R. v. Bush, 2017 ONSC 422

Court File No.: 15-2310 Date: 2017-10-06 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 and Howard L. Krongold, for the Accused

Heard: October 2, 3, 2017

Ruling on Similar Fact Application

Publication Ban Pursuant to Section 648.1 of the Criminal Code

Before: Beaudoin J.

[1] Ian Bush is charged with the attempted murder of Ernest Côté by asphyxiating him with a plastic bag; robbery of Ernest Côté and unlawful confinement of Ernest Côté. There are also two firearm possession offences. Only the first three charges have any bearing on this decision.

[2] The Crown applies to introduce evidence of three murders (the “Garon murders”) committed by Ian Bush on July 29, 2007 at Bush’s trial for the attempt murder of Ernest Côté. The Crown seeks to call this evidence as being relevant to the essential element of intent.

[3] The Crown submits that the murders and attempt murder were committed in a strikingly similar manner such that the evidence of the murders is powerfully probative of Bush’s intent when he attacked Côté on Dec 18, 2014. In short, evidence that Bush suffocated three people to death by binding their arms and securing plastic bags over their heads, is of critical assistance in determining Bush’s intent when he bound Côté’s arms and secured a plastic bag over his head.

[4] At the Garon murder trial, held in May of 2017, the Crown sought to adduce the evidence of the attempt murder of Ernest Côté. That application was denied by Mr Justice McKinnon. He accepted that the evidence was sufficiently cogent to meet the normal test for the admission of similar fact evidence. He concluded, however, : “[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.”

Overview

[5] The Crown alleges that on June 29, 2007, Ian Bush took public transit to a secure luxury condominium building on Riverside Drive in Ottawa. Bush entered the condominium. Once inside the building Bush gained entry to the apartment of Alban and Raymonde Garon. Bush then attacked and used ligatures to confine three elderly victims; Alban Garon, Raymonde Garon and their visitor, Marie Claude Beniskos (“Beniskos”). Bush pulled plastic bags over the head of each of his victims, asphyxiating them. Bush stole credit cards belonging to Alban and Raymonde Garon.

[6] Unknown male DNA was discovered by police in two areas proximate to the three dead bodies. Despite exhaustive efforts, police could not identify whose DNA had been found at the scene.

[7] Seven and a half years later, on December 18, 2014, Ian Bush took public transit to a secure luxury condominium building on Durham Private in Ottawa. Bush entered the building. Once inside the building Bush gained entry to the apartment of Ernest Côté, a 101 year old military veteran who had served Canada during the Second World War.

[8] Bush then attacked and bound the elderly Côté. Bush pulled a plastic bag over the head of Ernest Côté, nearly asphyxiating him. After Bush fled, Côté was able to get one hand free and tear open the plastic bag, saving his life. Bush stole a credit card belonging to Côté.

[9] Ian Bush was positively identified on security video in the lobby of Côté’s apartment building, on ATM videos when he tried to use Côté’s credit card very shortly after fleeing the scene and by the identification of his DNA profile on the duct tape he used to bind Côté. During a subsequent police search, Côté’s stolen credit card was found concealed in the ceiling of Bush’s residence.

[10] The DNA profile on the duct tape Bush used to secure Côté was found to be the same as that found at the scene of the murders of Alban and Raymonde Garon and Marie Claude Beniskos.

Factual similarities

Elderly Victims

[11] Both crimes involved elderly victims. On June 29th, 2007, Alban Garon was 77 years old. His wife Raymonde was 73 years old. Raymonde’s sister, Marie Claude was 78 years old. On December 18th, 2014, Ernest Côté was 101 years old.

Use of Public Transit

[12] Ian Bush used Public Transit in the commission of the crimes. The Hurdman Transit Station is located immediately behind 1510 Riverside Dr. where the Garons resided. The OC Transpo surveillance footage shows Ian Bush exiting a bus at approximately 10:15:35 a.m. and walking towards 1510 Riverside Dr. Surveillance footage from the same transit station shows. Bush returning by foot from the direction of 1510 Riverside Dr. at approximately 11:19:49 a.m.

