Court File and Parties
OSHAWA COURT FILE NO.: OCJF 13746/14 DATE: 20160429 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – COLE HENDERSON
Counsel: Jinwon Kim, for the Crown Dennis Lenzin, for Mr. Henderson
HEARD: April 25 and 26, 2016
Ruling on the Admissibility of Evidence
Bird J.:
Background
[1] In the early morning hours of February 28, 2014, Richard Morrison was stabbed to death in his basement bedroom while his mother and brother lay sleeping upstairs. Both the accused and the deceased were involved with illegal drugs. Mr. Morrison bought marijuana from Mr. Henderson. The Crown alleges that Cole Henderson committed first degree murder because he believed that Mr. Morrison stole his safes containing drugs and money three days earlier. Mr. Henderson was the victim of a break and enter. However, he was wrong about the identity of the thief. It was his former girlfriend and not Mr. Morrison who broke into his home. But according to two of Mr. Henderson’s friends, the accused was fixated on Mr. Morrison and wanted to confront him about the theft.
[2] The investigation led the police to focus on Mr. Henderson quite quickly and they attended at his home within hours of the homicide. When officers were at the deceased’s home they saw tread prints from motocross boots leading to and from the door of the walkout basement. Officers saw the same type of boot prints in the snow leading to the front door of Mr. Henderson’s home that morning.
[3] The police obtained a search warrant for Mr. Henderson’s home, which they executed on the evening of February 28, 2014. A pair of motocross boots with treads that appeared to match those in the snow at the deceased’s home was seized. Forensic DNA analysis later revealed that the deceased’s blood was located on one of these boots.
[4] The police also seized a desktop computer from the home. An examination of this computer showed that several internet searches had been conducted on the morning of February 27, 2014 including “how to attach a katana to your back”, “how to attach a katana to your belt” and “how to attach a tanto to your belt”. A katana is a type of sword, often referred to as a Samurai sword. A tanto is a combat knife with a specific blade design.
[5] The weapon that was used to kill Mr. Morrison has not been recovered. During the execution of the search warrant on Mr. Henderson’s home, the police found multiple knives including two katanas. They did not locate a tanto style knife.
[6] The Crown’s theory is that fuelled by anger over the theft of his safes, Mr. Henderson armed himself with a knife from his collection and walked to the deceased’s home in the early morning hours of February 28, 2014. The Crown asserts that he went to the home for the express purpose of killing Mr. Morrison and not to search for his missing property. In support of this position, the Crown relies on the fact that Mr. Morrison’s living area did not appear to be disturbed. There is no evidence that Mr. Henderson conducted a search of the basement for the safes. In addition, the Crown relies on the nature and extent of Mr. Morrison’s injuries to support its position that he was attacked in his sleep and brutally murdered.
[7] The position of the defence is two-fold at the current time. First, Mr. Henderson does not admit that he is the person who caused Mr. Morrison’s death. In the alternative, if he was the killer, he will say that he acted in self-defence or as a result of provocation. If his identity is established by the Crown or admitted by him at some point during the trial, he will deny having the intent to kill Mr. Morrison. The analysis of the admissibility of the evidence in issue must therefore be analysed in the context of these two potential defences.
The Scene and Autopsy Photographs
[8] Mr. Morrison was the victim of a violent knife attack, resulting in multiple stab wounds. Three of them were fatal: two stab wounds to his left chest and a gaping injury to his neck that partially severed it. Pictures were taken at the scene showing Mr. Morrison lying on his bed, covered in blood. He is on his back and both of his hands are on his stomach. His neck injury is visible in the photographs, although they are taken from some distance away. In addition, there are several pictures from the autopsy depicting his injuries. The photographs are disturbing, and some are extremely graphic as one would expect in a case involving multiple, serious stab wounds.
[9] The Crown seeks to adduce a select number of these photographs to demonstrate the extent and nature of the deceased’s injuries. The Crown submits that it is necessary for the jury to understand the magnitude of the injuries in order to determine whether the person who inflicted them had the requisite intent to kill, and to assess self-defence if it is raised. The defence argues that the pictures are not necessary, because the pathologist can describe the injuries in great detail when he testifies with the assistance of a diagram illustrating the location of the wounds. It is Mr. Henderson’s position that the extremely high prejudicial effect of the pictures outweighs their minimal probative value.
