Court File and Parties

COURT FILE NO.: 8535-13 DATE: 20170215 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – KENNETH JOHNSON Defendant

Counsel: Peter Westgate and Michael Ventola for the Crown Mary Cremer and Colin Sheppard for the Defendant

HEARD: January 27, 2017

Ruling on O’Connor Application

RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

Boswell J.

I Introduction

[1] Richard Skupien died on August 24, 2013. A forensic pathologist attributed his death to a severe beating. His roommate, Kenneth Johnson, is accused of delivering that beating and is charged with his murder.

[2] One of the central issues for trial is the identity of Mr. Skupien’s assailant, should the jury be satisfied that his death was indeed caused by a beating. The Crown submits that some of the things Mr. Johnson said after Mr. Skupien fell into medical distress offer circumstantial evidence of his culpability for beating, and ultimately killing, Mr. Skupien.

[3] The Crown is particularly focussed on two statements made by Mr. Johnson. The first is an audio-recorded statement he gave to the police. The second is an unrecorded statement he purportedly made to his landlord within an hour after speaking to the police. Both statements were made a short time after Mr. Skupien had been transported by ambulance to the local hospital.

[4] Statements made by an accused person may be believed or disbelieved by a trier of fact. But according to our law, they may only be used as positive evidence of guilt if the trial judge first finds that there is evidence capable of establishing that the statements were not only untrue, but were fabricated. In fact, only where there is independent evidence of fabrication will an accused person’s statements be capable of supporting the inference that they were made because the accused was conscious of having committed an offence and was attempting to divert suspicion away from himself or herself: R. v. O’Connor, 2002 ONCA 3540, [2002] O.J. No. 4410 (C.A.).

[5] The Crown asserts that both identified statements were fabricated and are capable of supporting an inference of consciousness of guilt.

[6] Defence counsel take the opposite view. They argue that neither statement is clearly false. They add that in any event, there is an absence of independent evidence of fabrication. Neither statement, they submit, should be put to the jury as circumstantial evidence of guilt.

[7] I propose to review the statements in brief detail, followed by a review of the law that governs this application and finally an assessment of whether the proffered statements are capable of supporting the inferences suggested by the Crown.

II The Statements

[8] On August 24, 2013 at about 9:08 a.m., Kenneth Johnson called 911 and reported that his roommate, Richard Skupien, was unconscious in their washroom. Paramedics responded. So did the police. Mr. Johnson told the police how he had found Mr. Skupien and how he had done his best to help him. Mr. Johnson later told his landlord that he had performed CPR on Mr. Skupien until the paramedics arrived.

The Statement to the Police

[9] The police statement in issue was given to Detective Glenn Wright and it was audio-recorded. It began at about 10:16 a.m. on August 24, 2013, a short time after ambulance attendants had removed Mr. Skupien from his Richmond Hill apartment and transported him to the hospital. Detective Wright was one of a number of police officers investigating the 911 call made by Mr. Johnson regarding Mr. Skupien’s absence of vital signs.

[10] The interview took place on a picnic table in a little courtyard just outside the apartment. It lasted less than ten minutes.

[11] Mr. Johnson was essentially asked what happened. He began by telling the police that he had woken up to the sound of a crash “maybe an hour ago, not even an hour ago”. He said he found Mr. Skupien on the floor by the kitchen. Mr. Skupien complained about his liver and said he needed to get to the washroom. Mr. Johnson said he helped his friend to the washroom and helped him get his pants down. He then got him a cold cloth for his forehead. A few minutes later Mr. Johnson heard Mr. Skupien fall in the washroom so he went back in and helped him back up onto the toilet. Five minutes later he went back to check on Mr. Skupien and found him unconscious, apparently not breathing. He said he rinsed the cold cloth out and put it back on Mr. Skupien’s head and then called 911.

