Court File and Parties

COURT FILE NO.: 015/15 DATE: 2016/10/07

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Serge Hamel, for the Applicant Applicant

• and -

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

HEARD: Sept. 26, 27 and 28, 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 Third Party Suspect Application

Ellies J.

Overview

[1] In this pre-trial application, the defence seeks leave to introduce evidence of alternate suspects in the death of Christopher Parsons, with whose murder Matthew Hayes is charged.

[2] For the reasons that follow, the defence request is granted with respect to Vanessa Tracey. The requests related to the other suspects are dismissed. The evidence with respect to those individuals falls short of establishing that a reasonable, properly instructed jury could acquit based on the proposed defence.

Background

[3] Parsons was found dead in his apartment on the morning of June 4, 2013, by Laura Heavens, a young woman who had been living with him for a few months. Parsons worked at a gas station not far from his apartment, in Haileybury. Of the circle of Parsons’ “friends” about whom I have heard, he was the only one with a job. When he was not working, Parsons was often either providing rides, or money, or both to a number of people who, on any reasonable view of the evidence, were using him for his generosity. However, the road to Parsons’ generosity was not a one-way street. In some cases, there was a quid pro quo. Parsons helped a number of young women, in return for which he asked for sexual favours. Two such women have been put forward by the defence as alternate suspects in what the defence contends are two plausible scenarios surrounding Parsons’ death that do not involve the accused as the murderer.

[4] In one such scenario, the defence contends that Parsons was killed by a former boyfriend of Heavens, named Roger Busch. In this scenario, Parsons was killed by Busch either as the result of jealousy relating to Heavens or as a result of greed related to Busch’s drug use.

[5] The second scenario involves a young woman called Vanessa Tracey, acting alone. In this scenario, Parsons is killed by Tracey as a result of him sexually assaulting her.

[6] In support of the application, and with the consent of the Crown, the defence relies on the transcript of the criminal discovery. In addition, both the Crown and the defence called viva voce evidence to amplify that record.

[7] I will discuss the evidence relied upon in support of each scenario after setting out the law governing this application in the section that follows. First, however, I wish to set out briefly some of the evidence relied upon by the Crown in support of the case against Hayes.

[8] Hayes and his girlfriend, Caitlin Willard, were friends or acquaintances of Heavens. During the day on June 3, 2013, Heavens used Parsons’ car to help them move. That evening, the three of them waited in Parsons’ apartment for Parsons to finish work. Heavens told Hayes that Parsons had written his PIN number on the back of his bank card. Parsons banked at the Scotiabank branch located within steps from his apartment and not much further from his place of employment.

[9] After he finished work that night, Parsons checked his bank balance using his card. He then drove Heavens to the residence of her sometime boyfriend, Rene Dumais, following which he drove Hayes and Willard to the Silverland Motel in Cobalt, where they were staying.

[10] Video surveillance footage taken by cameras located in Cobalt, at Mike’s One-stop gas station and convenience store located on the highway between Cobalt and Haileybury, and in the vestibule in which the ATM is located at the Scotiabank in Haileybury reveal the following sequence of events:

• At 5:23 a.m., an individual wearing a dark coat and light coloured pants whom police believe is Hayes is seen leaving the Silverland Motel and walking northbound, in the direction of Haileybury. He appears to be carrying something in his hand.
• At 5:25 a.m., a vehicle, the operator of which the police later tracked down, is seen heading in the same direction. The operator of the vehicle told the police that she picked Hayes up and dropped him off at Mike’s One-stop.
• At 5:37 a.m., Hayes is seen entering the Country Style coffee shop at Mike’s One-stop. He has what appears to be a white plastic bag in his hand. Police investigation undertaken subsequently indicates that it takes approximately 12 minutes to walk from Mike’s One-stop to Parsons’ apartment.
• At 6:17 a.m., Hayes is seen on video footage from two cameras located in the Scotiabank vestibule, using the ATM. The videos show him approaching from the direction of Parsons’ apartment. Records obtained later show that an attempt was made to take $600 out of Parsons’ account at that time, which failed. Another attempt was made to take out $160, which was successful. A final attempt to take out a further $100 was not.
• At 6:41 a.m., Hayes is again seen on video footage taken in Mike’s One-stop.

