COURT FILE NO.: CR15-5114 DATE: 2017/04/11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN S. Kim, for the Crown
- and -
RICHARD BENNETT C. Zeeh, for the Applicant
HEARD: February 21, 2017
PRETRIAL WRITTEN RULING # 2 – APPLICATION TO INTRODUCE ALTERNATE SUSPECT EVIDENCE
A.J. GOODMAN, J.:
[1] The respondent, Richard Bennett (“Bennett”), is alleged to have committed first-degree murder on July 28 – 29, 2004 with respect to the deceased, Jean Paul Page (“Page”).
[2] The principal issue in this case concerns the identity of the person or persons who killed Page.
[3] The applicant seeks to introduce certain third-party or alternate suspect evidence in relation to this homicide. Prior to this hearing, the applicant brought a third-party records application in relation to records held by the Toronto Police Service with respect to these specific individuals. My ruling on that application was released to the parties prior to this application, ( 2017 ONSC 1191 ). At the outset of this hearing, the applicant abandoned the alternate suspects application in relation to one of the five named individuals in this application.
Background
[4] On July 28, 2004, Page returned from his shift at Gentek, a factory in Burlington. His landlord visited the apartment to install a new shelf and his father, Roger Page, visited until 10:00 p.m.
[5] Crystal Burns (“Burns”), the deceased’s girlfriend, and Page worked different shifts. Burns would normally call during her breaks. At around 10:45 p.m., a black sounding male who identified himself as “Martin” answered Page’s home phone and informed her that Page was in the shower. She called back numerous times throughout the night without receiving an answer.
[6] On the morning of July 29, 2004, Burns rushed home at the completion of her shift. She entered the apartment to find Page deceased in the kitchen in a pool of blood. Burns went downstairs to have John Gardner, (“Gardner”) the downstairs neighbour, attend and look at the deceased. An emergency call to 911 was placed by Burns shortly after returning to the apartment.
[7] Page was pronounced dead shortly after the police and emergency personnel arrived on scene. The cause of death was determined to be ligature strangulation and multiple stab wounds.
[8] On August 3, 2004, the Hamilton Police Service (“HPS”) learned that Page’s bank card was used three times on the early morning of July 29, 2004. Surveillance footage showed a black male wearing a Von Dutch baseball hat with light coloured pants attempting to use the deceased’s bank card.
[9] Since 2004, the HPS’s investigation into the Page homicide has been ongoing. The police have interviewed and investigated a significant number of people. The police have targeted specific individuals as persons of interest or as suspects. In 2011, the HPS focused their attention on the applicant. In 2013, police started an undercover operation spanning several months that resulted in the applicant providing several inculpatory statements. The applicant was arrested for the Page murder on December 16, 2013.
Positions of the Parties:
[10] The applicant submits that there is a clear and sufficient connection between Jason Bynoe (“Bynoe”), and Nathanial Gibbs (“Gibbs”), and the Page homicide.
[11] At the time of the murder, Bynoe was residing at 52 Ottawa Street South, which is within walking distance of the deceased’s building. Additionally, he regularly visited and sold drugs to Mr. Kotar who was a resident in the deceased’s building. Bynoe was the main suspect of the Hamilton Police for a number of years. The police received many tips that Bynoe matched the description of the suspect at the bank and has been seen wearing Von Dutch apparel. The police also interviewed many individuals who repeated the information they received from their confidential tips. When asked to be interviewed about the Page homicide, Bynoe avoided the police until he turned himself in on an outstanding arrest warrant.
[12] Bynoe was well known by the HPS during this time period. Bynoe has a criminal record. For instance, on August 25, 2004, Mr. Bynoe was stopped by the police at the 7-Eleven near the deceased’s building. He was found to have a black ski mask in his back pocket. On December 8, 2004, the police received a 911 call from Bynoe’s aunt, about a duffle bag he left at the house that contained firearms. On October 3, 2007, Bynoe and Gibbs were charged with armed robbery. It was alleged that they knocked on an apartment door and when the complainant answered the door, they pointed a silver firearm at him.
[13] Bynoe has a direct connection with the deceased’s building. He was the main suspect of the police for a number of years and has the character to commit this offence. The applicant submits that Gibbs and Bynoe were very close, therefore any grounds relied on for Bynoe are relevant to Gibb’s connection with the Page homicide. If Bynoe is found to have a sufficient connection to the Page homicide, Gibbs would be the individual most likely to have committed the homicide with Mr. Bynoe.
