BARRIE COURT FILE NO.: CR-15-112 DATE: 20170113 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – ANDREW CARTHEW TIDEY Defendant

Counsel: M. Villamil, for the Crown K. Symes, for the Defendant

HEARD: January 9, 10 and 12, 2017

Ruling on prior discreditable conduct and after-the-fact conduct

QUINLAN J.

OVERVIEW

1The accused is charged with the aggravated assault of Paul Gruber. The complainant is the stepfather of Brandi Marsh, the accused’s former tenant. Ms. Marsh, her common-law partner, Brandon Grimbly and their two children rented the upstairs apartment of the accused's home. After a dispute with the accused they left the apartment in early January 2013.

2Mr. Gruber attended at the accused’s home on January 10, 2013 to recover money that he said the accused owed to his stepdaughter. The accused told the police that he was with his girlfriend in the basement of his home when he heard someone inside his house. He went to investigate. He saw a man that he had never seen before. The intruder, later determined to be Mr. Gruber, threatened the accused. The accused told him to get out of his house but Mr. Gruber didn’t move. The accused grabbed Mr. Gruber, “clocked him” once, dragged him by the hair out of the house to the driveway and yelled "citizen’s arrest". Mr. Gruber stood up and again threatened the accused. The accused “took him down again” and pinned him face down on the snowbank until police arrived. As a result of his actions that night, Mr. Gruber was charged with breaking and entering, uttering threats and assault.

3The police then spoke to a witness who told them he had seen what happened in the driveway. The witness said that he saw two males and a female. One of the males was down on the ground; the other male looked to have him by the scruff of the shirt and was standing over him shouting, "get out of here, get out of my house; I'm going to call the cops." The standing male hit the other male repeatedly with a closed fist. From what the witness could see, the person being punched was not offering any resistance to the blows: he did not put up his hands to defend himself and essentially "took it". Afterwards, the witness saw the person who had been punched staggering, stumbling and falling down. The police arrived shortly after.

4Mr. Gruber sustained serious injuries in the altercation, including a broken jaw. He required stitches to his lower lip and forehead.

5The Crown's position is that the accused was acting in defence of self or property when he hit Mr. Gruber and removed him from the home, but that the accused’s actions outside of the home constitute the offence of aggravated assault.

6The Crown seeks to introduce evidence of prior acts committed by the accused in relation to the complainant’s family, namely Ms. Marsh and Mr. Grimbly. The Crown also seeks to introduce a text message sent by the accused to Ms. Marsh shortly after the incident with Mr. Gruber.

The Prior Discreditable Conduct Application

Evidence Sought to be Introduced

7The Crown asks that the following evidence be admitted:

a. The accused lost his girlfriend and was tending to his sick and disabled father in the approximately 6 months prior to January 10, 2013. He had difficulty finding work, was suffering financially and could not pay his bills or mortgage payments. As a result, he was trying to sell his house. His behaviour "changed drastically" and he became more aggressive. b. There was a dispute between the accused, Ms. Marsh and Mr. Grimbly about raising the rent. This led to a dispute about the use of laundry facilities. The accused removed the fuse while Ms. Marsh was doing the laundry. c. Five or six weeks before January 10, 2013, the accused tried to pick a fight with Mr. Grimbly and “got into Mr. Grimbly’s face” in a confrontational manner. d. On January 4, 2013, the accused attacked Mr. Grimbly from behind, shoved him to the ground, punched him in the head, stole his wallet and damaged his car door. Mr. Grimbly called the police but did not wish to pursue charges. e. On January 5, 2013 in response to a text message from Ms. Marsh stating "which of you fuckin’ losers stole Brandon's wallet after you bitch pushed Brandon from behind," the accused wrote "that's just a taste of what's to come". f. Between January 4 and January 10, 2013, Ms. Marsh and Mr. Grimbly moved their belongings out of the residence. The accused destroyed items that they had not yet removed from the house. He wrote "goof" on the baby’s crib. He also poured orange juice and coffee over the crib and the baby’s high chair.

