ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Ms. E. Burton, for the Crown
- and -
DONALD MILANI
Mr. R. Poirier, for the Accused
Accused
HEARD: November 14, 2016, at Thunder Bay, Ontario
BY ORDER OF THE COURT, PUBLICATION OF THESE REASONS IS BANNED UNTIL THE COMPLETION OF THE WITHIN TRIAL
Madam Justice H.M. Pierce
Reasons on Admissibility of Evidence from a Prior Investigation
Introduction
1This is a jury case. The Crown seeks a pretrial ruling as to the admissibility of fingerprint evidence obtained during a prior investigation at the Sobolta residence. The Sobolta investigation predates the investigations leading to the charges before the court.
2Prior to jury selection, counsel argued this motion. I gave cursory oral reasons at the conclusion of the motion, with more developed reasons to follow. These are those reasons.
3The Crown argues that the fact of the prior investigation and the fingerprint obtained during the Sobolta investigation are relevant and probative as part of the narrative during the police investigation of later charges that are now before the court. The Crown also submits that the jury trying this case is entitled, in its truth-seeking function, to know the narrative of the police investigation, and that an instruction to the jury would deal with any improper use the jury might make of the information.
4The defence argues that admission of the Sobolta evidence is highly prejudicial while having no probative value. The accused was acquitted by a jury of breaking and entering in the Sobolta case. The defence argues that because the jury gives no reasons, it is impossible to know how the jury resolved the fingerprint evidence in Mr. Milani’s favour. The defence argues that the Crown, in attempting to associate Mr. Milani with a prior break-in for which he was acquitted, is attempting to adduce evidence of bad character.
The Facts
5Mr. Milani is facing a multiple-count indictment alleging home-invasion style break-ins and sexual assaults at three rural residences. In the case at bar, the Crown will adduce fingerprint evidence found in these residences linking Mr. Milani to the charges.
6The Crown’s factum sets out the following evidence of the Sobolta investigation that it proposes to lead at Mr. Milani’s trial:
On 18 September 1985 there was an incident at another rural residence, which did not involve a sexual assault. It was investigated as a stand-alone occurrence at the time; the details of the allegations are not relevant to these proceedings. There was a usable fingerprint at that scene, which at the time was not able to be identified as belonging to anyone.
In November 1987, there was a re-investigation of four incidents: Nykyforchyn, Bain 1 & 2, and the September 1985 incident as it was believed to be related.
In December 1987, the fingerprint from the September 1985 incident led to Mr. Milani’s arrest on all matters.
7The facts recited in the defence factum are more illuminating:
On September 18, 1985, Mrs. Sobolta found an intruder in her home. She confronted him with a handgun and he fled. The police found a fingerprint at the scene which they could not identify until 1987. Mr. Milani, on the strength of the fingerprint, was charged with Break and Enter. During the course of the jury trial he testified that the Sobolta home was last owned by a friend of his for whom he had installed an outdoor antenna and through [sic] the basement window where the fingerprint was found. Mr. Milani was acquitted [sic] the only rational conclusion is that the presence of Mr. Milani’s fingerprint was unrelated to the Break and Enter.
8The defence submits that it would have no objection to the Crown opening to the jury and calling evidence at this trial on the basis of the neutral statement that in 1987, the police found other evidence that led them to re-open their investigation involving Mr. Milani.
Discussion
9The Crown relies on R. v. Skeete, 2012 ONSC 737; [2012] O.J. No. 468. In Skeete, the Crown applied to introduce evidence of prior discreditable conduct arising out of a prior charge against the accused for attempted murder. Ultimately, the charge was withdrawn, but not until Skeete had spent 13 months in jail.
10Mr. Skeete was later charged with first degree murder when the complainant in the earlier case was shot and killed. The Crown sought to introduce evidence of the accused’s prior involvement with the victim as evidence of motive, and as part of the narrative.
11The court determined that the evidence was relevant to motive, and also to narrative and permitted the evidence to be adduced. The court concluded that the evidence of the accused’s prior involvement with the victim could potentially be misused by the jury, but that a proper jury instruction could address the potential misuse of that evidence.
12Generally, evidence of prior discreditable conduct of an accused person is inadmissible: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, para. 31. In Handy, at para. 41, the court qualified the general rule by recognizing that there may be circumstances in a trial when:
…evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse.
13The concern about misuse of the evidence is that the jury will be led into “moral” or “reasoning” prejudice whereby the jury concludes that the accused has the propensity to engage in the type of criminal conduct with which he is charged and so must be guilty of the current charges. See: R. v. Zeng, 2012 ONSC 207, [2012] O.J. No. 1232, para. 25.
14The burden on the Crown is therefore to demonstrate on a balance of probabilities that the probative value of the evidence of prior discreditable conduct outweighs the potential prejudice: Zeng, para. 27.
15Here, the Crown has not moved for inclusion of the fingerprint evidence on the basis of similar fact evidence and thus the evidence of the fingerprint found at the Sobolta evidence is not relevant to identity.
16As well, there is no relationship between the Sobolta investigation and the charges facing the accused in this trial. The charges presently before the court do not allege that Ms. Sobolta was assaulted or robbed or that her home was broken into. Thus, the fingerprint found at her home does not relate to motive in this trial.
17The Crown submits that the Sobolta fingerprint provided the police with grounds to arrest Mr. Milani on the charges before the court. The defence argues that there is little probative value in the jury knowing why Mr. Milani was arrested – that it is not the jury’s function to determine whether the police had reasonable and probable grounds to arrest Mr. Milani on these charges. I agree with this submission.
18The defence also argues that since it is not known why the jury acquitted Mr. Milani, he will be forced to re-litigate his explanation for the fingerprint found at the Sobolta residence, notwithstanding his acquittal.
19In Skeete, the court considered the Crown’s request to seek admission of prior discreditable conduct on the grounds that it was part of the narrative and motive. At par. 14, the court discussed narrative as a reason to admit the evidence:
I turn first to the prosecution’s submission that this evidence should be admitted as part of the necessary unfolding of the narrative. I do not find that submission entirely persuasive as a basis for the admission of this evidence. It can be too easy in many instances to try and justify the introduction of evidence on the basis that it is part of the narrative. At times, it seems that narrative has become an all-encompassing notion that is used to justify the reception of almost any piece of evidence. To counter that tendency, threshold tests such as relevance and probative value versus prejudicial effect must be applied to ensure that narrative, as a justification for the admission of evidence, is kept within its proper confines.
20I am of the view that the prejudicial effect of referring to the fingerprint found during the Sobolta investigation far outweighs any probative value that may result from the jury being aware of the prior investigation. There is considerable risk that if evidence of the prior Sobolta investigation and the fingerprint is admitted, the jury will be tempted to engage in impermissible reasoning: that Mr. Milani is the type of individual who is likely to break-in to others’ homes and therefore is likely to be guilty of the offences with which he is charged. That powerful inducement to impermissible reasoning could not be corrected by a jury instruction.
21The Crown’s motion to lead evidence about fingerprint evidence obtained during the Sobolta investigation is therefore dismissed. However, if the Crown wishes to lead evidence that in 1987, the police found other evidence that led them to re-open their investigation involving Mr. Milani, without referring to the fingerprint or the Sobolta investigation, that neutral statement would supplement the narrative without prejudicing the accused, and would therefore be admissible.
_______“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: November 14, 2016
CITATION: R. v. Milani, 2016 ONSC 7074
COURT FILE NO.: CR-10-0070
DATE: 2016-11-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DONALD MILANI
Accused
REASONS ON ADMISSIBILITY
Pierce J.
Released: November 14, 2016
/sab