[14] The applicant says that Gibbs was well known by the HPS and is a person of interest in the Page Homicide. Gibbs has a criminal record. For example, in 2005, Gibbs was charged with assault causing bodily harm for an assault on a Toronto Transit Commission bus driver and a witness who tried to intervene. Additionally, in 2007, Gibbs and Bynoe were suspects in an armed robbery case. It was alleged that after the complainant answered his apartment door, Gibbs pointed a silver firearm at the complainant and asked him if he had possession of anything. Once they determined they had the wrong individual, they let the complainant go but were arrested shortly thereafter.
[15] The applicant also submits that there is a clear and sufficient connection between Shaka Reid (“Reid”) and the Page homicide. In June 2004, Reid was released from custody and split his time between Toronto and Hamilton. Reid was known to run the streets of Hamilton and rob drug dealers. He has an extensive criminal history for violent offences. In May 2006, Reid’s residence was raided by the Toronto Police Service as part of “Project XXX”. During the search, the police located a handgun, a wanted poster and a news article regarding the Page homicide. After the HPS learned of this information, Reid became a suspect in the Page murder. Based on the photogrammetry report, Reid matches the height of the suspect using the deceased’s bank card. Reid is connected with Bynoe and his friends. HPS continued their investigation into Reid.
[16] Finally, the applicant submits that there is a clear and sufficient connection between Gardner and the Page murder. Gardner has a direct connection with the deceased. He was Page’s downstairs neighbour. They were known to visit each other and from time to time smoke marijuana together. Gardner has a lengthy criminal record. His criminal record started in 1978 and the last entry was from 1998. Gardner has been convicted of many violent offences. Gardner is known to be violent with a bad temper. On July 27, 2004, the police were called to Ms. Never’s residence after she called the police over a dispute with Mr. Gardner.
[17] Gardner was present in the building on the night of the murder. During his first police statement, he informed the police that he was asleep by 10:00 and slept throughout the night until Burns, the deceased’s girlfriend, knocked on his door. After this statement, his story continued to change. When he arrived home, when he went to bed and what he heard, have never been consistent. Shortly after “Marvin” or “Martin” answered Page’s telephone, Gardner left a message on Page’s voicemail; at a time, he was supposedly sleeping and a phone call he never mentioned to the police. Ms. Never’s contacted police about her concerns over the Page homicide and Gardner. She provided the police with her diary where she recorded all her observations about Gardner after Page’s death. She told police that he had new stereo equipment, money and around $80.00 worth of marijuana shortly after Page’s death. Before the police had released to the public that the deceased’s bank card was used on the night of the murder, Gardner told police that he believed Page was tortured for his PIN number. Additionally, during his testimony at the preliminary inquiry, he testified that Page’s body was leaning against the cupboards in the kitchen; which is inconsistent with how Burns discovered the body.
[18] The applicant submits that the evidence linking all of these parties to the Page homicide would provide a reasonable and properly instructed jury with a basis to acquit the applicant as the jury would be entitled to conclude that one or more of the third parties was the perpetrators in the murder.
[19] The Crown submits that the applicant has not met his onus to establish an alternate suspect claim. There is no compelling direct or circumstantial evidence for the named individuals to have murdered the deceased.
Legal Principles:
[20] The defence can introduce evidence that a person other than the accused committed the offence charged if there is evidence tending to connect that third party with the commission of the offence. If the connection exists, then the proffered evidence will have sufficient probative value to merit its reception: R. v. McMillan (1975), 23 C.C.C. (2d) 160 (Ont. C.A.), affirmed (1977), , 33 C.C.C. (2d) 360 (S.C.C.).
[21] In McMillan, at p. 167, Martin J.A. set out the test for the admission of evidence relating to a potential third party perpetrator as follows:
I take it to be self evident that if A is charged with the murder of X, then A is entitled by way of defence, to adduce evidence to prove that B, not A, murdered X. A may prove that B murdered X either by direct or circumstantial evidence.
Evidence that a third person had a motive to commit the murder with which the accused is charged or made threats against the deceased is commonly admitted on this principle.
Evidence directed to prove that the crime was committed by a third person, rather than the accused, must, of course, meet the test of relevancy and must have sufficient probative value to justify its reception. Consequently, the Courts have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value.
[22] In R. v. Williams (1985), 18 C.C.C. (3d) 356 at 366 (Ont. C.A.). Martin J.A. explained:
It is beyond question that a person charged with the commission of an offence may adduce evidence to show that a third person committed the crime. The disposition of a third person to commit the crime in question is probative and admissible provided that there is other evidence tending to connect the third person with the commission of the offence.
