Court File and Parties

COURT FILE NO.: 015/15 DATE: 2016/09/08 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Applicant Serge Hamel, for the Crown Attorney

• and -

MATHEW HAYES Respondent James Harbic and Robert Harbic, for the Respondent

HEARD: July 25, 2016

Publication Restriction Notice

Pursuant to s. 648(1) of the Criminal Code, no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

Reasons for Decision on Post-Offence Conduct Application

ELLIES J.

Overview

[1] Mathew Hayes is charged with first degree murder regarding the death of Christopher Parsons on June 4, 2013.

[2] In this pre-trial application, the Crown seeks permission to introduce evidence of post-offence conduct on the part of Hayes in which he is alleged to have threatened to set fire to his girlfriend, Caitlin Willard. In a statement she gave to the police, Willard said that, days after Parsons was killed and shortly before the incident in which he is alleged to have threatened to set her on fire, Hayes confessed to her that he had killed Parsons. The Crown submits that the evidence of Hayes’ threat to set Willard on fire is evidence that shows a consciousness of guilt on the part of Hayes and explains why Willard did not come forward with this information until March, 2015.

[3] These reasons will explain my view that the evidence is not relevant to any fact in issue. The evidence falls short of permitting either of the two inferences for which the Crown wishes to introduce it. Therefore, it is not admissible. Even if I am wrong in that view, I would exclude the evidence because its probative value is exceeded by its prejudicial effect.

Background Facts

[4] The victim, Parsons, was found dead in his apartment in Haileybury on June 4, 2013. The death resulted from blunt force trauma to his head. The Crown alleges that Parsons was killed by Hayes, who then used Parsons’ bank card to withdraw money from Parsons’ account using an automated banking machine.

[5] A few days after Parsons was killed, on or about June 8, 2013, Hayes and Willard were in Kirkland Lake, visiting a friend. Willard was pregnant at the time with Hayes’ child. According to Willard, she and Hayes both consumed “a fair amount of drugs” while in Kirkland Lake. They then got into a heated argument after she got lost and they missed their bus back to Cobalt, where they both lived. Willard testified that it was during this argument that Hayes confessed to her that he had killed Parsons.

[6] Willard and Hayes managed to get a ride back to Cobalt from Kirkland Lake the next day. On either that same day or the next, Willard was at the residence of Dana Sutherland, who lived in an apartment located on the second floor of the Silverland Motel. Willard had been texting with Hayes during the day, demanding that he pay her money that he owed her and telling him that she wanted her clothes. Sutherland was away at the time and had asked her sister, Chelsey Leonard, to watch the apartment. Leonard was present in the apartment that evening, along with Willard and another female, Shaylee Beaulieu, when a man wearing a ski mask entered Sutherland’s apartment. Willard, Leonard and a neighbour who knew Hayes, Susan Smith, all recognized the man as Hayes, despite the mask. Although the evidence of the witnesses varies as to the details of what happened while he was there, all of the witnesses testified that he had a container of some kind in his hand. Willard and Leonard testified that he also had a lighter. They testified that he poured oil from the container in various places in the apartment. According to Willard, some of the oil landed in her lap.

[7] Willard testified that the man in the mask tried to take Beaulieu’s cell phone, but Willard made him give it back. She testified that he left when she laughed at him. According to Leonard, the man left after Willard and Beaulieu pulled him out of the apartment.

[8] None of the witnesses say that the lighter was ever lit. Nor were any of them able to recall what was said by the man during the incident, if anything.

Issues

[9] The parties agree that there are two principal issues in this application, namely:

(1) Is the evidence probative?; and (2) If so, does its probative value outweigh any potentially prejudicial effect?

Analysis

The Probative Value of the Evidence

[10] Like all forms of evidence, to be admissible, the evidence must be relevant. To be relevant, the proffered evidence, if accepted, “must have some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition would be in the absence of that evidence”: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 36; R. v. Peavoy (1997), 34 O.R. (3d) 620 (C.A.), at pp. 628-629.

[11] The degree to which the evidence makes the proposition for which it is advanced more likely is described as its “probative value”: R. v. M.(B.) (1998), 42 O.R. (3d) 1 (C.A.), at para. 84; Sopinka, Lederman & Bryant, at s. 2.58, p. 61.

[12] Post-offence conduct evidence is a form of circumstantial evidence. Doherty J.A. explained the process of drawing inferences from post-offence conduct in R. v. Figuera, 2008 ONCA 106, at para. 33, as follows:

Post-offence conduct … is a kind of circumstantial evidence. The jury is asked to infer the existence of a fact in issue, e.g. the identity of the perpetrator, from post-offence conduct committed by the accused, e.g. lies to the police. The inference is permissible only if, based on human experience and common sense, that inference is a reasonable one. As with any kind of circumstantial evidence, the inferences to be drawn from post-offence conduct will depend on the nature of that conduct, the fact that is sought to be inferred from that conduct, the position of the parties, and the totality of the evidence. Inference drawing is situation-specific and is not amenable to a set of preset rules that categorize certain kinds of post-offence conduct as always relevant to, or never relevant to, a particular fact in issue: R. v. White (1998), 125 C.C.C. (3d) 385 (S.C.C.) at paras. 19-22; R. v. Peavoy (citation omitted).

