ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 15-10000564-0000
DATE: 20151016
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 16, 2015
RULING
PRIOR DISCREDITABLE CONDUCT AND ANTE-MORTEM STATEMENTS
ADDENDUM
a.j. o’marra j.
[1] Following my ruling on the use of prior discreditable conduct evidence and ante-mortem statements the Crown seeks direction on the evidence that could be lead from Dr. Maria Nagy, family physician, that Everton and Elaine Biddersingh brought Melonie and infant Charmaine to see her sometime after Dwayne Biddersingh’s death on June 15, 1992.
[2] Dr. Nagy testified on the preliminary hearing about seeing Mrs. Biddersingh and two children, an infant and a young girl without benefit of any patient documentation, it having been purged many years before. She recalled the father of the children waiting outside in the waiting room of her office.
[3] The specific evidence the Crown seeks to elicit is captured in her testimony given at the preliminary inquiry, November 1, 2013 at page 10:
But I vividly remember the visit when she came with a girl and a baby. How long after that was, I don’t know. And the reason why she came was to tell me that these three children arrived with her husband and her husband told her that he wanted to give them a good life, and however, there is trouble ever since because the eldest, the boy, has very unruly behaviour. And as confirmation of it, she brought the girl and showed me the rope marks on her body, which were according to her, due to her being tied up by her brother. And before we could have gotten further she said, and just another thing about that brother one day, the whole family was together and he ran across the room to the balcony and jumped.
[4] Dr. Nagy indicated she had never seen “rope marks” before. She saw them on the girl’s upper torso. In the preliminary inquiry on November 2, 2013 at page 11 she indicated that she did not examine the girl further, and did not make any report of child abuse because, according to what Mrs. Biddersingh told her the boy who did it died.
[5] In substance, Dr. Nagy saw rope marks on Melonie and Elaine said that they were caused by the boy who jumped from the balcony, Dwayne.
[6] On the prior discreditable conduct application I ruled that the prejudicial effect of evidence relating to the circumstances of Dwayne’s death greatly outweighed any probative value and as a result was inadmissible. In considering the obstruct justice count on the indictment and the prior discreditable conduct evidence, I observed the following:
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.
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.
[7] The same concerns regarding the record of Melonie’s injuries noted by the officer during Dwayne Biddersingh’s death investigation apply equally, if not with more force concerning Dr. Nagy’s evidence. She has no notation or documentation at all. The inability of the accused to cross-examine is even more greatly impeded.
[8] The Crown submits that the injuries suffered by Melonie, the “rope marks” observed by Dr. Nagy are part of the pattern of abusive conduct, and unlawful confinement. The Crown, of course must establish that the accused is responsible for those injuries for it to have relevance to an issue in question. Clearly, Melonie had injuries as observed by Dr. Nagy, but how are those observations linked in time to 1992? Elaine’s statement to her that they were caused by the boy who jumped from the balcony. How is the evidence then linked to Everton? Elaine’s evidence that she lied at the direction of Everton. To link Everton to those injuries in 1992 involves evidence of the circumstances of Dwayne’s death, and the same prejudice as stated in my ruling at paras. 98-99:
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.
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.
[9] The Crown now submits that the relevance of the evidence as to the injuries is that it relates to the allegations of Count No. 2 on the indictment, aggravated assault, as falling within the time frame alleged, January 25, 1991 to September 1, 1994. It is a scenario that was not raised in argument during the prior discreditable conduct application. It is difficult to contemplate evidence of Dr. Nagy seeing “rope marks” sometime in 1992 without more as satisfying the element of the offence of wounding, maiming, disfigurement or endangerment of life, unlike 21 healing ante-mortem fractures seen on autopsy in 1994. The evidentiary route to establishing Everton as being responsible for the “rope marks” is through the evidence of Elaine’s lie at Everton’s direction in the context of the police investigation into the circumstances of Dwayne’s death.
[10] The Crown further submits the statement attributable to Elaine that the boy who did it jumped off the balcony, a lie she will acknowledge was told at the direction of Everton is relevant to their failure as parents to report the abuse or allow it to be reported by Dr. Nagy. To admit that evidence still requires an explanation as to why the lie was told – Everton told her to do so in the context of the police investigation into the circumstances of Dwayne’s death.
[11] The evidence leads inexorably to the question, why would the accused tell Elaine to lie about who caused Melonie’s injuries in the circumstances of their son jumping off a balcony, which in turn leads to prohibited propensity reasoning: he was involved in Dwayne’s death, therefore likely responsible for Melonie’s death.
[12] I agree with the submission of defence counsel that the Crown is trying to re-litigate the admissibility of inadmissible evidence through another witness – Dr. Nagy. Its probative value is outweighed by its prejudicial effect and as a result not admissible.
A.J. O’Marra J.
Released: October 16, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
EVERTON BIDDERSINGH
Respondent
REASONS FOR JUDGMENT
A.J. O’Marra J.
Released: October 16, 2015