COURT FILE NO.: CR-381/15 DATE: 20160624
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN - and - WAI LEUNG PATRICK LEE
Counsel: Donna Kellway and Maureen Pecknold, for the Crown Daniel J. Brodsky, for the accused
HEARD: May 9-10, 2016
K.L. Campbell J.:
Pre-Trial Ruling: Prior Discreditable Conduct (Similar Fact Evidence)
A. Overview
[1] The accused, Wai Leung Patrick Lee is charged with first degree murder in connection with the killing of Ms. To-Nua (Sandy) Hua, in Toronto, on December 26, 2013.
[2] Essentially, the Crown alleges that, in the fall of 2013, the 64-year old deceased provided the 62-year-old accused with approximately $27,000 to invest on her behalf, but that the accused subsequently lost all of her money gambling at Casino Rama. After the deceased contacted the accused to inquire as to the status of her investment, the accused attended at her apartment. The Crown alleges that when the accused told her that he had lost all of her money gambling, the deceased threatened to sue him, tell his wife and friends about what he had done, and seek repayment of the money. The Crown contends that, faced with these predictable threats, the accused attacked and killed her, just as he had planned to do when he surreptitiously entered her condominium building. The post-mortem examination of the deceased revealed that she had suffered some 16 “chop” wounds to her head and face, and numerous defensive-type injuries to both of her hands. The accused suffered no physical injuries during this violent interaction with the deceased.
[3] In his post-arrest statements to the police, the accused claimed that, when he tried to leave her apartment, the deceased grabbed him and would not let him go, at which point, he struck her many times with a hammer until she fell to the floor. The Crown alleges that, in fact, the accused employed a meat cleaver in his planned and deliberate attack on the deceased, and later used that same meat cleaver in his efforts to dismember her body, removing entirely her lower right leg at the knee, and attempting to remove her right arm at the shoulder.
[4] By way of a pre-trial motion, the Crown tenders the evidence of an earlier incident of prior discreditable conduct on the part of the accused. More specifically, in March of 2000, the accused unlawfully killed another individual, a man named Hing Kuen Tsang, with a meat cleaver, and thereby committed manslaughter. The accused pled guilty to this offence on July 11, 2002. At that time, the accused admitted that he had overextended his available credit at Casino Rama to the extent that he could no longer financially manage his losses. Defence counsel was opposed to the admission of this evidence.
[5] After hearing the submissions of counsel on this issue, I advised the parties that I had concluded that the tendered similar fact evidence was not admissible. I also indicated that I would provide written reasons explaining that conclusion. These are those reasons.
B. The Procedure Employed to Determine Admissibility
[6] The application by the Crown to introduce the tendered similar fact evidence proceeded upon the basis of the preliminary inquiry transcripts, the two statements the accused made to the police following his arrest in late December of 2013, and the transcript of the court proceedings regarding his manslaughter conviction on July 11, 2002.
[7] While defence counsel expressed his opposition to this manner of procedure, and argued that the Crown should be required to call viva voce evidence in support of its application, the appellate court authorities have long supported the use of this more efficient manner of proceeding for purposes of fairly determining the admissibility of tendered similar fact evidence. See, for example R. v. Carpenter (No. 2) (1982), 1 C.C.C. (3d) 149 (Ont.C.A.), at p. 158; R. v. Vernacchia (1988), 40 C.C.C. (3d) 561 (Que.C.A.), at paras. 13-22, leave denied (1988), 42 C.C.C. (3d) vi (S.C.C.); R. v. Snow (2004), 190 C.C.C. (3d) 317 (Ont.C.A.), at paras. 60-61; R. v. Schertzer, 2011 ONSC 579, at paras. 4-6; R. v. Jeanvenne, 2011 ONSC 7175, at paras. 29-31; Mr. Justice David Watt, Watt’s Manual of Criminal Evidence (2015), § 34.02, at pp. 570-573.
[8] The defence elected to adduce no further evidence on the application.
C. The Applicable Legal Principles
1. Introduction
[9] The legal principles governing the admissibility of similar fact evidence, or other discreditable conduct by the accused, were outlined by the Supreme Court of Canada in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. Binnie J., delivering the unanimous judgment of the entire court, provided, essentially, the following analytical framework to govern the admissibility of similar fact evidence.