Positions of the Parties

8The Crown takes the position that the prior discreditable conduct demonstrates the accused's animus toward the family of the complainant. It reveals deterioration in the accused’s personality and behaviour in the months and days leading to the offence. Each of the items of evidence has some combination of elements that found reasonable inferences to establish the actus reus of the offence, context/narrative/background, animus /motive or pattern or to rebut any theory of self-defence. The evidence is highly probative of these issues and provides the necessary context to assess whether and why the events described by Mr. Gruber occurred.

9The defence position is that the issues in the trial are when and how Mr. Gruber's injuries were caused; the series of events and actions in the altercation between the accused and Mr. Gruber; and whether the accused was acting in self-defence, defence of another or defence of property. The evidence that the Crown is seeking to have admitted is not relevant to the questions of fact that the jury will be asked to answer. The evidence is highly prejudicial and its admission would render the accused's trial unfair. The only evidence that meets the test for admission is the evidence that the accused was having financial difficulties, was going to lose his home and was in a dispute with his tenants about raising the rent. This evidence is relevant to the narrative of the allegations before the court and ought to be admitted. The evidence with regard to utilities and laundry is irrelevant and carries with it considerable prejudice by casting the accused in a bad light and distracting the jury with irrelevant information. The balance of the information sought to be admitted is inadmissible bad character evidence. It is not relevant to any issue beyond the accused’s disposition and runs the risk of distracting the jury. Its prejudice outweighs any probative value.

Legal Principles

10Prior disreputable conduct evidence is presumptively inadmissible unless the court can be satisfied that the evidence is both relevant to an issue at trial and the probative value of the evidence outweighs its prejudicial effect. The Crown bears the onus of establishing this on a balance of probabilities. The general exclusionary rule is the same regardless of whether the evidence is categorized as similar fact, prior discreditable conduct, character or extrinsic misconduct. There is a general prohibition against the use of such evidence as circumstantial proof of conduct: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, paras. 31-35, 55; R. v. B.(F.F.), [1993] 1 S.C.R. 697, para. 71.

11The admissibility of this type of evidence will generally be outweighed by two forms of prejudice: moral prejudice (the possibility that the jury might choose to convict in order to punish the accused for uncharged conduct); and reasoning prejudice (the past misconduct evidence will distract the jury). Evidence of prior discreditable conduct is admissible where it is so highly relevant that its probative value outweighs the risk that the evidence may be misused: Handy, at paras. 31-41.

12Bad character evidence can sometimes be admitted to prove motive, which can in turn support an inference of identity, intent and other material issues: Kent v. W. Roach et al, “Unlikable and before the Jury: Does Non-Probative Character Evidence Increase the Risk of Wrongful Conviction?” 2016 63 C.L.Q. 567. Where the evidence does not bear strongly on motive, and simply portrays the accused in a negative light, it is likely to be excluded. Conversely, if the evidence shows a powerful motive, it is likely to be admitted… Evidence need not be conclusive of a motive in order to be admissible. It may be one piece of circumstantial evidence that, connected with other pieces of evidence, is deemed to be probative enough to warrant admission: CED 4th (Online), Circumstantial Evidence, “Important Examples of Circumstantial Evidence: Motive” (I.3.(b).(ii) at §32.

13As the court explained in R. v. Salah, 2015 ONCA 23 at para. 64:

Evidence of motive is a kind or species of circumstantial evidence that invokes a prospectant chain of reasoning. The line of argument engaged is that the previous occurrence of an act, state of mind, or state of affairs justifies an inference that another act was done, or state of mind or affairs existed, at some time afterwards that is material to the proceedings [cite omitted].

14Evidence that provides the trier of fact with real insight into the background and relationship between the accused and the complainant, and which genuinely helps to establish a bona fide theory of motive is highly probative, even in the absence of similarity with the offence charged. The trial judge must still balance probative value versus prejudicial effect: R. v. Johnson, 2010 ONCA 646 at paras. 97 and 101. Evidence of motive or animus is relevant to prove identity and state of mind: Salah, at para. 65.