[13] When the police attended Côté’s apartment on December 18th, 2014, they discovered an OC Transpo bus transfer in the apartment. Côté told officers he did not use public transit. During the course of the search executed at Bush’s residence, officers discovered a second OC Transpo bus transfer in the pocket of Bush’s jacket. This transfer was from bus 5005, which serviced route #7 west. Police were able to determine the bus routes travelled by Ian Bush on the morning of December 18th, 2014. The majority of the bus routes were confirmed using both video surveillance and bus transfers.

Ruses used to enter secure Buildings

[14] Ian Bush used ruses to enter secure buildings. Raymonde Garon told her friends that a man had come to their apartment and stated that he had a delivery. He asked Raymonde if she was Mrs. Garon to which she replied “yes”. He asked if her husband was home and he indicated that he had a package for him. Raymonde informed the delivery man that her husband was not home, that he would be back later but he could leave the package with her. The male then stated he had forgotten the package in his truck and had no time to go back down and get it therefore he would come back the next day. Raymonde offered to go down to pick up the package but the male insisted he would be back the next day.

[15] On December 18th, 2014, Ernest Côté had just finished collecting his morning paper when his phone rang. The male on the other end of the line spoke English and identified himself as a City of Ottawa employee. Côté buzzed the male into the secure building.

Thefts of credit cards

[16] Both Mr. and Mrs. Garon possessed National Bank Mastercards. These credit cards were missing from the wallets found at the scene. The male who entered Côté’s apartment on December 18th took a credit card from Côté’s wallet. Ottawa Police obtained the first of two search warrants for Bush’s residence. During the course of the search, Ernest Côté’s MBNA Mastercard was found in a plastic bag on top of the duct work concealed by a drop ceiling in the basement of the residence.

Tools brought to the scene

[17] Bush is seen on the surveillance video captured by OC Transpo cameras at the Hurdman Station. He is seen on the video carrying a dark coloured over the shoulder style bag when travelling towards 1510 Riverside Drive. He is also in possession of this bag when he returns to the Hurdman transit station.

[18] Bush is also wearing what is commonly known as a “fanny pack” around his waist. His son told Ottawa Police that his father was in possession of a distinct fanny pack with red writing on the front in 2007.

[19] A witness saw a male entering the elevator at 1510 Riverside Drive. He provided a physical description of this male that matches Ian Bush. The witness told police that the male was carrying a bag.

[20] Ian Bush is seen on the surveillance footage from the lobby of 31 Durham Private on 18 December 2014. He is carrying an over the shoulder style bag. He is also carrying the same bag when captured on surveillance video from OC Transpo, the Place D’Orleans shopping mall and at ATM machines.

[21] Côté told police that his hands were bound behind his back with something sticky. Côté further advised police that the male took the binding material out of his pockets. After Côté gave his PIN number, the man took out a plastic bag from his things and put it over Côté’s head.

[22] When officers searched Bush’s residence the police found a black leather “valise style” bag containing a number of items including pieces of rope, a partially used roll of duct tape, clear plastic bags, an iron bar taped at one end, knives, imitation firearms,.22 calibre ammunition and a sawed off firearm. They also discovered a black “fanny pack” with a silver rectangular marking and red writing on the front containing sharpened wooden dowels inside the “fanny pack”.

Victims bound with hands behind them

[23] Alban Garon, Raymonde Garon and Marie Claire Beniskos all had their hands bound behind their back at the time they were killed. Ernest Côté’s hands were secured behind his back using duct tape. Côté described it as “sticky material” in his statement to police.

Victims had plastic bags placed over their heads

[24] Alban Garon, Raymonde Garon and Marie Claire Beniskos all had plastic bags placed over their heads before they were killed. The bag over Alban Garon’s head was held tightly in place with a noose fashioned out of yellow nylon cord. The loose end of the bag over Raymonde’s head was tied off at the back of her neck. The clear plastic bag over Benisko’s head was not tied off or secured. After taking Mr. Côté’s credit card, Ian Bush removed a role of tape from his pocket and taped over Mr. Côté’s mouth. He circled the victim’s head with the tape five times. Immediately before leaving, Mr. Bush took out a plastic bag from his effects and placed it over Mr. Côté’s head. He sealed the bag over Mr. Côté’s head with tape at the back.

Forensic DNA places Ian Bush at the scene of both crimes

[25] A Forensic Identification officer used Swiffer mop pads to conduct hair and fibre collection in the Garon apartment. Two body hairs were discovered that were suitable for nuclear DNA analysis.

