Court File and Parties
COURT FILE NO.: 15-M7866 DATE: 2017/05/18
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – IAN BUSH Accused
Counsel: James Cavanagh and Tim Wightman, for the Crown Geraldine Castle-Trudel, Martin Reesink, and Howard L. Krongold, for the Accused
HEARD: March 6–10, 16, 20, 21, and 23, 2017
REASONS FOR DECISIONS ON PRE-TRIAL APPLICATIONS
C. MCKINNON J.
Overview
[1] Ian Bush (the “Accused”) stands charged with three counts of first-degree murder. It is alleged that on June 29, 2007 the Accused attended at the residence of the former Chief Justice of the Tax Court of Canada, Alban Garon, and his wife, Raymonde Garon, where he suffocated and bludgeoned the Garons and their next-door neighbour, Marie-Claire Beniskos. Their residence was a condominium located in the Riviera II apartment building at 1510 Riverside Drive in the city of Ottawa.
[2] The Crown seeks to adduce certain hearsay statements made by Mrs. Garon to friends and family in the days leading up to her death (the “Hearsay Application”) and to lead similar fact evidence arising out of a 2014 attempt murder allegedly perpetrated by the Accused (the “Similar Fact Application”).
[3] The Accused seeks to exclude his Tax Court of Canada (“TCC”) file as not properly falling within the ambit of s. 23 [evidence of judicial proceedings] or s. 30 [business records] of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the “Application to Exclude TCC File”), and to exclude property seized under warrant at his place of residence (the “Application to Exclude Property”).
[4] The Accused also seeks an order permitting Dr. James Robertson, a hair and fiber forensic expert, to testify by means of audio/visual technology under s. 714.2(1) of the Criminal Code and s. 46(2) of the Canada Evidence Act. This application was not contested by the Crown, and the order has been granted.
[5] On March 23, 2017, at the conclusion of hearing submissions on the applications, I advised the parties that I would grant the Hearsay Application and the uncontested application to receive video and audio evidence, and dismiss the balance of the applications, with reasons to follow. These are those reasons.
Crown Hearsay Application
Background
[6] On Wednesday, June 27, 2007, at a family gathering in Saint-Sauveur, Quebec, Mrs. Garon recounted what she believed to be a very odd occurrence that took place earlier that day. Mrs. Garon’s cousins, Danielle and Micheline Lécuyer, heard the story and gave a statement to police on July 1, 2007, a few days after the murders.
[7] Again on Thursday, June 28, 2007, at a friend’s 75th birthday party in Kanata, Ontario, Mrs. Garon recounted the same occurrence to her close friends, Liette and Adrien St. Cyr. The St. Cyrs relayed this information to police on July 2, 2007.
[8] The statements of Mrs. Garon (the “Hearsay Statements”), as described by the four narrators, may be summarized as follows. On Wednesday morning, Mrs. Garon heard a knock at her apartment door. She had not been notified of a visitor from the security guard, nor had anyone called her from the lobby intercom. Believing the knock to originate from a neighbour, she opened the door. Mrs. Garon saw a man who identified himself as a courier. The man said he had a package for her, and asked if she was Mrs. Garon. She stated that she was. The man then asked if her husband Alban Garon was home, to which she replied that he was not. The man told Mrs. Garon that he had left the package in his truck and stated that he was too busy to go get the package, as she had suggested. Mrs. Garon offered to go downstairs with him to retrieve the package, but the man declined, saying he was rushed for time, and told her that he would return the following day.
[9] Mrs. Garon was surprised that someone would show up unannounced, and recounted how the man stated he was from a delivery service like UPS, but not UPS.
Law
[10] The Crown seeks admission of the Hearsay Statements under the principled exception to the rule against hearsay.
[11] R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, is the leading case governing the admissibility of hearsay statements. Under the principled exception, hearsay statements may be admitted where they meet the twin criteria of necessity and reliability.
[12] The Crown must establish admissibility on a balance of probabilities (R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418, at para. 45).
[13] The criterion of necessity must be given a flexible definition, capable of encompassing diverse situations; ordinarily, the relevant direct evidence is not available (R. v. Smith, [1992] 2 S.C.R. 915, at pp. 933–34).
[14] Khelawon sets out two routes to establish threshold reliability, neither of which excludes the other. Under the first route, threshold reliability may be established where the circumstances of the statement do not disclose any motive to fabricate on the part of the declarant. Under the second route, threshold reliability may be established where other extrinsic evidence allows a trier of fact to assess or evaluate the truthfulness and accuracy of the statement.
[15] The trial judge maintains a residual discretion to exclude a hearsay statement that is otherwise necessary and reliable where its prejudicial effect outweighs its probative value.
Crown Position
[16] The Crown seeks to introduce the Hearsay Statements at trial for a number of purposes: they are relevant to the primary issue of identity and the ancillary issues of modus operandi, planning and deliberation, and motive. Moreover, the Crown asserts that the Hearsay Statements provide narrative value with respect to how the murders may have occurred and how the Accused made contact with the Garons and Ms. Beniskos.
[17] The Crown argues that the Hearsay Statements meet the criterion of necessity as Mrs. Garon is deceased.
[18] Threshold reliability is established under the first route, the Crown asserts, since the statements were made in casual conversation to close friends and family where there was no motive to fabricate. It relies on a number of decisions to support this principle, where unrecorded hearsay statements of murder victims to family and friends have been admitted, namely, R. v. Foreman (2002), 62 O.R. (3d) 204 (C.A.); R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34; R. v. Sadiqi (2009), 68 C.R. (6th) 346 (Ont. S.C.); R. v. Johnson, 2015 ONSC 5974; and R. v. Berry, 2017 ONCA 17.
[19] Each of the statements arose in general conversation and were spontaneously volunteered by Mrs. Garon. The subject matter of the statements, while odd, is relatively innocuous. It is not until some days after the murders that these statements are given context and form part of a larger picture.
[20] Under the second route, the Crown asks the Court to consider the extrinsic items of evidence that would allow a jury to assess the truthfulness and accuracy of the Hearsay Statements. These extrinsic details include items seized at the Accused’s residence, including fake “DHL delivery” credentials and a list entitled “PROCESS” that reads as follows:
- Access
- Secure Parties
- Secure SIM Cards on phones
- Cash + credit card PINS
- Assets
- Leave Cards (calling cards)
[21] Moreover, the Crown contends that all four narrators shall be testifying at trial if the Application is successful and may be cross-examined on the circumstances surrounding Mrs. Garon’s utterances. The credibility of the narrators is not relevant to the threshold reliability analysis under the principled exception to the hearsay rule: “the narrator’s credibility is a matter that usually can be left safety to the trier of fact to consider” (Berry, at para. 50).