2. The General Exclusionary Rule
[10] The general rule, of course, is that evidence of other discreditable acts by the accused is not admissible at the behest of the Crown. This type of circumstantial evidence is, accordingly, “presumptively inadmissible.” This is because the admission of such evidence creates two types of prejudice to the accused. First, it creates the danger that the trier of fact might become confused by the multiplicity of the incidents and accord the evidence more weight that it logically deserves. This is known as reasoning prejudice. Second, this type of evidence risks the possibility that the trier of fact will find the accused guilty not for what he or she did on this occasion, but simply because the accused is a bad person. This is known as moral prejudice. See R. v. Handy, at paras. 31-36, 101; R. v. Johnson, 2010 ONCA 646, at paras. 84-89.
[11] This general exclusionary rule is not premised on any notion that evidence of previous similar discreditable conduct by an accused is irrelevant, but rather upon the reality that this type of evidence is apt to “capture the attention of the trier of fact to an unwarranted degree” and in a way that is very prejudicial to an accused. It is, in this sense, too relevant. See R. v. Handy, at paras. 37-40.
3. The Exception to the General Rule – Admissibility
[12] In some exceptional circumstances, however, evidence of other similar discreditable conduct by the accused is “so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse.” In some cases the evidence is such that, absent some innocent explanation, it would be an affront to common sense to suggest that the similarities are as a result of some improbable coincidence. But the strength of the similar fact evidence must be such as to outweigh both the “reasoning prejudice” and the “moral prejudice” to the accused. In short, to meet the governing test of admissibility, the Crown must establish, on the balance of probabilities, that in the circumstances of the case, the probative value of the evidence is so high that it exceeds the prejudice that will be suffered by the accused. See R. v. Handy, at paras. 41-55, 64, 76-80. See also R. v. Perrier, 2004 SCC 56, at paras. 17-24; R. v. Trochym, 2007 SCC 6, at paras. 72, 78; R. v. James (2006), 80 O.R. (2d) 227 (C.A.), at paras. 32, 39, leave denied, [2007] 3 S.C.R. x.
4. Principles in the Practical Application of the Rule
[13] There are a number of principles that must be kept in mind in the practical application of the general test of admissibility of similar fact evidence.
[14] First, it is important to appreciate that similar fact evidence is evidence of the “propensity” of the accused. It does not stop being propensity evidence because it is relevant to some important issue. Simply identifying the purpose for which the similar fact evidence is tendered does not change the inherent nature of this propensity evidence. By recognizing its true character, the court is able to keep the “dangerous potential” prejudice of the evidence “front and centre.” See R. v. Handy, at paras. 59-68.
[15] Second, it is critical to identify the live issue in the case that the evidence relates to – the purpose for which the evidence is tendered. In other words, to be admissible, the similar fact evidence must be relevant to some controversial issue in the case (beyond simply revealing the disposition of the accused), and its probative value must outweigh its prejudicial impact. See R. v. Handy, at paras. 69-75; R. v. Johnson, at para. 92.
[16] Third, the degree of similarity required to justify the admission of similar fact evidence will depend on the purpose for which the evidence is tendered. Accordingly, when the evidence is led to prove the identity of the accused, it will not be admitted without a high degree of similarity, whereas when the evidence is led to prove motive, or the commission of the actus reus of the offence, the standard of admissibility will be “different.” See R. v. Paul (2002), 62 O.R. (3d) 617 (C.A.), at para. 31; R. v. Backhouse (2005), 194 C.C.C. (3d) 1 (Ont.C.A.), at paras. 23-26, 156-175; R. v. Snow, at para. 63; R. v. Woodcock (2003), 177 C.C.C. (3d) 346 (Ont.C.A.), at paras. 64-65; R. v. Kirk (2004), 188 C.C.C. (3d) 329 (Ont.C.A.), at paras. 12-17; R. v. James, at paras. 45-51.