[10] The photographs in question are presumptively admissible because they accurately represent the facts they depict, are fair and are not being tendered with the intention of misleading the jury and their authenticity can be verified by a witness. They should only be excluded if their prejudicial effect outweighs their probative value (R. v. Liard, [2013] O.J. No. 4000 (S.C.J.) at paragraphs 156 and 160). In Liard, supra, autopsy photographs were held to be admissible, notwithstanding the fact that the pathologist could explain her findings to the jury without them. The pictures were relevant to the issues of intent and planning and deliberation. Corbett J. found that the photographs provided powerful evidence of intent to kill, and that some of the injuries depicted in them were also relevant to rebut self-defence.
[11] In R. v. Hindessa, [2009] O.J. No. 3838 (S.C.J.), Molloy J. described the balancing that must occur in determining the admissibility of graphic photographs as requiring a consideration of the importance of the evidence, the importance of the issue to which the evidence relates and how great the risk is that the jury will improperly use the evidence (at paragraph 17). After balancing probative value against prejudicial effect, Molloy J. admitted several photographs depicting injuries similar to those suffered by Mr. Morrison, specifically deep cuts to the throat showing exposed tissue, veins and arteries. These pictures, while disturbing, were found to be highly relevant to the key issue at trial which was the intent of the accused. Molloy J. found that a verbal description of the injuries, provided by the pathologist, would not adequately convey the necessary information to the jury.
[12] In R. v. Vivar, 2003 ONSC 5054, [2003] O.J. No. 5054 (S.C.J.), the fact that self-defence was going to be raised rendered photographs of the deceased’s injuries relevant to an issue at trial. Similarly, in R. v. Dupe, [2010] O.J. No. 5760 (S.C.J.), autopsy pictures were admitted because they were very relevant to the issues of intent to kill and planning and deliberation. Dambrot J. held that the jury’s understanding would be significantly enhanced by viewing the photographs, as compared to simply hearing the injuries described or shown on a diagram.
[13] A crime scene videotape, which included the body of the deceased, was held to be admissible in R. v. Currie, 2000 ONSC 392, [2000] O.J. No. 392 (S.C.J.). Dambrot J. found that it was highly relevant to demonstrate where the deceased’s body ended up and where the blood spatter and pools were in relation to it. Similarly, in this case, the position of the deceased’s body will be an important issue for the jury in determining how he was killed. The Crown’s theory is that he was attacked in his sleep, while the defence may assert that he was killed during the course of a struggle in which the accused ultimately acted in self-defence. The jury will need to be able to fully understand the position of the deceased in relation to the blood spatter and any items that were disturbed in the bedroom.
[14] With respect to prejudice, the issue is not whether the photographs will be upsetting to the jurors or cause them to harbour feelings of anger towards the person who caused the injuries. Rather, the question is whether the photographs are of such a nature that they would render the jurors unable to abide by their oath or affirmation to judge the case objectively. Several cases have recognized that modern jurors are exposed, through the media, to all manner of graphic images and are therefore less likely to be shocked by photographs (see for example, Hindessa, supra, and R. v. Kinkead, [1999] O.J. No. 1498 (S.C.J.)). In order to minimize any prejudice that photographs can cause, only those that are necessary to enhance the jury’s understanding of the issues in the case should be admitted. There should be no unnecessary repetition and photographs may be edited to make them less graphic, where appropriate.
[15] In this case, the Crown wants to introduce four panoramic photographs which are displayed on a computer and give a 360 degree view of the area surrounding the camera. These photographs are extremely helpful in understanding the layout of the basement. One of these pictures accomplishes what it would take many still photographs to do and in a much more useful way. The defence takes no issue with the first panoramic photographs (010), which shows part of the basement that was used primarily as an exercise area. This picture has high probative value and no prejudicial effect and is, accordingly, admissible.
