Court File and Parties

Court File No.: 171/14 Date: 2017-02-22 Ontario Superior Court of Justice

Between: Her Majesty the Queen Applicant/Respondent – and – Jan Goro Applicant/Respondent

Counsel: John Dibski and Sean Bradley, for the Crown Ariel Herscovitch and Ashley Audet, for the Applicant

Heard: September 28 & 30, 2016

Reasons for Decision on Application to Admit Occurrences and Charges Without Convictions

fitzpatrick j.

[1] Jan Goro is charged with second-degree murder in this “cold case" homicide. It is alleged that he killed Donald Ross McAvella in April 1976. Mr. Goro was arrested for the murder in 2013.

[2] Mr. Goro brings this pre-trial application to admit into evidence the details for several incidents involving a third party suspect, Jack Laforge, where criminal charges were initiated but no findings of guilt or convictions entered.

[3] The Crown brings a similar pre-trial application to admit into evidence at trial the details for several incidents involving Mr. Goro where the police investigated but no criminal charges were initiated.

[4] For the reasons that follow, I have decided that neither the occurrence details respecting Mr. Goro nor Mr. Laforge shall be admissible into evidence at this trial.

Background

[5] In April 1976, Donald Ross McAvella, aged 54, was killed in his apartment in the City of Burlington. Mr. McAvella was fatally stabbed several times with a kitchen knife. After Mr. McAvella’s body was discovered, the Halton Regional Police secured the scene and began a homicide investigation.

[6] The murder of Mr. McAvella was investigated by the Halton Regional Police. Mr. McAvella was gay and active in the Hamilton gay community. The working theory of the police was that Mr. McAvella was the victim of a slaying within that gay community.

[7] The case was not immediately solved and the investigation continued for many years.

[8] On February 7, 1988, the Hamilton police received a telephone call from a male who confessed to the murder of Mr. McAvella. The caller did not identify himself but he was subsequently confirmed by the police to be Jack LaForge. Mr. LaForge was an individual then known by the police to be involved in the gay-sex-for-money trade and otherwise familiar with the people frequenting the Hamilton gay community.

[9] On February 22, 1988, Mr. LaForge was arrested by the Halton police for the murder of Mr. McAvella on the basis of the telephone confession.

[10] Following his arrest, Mr. LaForge was transported to the Oakville police detachment where he was interviewed and recanted his prior confession. Following this initial interview, Mr. Laforge participated in a polygraph interview and was determined to have passed. Mr. Laforge was then released unconditionally by the police.

[11] Mr. Laforge died in or about 1995.

[12] By 2003, the Halton Police had identified Mr. Goro as a suspect in the murder. This was in part the result of Mr. Goro’s fingerprints matching those found at the scene of Mr. McAvella’s death.

[13] Mr. Goro was arrested in 2013 for the murder of Mr. McAvella.

[14] The Crown conceded that Mr. Laforge was a viable third party suspect to be left with the jury.

[15] Both Mr. Goro and Mr. Laforge have prior criminal convictions. Counsel for the Crown and Mr. Goro consented to the prior criminal convictions and underlying details for both being presented to the jury.

[16] In addition to their respective convictions, Mr. Goro and Mr. Laforge have each been the subject of police investigations into allegations of other criminal misconduct. Mr. Goro was not charged with any criminal offences arising from these investigations. Mr. Laforge was charged but these charges did not result in any findings of guilt or convictions.

The Issue

[17] The sole issue before me is whether the details of occurrences that did not result in any findings of guilt or convictions respecting Mr. Goro and/or Mr. Laforge should be admitted into evidence at this trial.

Positions of the Parties

[18] Counsel for Mr. Goro submit that only the occurrence details respecting Mr. Laforge should be admitted.

[19] Crown counsel submits that if the occurrence details respecting Mr. Laforge are admitted then so should those pertaining to Mr. Goro.

The Law

[20] It is clear that criminal allegations that are not the subject of a charge or for which no conviction is obtained are properly characterized as bad character evidence: see e.g. R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at paras. 42-55.