[12] Detective Wright subsequently asked Mr. Johnson what time he had gone to bed the previous night. He said “three thirty, three o’clock, three thirty.” Detective Wright asked what time Mr. Johnson heard the first crash. He said “Huh, maybe had to be couple three hours later after that…five thirty, six in the morning I guess I had woken up six thirty maybe then and heard the crash.”

The Statement to the Landlord

[13] The apartment shared by Mr. Johnson and Mr. Skupien was located at 10 Centre Street, Richmond Hill. The landlord was a gentleman by the name of Ghayour Nassirnia. Mr. Nassirnia testified at the preliminary hearing. He said that he had received a call on the morning of August 24, 2013 from a tenant telling him that Mr. Skupien was unconscious. In response, he attended at the apartment at about 11:00 a.m. to see what had happened.

[14] Mr. Nassirnia testified that when he arrived at the apartment he saw Mr. Johnson. He said Mr. Johnson was crying and deeply upset about Mr. Skupien’s condition. He said Mr. Johnson told him that he had been sleeping and heard a bang – a noise – in the washroom. He went into the washroom to check and found Mr. Skupien lying on the floor. He said he called 911 right away. They instructed him to do CPR, which he tried his best to do and continued to do until the emergency responders arrived.

III The Legal Framework

[15] Time does not stand still following the commission of an offence. It rolls on inexorably. People continue to say and do things after the offence is completed – both offenders and non-offenders alike. The vast majority of this post offence conduct going on in the world is unremarkable and unrelated to the offence in issue. But sometimes what a person says or does after an offence can afford circumstantial evidence of guilt. Flight from the scene of a crime; destruction of evidence; and making false statements to the police are all classic examples.

[16] Post offence conduct has created its fair share of angst among legal scholars over the years. It appears that the concept has matured now to the point where it is accepted that post offence conduct is simply a type of retrospective circumstantial evidence; no more or less remarkable than any other form of circumstantial evidence. It is governed by the usual rule that all evidence is admissible provided it is relevant, material and not excluded by a specific rule of evidence. As Binnie J. observed in R. v. White, 2011 SCC 13, at para. 137:

…The general rule is now, as in the past, that it is for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct put in evidence against the accused is related to the commission of the crime before them rather than to something else, and if so, how much weight if any, such evidence should be accorded in the final determination of guilt or innocence.

[17] Mr. Johnson’s statements made after Mr. Skupien was conveyed away by ambulance are a type of post-offence conduct. That means nothing more, of course, than that they occurred after the alleged offence was completed. They may be admitted into evidence provided they meet the pre-requisites of relevance, materiality and admissibility: R. v. Candir, 2009 ONCA 915 at para. 46.

[18] Statements made by an accused person may be offered into evidence by the Crown in a number of different ways. They may simply be part of the narrative of the case. They may be direct evidence of guilt, as in the case of a confession. They may be indirect (circumstantial) evidence of guilt, where they provide evidence of opportunity or motive for instance. They may also, as in this case, be tendered to support the proposition that the accused was conscious of having committed an offence and concocted the statement to avoid culpability. This latter example is also a type of circumstantial evidence of guilt.

[19] There is a special rule applicable in instances where the Crown seeks to adduce a purportedly false exculpatory statement for the purpose of inferring guilt. The rule can be a little difficult to wrap one’s head around, so I will take a moment to explain it.

[20] In many cases, where the contents of an exculpatory statement are proven false, a natural human tendency is to infer fabrication and, by extension, guilt, from the very facts that establish the falseness of the statement. The case of R. v. O’Connor, as above, offers an excellent example.

[21] In O’Connor, a man was shot dead on the side of a highway in Fort Erie, Ontario. The killing occurred at about 5:20 a.m. Earlier in the evening the victim had been playing poker at a charity casino. In the initial stages of the police investigation officers spoke to others who had been at the charity casino in an attempt to piece together the movements of the deceased prior to his death.

