Her Majesty the Queen v. Paul Alves Faria, 2015 ONSC 76651

CR 14-127

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• v. –

PAUL ALVES FARIA

RULING - EVIDENCE OF PRIOR DISCREDITABLE CONDUCT

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)

The Crown is proceeding on an indictment for first degree murder against Paul Faria. The Crown submits that the murder was planned and deliberate, or was caused while the respondent was committing or attempting to commit criminal harassment. The Crown seeks to call evidence with respect to Mr. Faria’s previous relationships with Joanne Marks, a former spouse, and Patricia Shibley, a former common law spouse. The Crown submits that Mr. Faria’s relationships with these women were marked by jealousy, controlling behaviour, harassing behaviour and violence. The Crown further submits that this evidence of prior discreditable conduct will assist the trier of fact with respect to the following issues:

(a) the existence of motive/animus, and thus by inference circumstantial evidence of identity and intent:

(b) the constituent elements of first degree murder - that Victoria Doyle’s murder was planned and deliberate and/or that her death was caused while the respondent was committing or attempting to commit the offence of criminal harassment.

(c) to rebut a defence of alternate suspect;

(d) to rebut a defence of provocation; and

(e) to rebut a defence of unlawful act of manslaughter.

The respondent objects to this evidence on the following grounds:

(a) it is not relevant. It relates to incidents of domestic relationships unrelated to the relationship with the deceased;

(b) the proposed evidence is not relevant with respect to proving motive or animus;

(c) the identity of the assailant is at issue in this trial. The proposed evidence does not rise to the level of “striking similarity required to assist the trier of fact is determining identity”;

(d) the jury will be distracted from the role of determining guilt on the charge before this court, resulting in a high likelihood of “reasoning prejudice”;

(e) the nature of the proposed evidence is likely to lead the jury towards “moral prejudice”;

(f) the proposed evidence is not cogent and sufficiently similar to the factual circumstances in the case before the court; and

(g) on a final balance, the proposed evidence as a whole, is more prejudicial than probative, it should be deemed inadmissible.

Before considering the principles applicable here, I will briefly summarize the evidence of Joanne Marks and Patricia Shibley given on this voir dire.

Joanne Marks

Joanne Marks is 43 years of age. She met Mr. Faria when she was 16 or 17 years of age, working at a coffee shop. He was about 24 years of age at the time. They became friendly, started dating, and shortly thereafter, she moved into an apartment with him. In 1992, they got married. They have a son Jesse. She worked during their relationship. Mr. Faria worked as a seasonal worker and was off at home in winter months. She expressed that the relationship became negative because of his controlling behaviour. There was no trust in the relationship. He listened to her phone conversations and limited her ability to go out of the house, except to go to work.

When Ms. Marks was 25, she decided to end the relationship. She wanted something better for herself. Her son was three years of age. She wasn’t necessarily fearful; there had been no violence in the relationship. However, her evidence was that when the relationship ended, he threw a shoe at the back of her head. She went to her parents’ home to live and then moved to her own apartment nearby. Mr. Faria’s harassment escalated after they separated. She indicated that he would follow her home from work and she had to arrange for special security. She installed a camera in her apartment. He tried to communicate with her, often daily. He sat in his car outside her workplace. He followed her. He made threatening comment to her. In spite of her consistent message to him that “it’s over, leave me alone”, he continued to harass her. She wasn’t expecting this behaviour after their separation and it went on for several years.

As to violence in their relationship, Ms Marks spoke of one incident where she was driving home from work with her child. Mr. Faria followed her. She pulled into a gas station for safety. In her words, “he jumped in, attempted to get the keys from the car and strangled me”. She thought that he would kill her right there. The incident ended when she kicked him off her and she travelled to her parents’ apartment. The police were called and Mr. Faria was subsequently arrested. She told the court that the attack left marks on her neck.

Ms. Marks contacted the police on many other occasions to report harassing behaviour.

She indicated to the court that there had been no particular difficulties with Mr. Faria in the last five years.

