CITATION: R. v. Lawlor, 2017 ONSC 2744

COURT FILE NO.: CJ 8665

DATE: 2017-05-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Linda Elliott and Jennifer Caskie, for the Crown

• and -

Derrick Lawlor

Stephen Gehl, for the Defendant, Derrick Lawlor

HEARD: February 6, 7, 8, 9, 10, 13 and 14, 2017

THE HONOURABLE MR. JUSTICE G.E. TAYLOR

RULING RE ADMISSIBILITY OF EVIDENCE OF PRIOR DISCREDITABLE CONDUCT

Introduction

1Derrick Lawlor is charged with first degree murder in the death of Mark McCreadie whose body was found in Victoria Park in the City of Kitchener on April 10, 2014.

2In 1985, Derrick Lawlor was convicted of manslaughter in Newfoundland and given a four year penitentiary sentence. While on parole and residing at Howard House in St. John’s, Newfoundland, Derrick Lawlor came into contact with Jacky Shah, who was a social worker employed by the John Howard Society, the operator of Howard House. For a period of approximately nine months in the late 1980s, Jacky Shah met with Derrick Lawlor on approximately a weekly basis in a counseling setting. During the course of these counseling sessions, Derrick Lawlor made certain statements which the Crown seeks to introduce as evidence on the trial of the present indictment.

3On December 31, 1997, John Roy and Eric Majury, both Detectives with the Peel Regional Police, were dispatched to Credit Valley Hospital for the purpose of interviewing Derrick Lawlor. Derrick Lawlor was a patient at the hospital. Coincidentally, Jacky Shah was a social worker at Credit Valley Hospital at the time and recognized Derrick Lawlor from when she worked at Howard House. She spoke to Derrick Lawlor on December 31, 1997. The Crown seeks to introduce as evidence at the trial, statements made by Derrick Lawlor to Detectives Roy and Majury and Jacky Shah.

4As a result of the statement made to Detectives Roy and Majury, Derrick Lawlor was charged with possession of a weapon to wit, a knife, for a purpose dangerous to the public peace and uttering a death threat. He pleaded guilty to those charges before the Honourable Mr. Justice Kruzick and was sentenced on July 24, 1998 to 18 months incarceration in addition to time served of approximately six months, plus probation for a period of three years. The Crown intends to introduce as evidence at the trial the oral judgment of Kruzick, J.

Facts

5Derrick Lawlor was convicted of manslaughter in Newfoundland in 1985. He was given a four year jail sentence. When he was released on parole he was required to reside at Howard House, a halfway house operated by the John Howard Society under contract with Corrections Canada. Jacky Shah was a social worker at Howard House during the period of time when Derrick Lawlor was a resident. Derrick Lawlor was required to meet with Jacky Shah, as a term of his parole, on a weekly basis. She dealt with Derrick Lawlor for approximately nine months to one year. Although she was not his parole officer, she was required to make regular reports to Corrections Canada about Derrick Lawlor.

6Towards the end of their relationship, Derrick Lawlor disclosed to Jacky Shah that he was having urges to harm homosexual men who expressed an interest in him. He talked about stocking homosexual men in an area of the city which was known to be frequented by homosexual men. Derrick Lawlor said that he would carry a rock intended to be used as a weapon, but he did not carry through with his urges because he was able to talk himself out of physically harming someone.

7On or about December 26, 1997, Derrick Lawlor left his home in Mississauga and traveled to Ottawa with the intention of killing his brother, who he blamed for his homosexuality. He threatened to cut off his brother’s penis and place it in his mouth. He then planned to set his brother on fire. Derrick Lawlor met with his brother in a coffee shop following which he abandoned his plan. Subsequently, he left threatening voicemail messages for his brother. Derrick Lawlor then returned to his home in Mississauga.

8On December 31, 1997, Detectives John Roy, Erik Majury and Harry Barinik were sent to Credit Valley Hospital at the request of a Dr. O’Riordan. When they arrived they met with Dr. O’Riordan, who advised that a patient by the name of Derrick Lawlor had made comments about killing his brother and a person with the Salvation Army. Dr. O’Riordan said he was not going to commit Derrick Lawlor to hospital and that he was free to leave.

9Detectives Roy and Majury transported Derrick Lawlor to the police station and made arrangements for him to make a statement, which was audio and video recorded. In that statement, Derrick Lawlor disclosed his plan to kill his brother and also talked about picking up a homeless gay man by the name of Mike in downtown Toronto, after returning from Ottawa and taking this man to a secluded location where he tied him up with the intention of killing him. He did not carry through with his plan.

10On or about December 31, in 1997, the police also interviewed and obtained a statement from Jacky Shah. She told them about her dealings with Derrick Lawlor in Newfoundland. She also told the police about Derrick Lawlor having disclosed to her in late 1997 that he was planning on causing physical harm to closet homosexual males who had met during a period of training at the Salvation Army.

11In July 1998, Derrick Lawlor appeared before the Honourable Mr. Justice Kruzick of the Ontario Superior Court and entered pleas of guilty to one charge of possession of a weapon, to wit, a knife, for the purpose dangerous to the public peace and one charge of uttering a threat to Peter Lawlor, to cause death to Peter Lawlor. These charges arose out of the statement given by Derrick Lawlor to Detectives Roy and Majury on December 31, 1997. Justice Kruzick imposed a sentence on Derrick Lawlor of time served of six months, plus an additional 18 months in jail, plus probation for three years. The sentence was based on a joint submission.