[11] In addition to the video evidence, Hayes’ girlfriend, Willard, gave a statement to the police at one point, in which she stated that Hayes confessed to her on or about June 8, 2013, that he killed Parsons.

[12] I turn now to the law and its application to the evidence before me.

Analysis

[13] The law with respect to applications to introduce third party suspect evidence is mercifully well-settled. Evidence that someone other than the accused committed the crime in question is admissible, provided that there is a sufficient connection between the third party and the crime: R. v. McMillan (1975), 7 O.R. (2d) 750 (C.A.), aff’d. [1977] 2 S.C.R. 824; R. v. Grandinetti, [2005] 1 S.C.R. 27, 2005 SCC 5, at para. 46.

[14] The importance of establishing a sufficient connection with the crime was explained recently by Karakatsanis J. on behalf of the Supreme Court of Canada in R. v. Grant, [2015] 1 S.C.R. 475, 2015 SCC 9, at para. 4:

The integrity of the administration of justice requires that the proceedings stay focused on the indicted crime and not devolve into trials within a trial about matters that may not be sufficiently connected to the case. Such tangents risk causing delays, confusion and distractions that undermine the trial’s truth-seeking function. This risk is especially heightened where the defence seeks to introduce other alleged suspects or crimes into the trial.

[15] In order to succeed on an application of this type, the defence must show that there is some basis upon which a reasonable jury, properly instructed, could acquit on the evidence: R. v. Fontaine, [2004] 1 S.C.R. 702, 2004 SCC 27; Grandinetti, at para. 48. This evidential burden on the accused is often referred to as the requirement that there be an “air of reality” to the defence: Fontaine, at para. 70; R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29, at para. 49. If there is an insufficient connection between the third party and the crime, 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. In the absence of some nexus with the alleged offence, third party suspect evidence will constitute impermissible speculation: Grant, at para. 28.

[16] Mere evidence of propensity on the part of a third party is not enough to establish the required connection. This point was made by Martin J.A. on behalf of the Court of Appeal in McMillan, at p. 758:

Obviously, unless a third party is connected with the crime under consideration by other circumstances, evidence of such person’s disposition to commit the offence is inadmissible on the ground of lack of probative value.

[17] In deciding whether there is an air of reality to the defence, the trial judge must assume the truth of the evidence that is relied upon in support of it, leaving the reliability, credibility ad weight of that evidence to be determined by the jury: Fontaine, at para. 72.

[18] I turn now to the two alternate scenarios advanced by the defence.

Vanessa Tracey

[19] Vanessa Tracey had known Christopher Parsons for approximately one and one-half years at the time of his death. She met Parsons in or about the month of November, 2011. She was a student at the time. They met on an on-line dating site and agreed to meet in person at the Haileybury waterfront. Although Tracey testified that she discovered then that Parsons had been dishonest about his age and his occupation, she continued to see him afterwards.

[20] Tracey was short of money throughout the period of her relationship with Parsons. She had received student loans which left her with only about $7,000 to $8,000 for the school year after her tuition was paid. She worked part-time, but only briefly. She had a habit of using marijuana, which she admitted got to be expensive. In or about March, 2012, Parsons began giving her money for food, rent, drugs and alcohol. In addition, he paid for things like tattoos and bought her a kennel for her dog. He also bought her a used car, which she had at the time of his death. He paid for her car insurance and provided her with money for gas.

[21] Parsons and Tracey would see each other on Monday nights after Parsons finished work at approximately 10:00 p.m. Tracey was aware that in discussions with others, Parsons would call Mondays “hump days”. According to Tracey, on these nights, she and Parsons would usually drive the local back roads and occasionally through town. However, Tracey did go to Parsons’ apartment on five or six occasions, according to her evidence.

[22] Tracey testified that Parsons constantly made sexual advances towards her throughout the course of their relationship. The first such advance probably occurred in or about the month of December, 2011. Tracey testified that, in total, Parsons sexually assaulted her over 100 times while he was alive.