[22] Mr. O’Connor had been at the casino. The police spoke to him. He was not a suspect at the time. He told the police that he left the casino and went to an after-hours club in an effort to keep playing poker. He said he got to the club at about 4:15 a.m., but there were too few players to get a game going. He claimed he stayed at the club until about 5:30 or 6:00 a.m., then drove across the border to Buffalo where he stayed at a friend’s home overnight.

[23] Mr. O’Connor’s statement was full of holes. First, as luck would have it, a police officer on patrol noticed several vehicles parked outside of the after-hours club at about 4:30 a.m. He left the scene and went and ran license checks on the vehicles. One was Mr. O’Connor’s. It had an expired plate sticker. The officer returned to ticket the vehicle at 4:42 a.m., but it was gone.

[24] Second, there were no records of Mr. O’Connor having crossed the border when he said he did.

[25] Third, neighbours of the friend in Buffalo provided affidavit evidence that Mr. O’Connor’s vehicle had not been on their street on the occasion in question.

[26] There was ample evidence to conclude that Mr. O’Connor’s statement was false. As a matter of logic and human experience, the same evidence was, in my view, more than sufficient to conclude that the statement was concocted. Indeed, it is hard, given the facts involved, not to see how the statement could not have been a concoction. One might then reasonably ask, why would Mr. O’Connor concoct such a story? And one might reasonably conclude from the concoction that Mr. O’Connor may well have had a hand to play in the killing.

[27] While the foregoing example offers a chain of reasoning that appears entirely logical and reasonable, according to our law the facts that establish the falsity of a statement may not also be used to establish its fabrication. This is because Canadian appellate courts have established a policy that requires the Crown to offer evidence of fabrication that is independent of the evidence relied upon to establish the falsity of a statement. The policy is considered a necessary hedge against improper reasoning. It was explained by the Court of Appeal in O’Connor, at paras. 19-21, as follows:

19 The distinction between mere disbelief and a finding of fabrication has regard to the fundamental principle that the onus of proof remains on the Crown throughout a criminal trial and helps ensure that the trier of fact properly applies the burden of proof in cases where statements of an accused are tendered or an accused testifies. The distinction reduces the risk that a trier of fact may blur the need for the Crown to prove the offence charged beyond a reasonable doubt with the failure of the accused to provide a credible defence. The distinction also recognizes the danger that a trier of fact may attach undue weight to the rejection of an accused's explanation and may move too readily from mere disbelief to a finding of guilt…

20 In R. v. Coutts, (1998), 1998 ONCA 4212, 126 C.C.C. (3d) 545 (C.A.)], Doherty J.A. explained the rationale underlying the rule as follows at pp. 551-52:

If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused's version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown's obligation to prove an accused's guilt beyond a reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused's version of events. [references omitted]

21 Despite the fact that in many cases an inference of fabrication will flow logically from disbelief of an accused's statement, the policy underlying the distinction between disbelief and the finding of fabrication militates against using disbelief to infer fabrication. The courts have, therefore, attached the requirement that a finding of fabrication must be founded on evidence that is independent from the evidence which contradicts or discredits the accused's version of events: R. v. Hibbert, supra, at p. 151; R. v. Coutts, supra, at p. 552; and R. v. Tessier, supra, at p. 556.

[28] Other courts have repeated the same rationale in subsequent cases: see for instance, R. v. Paul, 2009 ONCA 443; R. v. Bradey, 2015 ONCA 738; and R. v. Clause, 2016 ONCA 859.

[29] In terms of the type of independent evidence required to establish fabrication, the Court of Appeal has repeatedly confirmed that evidence of fabrication may be found in the circumstances in which a disbelieved, out-of-court statement was made: see Bradey, as above, and O’Connor, as above. Such circumstances may show an attempt to mislead the police or to deflect suspicion away from the statement maker. Examples (non-exhaustive of course) of such circumstances include:

(a) The timing of the statement. For instance, the making of a demonstrably false statement at a time when the police did not suspect the involvement of the accused in the offence in issue; ((b) The scope of the exculpation provided; (c) Whether the statement was provided on the accused’s own initiative; (d) Whether the accused had time to concoct a story; and, (e) The degree of detail provided in the demonstrably false statement.