[13] Doherty J. A. explained the legal threshold for the admissibility of post-offence conduct evidence in R. v. Rodgerson, 2014 ONCA 366, at para. 51, aff’d, 2015 SCC 38, [2015] 2 S.C.R. 760, as follows:

Post-offence conduct need not point to only one reasonable inference to be relevant and admissible to prove a fact in issue. If the inference urged by the Crown is reasonably available, the post-offence conduct will be left with the jury who, after considering any competing inferences available, will determine what effect, if any, should be given to the post-offence conduct evidence: R. v. Allen, 2009 ABCA 341, 15 Alta. L. R. (5th) 1, at paras. 67-68, aff’d, 2010 SCC 42, [2010] 2 S.C.R. 648.

[14] The Crown argues that the evidence that the accused threatened to burn his girlfriend alive is relevant in two ways, namely:

(1) it constitutes evidence of consciousness of guilt on the accused’s part because it demonstrates his concern that Willard might reveal his confession; and (2) it explains why Willard did not go to the authorities with that confession until March 3, 2015.

[15] With respect, I do not believe that either inference is available on the evidence.

[16] In order to arrive at the first inference, that is that the post-offence conduct is evidence of consciousness of guilt, the jury would also have to conclude that Hayes believed there was a risk that Willard would go to the police with the accused’s confession. That is not an inference which flows logically simply from human experience. It cannot simply be assumed, in my view, that a person who trusted his girlfriend enough to confess to her in the first place would shortly afterwards threaten to burn her alive in front of others in order to keep her quiet. There must be some evidence that he believed she would reveal his confession to support an inference of consciousness of guilt. There is none. There is no evidence that Willard ever threatened to go the police or that Hayes expressed a concern that she would. There is no evidence that anything was said by either Willard or the accused during the incident at the Silverland Motel from which it can be inferred that the accused was concerned about Willard going to the police. Nor could anything that the accused did during the incident support an inference that he was concerned in this way. The apartment in question did not belong to Willard, nor did the furniture on which he spilled oil or the cell phone he tried to take. There is no evidence that would justify an inference that the accused’s actions on the night in question were connected to anything other than the argument he was having with Willard over money, if they were connected to anything at all.

[17] The evidence is simply not capable of supporting an inference of consciousness of guilt.

[18] The evidence is also not capable of supporting the second inference urged by the Crown, namely that Hayes’ conduct on the night in question is why Willard did not go to the police. In order to make that inference, there must be some evidence linking the incident with the oil to the alleged confession. As I have pointed out, there is none. In fact, the evidence is to the opposite effect. Willard testified during the pre-trial application that she never felt intimidated and that she believes that the incident was about the money over which they had been texting one another.

[19] For these reasons, I do not believe that the evidence of post-offence conduct has any probative value at all.

Probative Value versus Prejudicial Effect

[20] The post-offence conduct in question in this case is also evidence of discreditable conduct, in that the accused is alleged to have threatened to burn his pregnant girlfriend alive. Evidence of discreditable conduct not forming part of the charge is ordinarily excluded unless the evidence is “so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse”: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 41.

[21] In addition to the exclusionary rule that operates with respect to extrinsic evidence of discreditable conduct on the part of an accused, there is a residual discretion on the part of a trial judge to exclude evidence where the prejudicial effect of the evidence is out of proportion to its evidential value: Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 4th ed. (Markham, Ont.: LexisNexis, 2014) at s. 2.57, at p. 60.

[22] Prejudice in this context refers not to the potential for the evidence to result in a conviction, but rather to the potential for the evidence to result in a conviction unfairly: R. v. B. (L.) (1997), 35 O.R. (3d) 35, 102 O.A.C. 104, at para. 22.

[23] Even if the evidence of post-offence conduct on the accused’s part in this case is capable of supporting the inferences urged by the Crown, I would not admit the evidence. Whatever probative value it has is vastly outweighed by its prejudicial effect, in my view.

[24] Assuming, contrary to my thinking, that it would be open to a jury to conclude from the accused’s actions that he was concerned that Willard would go to the authorities with his confession, the strength of that inference would be weak indeed. As I have indicated, there is no evidence that Willard ever threatened to go to the police or that the accused said anything to Willard either before or during the incident which would tie his actions to her continued silence.

[25] As to the inference that Willard was intimidated by the post-offence conduct into maintaining her silence for so long, the evidence is even weaker. She herself testified that she thought the accused’s actions were connected solely to the money she was demanding.

[26] On the other hand, the potential prejudice to the accused arising from the admission of this evidence is high, in my view. There is a real danger that a jury might be influenced improperly by evidence that the accused even took a chance that his pregnant girlfriend might be burned. I have concerns that a limiting instruction to the jury about the use they may make of such prejudicial evidence may not be enough to prevent that evidence from operating unfairly.

Conclusion

[27] For these reasons, the Crown’s application is dismissed, with my thanks to counsel for their submissions.

Ellies J. Released: September 8, 2016