the police, along with a number of other individuals. About two weeks later, at a time when Mr. Faria was already under arrest, Mr. Elliott went to the police station, accompanying his girlfriend who was brought in for questioning regarding an unrelated matter. At that time, he further discussed Mr. Faria’s involvement with this incident. At this voir dire hearing, he denied having any direct knowledge regarding a confession by Paul Faria. He indicated he was talking about third-hand information, suggesting that Mr. Faria may have confessed to some other third party. When he spoke to the police, he knew about the wine bottle, and that Ms. Doyle was strangled, but he said that this was information that was widely disseminated in the Wasaga Beach community.

On the night in question, he testified that he left his uncle’s house and spent time at the house of Samantha Walton. Just prior to his arrival, he may have visited the mother of his child who lived nearby. That relationship often devolved into arguments. He spent the night at Samantha’s house, but gave evidence that at some time during the night he returned to his uncle’s house to shower and change. He had spilled beer on his clothing and wanted to clean up. He had a basement apartment at his uncle’s house. He returned to Samantha Walton’s house. She was sleeping. He knew that she was not feeling well. He slept on the couch.

Samantha Walton gave evidence that on New Year’s Eve, she was at home with her children having dinner. Mr. Elliott arrived around 9:30 p.m. He had had some sort of an argument with the mother of this child. Ms. Walton did not feel that Mr. Elliott was a drug dealer, but she acknowledged he helped people obtain drugs. She had a strict rule that he was not allowed to bring any drugs into her home, and she often checked his pockets for drugs, because she washed his clothes. When she woke up the next morning around 10:00 a.m., she noted that Mr. Elliott was upstairs in the bedroom. She was sick and went to the hospital. He may have told her that he left during the night to go to his apartment at his uncle’s house and came back.

In addition to cross-examining Mr. Elliott and Ms. Watson, the Crown provided an affidavit from Brad Deakos, a Detective Constable with the O.P.P. Officer Deakos conducted inquiries with respect to any telephone calls and text messages that may have been sent between Mr. Elliott and Ms. Doyle. As he stated in paragraph 11 of his affidavit, “Attached hereto as Exhibit D is a list of contacts recovered from the cell phone (handset of Vicky Doyle). Bradley Elliott is not one of the 44 contacts contained therein.” Officer Deakos searched Bradley Elliott’s cell phone call records and text records. He concluded at paragraph 17, “In summary, I was unable to locate evidence of any communication either cellular or SMS (text) between Victoria Doyle and Bradley Elliott.”

Officer Deakos also conducted a search of taxicab records and concluded at paragraph 37, “Further, based on the information contained in the taxi records, I am able to confirm that there were no rides to any address on Kohl Street on December 31, 2012, and there was one drop-off on Kohl Street on January 1, 2013 at 3:50 pm. emanating from 201 Ste. Marie Street which is when I know Ryan McTaggart was residing with his girlfriend on that date, and where Justin McTaggart spent New Year’s Eve.

Legal Principles

Both the Crown and defence acknowledge the third party suspect principles that emerge from the Supreme Court of Canada’a decision in R. v. Grandinetti. Speaking for the court, Abella J. set out the following principles for consideration on such applications at paragraphs 46-48:

Evidence of the potential involvement of a third party in the commission of an offence is admissible. …the evidence must be relevant and probative.

The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable based on the evidence, and not amount to speculation.

The defence must show that there is a basis upon which a reasonable, properly instructed jury could acquit based on the defence. If there is an insufficient connection, the defence of third party involvement will lack the requisite air of reality.

Justice Abella confirmed the legal test as follows at paragraph 49:

“The cases establish that an accused may adduce evidence tending to show that a third person committed the offence. The disposition of a third person to commit the offence is probative and admissible provided that there is other evidence tending to connect the third person with the commission of the offence.”

In R. v. Tahrankari, the Court of Appeal applied that test to the circumstances before it. As Weiler J.A. stated for the court at paragraph 36:

Evidence of a violent disposition or animus toward the deceased, standing alone, will not meet the required threshold. However, if there is evidence that the third person had a motive to commit the crime or threaten the deceased and had the opportunity to carry out the crime, then the evidence of propensity may have probative value.

Applying these principles to the case before it, the court found that the nexus between the third party and the deceased was speculative that there was no inference that could be drawn connecting the third party to the murder, that the evidence regarding the third party suspects was not probative and therefore not reliable, and that the evidence of motive was weak.

In reviewing the principles relating to opportunity, Justice Watt said the following in R . Tomlinson, 2014 ONCA 158 at paragraph 61. “Evidence of opportunity may be circumstantial, but the inferences must be reasonable, not conjecture or speculative.”

In its submissions, the defence made reference to the recent Supreme Court of Canada decision, R. v. Grant. Although that decision dealt with an unknown third party suspect, the court made these overarching comments at paragraph 40:

“However, these significant prejudicial effects must nonetheless be evaluated in accordance with the fundamental principles governing criminal proceedings. In giving constitutional protection to the accused’s rights to make full answer and defence, and to be presumed innocent until proven guilty, we must accept a certain amount of complexity, length, and distraction from the Crown’s case as necessary concession to the actualization of those rights.

In R. v. Scotland, Trafford J. acknowledged that the threshold for introduction of such evidence was not high, but he cautioned that it could not be based on speculation or conjecture. He stated at paragraph 11:

“It is important to recognize that this threshold is not intended to be a high one. Any evidence, direct or circumstantial, linking the third party suspect to the crime is sufficient. The evidence must be admissible. The evidential link, where it is based upon circumstantial evidence, must be based upon reasonable inferences and not speculation or conjecture.”

In allowing evidence of a third party suspect in R. v. Allan Wayne Powney, Justice Thompson stated at paragraph 22:

“There is some evidence of a small window of opportunity, which together with the evidence of possible motive, is sufficient to permit the defence to adduce evidence in support of its theory that Lynn Janssen is a suspect in her husband’s murder.”

Conclusion

There is no doubt that, generally speaking, evidence of a third party suspect is admissible provided that it is relevant and probative. Mr. Elliott has a criminal record. He is a person involved in the use of drugs, including cocaine and crack cocaine. He may have had a window of opportunity to travel from Samantha Walton’s residence in the middle of the night while she was sleeping to attend at Victoria Doyle’s residence. However, in my view, the theory is mere speculation when the following facts are considered. There was no DNA or other evidence linking him to the crime scene. There was no evidence of any animus or previous threats between Mr. Elliott and Ms. Doyle. Extensive checks of cell phone and text records show no contact between them. He did not have a vehicle, and there was no evidence of any cab rides from his location to Ms. Doyle’s residence. Ms. Doyle was a known user of crack cocaine, and a crack pipe was found by her body, but there was no evidence that Mr. Elliott supplied her with drugs, or that she was somehow indebted to Mr. Elliott.

When all the evidence is considered, I am satisfied that the prejudicial effect of the third party suspect evidence outweighs any potential probative value. The proposed evidence lacks an air of reality, and would be a distraction to the jury if such evidence was introduced in this case.

So the defence application is dismissed.

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Cathy Knelsen, certify that this document is a true and accurate transcript of the recording of R. v. Faria in the Superior Court of Justice, held at 75 Mulcaster Street, Barrie, Ontario, taken from Recording No. 3811-015-20150805 which have been certified in Form 1.

October 23rd, 2015

Cathy Knelsen C.C.R.