[16] The second panoramic photograph (000) is taken with the camera located in the middle of the bedroom area. It shows the deceased lying dead on his bed and the surrounding area. It is important for the jury to be able to evaluate whether there is evidence that a struggle took place in the room. This photograph shows a corner of the room that is not visible in other pictures. The defence concedes that one panoramic photograph of the room, including the body of the deceased, is necessary. This picture provides an excellent view of the bedroom and will be very helpful to the jury. While the body of the deceased is quite prominent, the focus of the photograph is not on his injuries. The amount of blood on his torso is disturbing, but the high probative value of the picture is not outweighed by its prejudicial effect.
[17] The third panoramic photograph (005) is taken from the doorway of the bedroom. It shows the same bedroom area as photograph 000, but with a better view of the sitting area below the bed. The body of the deceased is shown, but at a much greater distance than in photograph 000. The Crown’s theory is that the accused went to the deceased’s home for the purpose of killing him and not to search for his missing property. It may, therefore, be important for the jury to carefully examine all areas of the basement to see whether there is evidence that someone rummaged through it. In addition, any signs of a struggle, or lack thereof, will be significant if self-defence is raised. Photograph 005 is relevant to both of these issues and provides a better view of some portions of the basement than photograph 000 does. As a result, it has significant probative value. In light of the fact that photograph 000 shows the position of the deceased’s body, it is unnecessary for it to be shown again in this picture. The Crown should, therefore, attempt to edit this photograph by blacking out the deceased’s body to the extent possible without distorting the image.
[18] The final panoramic photograph (006) is taken with the camera located outside of the door leading to the bedroom. It shows the bedroom and the area immediately beside it. Once again, the condition of the basement is relevant to whether someone searched through it and whether there was a struggle prior to Mr. Morrison being killed. This photograph is probative of both issues. The deceased’s body is visible from an even greater distance than in pictures 000 and 005. There is little prejudice caused by its presence in this photograph because it is in the background. However, it is unnecessary for it to be included because it adds nothing to what is shown in photograph 000. The deceased’s body should be blacked out in this picture.
[19] The Crown also seeks to tender three still photographs from the scene, two of which show Mr. Morrison covered in blood on his bed. The two bedroom pictures add nothing to the panoramic photographs and therefore have very little, if any probative value. They would result in a needless duplication of evidence. While it is necessary for the jury to see the positioning of Mr. Morrison’s body on his bed, that is fully depicted in the panoramic photographs. The two still pictures of the bedroom are therefore not admissible. The third still photograph shows some boxes in the basement. While it adds nothing to the panoramic pictures, there is no prejudice to it as Mr. Morrison’s body is not visible. The Crown can tender this photograph.
[20] In addition to the scene photographs, the Crown wants to adduce fourteen autopsy pictures showing the deceased’s various injuries including his neck wounds, the two fatal stab wounds to his chest, a cut to his left rear shoulder and what may be characterized as defensive wounds to his left arm. The defence concedes that some photographs must be admitted to allow the jury to properly assess the amount of force that was used, which is relevant both to intent to kill and self-defence. However, the defence seeks to exclude certain photographs which it submits are unnecessarily gory or repetitive. The Crown submits that each of the photographs it has selected is highly probative to the issues at trial.
[21] Balancing the competing interests, I find that the probative value of the following photographs outweighs their prejudicial effect rendering them admissible: 1116, 1120, 1175, 1177, 1182 and 1183. The remaining photographs (1100, 1118, 1121, 1180, 1184, 1185, 1267 and 1271) are either repetitive or not sufficiently probative of an issue at trial to be admissible.
Evidence of the Accused’s Knife Collection
[22] The Crown submits that the fact that the accused had a large knife collection is relevant for two reasons. First, on the issue of identity, it makes it slightly more likely that he committed the offence because he had ready access to the type of weapon that was used to kill Mr. Morrison. The Crown concedes that this is not a strong argument because almost everyone has sharp knives in their home. The pathologist is unable to offer any opinion about the type of weapon that was used to inflict the injuries to the deceased, other than to say it was likely an object that had both a sharp edge and a sharp tip. He cannot offer any opinion about the length or width of the weapon or whether more than one weapon was used.
