Court File and Parties

COURT FILE NO.: 4403/16 DATE: 20170511 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R. v. Bradley MacGarvie, Thomas Nagy and Duran Wilson

BEFORE: The Honourable Mr. Justice Robert B. Reid

COUNSEL: G. Leach, Counsel, for the Crown R. Charlebois, and M. Peterson, Counsel, for Bradley MacGarvie G. Walker Q.C., and B. Walker, Counsel, for Thomas Nagy J. Razaqpur, Counsel, for Duran Wilson

HEARD: April 6, 10, 11, 2017

Ruling on Admissibility of Post-Offence Conduct Evidence

THIS RULING IS SUBJECT TO A BAN ON PUBLICATION PURSUANT TO S. 648(1) of the Criminal Code of Canada AND SHALL NOT BE TRANSMITTED, REPRODUCED OR BROADCAST IN ANY MANNER UNTIL THE JURY IS SEQUESTERED OR A FURTHER ORDER OF THIS COURT ALLOWS.

[1] The Crown brought an application under Rule 30 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) . [1] It seeks a ruling allowing the introduction of evidence of post-offence conduct. In submissions, the Crown took the position that its own application is premature since the court cannot fully appreciate the relevance and materiality of post-offence conduct evidence, as well as possible prejudice, until other evidence is received at trial. In short, it is too early to balance probative value against prejudicial effect. For their part, defence counsel urged the matter to proceed now in two specific areas of post-offence conduct as set out below.

[2] It appears to me that evidence of post-offence conduct is presumptively admissible and that, as such, the application should have been a defence request under Rule 31.01. That matter was not argued before me. In the circumstances, I am prepared to deal with the matter as submitted, but presuming that the accused seeking to exclude the evidence bear the onus of proof on a balance of probabilities.

Background Facts

[3] Messrs. MacGarvie, Nagy and Wilson have been indicted for the first-degree murder of Alexander Fraser. The murder is alleged to have taken place in the early morning hours of December 26, 2014. The theory of the prosecution is that all three accused persons were involved in the abduction of Mr. Fraser from a parking lot on the Niagara Parkway in the Town of Fort Erie, following which he was put into a hydro channel in a remote location in the City of Niagara Falls. His body was recovered from the water of the hydro channel on March 17, 2015. The prosecution alleges that the vehicle used to transport Messrs. MacGarvie, Nagy, and Fraser, and others during relevant times, was operated by Mr. Wilson.

[4] Identity is a key issue. Therefore, the evidence of post-offence conduct that may relate to that issue is both relevant and material.

[5] The first of the matters of post-offence conduct argued before me relates to the cleaning of Mr. Wilson’s vehicle two or three days after Christmas, 2014. Based on the information given at the preliminary hearing, Crown witness Mitchell Langlois is expected to say that he saw Messrs. Wilson and MacGarvie vacuuming Mr. Wilson’s vehicle and scrubbing a stain. The stain was said to be on the rear passenger seat. Mr. Langlois is expected to say that Messrs. MacGarvie and Wilson advised him that a girl Mr. Wilson had driven home vomited in the back seat of the vehicle. Mr. Langlois supplied cleaning supplies including rags, a cleaner and a vacuum. He offered his help and began cleaning the vehicle, wiping it down, cleaning out cup holders and wiping off the dashboard.

[6] Mr. Nagy is not implicated in this post-offence conduct.

[7] The second matter of post-offence conduct argued before me deals with alleged threats by Mr. MacGarvie to intimidate Crown witness Victoria Harvey. The expected evidence is that on February 4, 2015, Mr. MacGarvie was in custody in a “bullpen” holding cell at the St. Catharines courthouse with other males. Females in custody occupied the adjacent single cells. It is alleged that Mr. MacGarvie identified himself and ascertained from one of the females that she was being detained in the Vanier Detention Center and that she was acquainted with Victoria Harvey. Mr. MacGarvie allegedly offered compensation to the female prisoner if she would “beat up” Ms. Harvey and “put her in P.C. [2] where she belonged.”

[8] By agreement of all counsel, the matter of post-offence conduct at the St. Catharines courthouse relates only to Mr. MacGarvie.