[23] Tracey testified that she was not physically attracted to Parsons and that she was not spending time with him for money. Nonetheless, she continued to see him on a regular basis and to accept money and payments for third party services from him despite the fact that she says he sexually assaulted her on most, if not every, occasion upon which she saw him.

[24] Tracey also testified that she was “raped” on one occasion by Parsons. She testified that this occurred about mid-May, 2013, just a few weeks before Parsons’ death. She testified that she did not want to tell the police about the rape because she did not want to get Parsons in trouble.

[25] Tracey saw Parsons on four occasions on June 3, 2013, the last one being at approximately 8:30 p.m. She testified that he said that he was too tired to spend time with her that evening. In her testimony given during the pre-trial application, she stated that she then went to pick up a friend who was working at Walmart and drove her home. Afterwards, she returned to her own home and went to bed. She testified that she was at home in bed at the time that Parsons was murdered.

[26] In my view, there is enough evidence of a connection between Tracey and the death of Parsons to give an air of reality to the defence that she killed him. This evidence includes the following:

• Parsons was murdered on a Monday night, the night of the week upon which he and Tracey would usually get together.
• Tracey’s evidence that Parsons told her on June 3, 2013, that he was too tired to get together that night suggests that she was otherwise willing to do so.
• Although Tracey says she was home asleep at the time Parsons died, there is no one to corroborate her alibi.
• Parsons’ cell phone was never found. However, cell phone records indicate that he sent a text message to Tracey at 1:09 a.m. on June 4, 2013.
• At the time he was found on the morning of June 4, 2013, Parsons was naked.
• The oven in Parsons’ apartment was on at the time his body was found. This suggests that he was probably awake in the period of time before he was killed, and not merely woken up while sleeping naked.
• Tracey testified that the only time that she had sexual intercourse with Parsons was when she was raped, during which time Parsons used a condom. A used condom was found in the kitchen of Parsons’ apartment after his death. That condom contained the DNA of Tracey. The condom also contained the DNA of a young lady by the name of Chantal Bujold. In addition to sending the text mentioned above at 1:09 a.m. to Tracey, Parsons sent text messages to Bujold on the evening of June 3 and in the early morning hours of June 4 in which he was inquiring about the possibility of getting together for sexual purposes.
• Tracey admitted that she told Parsons that she was a lesbian. However, she testified that she told him this in order to thwart his sexual advances.
• There were no signs of forced entry into Parsons’ apartment, suggesting that whoever killed him was known to him.
• Tracey testified that she would sometimes cook food and bring it to Parsons. Although she did not recall ever bringing him Sheppard’s pie, she testified that it was possible because she used to make it all the time. An open pan of Sheppard’s pie was found on Parsons’ stove at the time that his body was discovered.
• Parsons was only a few inches taller than Tracey, who testified that she weighed between 250 and 300 lbs. at the time of his death. Based on photographs taken of Parsons at the time his body was discovered, it would be reasonable to conclude that Tracey substantially outweighed him.
• Tracey was asked specifically by the police during three interviews conducted after Parsons’ death if she had engaged in sexual intercourse with him. On each occasion, she denied that fact. On the second occasion, she denied it even after she had been cautioned about the criminal consequences of making a false statement and sworn to tell the truth. There is evidence that Tracey walked out during the third interview, in April, 2014, when she was confronted by the discovery of her DNA on the condom. It was not until July 10, 2014, that she admitted having sexual intercourse with Parsons. When questioned about why she did not tell the police that she had engaged in sexual intercourse with Parsons, Tracey testified that she had been raped by him and did not wish to get him into trouble. This does not explain why she would not tell the police about the rape during interviews conducted after Parsons was dead and could no longer get him in trouble. It would not be unreasonable to believe that she purposely failed to tell the police that she was raped because the rape was the cause of Parsons’ death.
• Parsons was found lying on the floor of his apartment, face down. There was a significant quantity of blood on a door near his head. There were also blood splatters up the wall towards the ceiling. Video surveillance evidence taken on the morning of June 4, 2013, shows a male whom the police believe is Hayes attempting to use Parsons’ bank card at approximately 6:17 a.m. on the morning of June 4, 2013, at an ATM located very close to the scene of the crime. That same video evidence also indicates that there were no visible blood stains on the light coloured pants being worn by Hayes. This may be evidence that someone else committed the murder, given the amount of blood at the scene.
• Although Tracey testified that she and Parsons were good friends, she failed to attend his funeral. Her excuse for doing so was that she found out about it only after the fact.