[23] Secondly, the Crown relies on the fact that the accused conducted an internet search in relation to how to carry a tanto blade, which would suggest that he had access to one. The fact that a tanto blade was not found in his home hours after the murder may support the inference that he took one with him, used it to kill Mr. Morrison and then discarded it. This inference is relevant both to the identity of Mr. Morrison’s killer and on the issue of planning and deliberation.
[24] The defence concedes that the Crown is entitled to lead evidence that knives were found in Mr. Henderson’s home, but objects to the knives themselves or pictures of them being shown to the jury. The defence submits that the images of multiple knives are highly inflammatory and not sufficiently probative of the issues at trial. I agree. Many of the knives are frightening looking weapons which would clearly be capable of inflicting extreme harm on someone. It is difficult to understand why anyone would want to have so many potentially deadly weapons in their home. There is a risk that viewing them could cause some jurors to engage in prohibited propensity reasoning. They may conclude that Mr. Henderson is generally a violent person and is, therefore, more likely to be guilty of murder.
[25] None of the knives that were located can be linked to Mr. Morrison’s death. Their relevance is limited to the fact that Mr. Henderson had many knives available to him and that despite his internet search, no tanto blade was found. The Crown can lead this evidence through a police officer who was involved with the execution of the search warrant. The officer can testify about the number of knives, their location, their size and description. This will permit the Crown to make the desired arguments to the jury about the inferences to be drawn from the internet searches and the presence of the knives in the home. It is unnecessary to show the jury the knives or pictures of them to accomplish this legitimate purpose. As a result, I find that the potential prejudicial effect of the knives or photographs of them outweighs their very marginal probative value. The Crown will not be permitted to tender the knives or photographs of them as evidence.
The Proposed Expert Evidence
[26] The defence wants to call Dr. Julian Gojer, a forensic psychiatrist, to provide opinion evidence to the jury on two discreet issues:
(a) Whether past trauma the accused experienced as a teenager explains why he carried a knife with him; and
(b) Whether that trauma explains why he reacted so violently to the events that occurred in Mr. Morrison’s basement that culminated in the killing.
[27] The defence submits this evidence is necessary to assist the jury in understanding how historical events could have significantly impacted the behaviour of the accused on the night of the incident. The Crown opposes the admission of Dr. Gojer’s testimony on the basis that it does not meet the necessity criterion as set out in R. v. Mohan, [1994] 2 S.C.R. 9 and R. v. Abbey, 2009 ONCA 624, [2009] O.J. No. 3534 (C.A.). The Crown further submits that this evidence would amount to impermissible oath-helping and would encroach on the purview of the jury to determine the ultimate issues in the case.
[28] There was no viva voce evidence called on this application. The submissions proceeded on the basis of a two and a half page letter written by Dr. Gojer to Mr. Henderson’s lawyer in June of 2015. Although Dr. Gojer stated in the letter that he intended to conduct further interviews, there was no updated report filed. The majority of the information in the letter is a summary by Dr. Gojer of information provided to him by the accused. Specifically, Mr. Henderson told Dr. Gojer that he killed Mr. Morrison but did so after being grabbed from behind and held in a choke hold. He admitted to going to Mr. Morrison’s home armed with a knife, but maintained that he never intended to harm the deceased. He only wanted to recover the safes which had been stolen from him.
[29] Mr. Henderson told Dr. Gojer that he normally carried a knife with him, but was particularly concerned about a confrontation with the deceased because he was a martial arts expert. With respect to what Dr. Gojer refers to in his letter as “trauma as a teenager and young man”, the only information that is provided is that Mr. Henderson was seriously assaulted on two occasions. The letter is devoid of any additional details about these incidents.
[30] According to Mr. Henderson, while he was in the basement the deceased woke up and placed him in a choke hold. He said that he panicked, was able to grab his knife and stabbed at Mr. Morrison in an attempt to break free from him. He could not recall how many times he stabbed the deceased. The defence concedes that the third branch of self-defence, the reasonableness the accused’s actions, will be problematic. However, the accused denies having the intent to kill and wants to rely on the opinion of Dr. Gojer to support his position that he over-reacted to a perceived threat as a result of his history of being assaulted.