[23] In R. v. Grandinetti (2005), 2005 SCC 5, 191 C.C.C. (3d) 449 (S.C.C.), Abella J. made clear that the evidential burden on the defence to adduce evidence of a third party suspect is no different than the evidential burden relating to other defences such as alibi, duress, self-defence or provocation. She explained at paras 47-48:
The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation.
The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence: R. v. Fontaine. If there is an insufficient connection, the defence of third party involvement will lack the requisite air of reality; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3: R. v. Fontaine (2004), 2004 SCC 27, 183 C.C.C. (3d) 1 (S.C.C.).
Discussion:
[24] It is settled law that this type of evidence must still meet the test of relevancy and must have sufficient probative value to justify its reception. This means there must be a sufficient connection between the alternate suspect and the crime to justify its introduction.
[25] While there must be an air of reality to the third party defence, it is important to recognize that the threshold for its admission is not intended to be a high one. Any evidence, direct or circumstantial, linking the third party suspect to the crime is sufficient. The evidence, however, must be admissible. The evidential link, where it is based upon circumstantial evidence, must be based upon reasonable inferences and not speculation or conjecture: Grandinetti, at para. 47.
[26] A good segment of the applicant’s argument focuses on a third party’s disposition or propensity. Evidence of a third party’s bad character will not be admitted to advance an alternate suspect defence 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. Unless there is a connection between the third party suspect and the offence, propensity evidence alone will not suffice: R. v. Arcangioli, [1994] 1 S.C.R. 129 at para. 28, R. v. Baltovich, [2008] O.J. No.1609 (S.C.J.) at para. 6.
[27] As mentioned, evidence of opportunity is generally essential to provide an air of reality to the third party suspect defence. Absent this evidence, circumstantial evidence of an alleged third party's disposition and motive, for example, would be excluded as immaterial. If there is evidence of opportunity it must then be coupled with direct or circumstantial evidence implicating the alternate suspect in the crime, such as identification evidence, motive, or disposition.
[28] In my opinion, there is no compelling direct or circumstantial evidence of opportunity for Bynoe to have murdered Page. There is no evidence of any connection between Page and Bynoe. The fact that Bynoe lived in close proximity to Page or that Bynoe dealt drugs to another resident, living in a separate unit in an adjoining apartment building are not compelling evidence of opportunity or motive. There is no evidence the applicant can proffer as to Bynoe’s whereabouts on the evening of July 28, 2004. While Bynoe was a “suspect”, in the eyes of the police, after a lengthy investigation the HPS never charged him for the crime.
[29] Through tips, several persons believed that Bynoe matched the description of the suspect at the bank and had been seen wearing Von Dutch apparel. However, Bynoe’s physical characteristics do not match those of the man in the ATM video. Bynoe is 6’2” tall. The evidence of the photogrammetry is that the ATM suspect is considerably shorter at a height between 5’7” to 5’9”.
[30] Without real evidence of opportunity and any connection to the victim - other than living in close proximity and dealing drugs to a resident in his building - there remains only propensity evidence left as a basis to suggest a link between Bynoe and the crime committed in this matter. In my view, there is only speculation and innuendo to presume some link existed between Bynoe and the victim or the crime.
[31] The applicant’s basis to support Gibbs as an alternate suspect rests fundamentally to his association to Bynoe. Gibbs unlike Bynoe, was not even a resident of Hamilton at the time of the murder. There is only evidence that Gibbs would visit Hamilton and stay with Bynoe at a residence in the city which was close in proximity to the victim’s residence. Again, there is no compelling evidence of opportunity or motive to commit the crime. In relation to Gibbs, there is essentially only propensity evidence as a basis to support him being an alternate suspect that committed the crime. I am not persuaded on any basis that the applicant succeeds with respect to Gibbs as a third party suspect.
[32] In 2004, Reid split his time between Toronto and Hamilton. In respect of opportunity, other than the applicant’s admissions to the undercover operator implicating Reid, there appears to be little in the evidence of opportunity for Reid to have committed the murder of Page.
[33] The Toronto Police found a wanted poster and news article regarding the murder in Reid’s residence. While the Crown acknowledges this fact to be suspicious, it raises a question as to the circumstances of these documents being in the residence and its meaning. The Crown says that the fact the Hamilton Police Service investigated Reid as a suspect only makes sense based on what was found his residence. The Crown submits that a person having been investigated should not be supportive in the analysis of whether that former suspect or person of interest meets the test to advance him as an alternate suspect at trial.