[27] Based upon the evidence I have set out above, it would not be unreasonable for a jury to have a doubt that Hayes was the perpetrator of the murder. Instead, a properly instructed jury may have a reasonable doubt about whether Tracey, in fact, attended at Parsons’ apartment in response to the text message he sent at 1:09 a.m. They might reasonably have a doubt about whether the sexual assault alleged by Tracey, in fact, occurred in the early morning hours of June 4, 2013, and resulted in Parsons’ death. A reasonable jury might also have a doubt as to whether Hayes came upon the crime scene after Parsons’ death, took his bank card, and used it.

[28] In my view, therefore, the defence has met its onus of establishing a sufficient connection between Tracey and the crime.

[29] The same cannot be said, however, with respect to Heavens and Busch.

Roger Busch and Laura Heavens

[30] Roger Busch has an extensive criminal record. He was 28 years old when he testified at the criminal discoveries on July 16, 2015. He was in custody at the time on a matter unrelated to this one. His criminal record includes convictions for offences of violence, beginning in 2006.

[31] Busch moved to Haileybury about two years prior to the murder and was living about 200 metres from Parsons’ apartment at the time of Parson’s death.

[32] Busch was a drug dealer. He admitted in his testimony at the criminal discovery that he used a knife that had actually penetrated the skin of someone from whom he had once collected a drug debt. The knife he used had a five or six inch blade and was in the possession of the police at the time, according to Busch’s discovery evidence.

[33] Laura Heavens was among the people to whom Busch sold drugs. Heavens had been living with Busch until March or April, 2013, when Busch kicked her out and another young lady named Tessa Mercier moved in. Heavens had been romantically involved with Busch prior to that date.

[34] At the time of the murder, Busch was subject to a conditional sentence order by virtue of which he was required to remain in his place of residence, except for certain brief periods of time. Busch and Mercier both testified that they were at home in Busch’s apartment on the night that Parsons’ was killed.

[35] After Heavens was kicked out of Busch’s apartment, Parsons helped her by moving her things to various other places and by allowing her to live with him. Although she was living at Parsons’ apartment at the time, Heavens spent the night of June 3, 2013, at the home of Dumais. That night, she, Dumais and Dumais’ roommate watched television before going to bed. The next morning, Dumais drove Heavens into Haileybury on his way to work. They picked up coffee and something to eat along the way, which Heavens consumed at the Haileybury waterfront before she made her way to Parsons’ apartment.

[36] There were two doors into the apartment, one at ground level and another at the entrance to the apartment itself. Heavens did not have a key for either, so she banged on the first door by kicking it, to get Parsons’ attention. The door opened and Heavens made her way upstairs to the apartment, where she found the door open. She found Parsons body inside, as I have earlier described.

[37] Heavens immediately went to a nearby confectionary store to call 911, as she did not have a cell phone.

[38] The defence submits that a jury may have a reasonable doubt about whether Busch killed Parsons, either because he was jealous or because he wanted or needed Parsons’ money. Counsel for the accused relies on the following evidence:

• The proximity of Busch’s apartment to that of Parsons’.
• Busch’s propensity for violence.
• The fact that Busch admitted once using a knife to enforce a drug debt and evidence that Parsons had sustained “sharp edge wounds” on the night he was killed.
• Evidence that Busch was on ODSP benefits, but also had an expensive drug habit.
• Evidence from Mercier that Busch was a very jealous person and that he would get jealous if Parsons merely gave her a ride.
• The fact that, while Heavens was living with him, Busch was aware that she was seeing a lot of Parsons, that she was getting money from Parsons, and that Parsons was asking for things in return, such as a back massage.
• Evidence that Busch thought that Parsons was a “pervert” and “mentally unstable”.
• The fact that Busch’s alibi for the night of June 3 is corroborated only by Mercier, who testified that Busch was in the apartment when she went to bed and that he was there when she woke up.
• Mercier’s admission that she is a long time drug addict and that she had “memory issues” recalling what had occurred at the time that Parsons was killed.
• The fact that Mercier failed to comply with a subpoena compelling her to attend the criminal discoveries and was eventually found by the police hiding in a closet in North Bay.

[39] With respect to Heavens, the defence contends that a jury may reasonably believe that she went to spend the night with Dumais in order to give herself an alibi. In support of this submission, the defence relies on the following evidence:

• That it was not normal for Heavens to spend a weeknight with Dumais.
• That Parsons informed welfare authorities on Heavens, which resulted in Heavens being charged with welfare fraud and being required to repay the sum of $3,800 as overpayment.
• Evidence from a fire fighter who was at the confectionary on the morning that Heavens went there to call 911. According to this witness, Heavens appeared very calm at the time and was concerned mainly about getting back into the apartment in order to retrieve her things.

[40] In my view, the evidence set out above is insufficient to create the necessary connection between Busch, Heavens and the crime. As for Busch:

• There is no evidence that Busch was ever in Parsons’ apartment.
• The only evidence of any contact between Busch and Parsons leading up to June 3 is evidence that Busch may have been in Parsons’ car on one occasion when Parsons gave Busch’s sister a ride, which he did from time-to-time.
• There is no evidence that Parsons ever did drugs, let alone purchase them from Busch. In fact, the evidence is that Parsons never did drugs. Therefore, he could owe Busch no money for drugs.
• There is no evidence that Parsons ever gave money to Busch, the way he did to young women.
• There is no evidence that Busch was jealous with respect to Parsons’ relationship with Heavens, as opposed to Mercier. At the time of Parsons’ death, the relationship between Busch and Heavens appeared to be over and there is no evidence of any relationship between Parsons and Mercier.
• If Busch killed Parsons for money, there is nothing to explain why Hayes, and not Busch, is seen in the early morning hours of June 4 attempting to use Parsons’ bank card.

[41] With respect to Heavens:

• There is no evidence of a plan in which she was involved and with respect to which she would need an alibi. Hayes and his girlfriend are the only people that the evidence suggests could be part of any plan. They were with Heavens at Parsons’ apartment earlier in the evening and Heavens told Hayes that Parsons’ PIN number was written on his bank card.
• The evidence is that Heavens did not have a key to Parsons’ apartment. Therefore, it would have been necessary for her to assist the killer to gain entry into Parsons’ apartment by requesting that Parsons let her in. However, based on the texts he sent to Bujold and Tracey, Parsons appears to have been alive into the early morning hours of June 4, at which time Heavens was at the Dumais residence for the night.
• There is no evidence to refute Heavens’ evidence that she did not know that Parsons had gone to the welfare authorities until after Parsons died. The letter sent to her from the authorities is dated Thursday, May 30, 2013. As indicated above, Parsons died on the following Monday.

[42] Because there is insufficient evidence of a connection between either Busch or Heavens and the crime, there is no air of reality to the defence that either one of them was involved in the killing of Parsons.

Conclusion

[43] The defence application with respect to Tracey is allowed. The application with respect to Busch and Heavens is dismissed. To permit the defence to introduce the evidence it relies upon in support of the involvement of Busch or Heavens would be to invite the jury to engage in impermissible speculation. The evidence of motive and opportunity on the part of either individual is insufficient to allow anything else.

Ellies J. Released: October 07, 2016

COURT FILE NO.: 015/15 DATE: 2016/10/07 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Applicant – and – MATHEW HAYES Respondent REASONS FOR DECISION ON THIRD PARTY SUSPECT APPLICATION Ellies J. Released: October 7, 2016