Patricia Shibley

Patricia Shibley is 61 years of age. She has a daughter, Jessica, now 23, who has cerebral palsy. As a result of a lawsuit stemming from the delivery of her daughter and the cerebral palsy diagnosis, her daughter received a large award in 2002. This enabled them to move to Wasaga Beach and buy a house. She lived there as a single parent with her daughter.

Shortly after she moved to Wasaga Beach, she met Mr. Faria at a recreational facility, Rounds Ranch. She was there with her daughter and Mr. Faria was there with his son, Jesse. At that time Jessica was about 11 and Jesse was about 10. The children immediately hit it off and Ms. Shibley and Mr. Faria agreed to meet again and took the children to Blue Mountain. Although she didn’t feel any particular attraction to Mr. Faria, she thought that the relationship between her daughter and Jesse was good. Her daughter did not have many friends. She valued Mr. Faria’s interaction with the children and thought it was beneficial. They continued to see each other with the children, and the relationship progressed. Initially, he was not violent. He was respectful and he was protective of her. Eventually, her feelings toward him changed. She fell in love with Mr. Faria and he moved into her house. Prior to that, he was living in a trailer nearby. She assisted him financially. He promised to pay her back and did so eventually when he sold his trailer. He moved in with her in October of 2004. Jesse lived with his mother elsewhere and Ms. Shibley would occasionally drive her car to pick him up. Her evidence was that Mr. Faria did not have a car at that time.

Eventually their relationship turned negative. The first incident Ms. Shibley described was Mr. Faria striking her on the back of her head when she was in the bathroom. She was knocked down. Prior to that, she was in the backyard with Mr. Faria and a few of his friends. Her view was that he was jealous of her interactions with his friends, and struck her on the back of the head as a result. There had been no warning. They had not argued and she was shocked. But she did not do anything because she said, “I was in love with him.”

There were many times in their stormy relationship when she ordered him out of the house and he would stay away for several days; she eventually forgave him and allowed him to move back in. Her daughter sometimes called Mr. Faria “dad”. She hoped that she could change him. They never married, but he presented her with rings. She wouldn’t consider marriage until Jessica was over 18. She put the rings on and it looked like they were married.

Mr. Faria’s verbal abuse continued and he accused her of sleeping with other men. Mr. Faria had a friend named Grant. He became suspicious of Ms. Shibley’s relationship with Grand and things continued to get worse. He called her names, including a “slut” and a “whore”. She recalled a time when he punched her in the stomach and pulled her hair. She indicated at this hearing that a social services worker told her that if there was continual violence in the home, her daughter would be taken away from her. This became a paramount concern for her as to whether or not she would report his behaviour to the police.

Ms. Shibley indicated that Mr. Faria was a user of cocaine and this affected their relationship. He would often wake up her in the middle of the night and demand sex, threatening that he would kill her if she did not comply. Her evidence was that “he gets what he wants.”.

One particular incident stands out. Mr. Faria and Ms. Shibley were arguing at her residence. She did not wish to give Mr. Faria the car keys. She ran across the beach to the water and he chased her. They were fully clothed. She said he put her in a headlock, punched her and put her head under water. The essence of her evidence was corroborated by an independent witness who gave evidence at the voir dire. He was on the beach with his family, saw the chase across the beach into the water and two fully clothed individuals. When he witnessed the violence by the man against the woman, ran into the water to intervene.

As a result of this incident, the police attended at the residence but Ms. Shibley, at that point, was not cooperative. Nevertheless, Mr. Faria was arrested.

Ms. Shibley was highly emotional when giving her evidence. At times, she was weepy and distraught. Breaks had to be taken to allow her to compose herself. She presented as a battered spouse trapped in a relationship who fearf for her safety. As she told the court:

“He would sleep outside my house, pass by my house, stay beside my house. He knew every - he knew - he would drive around my house and make sure it’s - he said - “If I ever see a vehicle in your driveway” he would bash into it. He would - he told me if I was with a man, he told me how he would kill him and kill me.”

Ms. Shibley’s evidence was that this harassing post separation conduct continued until Mr. Faria was arrested on the charges before the court.