[34] During the course of the hearing, the Crown further submits that if Reid were involved, the applicant has still failed to show how Reid’s involvement absolves the applicant’s own involvement in the Page murder. Reid would only be an additional suspect, not an alternative suspect.
[35] Indeed, the Crown attorney spent considerable time and effort in referring to a definition of “alternate” versus “additional” suspect as mentioned by Boswell J. in R. v. Pan [2014] O.J. No.5964 (S.C.J.). The Crown says that the court recognized another issue that exists with an alternate suspect defence when assessing probative value. The question is the line between an alternate suspect versus one who is merely an additional suspect. In advancing an alternate suspect defence, it is a logical requirement that the accused demonstrate how the possible involvement of another person or persons, raises a reasonable doubt about his or her own involvement in the offence. If the defence is in fact raising that some other person or persons are also involved it would prove troublesome for the third party but does not assist the accused in demonstrating how the accused was not involved.
[36] Of note, according to counsel, this is the only reference in all of the jurisprudence to the notion of “additional suspect”, rather than third-party or alternate suspect in dealing with this question.
[37] With respect, I do not believe that a whole new evidential or legal framework of “additional suspect” has been opened up in assessing the probative value of the proposed evidence by virtue of Boswell J.’s comments in Pan.
[38] An alternate suspect application may not always relate strictly to just being present or at the scene of the crime or having exclusive opportunity to commit the offence. Rather, the alternate suspect application may be relevant and probative to an accused’s level of culpability in addressing the crime charged, in this case, first-degree murder. In my opinion, the descriptor in Pan adds little to the analysis and I am not prepared to introduce or re-affirm a new category or descriptor in the legal framework for this type of application.
[39] The Crown submits that if Reid - or for that matter Gardner - were involved, he or they would only be an “additional” and not an “alternative” suspect.
[40] Relevance of the evidence to be proffered is situational and depends not only on the identification question but also on other factual matters that may lead to the ultimate issue: R. v. R. P., [1990] O.J. No. 3418 (H.C.) at para. 11. As well, the Court must consider whether the probative value of the alternate suspects evidence exceeds its prejudicial effect.
[41] As mentioned, there are different avenues of party liability available to the Crown. The applicant may be equally culpable as a principal, aider, or abettor. Generally, the alternate suspect defence is only viable if the applicant can raise a reasonable doubt about whether he was inside the Page residence at the time of the murder. As the charge relates to first-degree murder, a question arises whether he did anything to assist or encourage the offence. In this case, it seems reasonable to extend the alternate suspects approach to evidence that may address the applicant’s level of culpability.
[42] I observe that there is also some evidence that Reid matches the height of the suspect using the victim’s bank card. I disagree with the Crown on this point as this is some probative evidence. That said, I acknowledge that there must be a link to the murder in some other meaningful way, other than Reid’s propensity for violent crimes.
[43] Notwithstanding the aforementioned (and whether or not all of the other factors support the applicant’s position); for reasons provided to the parties in a companion pre-trial application, I have admitted all of the applicant’s statements to the undercover officer during project “Chapter”.
[44] In those voluntary statements to the undercover officer, the applicant repeatedly implicated two individuals. One of whom was serving a jail sentence, the other being Reid. On that basis alone, and in conjunction with the other factors discussed above, there is ample support for the alternate suspect defence in respect of Reid.
[45] The Crown has not formally advanced its position on the basis on which it alleges first-degree murder at this juncture. Suffice it to state that relevant and reliable third party suspect evidence may be probative in addressing the applicant’s culpability in relation to the crucial issues of planning and deliberation or constructive murder, as the case may be.
[46] Unlike the other proposed alternate suspects, the Crown recognizes evidence of opportunity for Gardner to have been involved in the murder of Page.
[47] Gardiner lived on the floor below the victim and was in the building the evening of the murder. Gardner provided several statements to the police, including the day of the murder:
Q. What can you tell me about an incident that occurred in your apartment building? A. I was woke up this morning, by Crystal, Jays girlfriend. She was hysterical and crying. She asked me to come up and check her boyfriend, because he wasn’t moving, or responding to her. She was afraid that he was dead. I went with her, and I asked her to stay away from his body....
Q. Do you know what time it was when you were awoken by Crystal? A. No, I wasn’t even awake yet, I didn’t check the clock. It might have been half hour, 45 minutes in time from when I woke up til the cops came.