Legal Principles

[9] Applicable principles relating to post-offence conduct were set out by the Supreme Court of Canada in R. v. White. [3] Justice Rothstein confirmed that “actions taken by an accused person after a crime has been committed can, under certain circumstances, provide circumstantial evidence of their culpability for that crime,” [4] and that admissibility presupposes relevance. [5]

[10] Typically, the proper use that a jury can make of post-offence conduct is the subject of limiting instructions by the trial judge. After all the evidence at trial is received, the judge receives submissions of counsel and then formulates the appropriate instructions. The most conclusive instruction is that particular post-offence conduct has no probative value and therefore should be disregarded. However, it is obvious that in the case of a limiting instruction, the evidence has already been heard by the jury.

[11] According to Rothstein J. in White:

“[T]he admissibility of evidence of post-offence conduct and the formulation of limiting instructions should be governed by the same principles of evidence that govern other circumstantial evidence. In particular, to be admissible, such evidence must be relevant to a live issue and it must not be subject to a specific exclusionary rule (e.g. the hearsay rule); it may also be excluded pursuant to the exercise of a recognized judicial discretion [citation omitted], such as the discretion to exclude evidence whose prejudicial effect outweighs its probative value.” [6]

[12] In general, it is the task of the jury as trier of fact to determine what inference is to be taken from circumstantial evidence and the weight to be given to that evidence. Post-offence conduct need not point to only one reasonable inference to be relevant and admissible to prove a fact in issue. If the inference urged by the Crown is reasonably available, the post-offence conduct normally will be left with the jury, which, after considering any competing inferences available, will determine what effect, if any, should be given to it.

[13] Despite the fact that the jury is the sole finder of fact, the court does have discretion to exclude otherwise admissible evidence if its probative value is overborne by its prejudicial effect. That balancing may or may not be possible in advance of considering all the evidence as a whole.

Analysis

(a) Evidence of Vehicle Cleaning

[14] The Crown submits that evidence of cleaning the Wilson vehicle within a few days of the alleged abduction and murder, and the direct association of Mr. Wilson with that vehicle, is clearly relevant to the key issue of identity.

[15] Relevance must be considered in the context of the rest of the evidence, the issues raised at trial, and the positions of the parties. To be relevant, the question is whether the particular post-offence conduct makes the existence or non-existence of a fact in issue more or less likely. Destruction of evidence is recognized as having probative value when it occurs after an offence is committed.

[16] Counsel for Mr. Wilson submits that there is no evidence of anyone having vomited in the vehicle and, as such, the evidence of cleaning is irrelevant and highly prejudicial. In the submission of counsel, the minimal probative value of connecting Mr. Wilson to the vehicle is significantly exceeded by the potential prejudice to him. The jury may give that evidence undue significance and be tempted to rush directly from an inference of consciousness of guilt to a conclusion of guilt, without considering all the evidence. [7] The jury could equate cleaning with involvement by Mr. Wilson and his vehicle in the crime even if there is no logical basis to do so.

[17] It is reasonable to conclude that linking Mr. Wilson to a vehicle that is otherwise connected to the abduction of Mr. Fraser, assuming that is the evidence, makes the post-offence conduct relevant to the issue of identity. Similarly, if there is evidence that someone vomited in the vehicle during the course of the events involving Mr. Fraser on December 26, 2014, then evidence that vomit was being cleaned out of that vehicle within a day or two could be a link between Mr. Wilson and the offence alleged.

[18] At this point in the proceeding, it is not clear whether there will be evidence linking the vomit being cleaned from the car to the abduction of Mr. Fraser. If that evidence is tendered, the post-offence conduct evidence will become more probative. Likewise, it is not clear whether there is a dispute about the link between Mr. Wilson and the vehicle in question. For example, if that is an admitted fact or if it is clear from the evidence tendered at trial, there will be reduced probative value in calling the post-offence conduct evidence for that purpose.

[19] Only when the probative value of the evidence can be properly assessed is it possible to balance prejudicial effect. In fact, the issue of prejudicial effect may be either supported or negated by the totality of the evidence at trial.

[20] The Crown submitted that an additional reason for the admission of post-offence conduct evidence is that the vehicle cleaning is part of the case narrative. I disagree. The evidence may be relevant to the issue of identity but, in my view, the narrative ends in the immediate aftermath of the death of Mr. Fraser.

[21] Based on the foregoing, I accept the initial position of the Crown that it is premature at this point to determine whether to exclude the post-offence conduct evidence of the vehicle cleaning. If the matter remains in dispute, counsel may revisit it prior to the calling of evidence from Mr. Langlois.