[22] Finally, the Crown argues that the probative value of the Hearsay Statements eclipses the prejudice that may affect the Accused, pointing to the substantial value the statements have on the central issues at trial. Although the evidence may operate unfortunately to the detriment of the Accused, its admission does not create a situation where it would operate unfairly (R. v. B. (L.) (1997), 35 O.R. (3d) 35 (C.A.), at para. 22).
Defence Position
[23] The Defence asserts that not every hearsay statement made by a deceased person meets the criterion of necessity solely by virtue of the fact that he or she is dead. Rather, one must look to whether the evidence being tendered can be admitted by some other means. In support of this proposition, the Defence cites the following passage from R. v. Dupuis, 2014 ONSC 2750, at paras. 107–09:
The observations of the witnesses that the deceased received frequent telephone calls and text messages at work is not relevant without evidence that the calls and messages were from the accused. The evidence that the calls were from the accused is based on statements of the deceased. The statements are hearsay. The Crown must demonstrate necessity and reliability.
Necessity has not been demonstrated. While the witness, the deceased, is unavailable, the evidence of the calls is available through the records. The telephone records are available and provide the best evidence of the frequency of the calls.
The evidence of the witnesses as to the content of the text messages is not necessary because there is a record of the text messages.
[24] The Defence argues that there are three direct ways to prove whether a courier visit occurred on the days in question: by video from the Riviera residence; by way of subpoena of the delivery company record; and through access to the delivery company records under the business records exception in the Canada Evidence Act.
[25] The Defence contends that the Crown has not explored all of its legal avenues to introduce the evidence it wishes to tender by way of the Hearsay Statements. These statements are not the only, nor the necessary, manner to show that a delivery man was at the Garon residence that day.
[26] With respect to the issue of reliability, the Defence cites Khelawon, at para. 67, and argues that the following four facets of reliability emerge from the case law: an absence of motive, a capacity to know certain facts, influence-related characteristics, and a unique attribute to the evidence that was received. The Defence highlighted the last two of these factors.
[27] For influence-related characteristics, the Defence argues that the four police statements are solicited by two police sergeants in the context of a formal investigation into the homicide of the narrators’ friends and relatives. At times, leading questions were posed to the witnesses.
[28] The Defence emphasizes the lack of a particular stamp of reliability, pointing to the lack of corroboration by other evidence. For example, some of the narrators report UPS as the courier company identified by the delivery man, while others say it was not UPS. Some say the delivery man went inside the apartment when he was let in; others do not confirm that there was an entry. The day the delivery man attended differs between witnesses. Finally, some of the statements to police were made in the French language and were then summarized and translated into English.
[29] In response to the Crown’s argument concerning the reliability of statements made to family and friends, the Defence argues that the cases relied upon by the Crown are not helpful. In those cases, the deceased made hearsay statements to intimate family members, and the victims and the suspect in all cases were well known to each other.
[30] The Defence submits that, given the lack of necessity and the unreliability of the various utterances, the admission of the Hearsay Statements pose a tangible risk to the Accused’s right to a fair trial.
Analysis
[31] I agree with the position of the Crown. Considering the live issues at trial, including identity, I find that the statements are highly relevant.
[32] I reject the Defence argument that the evidence tendered through the Hearsay Statements could be adduced through other forms of evidence. The Crown theory posits that the Accused pretended to be a delivery man in order to gain knowledge from Mrs. Garon concerning Mr. Garon’s whereabouts. Video footage from the apartment complex could not capture the conversation between the delivery man and Mrs. Garon. Equally, company or delivery records could only prove that there was or was not a delivery scheduled or completed to the Garon residence on the day in question; it could not show whether a fake delivery man made a fake delivery to the Garon residence.
[33] It is significant that the issue of whether any legitimate deliveries were made to the Garon residence in the days leading up to the murders was fully investigated by the police and proved negative.
[34] Thus, for the foregoing reasons, I find that the evidence tendered through the Hearsay Statements is not available by any other means and therefore meets the criterion of necessity.
[35] I also find that the statements meet threshold reliability for their admission. I agree with the submissions of the Crown that Mrs. Garon’s statements were made without any provocation or suggestion by her family and friends and that the significance of her comments was not known to any of them at the time. There was no conceivable motive to fabricate or exaggerate the details of her encounter with the purported delivery man. While bizarre, the encounter was not of a nature to prompt any fabrication or exaggeration on the part of Mrs. Garon.
[36] I do not agree with the arguments of Defence counsel respecting the case law. There is no significance to the distinction between the cases cited by the Crown and the case at bar in terms of the suspect’s relationship to the victim. What is important is the relationship between the victim and the recipients of her statements. The fact that the victim had no relationship to the suspect substantially increases the reliability of the statements: when a victim knows her attacker, antemortem statements may tend to cast her attacker in a less favourable light.
[37] Thus, on balance, I find that the Hearsay Statements are prima facie admissible.
[38] Finally, in light of my findings, I find that the probative value of the Hearsay Statements outweighs their prejudicial effect. I decline to use my residual discretion to exclude the statements.
[39] In the result, the Hearsay Statements are held to be admissible.
Crown Similar Fact Application
Background
[40] The Crown alleges that the Accused committed an attempt murder in 2014 that closely resembles the murders of the Garons and Ms. Beniskos.
[41] On the morning of the triple homicide, the Accused is seen on video at OC Transpo’s Hurdman station, walking in the direction of the Riviera apartment buildings. He was carrying a bag, allegedly containing the twine used to bind the victims in a hogtie ligature, firearms to ensure silence and obedience, a blunt implement to overcome resistance, and plastic bags to kill them by asphyxiation. The Accused left the scene with the Garons’ credit cards and is again caught on OC Transpo video walking back to the Hurdman station.
[42] All three victims had plastic bags over their heads. Mr. Garon’s neck had a “hangman’s noose” around it. His arms were bound behind his back. The area around his right ear was severely beaten and his skull was fractured. The beating was consistent with the use of a blunt instrument. Mrs. Garon and Ms. Beniskos both had plastic bags over their heads. Twine was tied around their necks and attached to their ankles. They were “hogtied”. All three died of asphyxiation. The Garons’ credit cards were missing from their wallets.
[43] On December 18, 2014, seven and a half years after the triple homicide, the Crown alleges that the Accused took public transportation to a secure condominium building on Durham Private in Ottawa, Ontario. The suspect entered the condominium building and, once inside, gained entry to the apartment of Mr. Ernest Côté by impersonating a City of Ottawa employee. The suspect demanded money from Mr. Côté and was refused. He then attacked and bound Mr. Côté, pulling a plastic bag over his head, intending to asphyxiate him. The suspect stole $550 in cash and a credit card belonging to Mr. Côté, demanded that Mr. Côté reveal his PIN, and subsequently left the apartment. Mr. Côté saved his own life by freeing one of his bound hands and perforating the plastic bag with a pair of scissors. After fleeing the scene, the suspect visited a Scotiabank ATM and was captured on video attempting to use the card.