[26] As part of their investigation, police observed several diluted red stains in a designated area of the Garon Apartment. A swab of the largest of those diluted red stains was then sent to the Centre for Forensic Sciences for analysis. DNA of sufficient quality for analysis was extracted from that swab. It was concluded that the DNA was a mixture of at least two individuals and that Alban Garon could not be excluded as the source of the major male profile.

[27] On Thursday December 18, 2015 the Ottawa Police Forensic Identification Section attended 202-31 Durham Private and seized a cut plastic bag with duct tape attached. Three pieces of duct tape were sent to the CFS for the purpose of DNA analysis.

[28] Police obtained a judicial authorization to obtain samples of Ian Bush’s blood for the purpose of DNA analysis. The samples were forwarded to the Centre of Forensic Sciences for analysis.

[29] It was concluded that Ian Bush cannot be excluded as the source of the DNA profile from the body hair root from the living room of the Garon apartment. The random match probability is estimated to be 1 in 13 quintillion. It was further concluded that Ian Bush cannot be excluded as the source of the minor DNA profile from the dilute passive red staining The random match probability is estimated to be 1 in 13 thousand.

[30] It was also determined that Ian Bush cannot be excluded as the source of the DNA profile found on two swabs from the duct tape located in Côté’s apartment at 31 Durham Private. The random match probability for each of the respective swabs is estimated to be 1 in 5.0 quadrillion and 1 in 480 thousand.

Targeted Buildings

[31] Mr. Bush had an ongoing dispute with Revenue Canada with respect to an outstanding tax debt. The last piece of correspondence attached to the Ian Bush’s Tax Court file was a letter addressed to Alban Garon, then the Chief Justice of the Tax Court of Canada. The letter was sent via fax on July 30th, 2001. The fax was sent from a fax number associated with “Bush and Associates”. The fax convened Justice Garon to attend a hearing at Mr. Bush’s residence.

[32] A second search of Bush’s residence discovered three wire-bound notebooks in a desk drawer in the den/office area. One of these notebooks contained a number of statements written by Bush relating to his strong and negative views on government and taxation.

[33] During the course of the search of Bush’s residence, officers found items indicating that Bush had targeted 31 Durham Private leading up to the robbery and confinement on December 18th, 2014. 108. A black over the shoulder bag located in the den/computer room contained an envelope addressed to Pierre Richard at 31-301 Durham Private.

[34] Inside the same black bag, officers also found two notebooks. One notebook referenced an “Assignment”. A notation of “7AM” was handwritten beside the word “Assignment”. “Durham Pvt.” is written directly below the heading. Pierre Richard was written below the words “Durham Pvt.” The page also contains a number of notations that relate to times and OC Transpo bus routes. The bus information includes the time “7:06” with the #7 underlined beside it along with the words “Beechwood/Mackay”. The words “just get in” are written on the same page.

The Decision of McKinnon, J.

[35] As noted, Justice McKinnon rejected the Crown’s similar fact application in the Garon Murder trials. The Crown sought to admit evidence of the attempt murder purportedly as evidence of identity of the Accused based on the striking similarity between the two offences.

[36] Justice McKinnon thoroughly considered the case law which he summarized at paras 55 – 58:

[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.

[37] McKinnon. J. agreed that the proposed evidence met the requisite level of relevance to justify engaging in a similar fact analysis. He was persuaded on a balance of probabilities that there was such a high degree of similarity between the acts that it is likely that they were committed by the same person. Notwithstanding these findings, he found 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 outweighed the highly significant probative value of the similar fact evidence.

[38] He noted that that the attempt murder of Ernest Côté had attracted extensive and international media attention. In exercising his discretion to exclude the similar fact evidence, he wrote at paras:

[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 ).

The Crown’s position

[39] As the Defence has conceded the probative value of the similar fact evidence, the Crown focused its argument on the issue of probity and prejudice and on these points:

• The evidence is relevant.
• This application raises a different issue: intent rather than identity.
• As the relevance of the evidence goes to a more narrow issue, the necessary instruction to the jury as to permissible and prohibited use of the evidence may be more straightforward.
• Excluding the similar fact evidence would be deprive the jury of the best evidence for their deliberations; namely what was in Bush's mind at the time he pulled the bag over Ernest Côté's head.
• The notoriety and publicity surrounding the Garon murders is not as significant as it was in the case of the alleged charges against Côté.