[21] Bad character evidence in relation to the accused is subject to an exclusionary rule and presumptively inadmissible unless an exception to the rule is established.

[22] There are three general exceptions to the exclusionary rule: (1) where the evidence is relevant to an issue in the case; (2) where the accused puts their character in issue; and (3) where the evidence is adduced incidentally to proper cross-examination of the accused on their credibility: see Justice S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed. (loose-leaf) (Toronto: Canada Law Book, 2015), at §9:30.20.10, for a list of relevant cases and further examples.

[23] Bad character evidence is generally admissible against persons other than the accused in a criminal trial. This is because only the accused has a liberty interest at stake in a criminal trial: see McWilliams, at §9:50. The evidence may be admitted if it is relevant and not otherwise subject to an exclusionary rule.

[24] Respecting the absence of any liberty interest for a third party, the Supreme Court of Canada noted as follows in R. v. Arcangioli, [1994] 1 S.C.R. 129, 1994 SCC 107, that:

[T]he danger of a wrongful conviction does not arise where the character evidence pertains not to the accused, but to a third party witness. Consequently, "[s]o long as it is relevant and not otherwise excluded by a rule of evidence, evidence of the bad character of a third party can be adduced by the defence": Sopinka, Lederman and Bryant, supra, at p. 467; R. v. Scopelliti (1981), 63 C.C.C. (2d) 481 (Ont. C.A.), 1981 ONCA 1787; R. v. McMillan (1975), 23 C.C.C. (2d) 160, 1975 ONCA 43, aff'd [1977] 2 S.C.R. 824, 1977 SCC 19; and Wigmore on Evidence (3rd ed. 1940), vol. 1, § 139, at p. 573.

[25] Under this analysis, relevant evidence tendered by the defence should only be excluded if its prejudicial effect substantially outweighs its probative value. In R. v. Watson (1996), 30 O.R. (3d) 461 (C.A.), Doherty J.A. observed:

Evidence suggesting that an accused is a person of bad character is subject to a specific exclusionary rule to which there are exceptions. There is, however, no such exclusionary rule in criminal cases where otherwise relevant evidence suggests that the deceased (or some other third party) is a person of bad character: R. v. Arcangioli, supra. Where such evidence is relevant, it will be received unless the trial judge concludes that its potential to prejudice the jury substantially outweighs its probative value. In this context, prejudice refers to the possibility that the jury will misuse the evidence by concluding that the deceased's bad character somehow justified or excused the otherwise criminal conduct of the accused. Put bluntly, there is a concern that the jury will base their verdict in part at least on an assessment that the deceased's bad character rendered the deceased unworthy of the protection of the law.

[26] The defence may introduce evidence of a third party’s character to establish whether the third party acted in a way that is relevant to the case: McWilliams’, at §9:50.20. Where character evidence is tendered to establish relevant conduct, it may consist of: (1) evidence of general reputation; (2) a specific act or acts, including convictions; (3) expert opinion: McWilliams’, at §9:50.20; R. v. Hamilton, 2003 BCCA 490, 180 C.C.C. (3d) 80, at para. 48.

[27] However, there must be sufficient other evidence that connects the third party to the offence (see: R. v. Grandinetti, [2005] 1 S.C.R. 27, 2005 SCC 5 and R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, motion to extend time to file leave refused [2012] S.C.C.A. No. 8). In Arcangioli, the Court noted:

However, evidence of a third party's bad character will not be admitted unless it is relevant. There would be no probative value in evidence that a third party had a propensity to commit the type of act in question if he was otherwise unconnected with the circumstances surrounding the charge.

[28] Where the accused tenders evidence of a third party’s propensity to commit the offence, the Crown may be permitted to introduce evidence of the accused’s propensity or disposition (see: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 216; R. v. Mullins-Johnson (1996), 31 O.R. (3d) 660 (C.A.), 1996 ONCA 1214, affirmed [1998] 1 S.C.R. 977, 1998 SCC 831; R. v. Corbett, [1988] 1 S.C.R. 670, 1988 SCC 80, at p. 690; R. v. Parsons (1993), 15 O.R. (3d) 1 (C.A.), 1993 ONCA 3428; R. v. McMillan (1975), 7 O.R. (2d) 750 (C.A.), 1975 ONCA 43.

