Court File and Parties

Court File No.: CR 16-006 Date: 2017-07-04 Ontario Superior Court of Justice

Between: Her Majesty The Queen, Respondent – and – Kaitlyn Deidra Trudeau, Applicant

Counsel: Mr. Beaton, for the Crown B.J. Allison, for the Applicant

Heard: April 13 and 18, 2017

Decision on Application

Cornell J.

Introduction

[1] Kaitlyn Trudeau is charged with two counts of aggravated assault, one count of assault with a weapon, and one count of weapon dangerous in connection with an incident that involved the stabbing of two people. The accused has brought this application seeking to be permitted to lead bad character evidence against two of the complainants. In accordance with the reasons that follow, the application is granted in part.

Background

[2] At the time of the incident, five people were present in the residence of Josephine Osawanamiki in the early morning hours of April 18, 2015. With the possible exception of one person, all persons in attendance were intoxicated to some extent.

[3] It is the theory of the Crown that after the accused’s sexual advances were rejected by the host, the accused started a fight with Hailey Saikkonen. Vern Otosquaiob intervened in an effort to end the altercation. The accused was told to leave the residence. Rather than do so, she brandished a pocketknife. A scuffle ensued. Vern Otosquaiob, Hailey Saikkonen and Robert Travis Wemigwans attempted to disarm the accused. In the process of so doing, it is alleged that the accused stabbed Ms. Saikkonen in the thigh and Mr. Wemigwans in the abdomen.

[4] The accused tells a very different story. Ms. Trudeau states that for reasons unknown to her, Ms. Saikkonen started a fight with her. She was then jumped by a number of other people who proceeded to stomp on her wrist and head. At that juncture, she remembered that she had her pocketknife with her. She was able to remove it from her pocket, at which point in time she proceeded to “shank” people with the knife. Ms. Trudeau asserts that at all times she was acting in self-defence.

Issue

[5] The issue for me to determine is whether the accused will be permitted to elicit bad character evidence against Mr. Wemigwans and Mr. Otosquaiob, to put before the jury evidence of their individual propensity for violence.

Analysis

Self-Defence

[6] An assertion that the accused acted in self-defence is a prerequisite for this kind of evidence to be permitted. Counsel for the accused has made it known that the accused makes this assertion. This condition has been satisfied.

Propensity for Violence

[7] It is now well established that an accused person may be permitted to introduce evidence of a victim or a complainant’s propensity for violence. If at the time of the incident the accused was aware of this propensity, then such bad character evidence is admissible to show the reasonableness of the accused’s apprehension of the nature of the complainant’s attack. See R. v. Scopelliti, 1981 ONCA 1787, 34 O.R. (2d) 524.

[8] In Scopelliti, Martin J.A. stated at pp. 534-535:

It is well established that where self-defence is raised, evidence not only of previous assaults by the deceased on the accused, but also of previous acts of violence by the deceased, known to the accused, towards third persons, is admissible to show the accused’s reasonable apprehension of violence from the deceased. Evidence of the deceased’s reputation for violence, known to the accused, is admissible on the same principle: see R. v. Drouin (1909), 1909 QCCQ 209, 15 C.C.C. 205 and commentary at p. 207; R. v. Scott (1910), 1910 ONSC 183, 15 C.C.C. 442; Wigmore on Evidence, 3rd ed., vol. II (1940), at pp. 44-52; Phipson on Evidence, 12th ed. (1976), at pp. 188, 228.

[9] If the reputation or previous acts of violence are unknown to the accused at the time of the incident, such bad character evidence is admissible as long as there is some other evidence of aggression on the part of the complainant during the incident. On this subject of a propensity for violence that is unknown to an accused, Martin J.A. stated at p. 536 of Scopelliti:

We were not referred by counsel to any Canadian or Commonwealth decision on the question of the admissibility of evidence of the deceased’s character (disposition) for violence, not known to the accused, as evidence of the probability of the deceased’s aggression where self-defence is raised as an issue. However the admission of such evidence accords in principle with the view expressed by this Court that the disposition of a person to do a certain act is relevant to indicate the probability of his having done or not having done the act. The law prohibits the prosecution from introducing evidence for the purpose of showing that the accused is a person who by reason of his criminal character (disposition) is likely to have committed the crime charged, on policy grounds, not because of lack of relevance. There is however, no rule of policy which excludes evidence of the disposition of a third person for violence where that disposition has probative value on some issue before the jury: see R. v. McMillan (1975), 1975 ONCA 43, 23 C.C.C. (2d) 160 at p. 168, aff’d., R. v. McMillan, 1977 SCC 19, 33 C.C.C. (2d) 360; R. v. Schell and Paquette (1977), 1977 ONCA 1939, 33 C.C.C. (2d) 422 at p. 426.