15Evidence that an accused may have engaged in recent threats and other discreditable conduct that were specifically targeted against the victim, and that his animus toward the victim had been increasing during the time leading up to the killing is highly relevant to issues of motive and intent. Although such evidence potentially causes the accused prejudice due to the risk that the jury might use it to unfairly convict him on the basis that he is a bad person, the trial judge bears the principal responsibility in deciding whether the probative value of evidence outweighs its prejudicial risk: R. v. Pasqualino, 2008 ONCA 554 at para. 31.

16Evidence of motive is always relevant in that it makes it more likely that the accused committed the crime, although it is not an essential element of criminal responsibility: R. v. G. (S.G.), [1997] 2 S.C.R. 716 at para. 64.

17Dambrot, J. in R. v. Riley at paras. 74-94 has provided a useful discussion regarding animus and motive. A summary of the principles set out therein is as follows:

a. Animus and motive are not the same thing, but it is very difficult to discuss them in isolation from each other. In general, it might be said that animus towards another individual is simply a step in the formation of a motive to do harm to that individual. b. Evidence of motive and animus is universally thought to be relevant in a criminal trial, not merely to prove intent, but to prove the doing of the act as well. It is capable of assisting the jury in understanding why the accused did what was alleged in the indictment. Evidence can demonstrate an animus on the accused’s part towards the complainant that is consistent with the offence with which he is charged. c. Where motive is proved circumstantially by other acts of the accused, there is a two-step reasoning process involved. The jury must first find that the other acts establish a motive. The jury may then typically treat the evidence of motive as circumstantial evidence of identity and intent. In some cases, evidence of motive may be excluded because of an absence of a temporal or factual nexus to the offence charged. d. Evidence of animus can be admitted to show that an accused entertained feelings of enmity towards the victim. That is evidence not merely of the "malicious mind" with which he injured the victim, but of the fact that he injured him. e. In most cases, the motive or animus that the Crown is permitted to attempt to demonstrate relates to the victim as an individual, and not as a member of a group. This, however, is a difference without a distinction. A more general motive can have as much significance as a specific motive. f. If the evidence amounts to discreditable conduct, it is subject to the probative value/prejudicial effect balancing [cites omitted].

18In considering whether evidence of prior discreditable conduct should be admitted, it is necessary to consider whether its probative value is exceeded by its prejudicial effect. A helpful summary of the principles to consider is set out in R. v. Minoose, 2010 ONSC 7175 at paras. 23 to 25:

[23] Probative value relates to: (i) the strength of the evidence; (ii) the extent to which the proposed evidence supports the inference(s) sought to be made from it […]; and (iii) the extent to which the matters it tends to prove are at issue in the proceedings.

[24] Prejudice equates to any unfairness to the accused occasioned by the admission of the evidence. For example: (a) the evidence might provoke an emotional response that imperils the trier of fact's ability to reach a verdict on an objective and dispassionate review of the evidence; (b) there may be a danger that the trier of fact could, despite directions to the contrary, use the evidence to infer guilt through some legally forbidden line of reasoning; or (c) where the accused does not have an adequate opportunity to challenge the evidence adduced by the Crown [cites omitted].

[25] In assessing the prejudicial effect, consideration should be given to: (i) how discreditable it is; (ii) the extent to which it may support an inference of guilt based solely on bad character; (iii) the extent to which it may confuse issues; and (iv) the accused's ability to respond to it [cites omitted].

19In R. v. Luciano, 2011 ONCA 89, [2011] O.J. No. 399 at para. 228, the Court of Appeal stated that four questions need to be affirmatively answered before getting to the "crucial balancing" of probative value and prejudicial effect:

a. Is the conduct that of the accused? b. Is the conduct relevant? c. Is the evidence material? d. Is the conduct discreditable to the accused?

Analysis

20Because of the prejudicial effect that extrinsic misconduct can have on the fair trial rights of an accused, courts must ensure that the evidence has relevance to the case beyond merely showing the accused's disposition and that it is more probative than prejudicial.