12The Crown proposes to introduce as evidence at Derrick Lawlor’s trial for committing first-degree murder on Mark McCreadie evidence of the statements made to Jacky Shah in Newfoundland in the late 1980s, and in December 1997, the statement made to Detectives Roy and Majury on December 31, 1997 and the Reasons of Kruzick J., when he sentenced Derrick Lawlor in July 1998.

Analysis

13The Crown proposes to introduce this evidence on the issue of motive. The Crown submits that this evidence discloses a long-standing animus on the part of Derrick Lawlor towards homosexual men who he perceived to be promiscuous. The Crown says that this evidence is necessary to show the intensity and long-standing nature of this animus. However, the Crown does not seek to introduce any evidence about Derrick Lawlor’s conviction for manslaughter in 1985.

14Counsel addressed many issues relating to the admissibility of this evidence. Those issues included whether Jacky Shah was a person in authority, whether the statements made to the Peel police officers and to Jacky Shah in December 1997 were voluntary, whether there were Charter breaches which should result in the exclusion of the evidence and whether the probative value of the evidence exceeded its prejudicial effect.

15I have reached the conclusion that the evidence of prior discreditable conduct sought to be introduced by the Crown ought to be ruled inadmissible because its prejudicial effect outweighs its probative value. I therefore do not propose to address the other issues raised by counsel during the course of argument.

16In this case, the Crown says that evidence about statements made by Derrick Lawlor in the mid to late 1980s in Newfoundland and to Peel Regional Police in December 1997 about wanting to cause physical harm to promiscuous homosexual men is evidence of motive and is admissible to prove that he was the person who caused the death of Mark McCreadie. As a general proposition, I can accept that evidence about an accused’s stated intention to cause physical harm to homosexual men would be of assistance to a trier of fact in deciding if, in a particular case, the death of a homosexual man was caused by the accused. The issue is whether the probative value of that evidence exceeds, on a balance of probabilities, its prejudicial effect.

17In R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, the Supreme Court of Canada provided useful instruction on the issue of the admissibility of similar fact evidence or evidence of prior discreditable conduct. Similar fact evidence is presumptively inadmissible, but if the Crown can establish on a balance of probabilities that the probative value of the evidence outweighs its potential prejudice, the evidence can be ruled admissible: paragraph 55. Where the issue in question is the animus of an accused to a particular person or group of persons, the required degree of similarity between the acts of prior discreditable conduct and the conduct which is the subject of the trial is somewhat lessened: paragraph 80. In determining the admissibility of the evidence, consideration must be given to both reasoning and moral prejudice. Moral prejudice involves the possibility that a person will be found guilty because of their general disposition or propensity. Reasoning prejudice involves the distraction of the trier of fact from the central issue in the trial, which is whether the Crown has proven the guilt of the accused beyond a reasonable doubt: paragraphs 139 to 147.

18The Court in Handy also suggested a number of non-exhaustive factors to be considered in assessing the admissibility of the evidence of prior discreditable conduct, including the proximity in time of the prior accident to the offence in question and the extent to which other acts are similar in detail to the charged conduct.

19It is significant, in my view, that the evidence sought to be introduced is dated. It relates to time periods almost 30 years and almost 20 years before the death of Mark McCreadie. The evidence, for the most part, is also about what was in Derrick Lawlor’s mind. With the exception of the incident related to the Peel police about taking Mike to a remote location and tying him up, there is no evidence that Derrick Lawlor acted on his stated urges. This, to my mind, reduces its probative value in a case where the allegation is that Derrick Lawlor killed a male in Victoria Park, who he perceived to be a promiscuous homosexual. On this issue, I find it to be significant that the Crown does not seek to introduce evidence of Derrick Lawlor’s conviction for manslaughter in 1995, which I understand to involve the killing of Derrick Lawlor’s homosexual employer as result of sexual advances.

20It is obvious that evidence of Derrick Lawlor’s stated desire on more than one occasion to seek out and cause physical harm to homosexual men who he perceived to be promiscuous runs the risk of being used by the jury to resort to moral prejudice to conclude that Derrick Lawlor is guilty of first-degree murder in the death of Mark McCreadie because he is the type of person who would commit such an act.

21I also think there is significant prejudice in causing the focus of this trial to be deflected from the main issue, that being whether the Crown has proven beyond a reasonable doubt that Derrick Lawlor committed a planned and deliberate murder of Mark McCreadie, and focus on whether Derrick Lawlor made the statements which are attributed to him by the various witnesses and whether the evidence proves a motive or whether it is nothing more than attention seeking or some other motive. The distraction from the central issue in the trial in my view has the potential to be significant.

22For these reasons, I am not satisfied that the Crown has discharged its burden of proving on a balance of probabilities that the probative value of the evidence relating to prior discreditable conduct on the part of Derrick Lawlor outweighs its prejudicial effect. Therefore the evidence is inadmissible at the trial.

23Derrick Lawlor also made statements to a number of people in the early part of 2014 about having urges to cause physical harm to homosexual men and to cruising Victoria Park in Kitchener looking for men to assault. I find this evidence to be admissible. I reach this conclusion because the evidence is proximate in time to the date of commission of the offence alleged. Also, the evidence is relevant to more than motive. It is also evidence with respect to the issue of intent.