[44] The Accused was not known to Mr. Côté. The police attended at the scene and unknown DNA was found on the duct tape the assailant used to bind Mr. Côté. This DNA was compared to a body hair root found at the Garon residence. The probability that the DNA on the duct tape came from any other person than the person whose body hair was found at the Garon residence was estimated by the Centre of Forensic Sciences to be 1 in 5.0 quadrillion.
[45] During the investigation, the Accused was positively identified by members of his own family, captured by a security video in the lobby at Durham Private released by police to the media. The Accused’s son also identified his father as being the individual seen walking from the Hurdman station toward the Riviera apartments on June 29, 2007 at 10:18 a.m., and returning to the station at 11:19 a.m. Other evidence will suggest that the murders occurred sometime between 10:30 a.m. and noon on that day.
[46] Thereafter, as a result of a judicial warrant, the Accused’s DNA was obtained by police and compared to the DNA profile on the duct tape used to bind Mr. Côté. The Accused could not be excluded as the originator of the DNA. The random match probability was estimated to be 1 in 13 quintillion.
[47] The police also obtained a search warrant for the Accused’s residence, where they found a bag concealed in the basement ceiling containing Mr. Côté’s stolen credit card, duct tape, a length of braided rope, a letter opener with a blade, and a wooden dowel. A second bag was found stacked among other items in a secluded part of the basement and contained large, semi-clear plastic bags, duct tape, a length of braided rope, a length of metal pipe with a taped “handle”, an imitation firearm, an air pistol, a real firearm and ammunition, knives, a wooden stake, and wooden dowels.
[48] In other areas of the Accused’s residence, the police found four notebooks and a diary belonging to the Accused, fake business cards, small handwritten forms to record PINs, twine similar to that used to bind the Garons and Ms. Beniskos, and correspondence with the Canada Revenue Agency. The contents of the notebooks reveal the Accused’s visceral contempt for tax authorities and of individuals and organizations supporting liberal causes, such as environmental advocates, human rights activists, and union leaders.
[49] The “PROCESS” list, referenced above, was found, together with several “Assignment” lists targeting certain prominent individuals, including a highly experienced judge of the Federal Court of Canada, a former associate chief justice of the Ontario Court of Justice, and a prominent professor at the University of Ottawa’s Faculty of Law involved in environmental advocacy. One “Assignment” named an individual who resided at the Durham Private residence: well-known Ottawa lawyer Pierre Richard, husband of the late Jennifer Lynch, herself a well-known lawyer and former chair of the Canadian Human Rights Commission. In each instance, the residential address of the “Assignment” is noted, together with the bus routes to that residence from the Accused’s location in Orléans, Ontario.
[50] The Crown seeks to admit this as evidence of the attempt murder purportedly committed by the Accused based on the striking similarity between the two offences.
Law
[51] It is well established that the rule allowing for the admissibility of similar fact evidence is perhaps best viewed as an “exception to an exception” to the basic rule that all relevant evidence is admissible in a trial (R. v. Arp, [1998] 3 S.C.R. 339, at para. 38).
[52] Similar fact evidence is presumptively inadmissible. The onus is on the Crown to establish, on a balance of probabilities, that the evidence pertains to a live issue and that its probative value outweighs its prejudicial effect (R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55; R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, at para. 48).
[53] Similar fact evidence going to identity is a subset of discreditable conduct evidence. In R. v. Arp, the Supreme Court held, at para. 43, as follows:
[W]here identity is at issue in a criminal case and the accused is shown to have committed acts which bear a striking similarity to the alleged crime, the jury is not asked to infer from the accused’s habits or disposition that he is the type of person who would commit the crime. Instead, the jury is asked to infer from the degree of distinctiveness or uniqueness that exists between the commission of the crime and the similar act that the accused is the very person who committed the crime. This inference is made possible only if the high degree of similarity between the acts renders the likelihood of coincidence objectively improbable. [Emphasis in original.]
[54] In evaluating the probative value of the similar fact evidence, the Court must first assess the degree of similarity demonstrated by the manner in which the acts in question were committed to determine whether it is likely the same person committed the alleged similar acts. However, evidence linking the accused to each alleged similar act should not be part of this inquiry (Arp, at paras. 48–49).
[55] The Supreme Court in Arp provided, at para. 50, the following suggestions in determining whether the probative value of the evidence outweighs its prejudicial effect:
(1) Generally where similar fact evidence is adduced to prove identity a high degree of similarity between the acts is required in order to ensure that the similar fact evidence has the requisite probative value of outweighing its prejudicial effect to be admissible. The similarity between the acts may consist of a unique trademark or signature on a series of significant similarities. (2) In assessing the similarity of the acts, the trial judge should only consider the manner in which the acts were committed and not the evidence as to the accused’s involvement in each act. (3) There may well be exceptions but as a general rule if there is such a degree of similarity between the acts that it is likely that they were committed by the same person then the similar fact evidence will ordinarily have sufficient probative force to outweigh its prejudicial effect and may be admitted. (4) The jury will then be able to consider all the evidence related to the alleged similar acts in determining the accused’s guilt for any one act. [Emphasis added.]
[56] The following oft-cited passages from Handy, at paras. 82–84 (references omitted), set out the relevant considerations in assessing the similarity of the acts:
Factors connecting the similar facts to the circumstances set out in the charge include: (1) proximity in time of the similar acts; (2) extent to which the other acts are similar in detail to the charged conduct; (3) number of occurrences of the similar acts; (4) circumstances surrounding or relating to the similar acts; (5) any distinctive feature(s) unifying the incidents; (6) intervening events; (7) any other factor which would tend to support or rebut the underlying unity of the similar acts.
On the other hand, countervailing factors which have been found helpful in assessing prejudice include the inflammatory nature of the similar acts and whether the Crown can prove its point with less prejudicial evidence. In addition, as stated, the court was required to take into account the potential distraction of the trier of fact from its proper focus on the facts charged, and the potential for undue time consumption. These were collectively described earlier as moral prejudice and reasoning prejudice.
This list is intended to be helpful rather than exhaustive. Not all factors will exist (or be necessary) in every case…. [Emphasis added.]
[57] Citing Handy, the Ontario Court of Appeal in R. v. K. (C.P.) (2002), 62 O.R. (3d) 487, summarized, at para. 30, moral and reasoning prejudice in these terms:
[P]otential prejudice to the accused may be assessed in the following manner:
• by considering the potential for “moral prejudice” against the accused, meaning the risk of convicting the accused because he is a “bad person” rather than based on proof that he committed this offence.