The Change in Behaviour

21The evidence that the accused was having difficulties with his girlfriend and father, that his behaviour “changed drastically” and that his aggression increased carries with it the suggestion that the accused was more likely to be violent and assaultive to Mr. Gruber on January 10, 2013 because he was an aggressive person having difficulties in his life. There is no permissible line of reasoning that would allow the jury to draw such an inference. It is not relevant. The probative value of this evidence is outweighed by its prejudicial effect.

Financial Difficulties and Dispute About the Rent

22The defence concedes the admissibility of evidence that the accused was having financial difficulties, was going to lose his home and was in a dispute with his tenants about raising the rent. The fact that Ms. Marsh and Mr. Grimbly say they were owed money by the accused is the alleged reason why Mr. Gruber attended at the accused's residence on January 10, 2013. It is therefore relevant to the context and narrative of the charge. The probative value of the evidence exceeds any prejudice that would flow from its admission.

Dispute About the Laundry and “Picking a Fight” with Mr. Grimbly

23The evidence of the accused's financial difficulties and his dispute with Ms. Marsh and Mr. Grimbly about raising the rent are only part of the picture. That limited evidence fails to provide sufficient context for the increasingly tense and fractured atmosphere that led to Ms. Marsh and Mr. Grimbly moving out and Mr. Gruber attending at the accused’s home. It fails to provide sufficient context for the animus that the accused held and that could be relevant to whether his actions in the driveway were in defence of self or property.

24The accused told the police in his first interview that when his tenants did not pay the increased rent that he had requested he told them that they could no longer use the laundry facilities; he pulled the fuse on the dryer and told them he was locking the door to the laundry room. The anticipated evidence of Mr. Grimbly is that 4 to 6 weeks before January 10, 2013 the accused told him and his wife that they could no longer use the laundry facilities. When they continued to do so, the accused confronted Mr. Grimbly. The accused came up onto the porch and got into Mr. Grimbly's face as if "he wanted to like start a confrontation". The accused then nailed the laundry room door shut.

25The accused, Ms. Marsh and Mr. Grimbly had been friends before the accused’s money problems began. The discussions between the three of them about rent and laundry and the accused’s reaction when his request for increased rent was not acceded to form the backdrop of the conflict between the three. Evidence of the intense, deteriorating, conflict-ridden environment that fostered the animus held by the accused is relevant and necessary to give context to the events of January 10, 2013, both inside but more importantly outside the home. The conflict between the accused, Ms. Marsh and Mr. Grimbly about the use of the laundry facilities and the accused’s reaction by “getting into [Mr. Grimbly’s] face” demonstrates the escalation of the accused's animus towards these two individuals. This, in turn, provides a motive for the accused to act beyond the defence of himself or property towards the man who intruded into his home on behalf of Ms. Marsh and Mr. Grimbly. The accused had successfully removed Mr. Gruber from his home, yet the anticipated evidence is that he continued his assault on a defenceless man. I will deal later with the admissibility of the text message that the accused sent very shortly after the incident; it demonstrates that the accused was aware that the intruder was in his house on behalf of Ms. Marsh and Mr. Grimbly.

26Dispute about the laundry and the evidence of "picking a fight" is relevant to the accused's state of mind. It demonstrates the nexus between the accused, his dispute with his tenants and Mr. Gruber. It makes it more likely that the accused acted beyond the scope of self-defence and committed aggravated assault. It is relatively proximate in time to the alleged aggravated assault. The proposed evidence and the evidence of what transpired outside of the accused’s home on January 10 demonstrate a pattern of aggression against persons involved in the dispute about money between the accused and his tenants. The evidence provides the trier of fact with real insight into the relationship between the accused and Mr. Gruber, the tenant’s agent. This helps to establish a bona fide theory of motive and is highly probative.

27The evidence is focused and is not likely to mislead the trier of fact or consume undue time. Ms. Marsh and Mr. Grimbly are witnesses who will be testifying at the trial. I find that the probative value of the evidence exceeds its prejudicial effect and it should be admitted.

Shoving from Behind and the “Taste of What’s to Come” Text Message

28This brings me to the admissibility of the evidence of the January 4 and 5, 2013 incidents: the alleged attack on Mr. Grimbly from behind, the theft of Mr. Grimbly’s wallet, the damage to his vehicle, and the text messages between Ms. Marsh and Mr. Grimbly.