[29] The purpose behind permitting the Crown to present evidence of the accused’s propensity in response to evidence of a third party’s propensity is to prevent the trier of fact from being presented with a distorted picture of the case. A balanced view is what is required. Such evidence is still subject to the general criteria of admissibility, and can be excluded if its probative value is exceeded by its prejudicial effect: R. v. Badgerow, 2010 ONSC 934 (note that the case ended with a mistrial and subsequent stay, which was reversed by the Court of Appeal, 2014 ONCA 272).

[30] The foregoing regime was helpfully summarized by Watt J.A. in Luciano, at paras. 212-16:

[212] The principal issue at trial was the identity of the person who killed Colleen Richardson-Luciano. The suspects were two, both of whom had equivalent opportunity to do so. Michael Luciano was one. James Cooper was the other. Luciano said it was Cooper. And Cooper could not deny it because Luciano killed him about a day after Colleen had been stabbed to death.

[213] A person charged with the murder of another is entitled to adduce evidence in response to the charge that shows or tends to show that another person committed the murder: R. v. McMillan (1975), 7 O.R. (2d) 750 (C.A.), 1975 ONCA 43, at p. 757, aff’d [1977] 2 S.C.R. 824, 1977 SCC 19; IA Wigmore on Evidence (Tillers Rev.) at para. 139, pp. 1723-724.

[214] But not every item of evidence offered in support of a claim that someone else killed the deceased will be admitted. To permit the introduction of evidence supportive of a claim of third party authorship, we insist upon a sufficient connection between the third party and the offence charged: McMillan at p. 757; Wigmore at para. 139, p. 1724; R. v. Grandinetti, [2005] 1 S.C.R. 27, 2005 SCC 5, at para. 47. The evidence connecting the third party to the crime charged may be direct or circumstantial: McMillan at p. 758.

[215] An accused who has met the threshold to permit the introduction of evidence of the (alleged) involvement of a third party may proffer evidence of the third party’s disposition (to commit the offence charged): Grandinetti at para. 49; McMillan at p. 758. The tendency or disposition of a person to do something is relevant to indicate the probability that she or he did it, and may be admissible to prove it. In other words, evidence of disposition or propensity is offered as circumstantial evidence of conduct in accordance with the disposition: McMillan at p. 758; Grandinetti at para. 49.

[216] An accused who fortifies his assertion of third party involvement with evidence of the third party’s disposition risks a response in kind from the prosecutor, lest the trier of fact be left with an entirely distorted picture of those with an equivalent opportunity to kill the deceased: McMillan at pp. 767-68; M.(W.) at pp. 123-24, aff’d [1998] 1 S.C.R. 977, 1998 SCC 831; R. v. Parsons (1993), 15 O.R. (3d) 1 (C.A.), 1993 ONCA 3428, at p. 238; R. v. Corbett, [1988] 1 S.C.R. 670, 1988 SCC 80, at p. 690.

[31] The first step for me is to determine whether to permit the jury to be presented with evidence of the details of occurrences that did not result in any findings of guilt or convictions respecting Mr. Laforge. If the answer to that question is yes then I will need to consider whether the Crown should be permitted to present similar information pertaining to Mr. Goro in response.

[32] The bad character evidence against the third party suspect in this case, Jack Laforge, is subject to admission on the Grandinetti standard.

[33] The first threshold is relevance. Relevance will be established where there is sufficient other evidence that connects the third party to the offence. I have no difficulty in finding this standard has been met given Mr. Laforge’s initial confession to the murder.

[34] Despite being relevant, the evidence respecting Mr. Laforge may still be rejected where its prejudicial effect outweighs probative value. That is the conclusion that I am left with, ultimately.