[40] The Crown invites me to consider Justice Watt’s probity v. prejudice analysis found in R. V. Ansari, 2015 ONCA 575, 2015 O.J. 4355 where the court dealt with a discreditable conduct application:

The Governing Principles

101 The resolution of this ground of appeal requires consideration and application of fundamental principles of the law of evidence. First, the notion of relevance. And, second, the admissibility rule that excludes relevant and material evidence on the ground that its probative value is exceeded by its prejudicial effect.

102 Relevance is not an inherent characteristic of any item of evidence. Relevance exists as a relation between, on the one hand, an item of evidence and, on the other, a proposition of fact that the evidence is offered to prove. Relevance is a matter of everyday experience and common sense. An item of evidence is relevant if, by the application of everyday experience and common sense, it renders the fact it seeks to establish by its introduction slightly more or less probable than the fact would be without it

103 Relevance does not exist in the abstract or in the air. Relevance is also relative; we assess and determine it in the context of the entire case in which the evidence is proffered and the positions of counsel in that case.

104 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.

105 Admissibility is a legal concept. Admissibility rules exclude evidence that is both relevant and material on the basis of some policy consideration that the law regards as of sufficient importance to warrant exclusion of evidence that would otherwise assist the trier of fact in ascertaining the truth of the matter at hand. The rule that excludes relevant and material evidence on the basis that its probative value is outweighed by its prejudicial effect is a rule of admissibility.

106 The prejudice component of this general exclusionary discretion may involve either or both of two types of prejudice.

107 Moral prejudice refers to the risk of an unfocused trial and a conclusion of guilt based on a prohibited chain of reasoning from a general disposition or propensity to guilt of the offence charged. In other words, a finding of guilt that is based on character, not conduct

108 Reasoning prejudice involves the distraction of the trier of fact from their proper focus on the offence charged by the introduction of evidence of other incidents that consume undue time and may be accorded more weight than should be their due.

109 When invited to exclude relevant, material and otherwise admissible evidence on the basis that its prejudicial effect predominates over its probative value, a trial judge will consider the individual constituents of the rule -- probative value and prejudicial effect -- and then balance them to determine which predominates.

110 The assessment of probative value involves consideration of the strength of the evidence; the extent to which it supports the inferences the proponent seeks to have drawn from it; and the extent to which the matters the evidence tends to prove are at issue in the proceedings.

111 An assessment of prejudicial effect should take into account: i. the degree of discreditable conduct disclosed by the evidence; ii. the extent to which the proposed evidence may support an inference of guilt on the sole basis of bad character; iii. the extent to which the evidence may confuse issues; and iv. the ability of the accused to respond to the evidence.

112 A trial judge's decision about where the balance settles between probative value on the one hand and prejudicial effect on the other is accorded a high degree of deference by appellate courts. Where a trial judge has applied the proper principles, weighed the probative value of the evidence and its potential prejudice and decided the issue of admissibility, appellate courts will not lightly intervene.

113 A final point concerns prophylactic measures undertaken by the trial judge to reduce the risk of reasoning or moral prejudice. A limiting instruction that explains the proper use of this evidence and enjoins prohibited reasoning is of critical importance in ensuring a fair trial. (internal citations omitted)

[41] The Crown places particular emphasis on the best evidence argument and cites a well-known saying in criminal law that attempt murder is more difficult to prove than murder since the provisions contained in s. 229 (b) of the Criminal Code of “being reckless whether death ensues or not” is not available for the jury’s consideration.

[42] The Crown argues that without the information what Ian Bush did in 2007, the jury will be left with the fact that Ernest Côté had tape put over his mouth had a bag pulled over his head with tape wound around the bag and that Bush then left the apartment. The Crown anticipates some obvious arguments; that Bush could have choked or struck Côté if he wanted to kill him or that Bush merely wanted to immobilize him as he went to leave.