• by considering the potential for “reasoning prejudice” against the accused, meaning the risk of distracting or confusing the jury, or of undue consumption of time, and the danger that the jury may have difficulty disentangling the subject matter of the charges from the similar fact evidence.
[58] The high degree of similarity may come from a unique trademark or signature, or may be the result of a series of significant similarities, taken together, whose cumulative effect demonstrates the requisite level of similarity (Arp, at para. 46, MacCormack, at para. 51).
[59] When the evidence suggests that the same person committed the similar acts, the Court must then find a link between the accused and the alleged similar acts. This requirement demands that there be some evidence that the similar acts were those of the accused; evidence of mere opportunity to commit the similar acts is not sufficient (Arp, at paras. 54, 57; MacCormack, at para. 59).
[60] There is some suggestion in the jurisprudence that an overlap exists between the similarity and linkage inquiries (see Arp, at para. 49; MacCormack, at paras. 80–81; R. v. Woodcock (2003), 177 C.C.C. (3d) 346 (Ont. C.A.), at paras. 79–80).
[61] Justice Cory in Arp set out the following instruction: “In general, evidence linking the accused to each alleged similar act should not be part of this evaluation” (at para. 49, emphasis added). Following the suggestions he proposed (above), he reiterated: “Once again these are put forward not as rigid rules but simply as suggestions that may assist trial judges in their approach to similar fact evidence” (at para. 50).
[62] Indeed, in admitting the similar fact evidence in Arp, the trial judge adverted to the evidence linking the accused to the two murders, which included DNA evidence (at paras. 25–26). Reviewing the trial judge’s analysis in some detail, the Supreme Court upheld the admission and did not criticize his approach in the context of that particular case.
[63] Using the world “rule”, Justice Watt in MacCormack dealt, at para. 81, with the commingling of evidence concerning the involvement of an accused in similar acts with evidence of the manner in which his or her acts were committed:
The rule against considering both evidence of the manner in which allegedly similar acts were committed and evidence of an accused’s involvement in the acts and determining whether the similarity requirement has been met is a general prohibition, not an unyielding or invariable rule that brooks no exception: Arp at para. 49; Woodcock at paras. 79-80. Sometimes, it is difficult to draw a bright line between similarities in the manner in which an act is committed and an accused’s involvement in that act. To apply a test of whether the objective improbability that an accused’s involvement in the alleged acts is the product of coincidence without any regard to the evidence connecting the accused and the acts seems unduly antiseptic.
[64] Dealing specifically with DNA, there are a number of cases in British Columbia that explicitly and implicitly treat DNA as an item of similarity: see R v. Pickton, 2009 BCCA 220, 260 C.C.C. (3d) 132; R. v. Butorac, 2013 BCCA 421, 301 C.C.C. (3d) 504; R. v. Sharma, 2014 BCSC 658; R. v. Kembo, 2014 BCCA 307, 359 B.C.A.C. 172; R. v. Legebokoff, 2014 BCSC 1636.
[65] In Sharma, the Court articulated that, in some cases, the evidence connecting the accused to the act is legitimately considered on the similarity inquiry. The Court held, at para. 54, that “the appearance of the offender may be part of the finding that the offences were likely all committed by the same person, but may also of course serve to link the accused to some or all of the offences”.
[66] Likewise, in the multiple-murder cases of Pickton and Kembo, the British Columbia Court of Appeal endorsed the similarity analyses undertaken by the respective trial judges, which incorporated evidence linking the accused to the victims (see Pickton, at paras. 82–83, 89–91; Kembo, at paras. 22–23, 26–29, 31). In Pickton, this feature arose specifically from the DNA evidence.
[67] In Kembo, the British Columbia Court of Appeal upheld the admission of count-to-count similar fact evidence, specifically noting, at para. 23, that the trial judge incorporated a significant degree of the evidence linking the accused to the victims in her similarity analysis:
[The trial judge] then recognized [at para. 65] the two-step test in Arp could not be inflexibly applied in this case, stating:
The system in this case is one where Mr. Kembo cultivated personal relationships with each victim for a period of years with the ulterior motive of exploiting those ties to benefit financially after he killed his victims. It is thus challenging to consider the similarities in a vacuum before making links to Mr. Kembo. Many of the similar acts that illustrate the system or pattern began in each case, long before the murder, and those preliminary acts all surround the relationship between the victim and Mr. Kembo. The murders are the culmination of a system that began with that relationship with Mr. Kembo. The nature of the evidence does not lend itself to a bright line. The distinctive pattern or abnormal propensity is largely in the cultivation and exploitation of relationships. This pattern is so similar in each case that, viewed objectively, it gives rise to an improbability of coincidence.
[68] Finally, in Legebokoff, the trial judge relied upon the decisions of the Ontario Court of Appeal in Woodcock and MacCormack to find that, in some cases — and certainly in the case before him — evidence that links an accused to a crime, such as DNA, is relevant on the similarity analysis. He held, at paras. 117–21, as follows:
Although Arp seems to make it clear that the similar fact analysis should proceed in two steps, the first of which is to evaluate the similarities between the various transactions without considering the evidence linking the accused to each similar act, subsequent authority suggests this is not a rigid or absolute rule.
The Ontario Court of Appeal in Woodcock indicated [at para. 81] that not every case will fit neatly into the two part test, which applies only “in general”:
Based on Arp, in general, only if the manner of commission of the alleged similar acts tends to suggest the likelihood that all the alleged acts were committed by the same person is it necessary to then take the next step of assessing the factors which connect the accused to the alleged acts. The reception of the tendered similar fact evidence ultimately requires the trial judge to be satisfied on both inquiries. I should not be taken, however, as suggesting that there will never be cases where evidence concerning the involvement of the accused in the alleged similar acts would not be material to the assessment of the similarities of the alleged acts. There may well be cases, as implicitly recognized by Cory J. in Arp, where examination of the factors which connect the accused to the alleged acts should form part of the assessment of the manner of commission of the alleged similar acts and, hence, of the initial determination of whether the tendered evidence is admissible: see, for example, R. v. Dickinson (1984), 40 C.R. (3d) 384 (Ont. C.A.) at 389. This, however, was not such a case.
[Emphasis added in original.]
Similar conclusions were reached by another panel of the Ontario Court of Appeal six years later in MacCormack, 2009 ONCA 72 at para. 45 and 80-81.
This is a case which though factually different than Kembo raises similar challenges to a process of examining the similarities in a vacuum without considering the links to Mr. Legebokoff.
As an example, the tools with their links to both the blood and DNA of the victims and potentially the injury patter[n]s were recovered from locations under Mr. Legebokoff's control or his possession and form an important part of the consideration of whether there is a modus operandi at work.
This evidence and the DNA evidence itself does not lend itself to a bright line division and clearly considered separation by application of the two part test. [Emphasis added.]