[31] There is nothing in the letter of Dr. Gojer to suggest that any psychological tests were conducted on Mr. Henderson. However, Dr. Gojer does say that Mr. Henderson does not suffer from any major mental illness and would not be able to successfully advance a defence of not criminally responsible. In addition, there is no reference to the possibility that Mr. Henderson suffers from post-traumatic stress disorder.
[32] The opinion that the defence seeks to rely on is contained in two paragraphs on the last page of Dr. Gojer’s letter. Dr. Gojer relies on what the accused told him about having been assaulted in some unspecified way, in the past, and opines that this experience sensitized him sufficiently to carry a knife and to be hyper-vigilant. Dr. Gojer states that being grabbed from behind triggered Mr. Henderson’s prior traumatic fears and caused him to react in a frenzied manner. Dr. Gojer concludes that Mr. Henderson’s mental state at the time of the stabbing would have been “significantly compromised”.
[33] The meaning of the term “necessary”, in the context of expert opinion evidence, is defined in Mohan, supra, as providing information about something that is likely to be outside the experience and knowledge of the trier of fact. It is required if ordinary people would be unlikely to form a correct judgment about the subject matter of the opinion unless assisted by someone with special knowledge (at paragraph 22).
[34] In Abbey, supra, the Court dealt with necessity as part of the larger cost-benefit analysis rather than as a separate criterion governing admissibility. However, Doherty J.A. stated that this was not a departure from the role assigned to necessity by the Mohan criteria. It was held to be self-evident that an expert opinion on something a jury is fully equipped to decide without that opinion is unnecessary and will add nothing of benefit to the trial, resulting in it being excluded (at paragraphs 93 and 94).
[35] In R. v. Singh, 2014 ONCA 791, [2014] O.J. No. 5347 (C.A.), the Court held that a police officer’s case-specific opinions about the accused’s ties to organized crime, his knowledge of the presence of cocaine in his trailer and his credibility were inadmissible. These were the core issues to be determined by the trial judge. Cronk J.A. stated that the expert’s opinions on these issues were not necessary, because the subject matter was not beyond the knowledge and experience of the trial judge. The issues were not of a technical or scientific nature such as to require assistance from someone with specialized knowledge (at paragraph 39). Further, the Court found that the problem with the officer’s opinion that the accused knew there was cocaine in the trailer was self-evident. It purported to answer the central question at trial, which was whether the accused had knowledge of the cocaine. This was a question of fact to be decided by the trial judge (at paragraph 42).
[36] In this case, two of the critical issues for the jury to determine, assuming they find that Mr. Henderson inflicted the injuries, will be his intent in doing so and whether he acted in self-defence. These will be factual issues for the jury to decide, taking into account all of the evidence. It is something that falls squarely within their duties.
[37] The Court cautioned against allowing expert witnesses to usurp the function of the jury in R. v. Parrott, 2001 SCC 3, [2001] S.C.J. No. 4. Binnie J. stated that the role of an expert witness is not to testify to the facts but, rather, to provide an opinion based on those facts to assist the trier of fact to draw the appropriate inferences (at paragraph 55). If permitted to testify, Dr. Gojer would opine that Mr. Henderson’s mental state at the time of the stabbing was severely comprised. This is akin to saying that he could not form the requisite intent to commit murder. It is a statement of fact that goes directly to one of the core issues the jury will have to determine.
[38] In R. v. Ranger, 2003 ONCA 3479, [2003] O.J. No. 3479 (C.A.), the Court distinguished between expert evidence that addresses what happened and that which purports to explain why something occurred. Opinion testimony about why something happened raises more concerns and has generally not been found to be admissible (at paragraphs 70 and 72). Dr. Gojer’s opinion in this case addresses why Mr. Henderson acted in the manner he did.