[43] The Crown emphasizes that juries are capable of dealing with complex instructions as mentioned in many of the leading cases: namely R. v. Corbett, [1982] 2 S.C.R. 811, R. v. Suzack (200), 141 C.C.C. (3d) 449 and more recently in R. v. Sheridan, [2017] O.J. No. 1715 at paras. 29 and 30 where the issue was of severance of two charges of murder against two co-accused. After referencing Corbett, Justice Quigley said this at para 30:

…I accept the proposition that it is a cornerstone of our jury system that members of a jury will understand and act on instructions that are provided to them by the trial judge, no matter how difficult or confusing the instructions may be deemed to be…

[44] In R. v. Pickton, 2009 BCCA 300, the B.C, Court of Appeal overturned the trial judge’ decision to exclude similar fact evidence of 20 counts of first degree murder and concluded at para 91:

91] A trial on all 26 counts, with admissibility of cross-count similar fact evidence, would have caused prejudice to the respondent. He would have had a more difficult case to answer. But I do not think it would have given rise to either unfair reasoning prejudice or moral prejudice.

[45] In that case, all 26 counts were of equal gravity.

[46] The Crown submits that the jury will be instructed that they cannot use the similar fact evidence to find Ian Bush guilty of attempt murder merely because he committed murders in the past, or because he was a bad or evil man and that they cannot use that similar fact evidence on its own, but solely to help them determine what Bush had in his mind at the time he put the bag over Ernest Côté’s head. In terms of moral prejudice, the Crown submits that while the evidence of the murders is graphic and disturbing, proper instruction will insure that the jury uses this evidence only for the permissible purposes of determining intent.

[47] As for the reasoning prejudice, the Crown offered to adduce much of the evidence of the murders as an agreed statement of fact. If the evidence is called through viva voce testimony the Crown originally estimated the time to adduce this evidence as 2 -3 weeks of a six week trial. In argument, the Crown revised that estimate to 4 to 5 days.

The Defence position

[48] The Defence accepts that the Crown has, in substantial part, fairly set out the evidence to be marshalled against the Respondent. The Defence further accepts that the evidence is sufficiently probative to meet the normal test for the admission of similar fact evidence

[49] While the law of evidence embraces a general inclusionary policy, the Defence submits that the more relevant consideration here is the specific exclusionary rule that applies to evidence of similar facts, and in particular the reason for the exclusionary rule’s existence.

[50] Similar fact evidence is presumptively inadmissible because of the corrosive effect it has on the ability of a jury to do its one and only job: adjudicate an accused’s guilt dispassionately, without regard to his bad character or to other bad acts he may have committed at other times.

[51] The Defence maintains that the Crown’s assertion that the best approach is simply to give the jury every chilling, gory bit of evidence and let them sort it out with the aid of a cautionary instruction is wholly inconsistent with the onus that rests on the Crown, and the well‑recognized challenges judges face in keeping highly-prejudicial evidence from tainting a jury. Evidence of previous misconduct can only be admitted where it is “so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse” [1] .

[52] At the triple-murder trial, McKinnon J. found that admitting evidence of the attempted murder of Ernest Côté would “simply overwhelm [] the ability of a jury to dispassionately consider the facts relating to the subject charges.” The Defence’s position on this application is simple: admitting the evidence of the triple murder to help prove the Bush’s guilt for the attempted murder of Ernest Côté would be even worse.

[53] The defence submits that a limiting instruction is an imperfect, and often uncertain, method to mitigate the prejudice from admitting similar fact evidence. The Supreme Court in Handy held:

141 Some model studies of jury behaviour have put into question the effectiveness of the trial judge's instruction as to the limited use that may be made of propensity evidence: This is not to undermine our belief in the ability of the jury to do its job, but it underlines the poisonous nature of propensity evidence, and the need to maintain a high awareness of its potentially prejudicial effect. [2] (Internal citations omitted)

[54] The defence notes that probative value and prejudicial effect are not inversely proportional. Handy holds that prejudice does not recede as probative value increases:

As probative value advances, prejudice does not necessarily recede. On the contrary, the two weighing pans on the scales of justice may rise and fall together. Nevertheless, probative value and prejudice pull in opposite directions on the admissibility issue and their conflicting demands must be resolved. [3]

[55] In terms of moral prejudice, the defence points out that, it is usually the case that similar fact evidence of a less serious offences will be less prejudicial. The defence cites this passage from R. v. MacCormack, 2009 ONCA 72 at para 68 :