R. v. Bradey, 2015 ONCA 738, as above, at paras. 161, 173 and 180.

[30] In summary, in assessing the application of the Crown, I must answer the following series of questions:

(a) Is the statement in issue a statement of the accused? (b) Is it exculpatory in nature? (c) Is there evidence that it is untrue? (d) Is there independent evidence that it is not only untrue, but fabricated? (e) Is it capable of supporting the inference that the accused was conscious of committing an offence and therefore was doing his best to divert suspicion away from himself?

[31] In this case there is no dispute about the maker of the statements in issue. I will consider the balance of these questions in relation to each statement.

IV Analysis of the Statements

Statement One: The Police Statement

Is the Statement Exculpatory?

[32] The statement Mr. Johnson gave to the police is not classically exculpatory. It does not, for instance, contain a suggestion that Mr. Johnson had been out of town for a week and returned to find Mr. Skupien in distress. On the contrary, some aspects of the statement may be inculpatory. Mr. Johnson put himself in the company of Mr. Skupien the night before and the morning of his death. The trial has not yet commenced, so I have yet to hear evidence from the pathologist who conducted the post-mortem examination on Mr. Skupien. But I expect there is some likelihood that he will offer an opinion as to how long it took Mr. Skupien to die from his injuries. Mr. Johnson’s statement may in fact serve to place him in close proximity to Mr. Skupien within the window in which his injuries occurred.

[33] Having said that, the statement tends to place Mr. Johnson in the role of an aider, as opposed to an attacker. It reflects him offering assistance to a stricken friend and being unaware of the reason for his distress. In this sense, it does have an exculpatory aspect to it.

Is There Evidence That the Statement Was False?

[34] To be clear, it is not my task to determine if any statement made by Mr. Johnson was false; that is the function of the jury in this case. I need only determine if there is evidence upon which a jury could reasonably conclude that a statement was false. In my view, there are two aspects of the police statement that may support a finding that it was false. First, it is internally inconsistent. Second, it contains a significant omission.

[35] In terms of inconsistency, Mr. Johnson initially told the police, at 10:16 a.m., that he heard the crash from Mr. Skupien’s first fall about an hour earlier. Later on in his statement, he said he heard it at about 6:30 a.m. That is a three hour time discrepancy. Detective Wright attributed the discrepancy to confusion of the moment. Perhaps he is right. On the other hand, a jury could conclude that such a glaring inconsistency is evidence that Mr. Johnson was making up the statement as he went along.

[36] In terms of omission, Mr. Johnson’s cell phone records reflect that he made a call to his brother a very short time before he made the call to 911. Perhaps he forgot to mention it. Perhaps he thought it was an insignificant or irrelevant part of the narrative. On the other hand, a jury may conclude, in the context of all of the evidence, that there was a more nefarious reason for the call.

[37] I am ultimately satisfied that there is evidence upon which a jury could reasonably conclude that at least parts of the statement were false.

Is There Independent Evidence of Fabrication?

[38] Again, it is not my function to determine if I think the police statement was fabricated. I need only determine if there is evidence upon which a properly instructed jury, acting reasonably, could conclude that it was. And I find that there is.

[39] Having regard to the factors referenced in cases like O’Connor and Bradey, I find that the following factors may support a finding of fabrication:

(a) The statement was made a very short time after Mr. Skupien had been removed from the premises. He was, at that time, alive. There was no obvious evidence of trauma to his body. The police had no reason to suspect that a crime was committed, much less that Mr. Johnson was the perpetrator of it; (b) The statement to the police was arguably not provided on Mr. Johnson’s own initiative. That said, it was largely consistent with the information he provided during his call to 911. Emergency responders, including the police, were summoned by him; (c) Mr. Johnson had time to concoct a story; and, (d) The statement included significant details in chronological fashion.