Q. Where [sic] you home in your apartment last night? A. Um hum, I went to bed around 10ish.
Q. Does anybody else live with you in your apartment? A. No.
Q. Did you hear or see anything last night? A. No. I heard a couple of walking noises, but nothing spectacular. Those are hardwood floors, you hear people walking all the time.
Q. When is the last time you saw and or spoke with Jay? A. Pause... couple of days ago I was up talking with him, we were talking about DVD’s. I had one of his on loan. He asked for it back, I returned it. I put it on the landing, he told me to put on the landing outside his door on my way out. He said he’d get it.
Q. Did you see or speak with him yesterday? A. I remember seeing him yesterday, maybe to say hi or something like that. I think it was Tuesday when I was going out the building, and he was coming in. He said how you doing fatso and I said fine skinny. That is about it.
[48] Gardner provided a subsequent statement to police on August 5, 2004:
A. Nope I didn’t. I fell asleep on the couch, it could have been 2 o’clock or 2’30. I usually watch this show Night Light, it is like a Christian broadcast where people call in about different things. I think it was on when I fell asleep. Sometime through the, I guess I must have been asleep, because I was awoken by the subwoofer. It only seemed to last for 5-10 minutes. Time is not all that great when you are waking up.
Q. Is there anything else you heard that night before falling asleep? A. No, nothing that is not ordinary to me, I’ve been there for 3 years. I get use to the noise, unless it is really bad, you put up with it, and if there is you just call the person. There was nothing that really bothered me, to say anything about.
This part I don’t ever think I told you, was people hanging around the front of the building that I didn’t know. I know they are someone’s friends, but they are out there talking after 2 o’clock or beyond.
Q. When is the last time that you spoke with Jean Paul? A. It was maybe 2 or 3 times before that, he loaned me two movies. He asked for the one back because it was his cousins, but I still have the other, 50 First dates. He had to give the other back.
Q. Before the morning of the 29 July 2004, when was the last time you were in his apartment? A. Um, getting those DVD’s. It would have been 2 or 3 days before. The only person I can verify that with is the dead man. Nobody else was there.
Q. When was the last time you called his apartment? A. I can’t remember, a week or two weeks ago. If I called, my message would have been it is me downstairs, underneath yeah. Crystal never called me back, I never really got much reply back unless Jay was home alone. He’d call me back, invite me up for a bit.
Q. What would you say if I was to tell you that you were on his answering machine that night, the 28 July? A. Possible, don’t remember. Was it early. Was I phoning him to tell him I still had a DVD or [sic] his, or that I wanted to borrow some more.
A. Not that I remember, but you are starting to make me think that I did. In my memory I don’t remember going into any room, but going in the door, and into the kitchen. I remember getting down on the floor and checking for his pulse under his arm, and looking at his neck, and thinking yuck. I don’t know if I remember it right, but I think there was a cord around his neck. I kept thinking this was a home invasion. It looked like somebody was torturing him for his bank number. They put a cord around his neck, saying give me the number. That is what keeps running through my mind. I can’t see anyone having any anonimosity [sic] towards him. I can’t.
Q. I have a question, you mentioned Pin number, where does that come from? A. From your bank card. The bank card, there is a pin number in the strip. The pin number is in the magnetic strip, without the number, you can’t withdraw.
Q. Do you recall what you said “I kept thinking this was a home invasion. It looked like somebody was torturing him for his bank number. They put a cord around his neck, saying give me the number. That is what keeps running through my mind. I can’t see anyone having any anonimosity [sic] towards him. I can’t”. Do you remember that? A. That is all I could put together, it kept on haunting me and haunting me. I didn’t know he had all these stab wounds. I get thinking maybe they kept torturing him for his bank card. And buddy was saying that he got paid that day. That is around the building.
Q. Is it just something that jumped out, why you said that? A. It is something that came to my mind, I’ve been in buildings in Toronto in the past where there have been home invasions, where people have been beaten for their PIN number, would be wrong, they would be beaten some more. If you try the same machine too many times with the wrong pin, the machine eats your card. The cards, you used to get the PIN number off of the cards, you used to get them off the back by metal filings. I tried it, couldn’t get the filings to stay on, couldn’t read it. That is what comes to mind, just the look on his face, it sticks in my heart and in my mind. I asked them for a picture yesterday, and they pretty much told me to fuck off. They shut the door in my face. Jay gave me stuff for Christmas.