Crown Position
[69] To the Crown, the evidence of the attempt murder of Mr. Côté is admissible at trial as relevant to a number of distinct issues, including planning and deliberation, unlawful confinement, and modus operandi — the predominant issue being the identity of the murderer. It submits that the attempt murder bears such significant similarities to the charged murders that it meets the high threshold of similar fact relevant to identity. On each of the remaining issues (with the possible exception of narrative), the probative value of the attempt murder outweighs its prejudicial effect.
[70] Referring to the Handy factors, as set out above, the Crown submits that a consideration of the similarities between the two offences makes a persuasive case for the admissibility of the evidence of the attempt murder.
[71] Although not proximate in time, the two offences spanning nearly eight years, the evidence going to the rarity of this kind of crime displaces the temporal gap. Evidence from the Ottawa Police Service suggests that no similar attacks or murders perpetrated in the course of home invasions, numbering 638 incidents, have been committed over the last 17 years in Ottawa, counteracting any effect that the passage of time may have on the similarity analysis. The Crown asserts that this also goes to the third factor, number of occurrences of the similar acts.
[72] Additionally, the Chief Coroner of Ontario would testify as to the extreme rarity of crimes involving the bagging of heads to promote death by asphyxiation.
[73] On the extent of the similarities between, and the circumstances surrounding, the similar acts, the Crown submits that the manner of commission of the two offences meets the definition of a unique trademark or signature. Each incident involved elderly victims attacked in their own apartments within secure condominium buildings, bound and subsequently suffocated with plastic bags, and robbed of their credit cards.
[74] Finally, the Crown posits that DNA evidence found at both crimes, having been compared to one another prior to when a sample of the Accused’s DNA was seized, may be considered at the similarity stage of the analysis. The Crown’s reasoning is that, having not yet been linked to the Accused, the Court need not enter into the linkage stage of the analysis to consider such a striking similarity, enhancing improbability of coincidence. In fact, this may properly give meaning to the fifth Handy factor — “any distinctive feature(s) unifying the incidents” — which appears to broaden the inquiry from solely the “manner of the commission of the offences”, and the second Handy factor, namely the “extent to which the other acts are similar in detail to the charged conduct”.
Defence Position
[75] While conceding that there is evidence which may link the accused to the similar acts, and acknowledging that there are similarities between the two offences, the Defence submits that the Court cannot reliably conclude that it is likely that the attempt murder was committed by the same person that committed the Garon/Beniskos murders. Given some significant differences between the two offences, it is not implausible to suggest that the similarities, separated by such a lengthy period of time, could be the product of coincidence.
[76] Conducting a holistic assessment of the likelihood that one person committed both offences, the Defence submits that the accumulated differences, the sequence of the two crimes, and the passage of time tend to suggest that the similarities are a product of coincidence.
[77] The two incidents, committed many years apart, involve victims whose characteristics are only vaguely similar. Whereas the Garons and Ms. Beniskos were active and healthy people, ranging from 73 to 78 years old, the 101-year-old Mr. Côté lived independently and had significant mobility issues, requiring a walker to get around.
[78] The Defence also points to the overwhelming prejudice that results from the admission of the similar fact evidence. Even before the alleged connection between the Accused and the murders was revealed, the attempt murder of Mr. Côté attracted national attention. Faced with an accused who, it would be argued, attempted to murder a vulnerable, 101-year-old World War II veteran with such callous indifference to his life, no jury trying the Accused for an equally abhorrent triple murder can be expected to maintain its dispassion. Further, the Defence maintains that a limiting instruction cannot reasonably be expected to extinguish the jury’s revulsion.
Analysis
[79] I agree with the Crown that the proposed evidence meets the requisite level of relevance to justify engaging in a similar fact analysis.
[80] Having regard to the appropriate level of analysis set out in R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 60, warning against “an excessively mechanical approach” to the similarity inquiry, I am persuaded on a balance of probabilities that there is such a high degree of similarity between the acts that it is likely that they were committed by the same person. Furthermore, I find that there is some evidence, beyond mere opportunity, that the similar acts — here, the commission of an attempt murder — were those of the same individual. I am bolstered in this conclusion by the fact that the investigating officer in the Côté case, as soon as she became aware of the details, immediately contacted the investigating officer in the Garon/Beniskos homicides, believing they were perpetrated by the same individual.
[81] In addition, were there any doubt that the same individual committed the similar crimes, the DNA evidence found at both crime scenes proves the point beyond any doubt. In this case, the DNA found at the scenes are items of evidence that are capable of being compared for similarity: at the point in time they were collected, no linkage to the Accused had been made. The DNA evidence in this case is independent of linkage and may be relied upon as one of the similarities.
[82] It strikes me that it would be counterintuitive to disregard this highly probative and reliable evidence in the similarity analysis. In my view, the DNA evidence clearly falls into the fifth factor set out in Handy, namely “any distinctive feature(s) unifying the incidents”.
[83] In cases involving similar fact evidence, it is timely for courts to recognize that DNA occupies a special place in the law of evidence and cannot be ignored. Its utterly unique capacity to implicate those guilty of crimes and exculpate those not guilty of crimes must be recognized.
[84] Notwithstanding these findings, I find that the admission of this evidence would result in overwhelming prejudice to the Accused that could not be cured by a jury instruction. This prejudice outweighs the highly significant probative value of the similar fact evidence.
[85] This case is entirely unique in the sense that the attempt murder of Mr. Côté attracted international media attention. The Prime Minister of Canada at the time, Stephen Harper, commented that he was “appalled” by the incident. The Prime Minister’s wife commented on Twitter: “Honoured to travel to France last June with D-Day vet Ernest Côté. Horrified to read he was robbed. Our thoughts are with him & his family.”
[86] The Minister of Veteran Affairs at the time, Julien Fantino, a former chief of police for the City of Toronto, commented: “From my days in law enforcement, I dealt with a lot of criminals. This man’s a low-life. I have no respect for him.” He tweeted “Sending my prayers to Ernest Côté, my friend & CDN hero. This thug should go to jail.”
[87] Mr. Côté was lionized in the media:
[He was a] 101-year-old decorated war vet.
He fought on the beaches of Normandy to bring peace to this world…. Colonel Ernest Côté encountered another enemy in his own home Thursday morning in Ottawa. Côté was robbed in a home invasion in his condo on Durham Private in New Edinburgh. It happened when a man buzzed Côté’s condo, claiming to be an employee with the city of Ottawa. Côté was tied up and robbed in a violent attack that this war veteran faced with courage....
The suspect searched the apartment and made off with several items. Côté managed to free himself and call police.