[10] It has been determined that an accused can establish such propensity for violence by: (1) evidence of reputation; (2) proof of specific acts; (3) evidence of the complainant’s criminal record; and (4) expert opinion evidence of disposition. See Scopelliti, R. v. Hamilton, 2003 BCCA 490, 180 C.C.C. (3d) 80, and R. v. Patterson, 2006 ONCA 2609, 79 O.R. (3d) 257.

Known Propensity for Violence

[11] The accused testified on the voir dire. She indicated that “Angel” was her close friend. She had observed Vern Otosquaiob to attack Angel. The accused indicated that Angel would seek shelter at her residence from time to time in order to avoid further harm. The accused testified that she knew that Vern Otosquaiob “liked to beat up girls”. Although she knew that Mr. Otosquaiob had been in court, she was not aware that he had been convicted of assault.

[12] The accused testified that on the night of the incident she was present with Vern Otosquaiob in the vehicle that took them to Ms. Osawanamiki’s home. She spent the evening drinking in the presence of Mr. Otosquaiob and others and, apart from her usual caution because “you never know what guys will do”, she did not feel threatened by Mr. Otosquaiob’s presence or conduct.

Unknown Propensity for Violence

[13] Mr. Wemigwans was not well known to the accused. She was aware of an incident involving Mr. Wemigwans that resulted in a large police response including use of the SWAT team, but she did not know the circumstances of the incident itself, nor was she aware of the criminal consequences other than to say that she knew that Mr. Wemigwans had been in court.

[14] Despite this knowledge, counsel for the accused took the position that his client’s level of knowledge of Mr. Wemigwans’ propensity for violence was lacking. Accordingly, this portion of the application proceeded on the basis of Mr. Wemigwans’ propensity for violence unknown to the accused.

[15] Mr. Wemigwans has some 77 criminal convictions. At least ten of these convictions involve crimes of violence. Approximately one month after the incident in question, Mr. Wemigwans was arrested and charged with first-degree murder.

Post-Incident Conduct

[16] As mentioned, Mr. Wemigwans was arrested approximately one month after the incident at hand and charged with murder. He has been incarcerated since that date and is currently awaiting trial.

[17] It is clear that post-incident conduct can be relied upon in support of a request that an accused be permitted to lead bad character evidence. See R. v. Chartrand, 2002 ONCA 6331, 62 O.R. (3d) 514, and R. v. Lyons.

The Test

[18] Evidence of prior violent conduct is admissible to establish a propensity for violence only where the probative value exceeds any prejudicial effect.

[19] The evidence of prior violent conduct must have sufficient probative value. It does not require significant probative value, nor must it meet the test for similar fact evidence. See R. v. Yaeck, 1991 ONCA 2732, 6 O.R. (3d) 293 at pp. 310 and 313-314, leave to appeal refused [1 S.C.R. XII]; R. v. Hillis, 2016 ONSC 450, at para. 87.

[20] It has been determined that in order to afford the accused an opportunity to make full answer and defence, defence evidence can only be excluded where the probative value is substantially outweighed by the prejudicial effect. See R. v. Seaboyer, 1991 SCC 76, [1991] 2 S.C.R. 577, at p. 611.

Conclusion

Vern Otosquaiob

[21] Counsel for the accused states that when the accused found herself being assaulted by Mr. Otosquaiob and others, her apprehension about Mr. Otosquaiob’s attack was reasonable in the circumstances. In other words, the accused’s personal knowledge of Mr. Otosquaiob’s propensity for violence came into play at that point in time.

[22] I accept this proposition. Accordingly, I rule that the accused may lead evidence of Mr. Otosquaiob’s propensity for violence as such propensity was known to the accused.

Robert Travis Wemigwans

[23] It is clear from the criminal record of Mr. Wemigwans alone that his propensity for violence over a long period of time is well-established.

[24] After engaging in the weighing exercise that is required, I am satisfied that the probative value of Mr. Wemigwans’ propensity for violence substantially outweighs any prejudicial effect.

[25] This is not the case with the accused’s request to lead evidence of the murder charge that Mr. Wemigwans is now facing. To begin with, Mr. Wemigwans is presumed to be innocent until such time as he is proven guilty. No evidence was lead on the voir dire to establish the facts surrounding the murder charge.

[26] Apart from this, a murder charge is considered by many to be one of the most, if not the most, serious charge a person can face under the Criminal Code of Canada, R.S.C. 1985, c. C-46. Mr. Wemigwans’ propensity for violence is well-established by his criminal record. To also permit the murder charge to establish his propensity for violence would be to gild the lily, so to speak. I am satisfied that the prejudicial effect of permitting reference to Mr. Wemigwans’ pending murder charge would far exceed its probative value. Accordingly, Mr. Wemigwans’ pending murder charge may not be referred to.

The Honourable Mr. Justice R. Dan Cornell

Released: July 4, 2017