Is the Statement Capable of Supporting an Inference of Guilt?

[40] In my view, this is not the strongest case of a false statement supportive of an inference of a consciousness of guilt. It is not nearly as compelling as the circumstances in O’Connor, Paul, or Clause. But should the jury conclude that Mr. Johnson concocted his story, or his sequence of events, it may be enough to infer that he did so, in these circumstances, to make it appear that Mr. Skupien’s distress was of natural, if unexplained, causes, thereby deflecting suspicion away from himself.

[41] In summary, from my current vantage point, it would appear that there is evidence that Mr. Johnson made a statement to the police that had an exculpatory aspect to it. There is evidence that it was made falsely, at least in part. And there is independent evidence, found in the circumstances in which it came about, to support the conclusion that it was made for the purpose of leaving the impression with the police that Mr. Skupien suffered a medical emergency arising from natural causes, as opposed to violence.

Statement Two: The Landlord Statement

Is the Statement Exculpatory?

[42] For the reasons I expressed above, in relation to the police statement, I am satisfied that there is an exculpatory aspect to the statement made to Mr. Nassirnia.

Is There Evidence That the Statement Was False?

[43] There is evidence that at least one aspect of the landlord statement is false. In particular, Mr. Nassirnia testified that Mr. Johnson told him he performed CPR on Mr. Skupien until the paramedics arrived.

[44] One of the first responders testified at the preliminary hearing. Tait Mitchell was, at the time of the preliminary hearing, a nine year veteran of the paramedic service. He was one of the first to arrive on scene at 10 Centre Street following Mr. Johnson’s 911 call. He testified that the paramedics had a little trouble finding the place. A man flagged them down at the side of the road. He did not name the man, but a reasonable inference is that it was Mr. Johnson, because the man guided them right into the apartment and to Mr. Skupien in the bathroom.

[45] Mr. Mitchell further testified that when the paramedics reached the bathroom they found Mr. Skupien still sitting on the toilet.

[46] If the jury concludes that Mr. Johnson is the man who flagged down the ambulance at the roadside, then obviously he was not doing CPR until the paramedics arrived. I do not want to put too fine a point on what Mr. Johnson purportedly said. So to be fair, it is conceivable that he was doing CPR when he heard the ambulance arrive, at which point he ran outside to meet it.

[47] More troubling is the location of Mr. Skupien’s body when the paramedics arrived. He was still sitting on the toilet. That configuration is not consistent with the administration of CPR as anyone reasonably familiar with CPR would consider it.

[48] Defence counsel suggested that perhaps Mr. Johnson was not familiar with CPR and thought it meant just doing mouth to mouth resuscitation, which could theoretically be performed as the patient sat upright. Such a suggestion is, in my view, speculative. Particularly in light of the fact that the 911 operator suggested to Mr. Johnson that he lay Mr. Skupien down.

[49] I am satisfied that there is a basis upon which the jury could reasonably conclude that an important aspect of the landlord statement was false.

Is There Independent Evidence of Fabrication?

[50] The same circumstances that potentially support a finding of fabrication in relation to the police statement support a potential finding of fabrication with respect to the statement to Mr. Nassirnia. This observation requires some modification in relation to the initiative to make the statement. I consider the statement to the landlord to be entirely of Mr. Johnson’s own initiative.

Is the Statement Capable of Supporting an Inference of Guilt?

[51] Post offence conduct, like any circumstantial evidence, is all about the inferences that it reasonably supports. The question here is whether telling Mr. Nassirnia that he performed CPR on Mr. Skupien until the paramedics arrived supports an inference that Mr. Johnson had a consciousness of guilt.

[52] In my view, the consciousness of guilt inference is not particularly compelling in relation to the statement to the landlord.