This case involves the invocation of similar act principles across counts in a multi-count indictment. The evidence relating to each count is relevant to and admissible in proof of the allegation contained in that count. Each incident is of equivalent gravity and of minimal inflammatory potential. This is not a case, in other words, in which conduct extrinsic to the crimes alleged in the indictment is enlisted as evidence of similar acts to prove what is alleged, and lugs with it inflammatory claims of greater gravity or moral depravity . (emphasis mine)

[56] According to the defence, it cannot seriously be suggested that the prejudice of admitting evidence of a brutal triple murder is less than the prejudice of admitting evidence of an attempted murder, however notorious. T he gravity of the murders vastly overshadows the gravity of the attempted murder of Ernest Côté. The horror of the triple murder is difficult to measure. A retired tax court judge attacked and trussed up in his own apartment. His elderly wife, a collateral victim. Their friend, a tragically unlucky bystander. The two women hog-tied and left to suffocate to death with a plastic bag secured over their heads.

[57] The Defence notes that prejudice is always at its “zenith” where murder is concerned. In R. v. Jeanvenne, 2010 ONCA 706, the Court of Appeal ordered a new trial where the accused was jointly tried for two murders. The Court said this at para. 34:

34] The appellant was facing two counts of murder – the most serious crime known to the Criminal Code and one evoking the greatest possible jeopardy in the justice system. While there is nothing in the Code that prohibits the joinder of more than one murder count in one indictment, there is very good reason, in such circumstances, to apply a more stringent application of the severance test in favour of the accused in such cases – particularly where, as here, the murders are completely unrelated: [citations omitted]. This flows from the common sense proposition that a jury may have great difficulty dissociating the evidence of one homicide from the other and in refraining from drawing the impermissible inference that because the accused may have committed one murder – bad character evidence of the highest degree – he or she is likely to have committed the other. The potential for serious prejudice to the accused is at its zenith in such circumstances. When there is no similar fact evidence connecting the two crimes, there is even less justification for refusing to sever. (emphasis mine)

[58] In terms of reasoning prejudice, the Defence argues the consumption of time and the danger of distracting the jury with other issues—is also overwhelming, and undoubtedly greater than it would have been at the prior trial.

[59] Even though the Crown has now revised its time estimates to introduce the similar fact evidence, the Defence submits that in every sense, moral, as well as temporal, the triple murder will overshadow all else. While the Crown says it would accept an agreed statement of facts, the Accused adamantly disputes his guilt and will not admit the Crown’s case against him. This does not alter the balancing of prejudice and probative value. The Crown cannot force the Accused to choose between his right to challenge the case against him and his right to a fair trial.

[60] This attempted murder trial is scheduled to last six weeks. The Crown’s original estimate was that it might take half that time just to call the evidence relevant to the Garon murders. Given that the trial estimate also includes time for jury selection, objections and unanticipated motions, and the pre-charge conference, there is every chance that more time would be spent telling the jury about the Garon murders than about the offence they are being empanelled to adjudicate.

[61] The Defence maintains that the probative value of the evidence is no greater than it was in the murder trial, and does not change the overall balancing exercise. The central issue in the first trial was identity. The test for admitting similar fact evidence to prove identity is much more onerous than for admitting other forms of similar fact evidence. Nevertheless, McKinnon J. found that this elevated threshold was satisfied: he found that the proposed similar fact evidence was sufficiently compelling to prove that it was likely that the same person committed both offences, and concluded as well that the evidence of the Accused’s participation in the attempted murder of Côté was “utterly overwhelming.” [4] In spite of these findings, and the fact that this evidence went to the central issue at trial, McKinnon J. found that the prejudice was so great as to outweigh the considerable probative value of admitting the evidence.

[62] The Defence submits that intent is not a more significant or probative issue than identity was at the last trial. Even if the probative value of the evidence in this trial were greater, this would not make the evidence any less prejudicial, and it is difficult to conceive how it can be said that the overall balancing would come out any differently.

[63] Finally, the Defence argues that Justice McKinnon’s ruling should be followed absent “compelling reasons” to depart from it. This application is based on precisely the same evidence, and raises nearly identical issues, to those that were before McKinnon J. just six months ago. [5]

[64] The Defence adds that the repute of the administration of justice would be tarnished if two judges sitting on the same court at the same time dealing with the same facts and similar issues were to reach opposite conclusions absent a compelling justification for doing so.