(b) Witness Intimidation

[22] The Crown submits that before the jury will hear any evidence at trial about the St. Catharines courthouse incident, there will be evidence from Ms. Harvey about her relation with Mr. MacGarvie, the fact that his street name was “Hollywood”, that he had a mixed martial arts background, and that he had tattoos on his hands or arms. Those facts will be referred to by the female or females in custody in their evidence about the proposed intimidation of Ms. Harvey.

[23] Interference or attempted interference with a witness is recognized as having probative value when it occurs by way of post-offence conduct. The Crown is expected to urge the jury to imply that there is a link between Mr. MacGarvie’s involvement in the crime involving Mr. Fraser, the fact that Ms. Harvey will be a Crown witness who has already admitted her involvement in the matter, and his attempt to arrange for the infliction of a beating on her.

[24] On behalf of Mr. MacGarvie, counsel acknowledged that any probative value of the evidence is to support an inference of consciousness of guilt. However, defence counsel submits that the proposed evidence is highly prejudicial and that the prejudice significantly outweighs any probative value. The evidence is weak in the sense that the female prisoners who will testify are vague, inconsistent and unreliable. The Crown cannot prove directly the identity of the speaker who allegedly sought to direct retribution to Ms. Harvey. His face was unseen. In addition, he submits that Ms. Harvey herself has admitted lying consistently to the police and, as a result, her own evidence lacks credibility.

[25] The three witnesses called by the Crown during this voir dire are likely the same as can be expected to testify at the trial: the two female prisoners who overheard the remarks from the male prisoner, allegedly identified as Mr. MacGarvie, and one Niagara Regional Police Special Constable. The Special Constable referred to the courthouse records as to the identity, arrival times, departure times, and locations of prisoners at the St. Catharines courthouse on the day in question; the physical layout of the cell area; and the procedure for the entry and exit of the prisoners.

[26] The evidence may well have probative value. If the jury is satisfied that the male prisoner was indeed Mr. MacGarvie and that he made the statements inviting the female prisoner to inflict a beating on Ms. Harvey, it could well be considered circumstantial evidence indicating consciousness of guilt. Of course, the jury may come to a different conclusion based on the credibility of the witnesses and reliability of the evidence.

[27] It is unlikely that any prejudicial effect of the evidence at trial will be greater than can be already anticipated. To the extent that the prejudicial effect relates to excess time at trial, I note that the evidence during the voir dire was brief: about one-half day in total. In my view, the jury can be instructed as to the proper use of circumstantial evidence relating to the courthouse cells incident, which is but one small part of a body of evidence on which the Crown will rely at the trial. As such, a danger that the jury will afford the evidence undue significance can be minimized, as can any temptation to rush too quickly to a conclusion of guilt without consideration of all the evidence. Weaknesses in the post-offence conduct evidence, either by way of witness credibility or reliability, will undoubtedly be explored fully in cross-examination.

[28] Based on the foregoing, I find that the otherwise admissible evidence of post-offence conduct may be tendered by the Crown at trial and that Mr. MacGarvie has failed to persuade me on a balance of probabilities that the evidence should be excluded. This ruling is based on the expectation that identifiers of Mr. MacGarvie, including his street name “Hollywood”, his mixed martial arts experience, and his tattooed hands or arms, will be tendered in evidence by one or more sources prior to the calling of evidence relating to his post-offence conduct at the St. Catharines courthouse. In the event that that evidence is not before the jury, and as such the proposed identification evidence from the female prisoners is reduced, I am prepared to allow counsel for Mr. MacGarvie to revisit the issue in advance of the courthouse evidence being called.

Conclusion

[29] For the reasons set out above, the application to allow post-offence conduct evidence concerning vehicle cleaning is deferred to the point at trial immediately prior to the evidence of Mitchell Langlois.

[30] For the reasons set out above, the application to allow post-offence conduct evidence concerning attempted witness intimidation at the St. Catharines courthouse is granted. To be clear, I am in effect dismissing what amounts to a defence application to exclude that evidence.

Reid J. Date: May 11, 2017

[1] SI/2012-7. [2] I assume this means “protective custody”. [3] 2011 SCC 13. [4] Ibid., at para. 17. [5] Ibid., at para. 22. [6] Ibid., at para. 31. [7] Ibid., at para. 23.