Ms. Shibley acknowledged that she spoke to Joanne Marks, Mr. Faria’s first spouse on the telephone. Although she knew of her, she did not have much contact with her originally because she accepted Mr. Faria’s evidence that Joanne Marks was a bad person. Her evidence was that Joanne Marks advised her that she should get out of the relationship, but that she did not tell her much more than that. Joanne Marks gave evidence that Ms. Shibley called her and asked her advice about what to do. She gave her some advice, including contacting the police and getting a restraining order. She felt the conversation was awkward, but she wanted Ms. Shibley to be safe. She did not provide much other detailed advice.

The Crown introduced Mr. Faria’s criminal record on the voir dire. The record indicates convictions for assault and other offences relating to his former spouses. The Crown acknowledges that it will not seek to introduce this criminal record should these witnesses be called, nor will the Crown ask any questions about police involvement with respect to their relationship with Mr. Faria.

Mr. Faria gave evidence at the voir dire. He did not deny his criminal record, but described himself as having old fashioned values as to what he expected in a relationship with a woman. He did not recall throwing a shoe at Joanne Marks, but he did acknowledge following her from time to time because of the difficulties they were having with respect to access to his son. He denied choking her at the gas station but did agree that here was a struggle and he grabbed her seatbelt. He was attempting to pull his son out of the vehicle.

He described the water incident with Ms. Shibley as horseplay. They were struggling for keys, but he did not punch her. He acknowledged that he probably put her head under water, but he was not trying to drown her. He said that the police came and they swarmed him and pepper-sprayed him. His evidence was that he had not contacted Ms. Shibley since 2011. In cross-examination he denied that he was jealous, but simply old fashioned. He felt that when people are in a relationship, cheating would be contrary to his views of a relationship. He said that he broke up with Ms. Marks because she was flirting with a fellow employee. He did not deny listening on the phone.

The Law

The similar fact evidence sought to be introduced by the Crown relates to Mr. Faria’s relationships with two previous spouses. Those relationships were marked by jealousy, and controlling and abusive behaviour. Allegations of assault and criminal harassment led to several convictions against Mr. Faria. The principles surrounding a trial judge’s discretion as to whether or not to admit similar fact evidence have been well developed in a series of Supreme Court of Canada decisions, including R. v. B.(C.R.), R. v. Arp and R. v. Handy The applicant and respondent do not dispute the principles and approach outlined in Handy. After reviewing previous judicial authorities, the court stated at para 55:

“Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities, that in the context of the participate case, the probative value of the evidence in relation to a particular issue outweighs its potential prejudice, and thereby justifies its reception.”

The Ontario Court of Appeal recently reviewed those principles in R. v. Johnson 2010 ONCA 646, [2010] O.J. No. 4153. The accused was convicted of second degree murder. The trial judge allowed evidence of similar facts. One incident related to an attempted assault. The second incident related to an actual assault.

Justice Rouleau reviewed the principles underlying similar fact evidence at paras. 81-87:

The fundamental rule that underpins the law of evidence in Canada in that all evidence that is logically probative to some material issue at trial is relevant, and therefore admissible unless excluded by some particular rule of law.

However, evidence that is relevant may still be inadmissible if it is subject to a specific exclusionary rule. Underlying many particular exclusionary rules is the broad principle that where the prejudicial effect of admitting otherwise relevant evidence would exceed its probative value, it is inadmissible.

The bad character evidence rule is an example of an exclusionary rule that rests upon this general principle. Evidence of the accused’s bad character cannot be adduced simply to show that the accused is the sort of person likely to commit the offence charged. While this evidence might arguably be relevant, it is inherently prejudicial when used in this fashion.

One particularly prejudicial form of bad character evidence is evidence that establishes past criminal conduct on the part of the accused that does not form the basis of the charges before the court. This type of past misconduct evidence has been identified as raising two forms of prejudice that will generally outweigh any probative value that might exist in the evidence itself. They are commonly referred to as moral prejudice and reasoning prejudice.