Analysis

[65] The offence for which the Accused is now being tried, the attempted murder of Ernest Côté, is itself a brutal offence which has attracted national attention. But, as McKinnon J. recognized in his ruling, it is “not as serious” as the triple murder. Indeed, the facts of the Garon murders are altogether more awful.

[66] The victims of the Garon murders were all securely tied with rope and asphyxiated with a clear plastic bag. In the case of Alban Garon, the plastic bag was affixed by a sophisticated ligature encircling his head made of yellow nylon cord. An expert in knots retained by the Crown has indicated that, “considering the complexity of the Gallows Knot, it is likely that structure was prefabricated.” The post-mortem report indicates that Alban Garon’s hands and arms were bound by a “complex system of restraint ligatures” made of black shoelace, white tightly braided cord, and a twine component. The ligatures bound the victim at both the upper arms and at the wrists.

[67] The two female victims were found hog-tied, face-down with a network of binder twine. Given the extent of the ligatures, and the fact that they were face-down, it appears they would have had no ability to attempt to free themselves, or to move.

[68] Alban Garon spent his last moments alive being subjected to a brutal, violent assault. He suffered extensive blunt trauma to the face with multiple overlapping impacts. Around his right ear, there was an “extensive mutilating blunt impact injury” which led to a significant skull fracture, bleeding on the surface of the brain, and direct brain injury. He also had injuries to his face, scalp, right shoulder, left hand, elbows, left and right upper arms, knees, back, right thigh, along with fractures to the sixth and seventh left ribs. It is a reasonable inference that a weapon was likely used. He was partially strangled, not just suffocated, by the ligature.

[69] Raymonde Garon and Ms. Beniskos suffered fewer, but still not insignificant, injuries. Raymonde Garon had several recent bruises involving the right upper arm, right forearm, shoulders, nape of the neck, and back. These were caused by compressive or blunt impact injuries. Ms. Beniskos had several recent blunt injuries to the upper extremities, left shoulder, knees, and torso, including evidence of rib fractures.

[70] The terror they experienced—the wife watching her husband being beaten, knowing that her own death, and the death of her close friend, was imminent—cannot adequately be put into words.

[71] No matter how the Crown attempts to sanitize or streamline its case, against this backdrop, and considering Bush’s conviction for those murders, it is not difficult to imagine that jurors would be highly prejudiced against the Accused in the event the facts of the Garon murders were admitted as similar fact evidence.

[72] As Justice Binnie at para. 40 in Handy emphasized that, once admitted, similar fact evidence is difficult to contain:

The policy of the law recognizes the difficulty of containing the effects of such information which, once dropped like poison in the juror’s ear, “swift as quicksilver it courses through the natural gates and alleys of the body”: Hamlet , Act I, Scene v, ll. 66-67.

[73] An instruction to the jurors that they are not to conclude that just because Ian Bush cruelly killed three people, he is not an evil man will be difficult to absorb. As Justice McKinnon said, any warning not to use the evidence for the wrong purpose would likely fall on deaf ears.

[74] The Crown conceded that there is a balancing act required in assessing the probative value of admissible evidence against it prejudicial effect and that there is a “tipping point” where the prejudicial effect favours the exclusion of otherwise relevant evidence. I am satisfied that the conflicting demands of probative value and prejudice must be resolved against the admission of the similar fact evidence in this case.

[75] I believe that the similar fact evidence, more serious than the conduct charged, would simply overwhelm 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 attempted murder of Ernest Côté.

[76] In addition, the totality of the admissible evidence implicating the Accused in the attempted murder Ernest Côté permits the Crown to “prove its point” by means other than the use of similar fact evidence. I accordingly exercise my discretion to deny the admission of the similar fact evidence.

Mr. Justice Robert N. Beaudoin

Released: 2017/10/06

[1] R. v. Handy, 2002 SCC 56 at para. 138 [2] Handy, supra at para. 141 (emphasis added) [3] Handy, supra at para. [4] Bush , supra para. 94. [5] R. v. Scarlett, 2013 ONSC 562 at para 43