Court File and Parties

Court File No.: CR-13-0035 Date: 2016-04-14

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen Ms. N. Stortini, for the Crown

- and -

Luigi Trinchi, Mr. D. Frost and Ms. R. Young, for the Defendant Accused

HEARD: November 26, 2015, in Thunder Bay, Ontario Mr. Justice J.S. Fregeau

WARNING

A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING UNDER S. 539(1) OF THE Criminal Code of Canada

Mid-Trial Ruling On Admissibility Of Third Party Suspect Evidence

Introduction

[1] The defendant is being tried on a seven count indictment. In very general terms, it is alleged that the defendant, following the termination of a romantic relationship with Ms. Kim Filipovic, created two fake email accounts in her name and then distributed seven fake emails purportedly authored by Ms. Filipovic.

[2] Attached to each of the emails were nude photographs of Ms. Filipovic which the Crown alleges the defendant surreptitiously obtained during Skype video sessions with Ms. Filipovic. The emails were sent to a long list of recipients, including Ms. Filipovic’s family, friends and professional colleagues and professional colleagues and social contacts of her current partner Mr. C. Mason.

[3] Among other witnesses, the Crown called Ms. Julia Morante, the ex-wife of the defendant, and Ms. Donna Bardy, a romantic partner of the defendant before, during and after the period of time in which the fake emails were sent. Disclosure relating to a 2010/2011 Toronto Police Services investigation of a harassment campaign against Ms. Morante, in which Ms. Bardy was a suspect, had previously been the subject of a successful third party records pre-trial application brought by the defendant.

[4] During the cross-examination of Ms. Morante, and before Ms. Bardy had testified for the Crown, the Crown objected to questions seeking to elicit evidence that Ms. Bardy was responsible for the harassment campaign against Ms. Morante and possibly responsible for the creation and distribution of the fake emails concerning Ms. Morante. At that point, I ruled that the evidence obtained during the cross-examinations of Ms. Morante and Ms. Bardy would be heard subject to a ruling on the admissibility of this third party suspect evidence.

[5] Subsequent to the evidence of Ms. Morante and Ms. Bardy being heard, the defendant applied for a ruling that this evidence was admissible on the trial proper. The Crown and defendant made submissions on the issue. I gave an oral decision in which I ruled that this evidence was properly admissible. At that time, I indicated that I would provide written reasons for that decision. My reasons for that decision follow.

Background

[6] The defendant and Ms. Morante resided at 43 Mancroft Crescent, Etobicoke, Ontario, while married. They separated in April 2011 and the defendant left the matrimonial home in June 2011. The defendant’s relationship with Ms. Filipovic began in March 2010. It was ended by Ms. Filipovic in September 2011. The defendant and Ms. Bardy met in 2009. They began an “on/off” intimate relationship in 2010 which continued at the time of this trial.

[7] Between the fall of 2010 and June of 2011, Ms. Morante was the victim of a harassment campaign including but not limited to emails, telephone calls and text messages. The intent of this harassment was to make Ms. Morante aware that the defendant was being unfaithful to her. Within the time frame of the harassment campaign, Ms. Morante received direct communication from Ms. Bardy, by letter and email, in which Ms. Bardy advised Ms. Morante that she was having an affair with the defendant.

[8] Ms. Morante reported the harassment to the Toronto Police Services and the matter was investigated. Ms. Bardy was a suspect in this investigation but was not charged. Ms. Morante testified that she assumed Ms. Bardy was responsible for the harassment. She also testified that it was obvious that whoever was responsible wanted her marriage to end.

[9] Ms. Bardy did not become aware of Ms. Filipovic’s relationship with the defendant until June 2011, at which time she saw Ms. Filipovic’s name on the defendant’s cell phone. Ms. Bardy attempted to investigate the call history on the defendant’s phone but could not do so because it was password protected. She was soon successful in by-passing the password and proceeded to install “Mobile Spy” on the phone. Mobile Spy is an application that is marketed for tracking cheating spouses. It allows a user to remotely learn everything a person is doing with a cell phone.

[10] Ms. Bardy also had open access to the defendant’s laptop computer in the summer of 2011. She proceeded to access the defendant’s Skype account and read the defendant’s Skype conversations with Ms. Filipovic. Ms. Bardy suspected that the defendant was involved in an intimate relationship with Ms. Filipovic. She confronted the defendant and he denied it.

[11] Ms. Bardy’s suspicions continued through the summer and into September 2011. In September 2011, Ms. Bardy’s “surveillance” of the defendant and his electronic devices provided her with confirmation that the defendant had gone to the Bahamas with Ms. Filipovic in September 2011. Ms. Bardy’s actions included secretly taping the defendant’s calls with Ms. Filipovic using a micro digital recorder and accessing a thumb drive of the defendant on which she found photographs of the two of them in the Bahamas.