[35] As noted above, the record of criminal convictions for Mr. Laforge was to be presented to the jury on consent. That record includes a conviction in 1973 for possession of a restricted weapon, namely a sawed-off 12 gauge shotgun that Mr. Laforge kept for “protection”. His record included a conviction in 1975 for carrying a concealed weapon where Mr. Laforge pulled out a knife with a 3 inch blade threatening a male he was then arguing with. Mr. Laforge was again convicted for carrying a concealed weapon in 1978. The details of this conviction were not available.

[36] In other words, Mr. Laforge had convictions involving violence with a weapon proximate in time to the murder of Mr. McAvella that the jury would be told about.

[37] There are only two non-conviction occurrences respecting Mr. Laforge that counsel for Mr. Goro seeks to have admitted. Both occurrences resulted in an assault charge.

[38] The first was an assault charge in 1971. It is alleged that Mr. Laforge poured boiling water over a male who was residing with Mr. Laforge in response to this male spurning the sexual advances of Mr. Laforge. This assault charge was stayed.

[39] The second assault charge occurred in 1982. It is alleged that Mr. Laforge chased a male with a pipe. This male was one person among a group of four who attacked Mr. Laforge. The outcome for this charge is unknown beyond the fact that no conviction was entered.

[40] The obvious difficulty that I have with admitting these two non-conviction occurrences is that the details available for them are nothing more than unproven allegations. The unproven allegations present reliability concerns given they have not been tested by any means or determined as fact. This is compounded by the inability to question Mr. Laforge or anyone involved with these charges about any of the details, including why no conviction was obtained. As a result, the probative value of the occurrences is at the very low end of the spectrum.

[41] The probative value of these unproven allegations is further diminished with consideration to the record of criminal convictions that will be presented to the jury. These convictions in conjunction with the supporting details suggest that Mr. Laforge is someone who could respond violently when confronted and that he carried weapons. Given the resulting convictions, this is reliable evidence suggestive of some propensity by Mr. Laforge to commit the stabbing that ended Mr. McAvella’s life. In other words, propensity evidence will already be placed before the jury with respect to Mr. Laforge diminishing the evidentiary value that these additional occurrences could provide.

[42] The last comment I would make respecting the probative value of the unproven allegations is to note that the charges were for simple assault, which is, obviously, much less serious than the details for the stabbing death of Mr. McAvella. In my view, this disparity also diminishes the probative value for the unproven allegations.

[43] In summary, the two unproven allegations of assault against Mr. Laforge are of minimal probative value.

[44] The prejudice of admitting the unproven allegations is that the jury may be distracted and otherwise misuse the unproven allegations in their ultimate determination of whether Mr. Goro is guilty of the murder beyond a reasonable doubt.

[45] The defence wants to present these occurrence details as facts forming part of the evidentiary foundation of Mr. Laforge’s propensity to commit the murder for which Mr. Goro has been charged. This prejudice is significant here given the allegations are unproven and cannot be tested, especially the allegation that Mr. Laforge assaulted a male victim with boiling water when sexual advances were rejected in the context of the theory that Mr. McAvella was the victim of a slaying within a sexual context.

[46] Mr. Goro seeks to tender the evidence of the non-conviction occurrences involving Mr. Laforge. Where an accused seeks to tender the evidence the potential prejudice must substantially outweigh the probative value to deny admission (see: R. v. Seaboyer, [1991] 2 S.C.R. 577, 66 C.C.C. (3d) 321, 1991 SCC 76). Here, the prejudice is substantially greater than the minimal probative value of the unproven allegations. Accordingly, I am not admitting the non-conviction occurrences of Mr. Laforge.

[47] I am not required to consider the Crown argument that the occurrences involving Mr. Goro should be admitted in response to the admission of those for Mr. Laforge and to otherwise provide the jury with a balanced view given my decision to not admit the details for Mr. Laforge’s non-conviction occurrences.

[48] I conclude my analysis by noting that I am satisfied that the jury would be presented with a fair and balanced view given that the record of criminal convictions for both Mr. Goro and Mr. Laforge will be admitted.

Result

[49] The details of occurrences that did not result in any findings of guilt or convictions respecting Mr. Goro and/or Mr. Laforge shall not be admitted into evidence at this trial.

Fitzpatrick J. Released: February 22, 2017