[53] Assuming, for the sake of argument, that the jury concludes Mr. Johnson lied to Mr. Nassirnia about performing CPR on Mr. Skupien, I accept that one possible inference is that Mr. Johnson was doing his best to tell anyone who would listen that he was a hero, as opposed to a villain. One reason he might do so is because he killed Mr. Skupien and he wanted to divert suspicion from himself. Another reason, equally compelling in my view, is that he did not kill Mr. Skupien but wanted people to believe he was the kind of person who would perform CPR in an attempt to save his distressed friend.

[54] It is always important that circumstantial evidence not be viewed in isolation, but rather in the context of all of the other evidence in the case. That is particularly so in the case of post offence conduct evidence. From my current vantage point I obviously cannot say what all of the other evidence in the case is, since the trial has yet to begin.

[55] I have found that there are at least two reasonable inferences flowing from the purported lie to Mr. Nassirnia. One is potentially inculpating.

[56] As Doherty J.A. held in R. v. Rodgerson, 2014 ONCA 366, aff’d 2015 SCC 38, at para. 51:

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.

[57] In the result, though I do not find the inference urged upon the court by the Crown to be a compelling one, it appears from my current vantage point that it is reasonably available and as such must be left with the jury.

The Residual Discretion to Exclude Evidence

[58] Defence counsel urged the court to consider the application of its residual discretion to exclude otherwise admissible evidence where its tendency to cause prejudice exceeds its probative value.

[59] Justice LaForest described the court’s residual discretion in his dissenting reasons in R. v. Corbett, 1988 SCC 80, [1988] 1 S.C.R. 670, para. 98, as follows:

All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy.

See also R. v. Spackman, 2012 ONCA 905, at para. 115.

[60] The suggestion here is that even if Mr. Johnson’s statements to the police and the landlord are admissible as circumstantial evidence of guilt, they should yet be excluded because of the risk of prejudice. The court is thus engaged in a weighing of the probative value of the statements as circumstantial evidence of guilt against its prejudicial impact on the interests of Mr. Johnson or the trial process generally.

[61] Assessing probity requires the court to consider the strength of the evidence; the extent to which it supports the proposed inferences; and the materiality of the issues the evidence is directed at: R. v. B. (L.); R. v. G. (M.A.) (1997), 1997 ONCA 3187, 116 C.C.C. (3d) 481 (Ont. C.A.), at para. 23.

[62] Prejudice is generally assessed in two categories: moral prejudice and reasoning prejudice: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31, 139 and 144.

[63] I have already indicated that I do not consider the landlord statement to be particularly compelling in view of the alternate explanations for it. While there are also alternative explanations for the statement to the police, I consider it somewhat more probative, though to be candid, it is not compelling evidence, like the statements in O’Connor and Paul were.

[64] Having said that, I make two observations.

[65] First, individual pieces of circumstantial evidence do not need to pull all the freight necessary to establish a fact in issue. For instance, the statements need not, on their own, establish culpability on Mr. Johnson’s part. They are to be considered in the context of all of the evidence.

[66] Second, there is little, if any, discernable prejudice to Mr. Johnson in admitting the evidence, provided an appropriate jury instruction is given regarding their use. There is no obvious moral prejudice that I can see. And any concern about misuse by the jury can be entirely attenuated by a proper instruction.

[67] In the result, though the probative value of the statements as circumstantial evidence of guilt may be quite modest, it is not overborne by a risk of prejudice.

V Conclusion

[68] I am satisfied that there is a sufficient evidentiary basis upon which a jury may reasonably conclude that aspects of both the police and landlord statements were false. I am further satisfied that there is independent evidence available upon which the jury may conclude that at least parts of the statements were fabricated. They are at least capable of supporting the inferences suggested by the Crown and are admissible for that purpose.

[69] In view of the timing of this motion – being prior to trial – this ruling must be considered provisional in nature and subject to review should the developing evidentiary narrative warrant it.

Boswell J.

Released: February 15, 2017