[49] The Crown acknowledges Gardner made inconsistent statements about his knowledge and observations of July 28, 2004. Gardner told police that he believed the victim was “tortured for his PIN number”. Not only is this comment highly suspect, but the use of an ATM and PIN number and related information was not publicized by the police at the time Gardner made this statement.
[50] I reject the Crown’s contention that this could be explained by an observation as to how well sound travelled through the apartment building. Gardner maintained that he did not hear any voices or conversations, despite the Crown’s assertions to the contrary.
[51] In her July 30, 2014 statement, Burns revealed that Gardner had called Page, albeit the latter did not seem to recall leaving a message:
Q. Have you accessed your voicmail [sic] since you tried to reach Jay by phone from work? A. Yup. When I called at the 8:30 p.m. break. At the 10:30 p.m. break I left a message. I called a lot of times. About 12:30 a.m. break I was getting angry and left about three or four messages that were not nice ones. Then I started to get worried. At about 2:30 a.m. I checked to see if he had picked up my messages. He had not checked any of my messages so I erased them. I was concerned by this time and I was angry in the previous messages. The guy downstairs, John Gardner, left a message saying “it’s just John I want to borrow some movies”.
Q. Did you erase this message? A. Yes.
[52] While it is true that on July 28, 2004, Burns called Page and another person named ‘Marvin’ or ‘Martin’ answered his phone, Gardner left a voicemail message on Page’s voicemail some 15 or 20 minutes after this phone call. There is ample opportunity to have left the apartment and left the voicemail message. An inference could be drawn that Gardner normally attended at Page’s residence rather than calling and could be supportive of a reason to be reluctant to be in Page’s residence. Or it could not.
[53] Ms. Nevers provided information related to her understanding of the relationship between Gardner and Page in her August 6, 2004 statement that may go to an issue of motive:
Jay used to tell me to leave Johnny and that I could do better than that. He heard the abuse. If Johnny walked out of the room Jay would shake his head or roll his eyes. I really don’t think he liked him.
[54] Most Interestingly, according to Ms. Nevers, Gardner made the following spontaneous utterance after discovering the deceased’s body:
...said when he went out the door is “I’m probably gonna get charged w/ murder”. I thought why would he say that! They were friends, so I thought.
[55] Further, I am deeply troubled by Gardner’s disinterested and dismissive responses to Burns in such exigent circumstances upon the latter discovering the deceased in the apartment on July 29, 2008:
So, right away I just start screaming and screaming and screaming and I run out of the apartment and I go down to John’s house and I am banging on John’s door and I, I can’t believe no one’s come out to see why I’m screaming like this and I’m banging on this door and ah, finally answers and it’s John, his girlfriend is like behind him somewhere or some girl I think it was his girlfriend and ah, John, you have to come upstairs with me, you have to come upstairs with me, Jay, he’s dead, he’s dead, you need to come upstairs with me. He says, just ah, relax, come in and have some tea, I said, no, I, you know, you have to come upstairs with me, you have to come upstairs with me right now. He says fine, gets his shirt on, he comes upstairs and as soon as I see he’s in the apartment I go for the phone.
[56] This exchange including the reference to “having some tea” suggests that Gardner was not shocked, surprised or alarmed by Burn’s overt and emotional reaction of the discovery of the deceased. The nonplussed behaviour is wholly inconsistent with what one would expect of an individual confronted with such an immediate dire and emotional situation.
[57] Further, I reject the Crown’s explanations for Gardner’s actions or conduct as being speculative. For example, that he failed to act upon hearing a commotion upstairs would explain his lack of full disclosure to police. He could be blamed for not intervening in the Page murder. Fully recognizing that there is an absence of any motive for Gardner to have murdered Page, nonetheless, there are sufficient links identified between Gardner and the murder of sufficient probative value to advance Gardner as an alternate suspect.
Conclusion:
[58] The application is granted, in part.
[59] I am satisfied that the applicant has met his onus and that there is a sufficient connection between certain defined individuals named in the alternate suspect application and the crime alleged. Therefore, the applicant may introduce or lead third-party or alternate suspect evidence and may cross-examine Crown witnesses only in relation to Shaka Reid and/or John Gardner.
A.J. Goodman J.
Released: April 11, 2017
COURT FILE NO.: CR15-5114 DATE: 2017/04/11 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – RICHARD BENNETT PRETRIAL WRITTEN RULING # 2 APPLICATION TO ADMIT ALTERNATE SUSPECTS EVIDENCE A.J. Goodman J. Released: April 11, 2017