[88] CTV featured Mr. Côté in a 70th anniversary of the Normandy Landing and was referred to as “the longest surviving member of the Royal 22nd Regiment — the storied ‘Van Doos’ — which is marking its 100th anniversary.”
[89] Minister Fantino commented on the outpouring of public support for the veteran and stated, “He represents and embodies what we all respect and respect [sic] about veterans”. He stated that
there’s something terribly, terribly objectionable to the idea of someone committing a crime against anybody who’s 101 years old.
All elderly people have the right to enjoy their golden years in peace, unmolested by criminals.
But it’s especially true of a man who went to war and fought for his country.
[90] Following the attack, Mr. Côté participated in a CTV television report concerning the incident, which was widely watched and disseminated. He described in detail his ordeal and how he managed to pierce through the plastic bag that had been placed over his head, intended to asphyxiate him, and phone 911. He spoke of his strength of will, notwithstanding his advanced age.
[91] Shortly after the attack, video evidence was released to the media by the police showing the suspect gaining entrance to the Côté apartment and thereafter attempting to access funds belonging to Mr. Côté at an ATM. The Accused was identified by family members. The Accused’s image and identity again made national news. The arrest was praised by the Prime Minister and the Minister of Veterans Affairs.
[92] Mr. Côté died from natural causes approximately three months after being attacked in this apartment. The headline in the New York Times read: “101-Year-Old Veteran Who Survived Home Invasion Dies in Canada”. The article goes on as follows:
The 101-year-old war veteran who was tied up and robbed in his Ottawa home in December, then left to suffocate with a plastic bag over his head, only to free himself and call the police, has died of natural causes, Canadian news outlets reported on Thursday.
The attack on the veteran, Ernest Côté, attracted national attention. The police investigation led to the arrest of a suspect, Ian Bush, who was also charged last week with a 2007 triple murder involving a break-in and suffocation with plastic bags.
[93] In addition to the pervasive publicity involving Mr. Côté, in the event the similar fact evidence was admitted, jurors would learn that the intended victim was not Mr. Côté, but Pierre Richard. The journals found during the warranted search of Mr. Bush’s home reveal his intense dislike for any person the Accused perceived to be associated with liberal politics. I conceive that these facts would shock the jury, and would be incapable of being cured by direction from me. I fear the very real possibility of a “media circus” being created, which could prove highly distracting to the jurors.
[94] Against this backdrop, and considering that the case against the Accused involving the attempt murder of Mr. Côté is utterly overwhelming, it is not difficult to imagine that jurors would be highly prejudiced against the Accused in the event the facts of the Côté attack were admitted as similar fact evidence. I am concerned that a warning not to use this evidence for the wrong purpose, such as to punish the Accused for the Côté attack, would fall on deaf ears, given the shocking circumstances involving the attack, and the overwhelming evidence, including DNA evidence, linking the Accused to the attempt murder of Mr. Côté.
[95] Justice Sopinka, writing for the majority in R. v. D. (L.E.), [1989] 2 S.C.R. 111, described, at p. 124, such a situation:
In the present case, however, the similar fact evidence bore nearly the entire burden of proving the Crown’s case against the appellant on the acts charged. The trial judge was thus correct in not admitting this evidence. Its probative value was not sufficient to overcome its prejudicial effect.
[96] To my mind, for the foregoing reasons, this would aptly represent an “exception” to the general rule expressed in suggestion “(3)” of Arp, at para. 50:
There may well be exceptions but as a general rule if there is such a degree of similarity between the acts that it is likely that they were committed by the same person then the similar fact evidence will ordinarily have sufficient probative force to outweigh its prejudicial effect and may be admitted. [Emphasis added.]
[97] This is one of those rarest of cases where the similar fact evidence, although not as serious as the conduct charged, simply overwhelms the ability of a jury to dispassionately consider the facts relating to the subject charges. To admit the similar fact evidence would effectively bear the burden of proof of the Garon/Beniskos homicides.
[98] In my view, the admissible evidence implicating the Accused in the Garon/Beniskos homicides, including his DNA, permit the Crown to “prove its point” by means other than the use of similar fact evidence (see Handy, at para. 83).
[99] In the result, I exercise my discretion to deny the admission of the similar fact evidence.
Defence Application to Exclude TCC File
Background
[100] As part of its case, the Crown intends to introduce the Accused’s Tax Court of Canada (“TCC”) file as evidence of the Accused’s grudge against the tax system following the dismissal of his appeal to the TCC in the early 2000s. The Crown insists that Mr. Garon, Chief Justice of the TCC until his retirement in 2004, personified the institution the Accused hated. It submits that the contents of the TCC file are relevant to the issues of identity, motive, relationship between the Accused and Mr. Garon, animus, and context.
[101] The Defence, in response, brings this application to deny its admission.
[102] During its investigation into the Accused’s involvement in the 2007 murders, the police learned that the Accused had previously been involved in a dispute with Revenue Canada related to a reassessment of his personal income tax returns from 1992 and 1993.
[103] Over the course of several letters written to either “Extortion Canada” or “Extortion Canada, Shakedown Division” throughout 1996, the Accused took issue with Revenue Canada’s position that he owed an outstanding balance of $17,669.66, insisting that his taxes have been “grossly assessed” and that Revenue Canada has “continued to harass the above noted account contrary to the applicable statutes”.
[104] Revenue Canada Appeals Division informed the Accused that his notices of objection were filed late and could not be accepted, to which the Accused replied “BULL SHIT” in oversized, bold font. In a subsequent letter, the Accused writes: “In addition your liability assessed jointly and severally, is $19,913.47. To avoid greater liability you must remit payment immediately.”
[105] As a result of a phone conversation with a Collection Contact Officer, the Accused was given a 30-day extension of time to file his objections. The Accused did not comply and, on the 30th day, wrote back to the Officer requesting a further extension of time. His request was denied.
[106] Several months later, on April 22, 1997, the Accused wrote to the TCC providing notice of his disagreement regarding his tax assessments. Then, on November 13, 1997, the Accused retained counsel, Andrew Rouse, who filed a formal objection to the Accused’s tax assessments for 1992 and 1993.
[107] On February 4, 1998, by order of then Chief Justice Couture of the TCC, the Accused’s notices of objection were deemed to be valid. Mr. Rouse then filed a formal Notice of Appeal with the TCC on the Accused’s behalf, and the appeal was set to be heard on October 25, 2000 in Fredericton, New Brunswick.
[108] On September 8, 2000, Mr. Rouse wrote to the Registrar of the TCC and requested a change of venue to Ottawa. The requested was granted, and the appeal was scheduled to be heard in Ottawa on January 16, 2001. Presumably, Mr. Rouse was no longer going to be acting for the Accused in relation to this matter.