[17] Fourth, close attention must be paid to the similarities (and dissimilarities) between the tendered similar fact evidence and the facts of the alleged offence, as that is what potentially connects the evidence to the alleged offence. Accordingly, the court must consider such factors as: (1) the proximity in time of the similar acts to the offence; (2) the extent to which the other acts are similar in factual detail to the offence; (3) the number of similar occurrences; (4) the circumstances surrounding the similar facts; (5) the presence of any distinctive features unifying the incidents; (6) any intervening events; and (7) any other factor that tends to support or rebut the underlying unity of the similar acts. See R. v. Handy, at paras. 81-84, 121-136. At the same time, however, it is not the task of the trial Judge to simply “add up similarities and dissimilarities and then, like an accountant, derive a net balance.” Rather, the important question of finding the right balance is a matter of judgment. See R. v. Shearing, 2002 SCC 58, at para. 60; R. v. Fisher (2003), 179 C.C.C. (3d) 138 (Sask.C.A.), at paras. 34-60; R. v. Nicholas (2004), 182 C.C.C. (3d) 393 (Ont.C.A.), at paras. 55-75; R. v. B.(R.) (2005), 77 O.R. (3d) 171 (C.A.), at paras. 12-18.
[18] Fifth, the cogency of similar fact evidence increases as the situation moves from revealing some general type of propensity toward the more specific end of the propensity spectrum, revealing a more “situation-specific” propensity. For example, at the “vague” end of the spectrum, evidence proving the accused has a general propensity for violence will establish nothing of value and will be inadmissible. At the opposite end of the spectrum, similar fact evidence that can be described as amounting to a “calling card” or “signature” or “hallmark” is admissible as it reveals repeated conduct in a “particular and highly specific type of situation” that clearly links the accused to the offence. Resolving cases that fall in the middle ground of the propensity spectrum involve a difficult assessment of the degree of the connection between the offence and the other acts of discreditable conduct by the accused. See R. v. Handy, at paras. 85-93; R. v. Blake (2003), 68 O.R. (3d) 75 (C.A.), affirmed, 2004 SCC 69; R. v. Chapman (2006), 204 C.C.C. (3d) 449 (C.A.), at paras. 25-28; R. v. Candale (2006), 205 C.C.C. (3d) 167 (Ont.C.A.).
[19] Sixth, to be admissible, the similar fact evidence need not have such great probative value as to be “virtually conclusive of guilt.” A “conclusiveness” test would not sit well with the “balancing model,” and would take the “gatekeeper” function of the trial judge too far. See R. v. Handy, at paras. 94-97.
5. The Practical Assessment of Probative Value
[20] In assessing the probative value of the similar fact evidence, the court must first determine, with precision, the issue in question, and then move to an examination of the cogency of the evidence on that question by considering the factors said (by the Crown) to connect the evidence to the offence, and the factors said (by the defence) to weaken the inferences sought to be drawn from the evidence by the prosecution. This process requires the trial Judge to assess not only the relevance of the tendered evidence, but also the weight (including credibility) of the evidence. One important element in this analysis is whether the Crown is able to negative, on a balance of probabilities (once there is some “air of reality” to the suggestion), that the similar fact evidence has not been tainted by collusion between the witnesses. Collusion would, of course, destroy the theoretical basis advanced for the admission of the evidence, namely, the improbability of credible coincidence. See R. v. Handy, at paras. 99-107, 111, 134.
6. The Practical Assessment of Prejudice
[21] In assessing the prejudicial impact of the evidence, the court must “maintain a high awareness” of both the moral and reasoning prejudice. There is no gainsaying the “poisonous potential” of similar fact evidence. Indeed, determining the admissibility of such evidence may be “as close as a Judge comes to singlehandedly deciding the outcome of a case.” In considering the moral prejudice of the evidence, the risk is that there will be an “unfocused trial” that will result in a wrongful conviction based upon “prejudice rather than proof,” and based on an inference of guilt from the “discreditable tendencies” of the accused. In considering the reasoning prejudice, the major concern is that the trier of fact will be confused and distracted from its proper focus, aggravated by the consumption of time dealing with allegations of multiple incidents. See R. v. Handy, at paras. 100, 137-146; R. v. Shearing, at paras. 65-70; R. v. Thomas (2004), 190 C.C.C. (3d) 31 (Ont. C.A.), at paras. 25-37.