[39] The defence in R. v. Whiteway, 2015 MBCA 24, [2015] M.J. No. 57 (C.A.), was permitted to call evidence at trial from a psychiatrist who testified that because he was grieving the recent murder of a friend, the accused was not capable of organizing his thoughts and considering a plan of action. This evidence was relied on by the defence to counter the Crown’s position that the murder was planned and deliberate. Although the evidence was admitted at trial, the judge placed no weight on it. On appeal, the Court stated that the trial judge did not need testimony from a psychiatrist to consider the impact of the appellant’s reaction to ordinary stress from an external cause. The effect grief has on a person is not beyond the knowledge or expertise of a judge or jury. The Court, therefore, doubted that the psychiatrist’s evidence met the test of necessity as set out in Mohan (at paragraph 42).
[40] Similarly, in this case, the jury will be able to use their collective common sense and life experience to evaluate the impact prior assaults may have had on Mr. Henderson’s state of mind on the night of the incident. There is nothing particularly technical or scientific about this evidence, and the weight to be given to it by the jury will ultimately depend on their assessment of Mr. Henderson’s credibility. This analysis lies at the very core of the jury’s function and is something that they are eminently well-qualified to do.
[41] The defence sought to call Dr. Gojer to give almost identical evidence in Liard. In that case, Mr. Lasota admitted that he had repeatedly stabbed the deceased, but did not concede that he intended to kill her or that the murder was planned and deliberate. He wanted to call Dr. Gojer to testify that as a result of several factors, including an intense fear stemming from a recent attack on him, he had a “disordered capacity to form intent”. Dr. Gojer was prepared to say that Mr. Lasota snapped due to a number of events. Like Mr. Henderson, Mr. Lasota did not suffer from any major mental disorder. Unlike in this case, extensive psychological testing was conducted on Mr. Lasota and Dr. Gojer authored a lengthy and detailed report.
[42] In refusing to permit Dr. Gojer to testify, Corbett J. found that his evidence would amount to a description of events, rather than a psychiatric opinion. Dr. Gojer’s opinion was not within the realm of psychiatry, but rather dealt with matters of human nature and behaviour within the limits of normality (at paragraphs 362 and 365). Corbett J. relied on the decision of the Ontario Court of Appeal in R. v. Lovie, 1995 ONCA 2065, [1995] O.J. No. 2065, for the proposition that testimony from an expert that does little except affirm the accused’s story amounts to simple oath-helping (at paragraph 366). Similarly, in R. v. Haynes, [1997] B.C.J. No. 2756 (C.A.), expert evidence that amounted to putting a “professional gloss” on the accused’s evidence was not admissible.
[43] In Liard, Corbett J. made the following statement about Dr. Gojer’s proposed testimony, which is equally applicable in this case: “the expert evidence would go no further than to explain to the jury that the “over-reaction” could be a possible explanation for what happened, if the jury believed Mr. Lasota’s evidence”. As a result, Corbett J. concluded that Dr. Gojer’s evidence was not admissible because it was not necessary to assist the jury. The testimony would constitute oath-helping and dress up matters of common experience in the cloak of expertise (at paragraphs 370 and 377).
[44] Mr. Henderson attempts to distinguish Liard on the basis that the traumatic events that affected him occurred years ago, whereas Mr. Lasota had been recently attacked. There is nothing in the report of Dr. Gojer to support the position that the passage of time makes a difference, either to Mr. Henderson’s mental state or to the ability of a jury to understand the issue. Jurors bring to the courtroom a wide range of real life experiences which is one of the fundamental strengths of the jury system.
[45] This issue is not a complex one. If he wishes to advance past trauma as an explanation for his actions, Mr. Henderson is going to have to testify. He can explain in detail what happened to him in the past and what impact it had on him that night. The jury can assess his credibility and the reasonableness of his evidence. They will be able to do this based on their own experiences and using common sense. There is nothing about this issue that is outside of the knowledge of ordinary citizens.
[46] Permitting Dr. Gojer to testify would place the accused’s version of events before the jury in the guise of a professional psychiatric opinion. This would create the very real risk of usurping the function of the jury. Mr. Henderson has not established that the opinion evidence of Dr. Gojer is necessary to assist the jury in forming a correct judgment about a subject that is outside their experience and knowledge. Consequently, the defence is not permitted to call Dr. Gojer to give the expert opinion evidence set out in his report.
Justice L. Bird Released: April 29, 2016