[109] On “Bush and Associates Consulting” letterhead, and citing “business reasons”, the Accused then requested a “date change”. The request to adjourn was denied on December 7, 2000, and the hearing proceeded on January 16, 2001 in the absence of the Accused. Judge O’Connor of the TCC dismissed the appeal for failure to appear and the order was mailed to the Accused.
[110] The last document attached to the Accused’s TCC file is a letter, dated July 30, 2001, faxed from “Bush and Associates” and addressed to “Mr. Alban Garon, Chief Judge”. The letter purports to be a summons from the “High Court of Humanitarian Justice” and is signed by the Registrar, “A. P. Day”. The body of the letter reads as follows:
RE: Your letter dated December 7, 2000 Ian Bush v. Her Majesty the Queen 1999-1545(IT)I
NOTICE OF REVIEW
TAKE NOTICE THAT a review of this decision has been scheduled to be heard on the 7th day of August 2001 at 9:30am at [the Accused’s then-residence], Orléans, Ontario.
TAKE NOTICE THAT if you fail to appear at the time and place set for this review, the decision and its related decisions will be nullified for failure to appear.
Signed at Orléans, Ontario this 30th day of July, 2001
[111] The Accused’s TCC file being prima facie admissible, the Defence seeks to exclude it as not properly falling within the scope of s. 23 [evidence of judicial proceedings] or s. 30 [business records] of the Canada Evidence Act.
Law
[112] Section 23 of the Canada Evidence Act sets out the admissibility of evidence of judicial proceedings:
23 (1) Evidence of any proceeding or record whatever of, in or before any court in Great Britain, the Supreme Court, the Federal Court of Appeal, the Federal Court or the Tax Court of Canada, any court in a province, any court in a British colony or possession or any court of record of the United States, of a state of the United States or of any other foreign country, or before any justice of the peace or coroner in a province, may be given in any action or proceeding by an exemplification or certified copy of the proceeding or record, purporting to be under the seal of the court or under the hand or seal of the justice, coroner or court stenographer, as the case may be, without any proof of the authenticity of the seal or of the signature of the justice, coroner or court stenographer or other proof whatever.
[113] Section 30 deals with business records to be admitted in evidence:
30 (1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record.
(12) In this section,
business means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere whether for profit or otherwise, including any activity or operation carried on or performed in Canada or elsewhere by any government, by any department, branch, board, commission or agency of any government, by any court or other tribunal or by any other body or authority performing a function of government;….
Defence Position
[114] The Defence classifies the TCC file into two categories: the correspondence between the Accused and the TCC, save and except the “summons” addressed to Mr. Garon, on one hand; and the “summons”, on the other.
[115] With respect to the former, the Defence acknowledges their reliability and argues that the correspondence is simply not relevant to the murders for which the Accused is being tried. Identifying the evidence as going to motive, the Defence argues that there is an absence of a relationship between the Accused and Mr. Garon, such that the TCC file is not relevant as to motive.
[116] In the alternative, should the Court find that the correspondence is relevant, the Defence asserts that the prejudicial effect of its admission outweighs its probative value.
[117] Conversely, the last document attached to the TCC file, the “summons”, the Defence argues, is a document that is neither reliable, nor trustworthy.
Crown Position
[118] The Crown submits that the Accused’s TCC file, in its entirety, qualifies for admission pursuant to s. 23 of the Canada Evidence Act as “evidence of any proceeding”.
[119] Furthermore, the Crown submits that the TCC file is admissible under s. 30 of the Canada Evidence Act as a business record. Relying on the inclusive definition of “business” in s. 30(12), it argues that the collection and maintenance of records in the Accused’s TCC file can come in under this exception.
[120] To the Crown, the entire TCC file constitutes powerful, admissible evidence of motive, particularly where the Accused denies that he is responsible for the murders and, based upon the evidence heard during the preliminary inquiry, will present a defence of innocent association. Moreover, other items of evidence heighten the probative value of the TCC file. These include statements from the Accused’s daughter that her father has an anti-government stance and has failed to pay his taxes, and the evidence that Mr. Garon received different and more severe treatment in the manner he was murdered.
[121] Finally, the Crown submits that the evidence of the Accused’s alleged motive far outweighs the prejudicial effect that may arise by the implication that the Accused failed to pay his taxes. The probative value is especially high given that the TCC file establishes the tangible link between the Accused and one of the three victims.
Analysis
[122] In my view, the TCC file is admissible pursuant to s. 23 of the Canada Evidence Act. It is a certified copy signed under the seal of the Tax Court of Canada. No resort to the provisions of s. 30 is required.
[123] The file is highly probative of the motive harboured by the Accused disparaging the TCC.
[124] The “summons” to Chief Justice Garon is unquestionably admissible. It is highly probative of the Accused’s contempt for the TCC and specifically links him to the most brutally beaten victim of the homicides committed on June 29, 2007, Alban Garon.
[125] The probative value of the TCC file and “summons” to Chief Justice Garon greatly outweighs the prejudicial effect of its admission. Although the evidence may operate unfortunately to the detriment of the Accused, it cannot be said to operate unfairly.
[126] In the result, the Application to Exclude TCC File is dismissed.
Defence Application to Exclude Property
Background
[127] During its investigation into the 2014 attempt murder and the identification of the Accused as the person who perpetrated the crime, the police obtained a warrant to search the Accused’s residence. Two warranted searches were performed: one on December 20, 2014; the other on January 20, 2015. The Crown seeks to introduce property seized as evidence at trial.
[128] In light of my findings on the Similar Fact Application, the analysis relates only to those items that are relevant and material to the Accused’s alleged commission of the triple homicide. Both parties agree that, absent an attack on the legality of the search, which did not occur here, any item seized is properly admissible where it meets the requisite degree of relevance and materiality, and where the probative value of its admission outweighs its prejudicial effect.
[129] Thus, the onus is on the Defence to establish a basis upon which to exclude any item proffered by the Crown.
Law
[130] The concept of relevance was recently reviewed in R. v. Ansari, 2015 ONCA 575, 330 C.C.C. (3d) 105, where Justice Watt expressed, at para. 104, the appropriate test:
To be relevant, an item of evidence need not prove conclusively the proposition of fact for which it is introduced. Nor does the evidence, to be relevant, need to make the proposition of fact more probable than not. An item of evidence is not irrelevant simply because it can sustain more than one inference. The requirement of relevance is met where the item of evidence reasonably shows, “by the application of everyday experience and common sense[,] that the fact is slightly more probable with the evidence than it would be without it….