D. Analysis – The Application of these Principles in the Present Case
1. Introduction
[22] The Crown argued that the tendered evidence of prior discreditable conduct on the part of the accused was relevant and probative on six issues in this case. More specifically, the Crown argued that the earlier commission of the manslaughter offence was relevant and probative in the present case as: (1) it reveals a situation-specific propensity to kill; (2) it shows that the killing of the deceased was premeditated; (3) it shows that the accused had the necessary intent for murder; (4) it rebuts the potential defence that the accused was not criminally responsible for the offence by reason of mental disorder; (5) it shows that the killing of the deceased was not accidental; and (6) it shows that the deceased was not killed by the accused in self-defence.
[23] After carefully considering these arguments, I am not satisfied on a balance of probabilities that the tendered similar fact evidence is so highly relevant and cogent, on any of the live issues in this case, that its probative value in the search for truth outweighs its potential misuse by the jury and resulting prejudice to the accused. In other words, I am not convinced that the strength of the tendered similar fact evidence on the material issues in this case outweighs both the potential reasoning prejudice and the potential moral prejudice to the accused that is inherent in this evidence. In short, I am not satisfied that the probative value of the evidence is so high that it exceeds the potential prejudice to the accused. See R. v. Handy, at paras. 41-55, 64, 76-80.
[24] No doubt, there are many similarities between the circumstances surrounding the March 15, 2000 killing of Hing Kuen Tsang, which led to the conviction of the accused for manslaughter, and the circumstances surrounding the December 26, 2013 killing of To-Nu (Sandy) Hua, which led to the accused being charged with first degree murder. For example, based on the evidence on this application, in both cases: (1) the accused secured a significant sum of money from the deceased, lost it gambling at Casino Rama, and was unable to pay it back to the deceased in a timely fashion; (2) the accused sought to deceive the deceased into believing that he was financially able to repay some or all of the funds; (3) the deceased predictably became upset with the accused when confronted with his inability to repay the monies advanced to him; (4) the accused used a meat cleaver in ultimately causing the death of the deceased; and (5) the accused subsequently contemplated suicide and confessed his involvement in the killing to the police.
[25] At the same time, it is also important to keep in mind that these are but two isolated events that are not proximate in time, but rather are separated by more than 13½ years. Further, the two matters are dissimilar in a number of important respects. For example: (1) in the manslaughter offence, there was a third party present in the vicinity of the killing, whereas in the present case the accused met with the deceased alone; (2) in the manslaughter offence, the deceased appears to have been a “loan shark” who was threatening the accused and his family with violence if the accused did not repay his debt in a timely way, whereas in the present case the deceased was an elderly acquaintance and investor who threatened only to commence a civil action against the accused, advise his wife and his friends of his gambling loss of the deceased’s investment money, and seek repayment of the debt; and (3) in the manslaughter offence, the violence was commenced by the deceased, who attacked the accused with a meat cleaver, whereas in the present case the only “force” that may have been used by the deceased was that she may have grabbed the accused by the arm when he tried to leave her apartment.
[26] Importantly, there is no doubt that the admission of the factual circumstances of the previous manslaughter offence committed by the accused would potentially bring great prejudice to the accused, especially in relation to the poisonous danger of moral prejudice. In considering the question of the potential liability of the accused for first degree murder in the gruesome killing and dismemberment of the deceased, the jury would know that the accused had already been found criminally responsible for manslaughter in taking the life of another individual with a meat cleaver.
[27] In the final analysis, I am simply not convinced on a balance of probabilities that the probative value of this tendered similar fact evidence is sufficiently cogent on the six issues outlined by the Crown, to outweigh the great potential for prejudice to the accused.