[12] In the fall of 2011 and in January 2012, Ms. Bardy contacted Ms. Filipovic by email in an apparent attempt to determine the status of the defendant’s relationship with her.

The Governing Test

[13] The test for the admission of third party suspect evidence was explained in R. v. McMillan (1975), 7 O.R. (2d) 750 (Ont. C.A.) and affirmed in R. v. Grandinetti, 2005 SCC 5 (S.C.C.) at paras. 46 – 48:

46 Evidence of the potential involvement of a third party in the commission of an offence is admissible. In R. v. McMillan (1975), 7 O.R. (2d) 750 (C.A.), [1977] 2 S.C.R. 824, Martin J.A. stated the simple underlying premise to be:

[I]t [is] self‑evident that if A is charged with the murder of X, then A is entitled, by way of defence, to adduce evidence to prove that B, not A, murdered X. [p. 757]

However, as he explained, the evidence must be relevant and probative:

Evidence directed to prove that the crime was committed by a third person, rather than the accused, must, of course, meet the test of relevancy and must have sufficient probative value to justify its reception. Consequently, the Courts have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value. [p. 757]

47 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.

48 The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence: R. v. Fontaine, [2004] 1 S.C.R. 702, 2004 SCC 27 (S.C.C.), at para. 70. If there is an insufficient connection, the defence of third party involvement will lack the requisite air of reality: R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29 (S.C.C.).

[14] In R. v. Chungkuong, [2012] O.J. No. 3077, Boswell J. commented on the difference between evidential and persuasive burdens in the context of third party suspect evidence:

[17] It is important to recall the distinction between evidential and persuasive burdens, which was well canvassed by Fish J. in R. v. Fontaine, as above. “An ‘evidential burden’ is not a burden of proof. It determines whether an issue should be left to the trier of fact, while the ‘persuasive burden’ determines how the issue should be determined.” (Fontaine, para. 11).

[18] The accused has an evidential burden to meet before third party suspect evidence may be adduced. He must establish that the evidence is relevant and probative, by demonstrating a sufficient connection between the third party and the crime. He must show that there is some basis upon which a reasonable, properly instructed trier of fact could acquit based on the defence. This is not a persuasive burden, at least not at this stage. He need not establish that the defence is somewhat likely, likely, or very likely to succeed at the end of the day: R. v Cinous, as above, at para. 54. It is not necessary, therefore, that evidence pointed to by the accused be unequivocal, or that suggested inferences be the only available inferences. It is necessary only that the inferences be available and reasonable and not based on speculation: Grandinetti, as above.

The Position of the Defendant

[15] The defendant submits that the court must bear in mind three important principles in analyzing the defendant’s application to admit evidence of a third party suspect;

1. As it is a defence application, any prejudicial effect must substantially outweigh the probative value before the evidence is properly excluded;
2. Credibility is not in issue on the application; and,
3. The defence has to satisfy only an evidential, and not a persuasive, burden.

[16] The defendant submits that there is ample circumstantial evidence before the court to allow the court to draw reasonable inferences that Ms. Bardy may have been responsible for the fake emails sent out under Ms. Filipovic’s name. The defendant submits that there is evidence that Ms. Bardy had motive, opportunity and propensity to commit the subject offences.

[17] Addressing motive, the defendant submits that Ms. Bardy was in a long term relationship with the defendant during the period of time that the emails were sent out. The defendant further submits that Ms. Bardy had been aware of the defendant’s relationship with Ms. Filipovic since June 2011 when she saw Ms. Filipovic’s name on the defendant’s cell phone.

[18] The defendant submits that Ms. Bardy was upset upon learning of the defendant’s relationship with Ms. Filipovic and took various actions in the following months to investigate including;

• installing Mobile Spy on the defendant’s cell phone;
• accessing the defendant’s laptop and then his Skype conversations with Ms. Filipovic;
• secretly recording the defendant’s calls with Ms. Filipovic; and,
• sending emails directly to Ms. Filipovic in the fall of 2011 and January 2012 with photographs of the defendant and Ms. Filipovic in the Bahamas attached.

[19] The defendant submits that the evidence of Ms. Morante relating to the 2010/2011 harassment campaign against her is capable of supporting the inference that Ms. Bardy was responsible for it, regardless of the fact she was not charged. The defendant submits that the court can infer that Ms. Bardy has the propensity to interfere with and attempt to destroy the defendant’s relationships with other women. Having learned of the defendant’s apparent intimate relationship with Ms. Filipovic, the defendant submits that one can infer that Ms. Bardy was motivated to destroy it and to punish Ms. Filipovic.

[20] As to opportunity, the Crown concedes that there is some evidence that Ms. Bardy had the ability and opportunity to create fake email addresses and send the fake emails utilizing the Wi-Fi connection at 43 Mancroft Crescent.