[131] Such a definition encapsulates the long-established inclusionary policy in Canadian criminal law enunciated by Chief Justice Dickson in R. v. Corbett, [1988] 1 S.C.R. 670, at p. 697:
I agree with my colleague, La Forest J., that basic principles of the law of evidence embody an inclusionary policy which would permit into evidence everything logically probative of some fact in issue, subject to the recognized rules of exclusion and exceptions thereto. Thereafter the question is one of weight. The evidence may carry much weight, little weight, or no weight at all. If error is to be made it should be on the side of inclusion rather than exclusion and our efforts in my opinion, consistent with the ever‑increasing openness of our society, should be toward admissibility unless a very clear ground of policy or law dictates exclusion.
Defence Position
[132] The Defence argues that there is no factual or legal nexus between the property seized in 2014/2015 and the murders committed in 2007. The evidence sought to be introduced bears no relationship to the issues in the case.
[133] Given the passage of time involved, determining the ownership of the evidence and the date of purchase of most of the items is not possible. The Defence submits that the evidence consists of mass produced items of unknown origin and ownership of no particular distinction. In fact, the Accused shared the residence with other family members, and thus any attribution is mere conjecture and speculation.
[134] Even if the items can be attributed to the Accused, the Defence submits that the Crown has not established that certain items seized, such as the notebooks decrying taxation, existed in 2007.
[135] The Defence submits that there is no demonstrable relevance to the items seized and the commission of the murders. To permit guns, for example, to be admitted into evidence has a prejudicial effect that will cause impermissible propensity reasoning by members of the jury.
[136] Furthermore, the items serve no probative value given that the cause of the deaths is known from the autopsy — strangulation and blunt force trauma — and the Crown intends to rely on DNA and audio-visual evidence to link the Accused to the crime.
[137] Finally, the Defence asserts that the prejudicial effect of adducing the items seized at trial outweighs the probative value of their admission. If nothing else, the Defence argues that the jury will be diverted from the main issues by the complexity of the items and their actual significance to the issues at trial.
Crown Position
[138] In response, the Crown argues that significant links exist between specific items found at the Accused’s property and the triple murders committed. These include a bag filled with equipment uniquely suited to home invasion, ensuring silence and obedience, overcoming resistance, binding, and suffocating victims with plastic bags. They also include notes, purportedly written in the Accused’s handwriting, setting out his unequivocal hatred for all forms of taxation and those who enforce the tax system.
[139] A collection of correspondence between the Accused and the Canada Revenue Agency was found among the Accused’s possessions, along with a note to call a “Craig” from the “CRA”. One document in particular, dated October 15, 2007, requests that the Accused file his individual income tax returns for the years 2000 to 2006.
[140] Also found was a distinctive “fanny pack” and a pair of New Balance running shoes, which can both be linked to the date of the homicides, and a dark green (almost black) briefcase similar to that seen in OC Transpo video footage of Ottawa’s Hurdman station on June 29, 2007, corresponding to the date and time of the homicides.
[141] Thus, to the Crown, a number of items seized from the Accused’s residence are relevant to the commission of the triple murder.
[142] With respect to the issue of attribution, should the Accused not admit ownership or penmanship, the Crown intends to call every member of the Accused’s family to testify that the items of interest did not belong to them and to identify the handwriting as being that of the Accused.
[143] Finally, in response to Defence arguments concerning the availability of other evidence, the Crown argues that such an assertion is not a basis known to law for excluding probative evidence that will assist the jury on any issue.
Analysis
[144] In my view, the items found are highly relevant and probative to the Crown theory that the Accused had a particular animus directed against the tax system, as well as the enforcement and payment of taxes. The deceased Alban Garon was situated at the apex of the tax system, as Chief Justice of the Tax Court of Canada. The Accused’s writings are highly relevant to motive.
[145] Respecting the items found in the black briefcase, the item that links the Accused to the homicides is the “fanny pack” found inside the briefcase. The fanny pack found in 2014 is identified to be the fanny pack seen in the OC Transpo video footage, which depicts an individual walking from the Hurdman station at approximately 10:18 a.m. on June 29, 2007 towards the Riviera apartments where the Garons resided, and returning at 11:19 a.m. That individual has been identified by the Accused’s own son as being the Accused. He also identified the “fanny pack” as belonging to his father.
[146] The other contents of the briefcase are highly probative of the Crown theory that the assailant had the means to ensure the silence and obedience of the victims, the binding of the victims, and the severe bludgeoning of the victims, particularly Alban Garon. The rubber gloves are consistent with evidence at the scene which indicated that blood in the carpet near the body of the victims had been washed. The twine used to bind the victims was determined to either have originated from one of the spools found in the basement of the Accused’s residence or from another twine “with indistinguishable construction”. Found in a computer laptop bag is a notebook with the “PROCESS” list, which is consistent with the method of the execution of the crimes committed on June 29, 2007.
[147] The wallet and “I.D.” cards found in the den of the Accused, particularly identification in the name of “Warren Yates” from “DHL Courier Services” is consistent with the statements of Mrs. Garon that an individual appeared at her door inquiring whether her husband was present and that he was from UPS, but not UPS — in other words, a three letter courier company.
[148] The dark green (almost black) “Cité collégiale” bag is consistent with the appearance of the dark green (almost black) bag carried by the individual at the Hurdman station on June 29, 2007. It is also consistent with the observations of the witness Julio Santa Marta, employed to perform general maintenance for the Riviera apartments. Mr. Santa Marta saw an individual matching the description of the Accused at approximately 11:00 a.m. on June 29, 2007 on one of the upper floors of the Riviera apartments occupied by the Garons and Ms. Beniskos. Mr. Santa Marta describes the bag carried by this individual as being “about maybe five inches thick, about sixteen inches long and maybe a foot high”. The bottom of the bag was soft and there seemed to be heavy objects inside, making it bulge. The person carrying the bag was unknown to Mr. Santa Marta and appeared to have a “serious look” as if he were “afraid” of Mr. Santa Marta.
[149] The bag carried by the individual at the Hurdman station appeared to be filled with heavy objects and bulging at the bottom.
[150] Police found certain photographs during the search of the Accused’s computer that the Crown seeks to introduce. One photograph depicts the Accused doing push-ups with a pair of shoes beside him. The style of the shoes matches the style of the shoes worn by the individual in the Hurdman station video. The shoes had a distinctive tread, similar to a particular model of New Balance running shoes. Tread marks were found going from the location of the washed blood stain in the Garon residence to the nearby bathroom. The tread marks match the New Balance shoes seized from the Accused’s residence. Footprint impression evidence is routinely accepted by courts, unlike evidence of barefoot impressions in shoes, as was improperly admitted in R. v. Dimitrov (2003), 68 O.R. (3d) 641 (C.A.), at para. 40.
[151] In my view, all the items sought to be introduced by the Crown are highly relevant and probative of the theory that the Accused was the assailant, and should therefore be admitted.
[152] The prejudicial effect is clearly overborne by the probative value.
[153] In the result, the Defence Application to Exclude Property is dismissed.
C. McKinnon J.