2. The Crown’s Six Issues – The Probative Value of the Similar Fact Evidence
a. A Situation-Specific Propensity to Kill
[28] While the earlier manslaughter may well suggest that the accused has a “situation-specific propensity to kill,” as the Crown argues, there does not appear to be any serious issue in this case that the accused, in fact, killed the deceased. In oral argument, defence counsel frankly conceded that identity is not in issue in this case. In short, the defence will not be advancing the position that the accused was not the person who caused the death of the deceased. Accordingly, the evidence of the earlier manslaughter offence is not probative “on a material fact in issue” between the parties, as it does not “advance or refute a live issue pending before the trier of fact.” See R. v. Handy, at para. 73; R. v. B.T.J. (2006), 84 O.R. (3d) 227 (C.A.), at paras. 32, 39; R. v. Fiorino, 2008 ONCA 568, at para. 62. As the Manitoba Court of Appeal observed in R. v. Proctor (1992), 69 C.C.C. (3d) 436, at p. 447, tendered similar fact evidence “should not ordinarily be admitted where its only relevance is to an issue which the accused does not dispute.”
b. The Killing Was Planned and Deliberate
[29] In my view the earlier manslaughter offence simply does not logically tend to establish that the killing of the deceased in this case was premeditated. Accordingly, the tendered evidence has no probative value in connection with this issue.
[30] The earlier offence was a crime of manslaughter which, by definition, does not require any murderous intention, let alone any element of planning and deliberation. The mere fact that an accused has previously unlawfully caused the death of another individual does not reasonably tend to prove that the accused subsequently committed a planned and deliberate first degree murder in the present case.
[31] I reject the Crown’s argument that the circumstances of the earlier manslaughter offence that are dissimilar to the present case shows only that the accused must have learned from his prior homicidal experience, and that his modus operandi in killing others has evolved over time. This argument amounts to question-begging speculation which, if accepted, would justify the admission of almost any earlier similar offence, and effectively reverse the presumptive inadmissibility of similar fact evidence.
c. The Intent Required for Murder
[32] Similarly, and for essentially the same reasons, in my view the earlier manslaughter offence does not logically tend to establish that the accused killed the deceased with the requisite intention for the crime of murder. Therefore, the tendered similar fact evidence has no probative value in connection with this issue.
[33] Again, the earlier crime was manslaughter, which does not require any murderous intention. The fact that the accused has previously unlawfully caused the death of another person does not, as a matter of common sense, tend reasonably to establish that the accused killed the deceased with the intention required for the crime of murder.
[34] In any event, it’s hard to imagine how the accused could credibly contend that, in striking the deceased in the head with a meat cleaver 16 times, he did not have the intent required for murder pursuant to s. 229(a) of the Criminal Code, R.S.C. 1985, chap. C-46. Accordingly, it seems unlikely that this will be a serious bone of contention between the parties.
d. Rebuts Any Potential Mental Disorder Defence
[35] First, the accused has not yet advanced any mental disorder defence within the meaning of s. 16 of the Criminal Code. However, even assuming that the accused, at some point in the trial proceedings in this case, were to advance a claim that he is not criminally responsible for his killing of the deceased by virtue of a “mental disorder,” I remain uncertain how the evidence of the earlier manslaughter would logically rebut, in any meaningful way, that potential mental disorder defence.
[36] The fact that the accused was not suffering from such a mental disorder on March 15, 2000, does not reasonably tend to prove that the accused was not suffering from such a mental disorder more than 13½ years later on December 26, 2013.
[37] Moreover, the Crown hardly needs the concrete evidence of the earlier manslaughter conviction to argue before the jury that the accused, like any sane and sober person, would know that killing another person with a meat cleaver is morally wrong. Accordingly, demonstrating that the accused had an earlier personal experience with the justice system in such circumstances is hardly necessary to make that simple and obvious point.
e. Killing Was Not Accidental
[38] While the earlier manslaughter conviction might logically tend to suggest that the accused’s killing of the deceased in this case was not accidental, it seems remote in the extreme to believe that the accused might somehow suggest that his killing of the deceased somehow happened by accident.