29The defence vehemently opposes the introduction of this evidence and initially sought a voir dire so that the court might assess its probity and prejudicial effect. The Crown was unable to secure the attendance of Mr. Grimbly to testify in the course of the pretrial motions. The defence was unable to locate the witness that it expected would testify that the witness, not the accused, was present and involved in the altercation on January 4. As such, the voir dire did not proceed.

30The evidence sought to be introduced is of highly discreditable conduct: the "attacking" from behind of a defenceless victim. It is coupled with an alleged theft and mischief. It is followed the next day by a text message sent by Ms. Marsh to the accused. The text message supports that more than one person was involved in the January 4 incident, contrary to the anticipated evidence of Mr. Grimbly. Although the accused's response to that text message could be relevant to his animus towards Ms. Marsh and Mr. Grimbly, his response was moderated by his retraction and apology the following day: the accused stated that he "didn't mean that", provided an explanation for his intemperate comment and told Ms. Marsh that he was “sorry that things got this way, you were great tenants”.

31The evidence of the attack and the text message is not strong. The text message supports another person's involvement. There appears to be no evidence to link the accused to the theft of Mr. Grimbly's wallet or to support that he intentionally damaged his vehicle. There is evidence casting doubt on whether the accused meant what he said in the January 5 text message. The evidence filed in the course of the pretrial applications supported that Ms. Marsh did not provide the police with a fulsome recording of the text message exchange between her and the accused. She only offered the text message in which the accused retracted his comment when asked by the officer if the “taste” text message was the last message that Ms. Marsh had received from the accused. In the course of the interview, although the officer looked at some of the text messages, she did not view them in any detail or copy the exchanges between the accused and Ms. Marsh. The full context of the conversation is not before the court, significantly diminishing the probative value of the evidence of the January 5 text message.

32The accused would be required to address a variety of allegations of criminal behaviour if this evidence were to be admitted. The cost of admitting this evidence to the efficiency of the trial is significant and would change the focus of the trial. If I were to allow this evidence, the jury would be significantly distracted in their task. There is a real risk that this proposed evidence may confuse issues for the jury. The evidence has a serious potential for moral and reasoning prejudice. The accused would have a limited opportunity to respond, both by virtue of the passage of time since the events in question and because of the collateral issue rule.

33I am satisfied that evidence of the events that transpired on January 4 and the January 5 text message do not survive the prejudice/probative analysis.

Damage to the Crib and Other Property

34The crown does not strenuously argue for the admission of this evidence and for good reason. As the Crown acknowledges, this evidence is at the lower spectrum of relevancy. Ms. Marsh and Mr. Grimbly asked friends and family to move their things out of the residence. They were not present when the alleged damage was discovered. They refused to provide the police the names of the persons who first saw the damage. Although their position is that the accused is the only person with access to their apartment, their anticipated evidence is that they left the premises unsecured.

35This proposed evidence is weak. The risk of moral and reasoning prejudice is high. The evidence is not sufficiently probative to warrant its admission.

The After-the-Fact Conduct Application

The Accused’s “Nice Try” Text Message

36Police were called to the accused's residence at approximately 9:30 PM on January 10, 2013. At 10:30 PM, before the accused was interviewed by the police, he sent a text message to Ms. Marsh stating "nice try". As a result of the text message, Ms. Marsh became aware of the incident involving the accused and her stepfather.

37In the course of the accused’s interview with the police an hour later, the officer asked the accused if the tenants were related to the intruder. The accused responded, "Well, he… I've never seen this man in my life before… He said that he was here to collect money for his daughter… Don't know what the hell he's talking about because I don't owe anyone money." Later the accused stated, "Supposedly this is [Ms. Marsh’s] father that came to do this."

Positions of the Parties

38The Crown seeks to introduce this evidence to demonstrate the accused's state of mind: that he believed his altercation with Mr. Gruber was related to his conflict with Ms. Marsh and Mr. Grimbly. Although initially the Crown sought to have this evidence admitted in order to prove identity, the Crown is no longer seeking its admissibility on that basis given the position that will be taken by the defence at trial.