[21] The defendant submits that Ms. Bardy also had the opportunity to access the photographs and attach them to the emails sent out under Ms. Filipovic’s name. The defendant submits that Ms. Bardy had free and open access to the defendant’s laptop and admitted accessing his Skype conversations. The defendant suggests that she would therefore have had access to photographs stored on that computer which could thereafter easily be attached to the emails.

[22] Finally, the defendant submits that Ms. Bardy has the propensity to commit these offences. Despite the fact that she was only a suspect in the harassment campaign of Ms. Morante, the defendant submits that a consideration of all evidence before the court allows one to infer that she was, in fact, responsible and that she engaged in this behavior to destroy the defendant’s marriage.

[23] The defendant submits that it is a reasonable inference to draw that Ms. Bardy acted in a similar fashion to irreparably destroy the defendant’s relationship with Ms. Filipovic.

[24] In all the circumstances, the defendant submits that they have met the evidential burden necessary to allow the admission of the evidence as to a third party suspect in these offences.

The Position of the Crown

[25] In responding to the defendant’s submissions as to possible evidence of Ms. Bardy’s motive in regard to the subject offences, and for the purposes of this application only, the Crown does not dispute that Ms. Bardy was in a long standing relationship with the defendant, that she had learned of the defendant’s relationship with Ms. Filipovic and that she was jealous of Ms. Filipovic.

[26] The Crown submits that there is evidence that Ms. Bardy became angry with the defendant but no evidence to suggest that she was angry toward Ms. Filipovic. The Crown also submits that there is no evidence that Ms. Bardy took steps to break up that relationship.

[27] The Crown acknowledges that Ms. Bardy proceeded to investigate and learn more about the defendant’s apparent relationship with Ms. Filipovic including their trip to the Bahamas in September 2011. The Crown disputes the defendant’s submission that Ms. Bardy remained upset about that relationship after the Bahamas trip and into the fall of 2011.

[28] In addressing the issue of Ms. Bardy’s propensity, the Crown submits that Ms. Bardy was merely a person of interest in the police investigation of the harassment of Ms. Morante. The Crown suggests that the defendant is asking this court to charge and convict Ms. Bardy of that behavior for the purposes of this application.

[29] The Crown quite correctly concedes that there is some basis for the defendant’s suggestion that Ms. Bardy may have had the opportunity to commit the subject offences. The Crown accepts that Ms. Bardy was capable of creating the fake email accounts in Ms. Filipovic’s name. It is not in dispute that she had access to the defendant’s laptop computer and cell phone. The Crown concedes that it is a reasonable inference that she therefore was able to access to the password protected Wi-Fi at 43 Mancroft Crescent because the defendant’s computer would have saved that password from when the defendant resided at that address.

[30] The Crown concedes that Ms. Bardy had both the ability and the opportunity to access the nude photographs of Ms. Filipovic from the defendant’s computer. The Crown also does not dispute that Ms. Bardy had the technical ability required to commit the offences.

[31] Returning to the issue of motive, the Crown submits that Ms. Bardy would have had no reason to hurt and destroy the reputations of Ms. Filipovic and Mr. Mason – the obvious intent of the fake emails – at the point in time when the emails were sent. The Crown submits that Ms. Filipovic’s relationship with the defendant ended in September 2011 and that Ms. Bardy had satisfied herself of this fact well before the end of November 2011. The Crown submits that Ms. Bardy therefore had no motive to target Ms. Filipovic and Mr. Mason in November and December of 2011.

Discussion

[32] Applying the test for the admission of third party suspect evidence to the disputed evidence of Ms. Morante and Ms. Bardy, I am satisfied that the defendant has satisfied the evidential burden on him on this application. The evidence is held to be admissible.

[33] The defendant is required to establish that the disputed evidence is relevant and probative by demonstrating a sufficient connection between the third party and the crime. Put another way, the defendant must satisfy me that there is some basis upon which a reasonable, properly instructed trier of fact could acquit based on the suggested defence. The evidence need not be unequivocal nor do the suggested inferences need to be the only available inferences. What is required is that the inferences be available and be reasonable and not speculative.

[34] In my opinion, there is sufficient evidence connecting Ms. Bardy to the subject offences, directly and inferentially, to justify the admissibility of the evidence brought forth during the cross-examinations of Ms. Morante and Ms. Bardy.

[35] In my opinion, this evidence reasonably supports an inference that Ms. Bardy had motive, propensity and opportunity to commit the offences the defendant is charged with. This evidence may or may not ultimately raise a reasonable doubt, but it is not speculative in nature. I find that it meets the requisite evidential burden for its admissibility.

___________ ”original signed by”_ ___ The Hon. Mr. Justice J.S. Fregeau

Released: April 14, 2016