Moral prejudice refers to the possibility that a jury, presented with evidence of uncharged misconduct, might choose to convict an accused person for the crimes charges, not because they are satisfied beyond a reasonable doubt that the charges have been proven, but as a substitute punishment for the uncharged misconduct. Even where a jury does not follow this explicit line of reasoning, they might still convict based on a belief that the accused is generally the kind of person likely to commit crimes, rather than on the basis of any particular evidence showing the accused to have committed the specific crime charged.

Reasoning prejudice, on the other hand, refers to the distracting nature of past misconduct evidence. Rather than focusing the trial on the question of whether the charges have been proven by the Crown, past misconduct evidence risks distracting a jury with evidence of other criminal conduct.

Evidence that tends to prove the commission of uncharged criminal acts will normally appear much like the evidence adduced to provide the commission of charged criminal conduct. Excessive court time devoted to proof of extraneous criminal conduct might well distract the jury from their ultimate task of considering whether the crimes that have actually been charge by the Crown have been proven beyond a reasonable doubt.

In R. v. R.K., Justice Forestell considered the principles in Handy and other cases in determining whether similar fact evidence was admissible in a case involving an accused and his domestic partner. As Justice Forestell stated at para. 44:

The Court of Appeal for Ontario in R. v. L.B.; R. v. M.A.G. set out the approach to the admissibility of similar fact evidence. A trial judge must consider the following:

i. Is the conduct which forms the subject matter of the proposed evidence that of the accused?

ii. If so, is the proposed evidence relevant and material?

iii. If relevant and material, is the proposed evidence discreditable to the accused?

iv. If discreditable, does its probative value outweigh its prejudicial effect?

When considering the probative value and prejudicial effect of similar fact evidence, the Supreme Court of Canada in Handy at para 82 suggested the following non-exhaustive factors for consideration:

(i) proximity and time of the similar acts;

(ii) extent to which the other acts are similar in detail to the charged conduct;

(iii) the number of occurrences of the similar acts;

(iv) circumstances surrounding or relating to the similar acts;

(v) any distinctive features unifying incidents;

(vi) intervening acts; and

(vii) any other factor that would tend to support or rebut the underlying unity of the similar acts

The Supreme Court cautioned at para 58-59:

“Propensity evidence by any other name is still propensity evidence. It is occasionally suggested that once the similar fact evidence is related to an issue other than “mere” propensity of “general” disposition, it somehow ceases to be propensity evidence. I do not think this is true.”

In Handy, the previous similar acts were said to be more serious than the charged conduct. As the court noted at para. 124 in connection with a previous choking incident:

“I think an incident so remote from the charge could do nothing but blacken the respondent’s character in a general way. Conduct that is so dissimilar or equivocal does not raise an inference capable of overcoming the prejudice.”

On the other hand, in Johnson, the similar fact allegations were less serious than the charged conduct. As the court stated at para. 129:

“Although the incidents that formed the basis of the similar fact application were far less serious than the offence charged, a risk of moral prejudice nonetheless arose as both incidents evidenced bad character and reprehensible conduct. The Black Shack Road incident [attempted assault] showed the appellant to be a person who seeks to inflict serious injury without any provocation or cause. The White Truck incident [assault] was worse. It demonstrated an actual attack that had gone entirely unpunished. Presented with this evidence, a fair-minded juror might well conclude that the appellant was simply a bad person.”

Collusion

The Crown acknowledges that these two witnesses spoke to each other during a time when Ms. Shibley was having difficulty with Mr. Faria. This was well before his relationship with Ms. Doyle and the charge before the court. The defence submits that although it does not argue that there was collusion, there is a suggestion of tainting. In my view, the difference between collusion and tainting is a distinction without a difference. Mr. Faria’s criminal record amply corroborates their evidence. Tainting is not a concern in circumstances such as this where the acts described by previous spouses resulted in charges and convictions against Mr. Faria. There is no evidence that they spoke after those earlier discussions, or that they spoke to each other at any time after Mr. Faria was charged with first degree murder prior to this voir dire.

The Principles Applied

Proximity and Time and the Similar Acts

The relationship between Mr. Faria and Ms. Marks began over 20 years ago. She terminated the relationship but his harassing behaviour continued for several years. That behaviour and an assault led to charges and convictions against Mr. Faria. Her evidence on the voir dire is that there have been no difficulties whatsoever over the last five years.