39The defence position is that the evidence is not logically relevant to the question of guilt. The comment is consistent with the accused reacting with justified force to an intruder demanding money on behalf of Ms. Marsh.

Legal Principles

40Under certain circumstances, the actions of an accused following a crime and closely connected to its commission may provide insight into the accused's culpability. After-the-fact conduct evidence, including lies to the police, is simply a kind of circumstantial evidence from which the prosecution invites the jury to infer the existence of a fact in issue. Like any other kind of circumstantial evidence, the inference drawn from after-the-fact conduct must be reasonable and rooted in both human experience and common sense. While this type of evidence will often not assist in fixing an accused’s level of culpability, what may be inferred is a function of several factors, such as the nature of the conduct, the facts sought to be inferred from the conduct, the positions of the parties and the totality of the evidence. The conduct of a person after the event in issue may also, depending on the circumstances of the case, have some evidentiary value in rebutting defences which are based on an alleged absence of the required culpable mental state. In some cases, evidence of after-the-fact conduct may be relevant to establish that an accused's conduct was culpable rather than non-culpable. The jury is asked to infer the existence of a fact in issue from the after-the-fact conduct committed by the accused. As with all circumstantial evidence, it is for the jury to decide which, if any, of the competing reasonable inferences should be drawn from the after-the-fact conduct: R. v. Peavoy, 117 C.C.C. (3d) 226 at paras. 24-31 (C.A.); R. v. White, [1998] 2 S.C.R. 72 at paras. 19-23; R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51 at paras. 33-37; R. v. Cudjoe, 2009 ONCA 543, [2009] O.J. No. 2761 at paras. 77-81 (C.A.).

41Evidence of after-the-fact conduct is circumstantial evidence that invokes retrospectant reasoning: the subsequent occurrence of an act, state of mind, or state of affairs is offered to support an inference that an act was done or a state of affairs or state of mind existed at a prior time: Peavoy, at para. 31; R. v. Chretien, 2014 ONCA 403 at para. 104.

42Like any piece of circumstantial evidence, after-the-fact conduct may be subject to competing interpretations and must be weighed by the jury, in light of all the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion: White, at para. 21.

43To be admitted, the evidence of after-the-fact conduct must be relevant, material and not contravene an admissibility rule. The relevance and probative value of this evidence is assessed on a case-by-case basis. The evidence is relevant and material if it has a tendency, as a matter of logic, common sense and human experience, to help resolve an issue at trial: R. v. White, 2011 SCC 13 at paras. 22 and 38.

44Evidence of after-the-fact conduct is material if the evidence is offered to prove or disprove a fact in issue. It may provide circumstantial evidence of the accused's complicity in the crime. No special rule applies to this evidence. The great bulk of it will be received as part of the narrative of the case: Watt's Manual of Criminal Evidence, §9.05 Evidence of Post-Offence Conduct.

Analysis

45There is no issue that the injuries sustained by Mr. Gruber were caused by the accused. The accused's position is that he was acting in defence of self or property. The crown's position is that the force that the accused used to remove Mr. Gruber from the home was reasonable, however, the accused's actions in the driveway constitute the offence of aggravated assault. A witness to the events in the driveway is expected to describe the beating of a defenceless man.

46The evidence of the accused’s text message is relevant to demonstrate that, contrary to what the accused initially told the police, he was aware that the person intruding into his home was there on Ms. Marsh and Mr. Grimbly’s behalf. As noted above, the evidence supports that the accused harboured feelings of animus toward Ms. Marsh and Mr. Grimbly. The tone of the text message is taunting, suggesting that the accused considered that he got the upper hand. The text message can logically support an inference of guilt of aggravated assault: it is evidence from which the jury can infer the accused's state of mind and rebut the defence that the accused used no more force than necessary to defend himself or his property when he continued his assault of Mr. Gruber in the driveway.

CONCLUSION

47For the foregoing reasons, only the evidence of the accused’s financial difficulties, dispute about the rent and laundry, “picking a fight” with Mr. Grimbly, and “nice try” text message is admitted.