[39] In his post-arrest statements to the police, which defence counsel has already conceded are admissible as voluntary and Charter-compliant, the accused admitted that he intentionally struck the deceased many times with a “hammer.” While a hammer was found on the premises, there is no forensic evidence linking the hammer to the killing. Moreover, the deceased suffered some 16 “chop” wounds to her head and face, in addition to the significant defensive wounds to her hands and arms. The accused also admitted his subsequent attempts to dismember her body with a meat cleaver. It is difficult to imagine how the accused, in such circumstances, could credibly suggest that his striking of the deceased (with either a hammer or a meat cleaver) was accidental. Accordingly, the tendered similar fact evidence has no probative value on a truly contentious material issue between the parties. See R. v. Carpenter (No. 2), at p. 156; R. v. B.T.J., at para. 47.
f. Killing Not in Self-Defence
[40] Finally, in my view the circumstances of the earlier manslaughter offence do not tend to establish that the deceased in the present case was not killed by the accused while acting in self-defence.
[41] In the guilty plea proceedings that led to the earlier conviction for manslaughter, the parties agreed that the deceased was a “loan shark,” under criminal investigation by the R.C.M.P., who was extorting repayment by the accused, and who was menacing and threatening the accused and his family. Moreover, in the earlier proceedings the Crown did not challenge or dispute the defence position that it was the deceased that first “pulled a meat cleaver” on the accused, and the accused was only able to use this weapon against the deceased after they had “struggled for control of the weapon” and the accused succeeded in obtaining the meat cleaver from the deceased. While his actions in then killing the deceased with the meat cleaver must have been excessive and disproportionate to the threat posed by the deceased (otherwise the accused would not have been guilty of manslaughter in connection with the killing), this evidence does not strike me as especially probative on whether the accused, in killing the deceased in the present case, may have been acting in self-defence.
3. The Prejudicial Impact of the Evidence Outweighs its Probative Value
[42] In any event, whatever probative value the tendered similar fact evidence may have in relation to the six issues on which the evidence is tendered, I am not satisfied, on a balance of probabilities, that its probative value outweighs the great potential prejudice to the accused. The admission of the tendered similar fact evidence would likely prejudice the accused in a profound way and risk a conviction based upon prejudice rather than proof, with the jury finding the accused guilty of first degree murder not for what he did (based upon the evidence), but because he is a bad person with discreditable tendencies who is likely to have acted as the Crown contends. See R. v. Handy, at paras. 100, 137-143; R. v. Shearing, at paras 65-67.
[43] The jury could, of course, be fully and properly instructed with the appropriate “double warning” as to the ways in which they may not use the similar fact evidence, namely: (1) that they must not infer from the similar fact evidence that the accused is the type of person with the character or disposition that makes it more likely that he committed the offence alleged in the indictment; and (2) that they must not decide to punish the accused for his earlier misconduct as revealed by the similar fact evidence by finding the accused guilty of the charged offence. See R. v. B.(C.) (2003), 171 C.C.C. (3d) 159 (Ont.C.A.), at paras. 34-35; R. v. Thomas, at paras. 38-54; R. v. J.A.T., 2012 ONCA 177, at paras. 52-53; R. v. Chamot, 2012 ONCA 903, at paras. 62-63; R. v. Samuels, 2013 ONCA 551, at paras. 42-46. At the same time, as the Supreme Court of Canada acknowledged in R. v. Handy, juries may not always be capable of following such legal instructions. See S.C. Hill, D.M. Tanovich and L.P. Strezos, McWilliam’s Canadian Criminal Evidence (5th ed., 2015, loose-leaf), vol. 1, § 10:20.40.10 and 50, at pp. 10-18 to 10-20. In my assessment, this is the kind of case where this dangerous risk of prejudice to the accused is very real and potentially quite profound. In my view, this prejudice significantly outweighs the probative value of the tendered similar fact evidence.
E. Conclusion
[44] In conclusion, for these reasons, the application by the Crown, to be permitted to lead the evidence of the circumstances surrounding the March 15, 2000 manslaughter offence committed by the accused, is dismissed. In my view, the evidence is not admissible.
Kenneth L. Campbell J.
Released: June 24, 2016
COURT FILE NO. : CR-381/15 DATE : 20160624 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN - and - WAI LEUNG PATRICK LEE PRE-TRIAL RULING Prior Discreditable Conduct (Similar Fact Evidence) K.L. Campbell J. Released: June 24, 2016