Ms. Shibley’s relationship with Mr. Faria began in 2005. He eventually moved into her residence. However, their common law relationship broke down. His criminally harassing behaviour continued, and he was charged and convicted of an assault. Her evidence was that this behaviour continued until he was arrested on the charges before the court.

There is a disconnect with respect to the proximity of the similar acts, especially with respect to Mr. Faria’s activity with Ms. Marks.

Extent to Which the Other acts are Similar to Detail to the Charged Conduct

The charged conduct is first degree murder. In order to support a finding of first degree murder, the jury, after considering other elements of the offence, must determine that Mr. Faria’s conduct amounted to criminal harassment. The similar acts contain elements of criminal harassment and assault, but needless to say, the underlying offences were far less serious than the charged conduct.

Number of Occurrences of the Similar Act

Although there were only two former spouses, they gave evidence at the voir dire about numerous acts of criminal harassment and assault over a period of years.

Circumstances Surrounding or Relating to the Similar Acts

The similar acts arose from Mr. Faria’s domestic relationships. The first was his marriage to Ms. Marks. The second was his common law relationship with Ms. Shibley. Both of these relationships lasted for several years. His relationship with Ms. Doyle lasted four months. Although he was not residing with her, their relationship had many of the hallmarks of a domestic relationship. They were dating regularly, he stayed overnight, and they spent time together socializing.

Any Distinctive Features Unifying the Incidents

All of the previous incidents involved criminal harassment and assault. Those distinctive features were evident in his relationship with Ms. Marks and Ms. Shibley. Needless to say, the end result of those relationships was not the death of those previous spouses.

Intervening Events

There were no significant intervening events other than the passage of time as Mr. Faria moved from one relationship to the next.

Any Other Factor Which Would Tend to Support or Rebut the Underlying Unity of the Similar Acts

The most significant factor is the end result of these relationships with respect to the charge of first degree murder of Ms. Doyle. The end results with respect to his relationships with Ms. Marks and Ms. Shibley were criminal charges and convictions for assault and criminal harassment.

In my view, the Crown is in a catch-22 with respect to these similar acts involving Ms. Marks and Ms. Shibley. The Crown has undertaken not to introduce Mr. Faria’s criminal record or have these two witnesses talk about police intervention. This leads to the prospect that the jury may find this to be uncharged conduct for which the accused ought to be punished. This is the sort of moral prejudice that Handy cautions to avoid. At the same time, reasoning prejudice would come into play if these individuals give evidence.

There would be undue distraction of time as the jury hears their evidence as it unfolds, and later attempts to apply that evidence to the charged conduct.

The Elements of the Offence of First Degree Murder

Recall that the elements of first degree murder in a case such as this can be described in five questions for a jury:

(i) did the accused cause the death of the victim?

(ii) did the accused cause the death of the victim unlawfully?

(iii) did the accused have the state of mind required for murder?

(iv) was the accused’s murder of the victim planned and deliberate?

(v) did the accused murder the victim while committing or attempting to commit criminal harassment, intending the person murdered to fear for her safety?

The jury is not required to consider the criminal harassment aspect of this count until it is satisfied on the first three elements. It would constitute moral prejudice for the jury to use evidence of similar facts improperly to determine that the accused caused the death of the victim because of his propensity for assault and criminal harassment with respect to previous spouses.

Conclusion

I am satisfied that when weighing the probative value of the similar acts against their prejudicial effect, this evidence ought not to be introduced to the jury. The charged conduct, first degree murder, is much more serious than the prior similar acts, assault and criminal harassment. The previous conduct was with different spouses so that evidence is of no benefit with respect to the unfolding events in the relationship with Ms. Doyle. At least some of the previous acts are not proximate in time to the charge before the court. The similar acts involving previous spouses have no bearing on any animus between Mr. Faria and Ms. Doyle. Taken at its highest, the similar acts indicate that Mr. Faria has a propensity for violence and criminal harassment with respect to prior domestic partners.

Therefore the Crown 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 and as reviewed by the court.

October 23rd, 2015

Cathy Knelsen C.C.R.