R. v. Fenton, 2017 ONSC 4572
CITATION: R. v. Fenton, 2017 ONSC 4572
COURT FILE NO.: 0338D/16
DATE: 20170727
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ASHLEY FENTON
D. Ishak, for the Crown
S.M. Hinkson, for Ms. Fenton
HEARD: July 20, 24, 2017
RULING ON MISTRIAL APPLICATION
SCHRECK J.:
[1] At Ashley Fenton’s trial by jury on charges of discharging a firearm, threatening, and various counts relating to the alleged possession of a prohibited firearm, the defence called evidence of an alternate third party suspect without having the admissibility of the evidence determined in advance, as required by the caselaw. The Crown took the position that the evidence ought not to have been admitted, but even if it was properly admissible, the defence’s failure to have its admissibility determined in advance caused irremediable prejudice to the Crown such that a mistrial must be declared. The defence took the position that no application was required.
[2] After hearing submissions, I ruled that the evidence was properly characterized as third party suspect evidence such that an application should have been brought. I then invited counsel to make submissions on whether the evidence met the threshold for the admissibility of such evidence. After hearing those submissions, I ruled that some but not all of the evidence was admissible. Following further submissions, I denied the Crown’s request for a mistrial but allowed Crown counsel an opportunity to reconsider his earlier decision not to call reply evidence. Following are my reasons for these conclusions.
I. EVIDENTIARY CONTEXT
A. The Evidence at Trial
[3] A brief outline of the Crown’s case is as follows. The complainant, Destin Safranko, and Ms. Fenton were friends prior to the alleged offences. Mr. Safranko testified that on November 16, 2015, he was visiting Ms. Fenton’s home when she offered to show him her “new toy”. She then retrieved a black backpack from the laundry room which contained a sawed-off shotgun and several shotgun shells. After showing the gun to Mr. Safranko, she replaced the backpack in the laundry room.
[4] The following day, Mr. Safranko, who had stayed at Ms. Fenton’s home overnight, stole some purses from her home. When Ms. Fenton discovered this, she and her then boyfriend. telephoned Mr. Safranko and threatened to “blow his brains out”.[^1] Later that day, Ms. Fenton and her boyfriend went to Mr. Safranko’s grandparents’ home, where he often stayed, to look for him but he was not there.
[5] In the early morning hours of November 18, 2015, Mr. Safranko was sleeping at his grandparents’ home. Somebody discharged a shotgun at the front door while Mr. Safranko and his grandparents slept. Nobody was injured, but the door sustained significant damage.
[6] There is no direct evidence as to the identity of the person who shot the door. In addition to Mr. Safranko’s testimony, the Crown relies on several text messages found on Ms. Fenton’s mobile phone, including some which had pictures of a sawed-off shotgun attached to them. As well, cell tower evidence showed that Ms. Fenton’s phone was in the area where the gun was discharged at the relevant time.
[7] During the cross-examination of Mr. Safranko, it was suggested to him that he had stolen the shotgun and other items from some people and that he was aware that these people were angry at him and wanted the items back. Mr. Safranko denied this, although he did admit that he had often stolen things.
B. The Defence Evidence
[8] The issues that are the subject of this ruling arose after the testimony of the sole defence witness.[^2] This witness testified that she was alone at Ms. Fenton’s home on the morning of November 17, 2015 when two men whom she had never seen before knocked on the door. They asked for Ms. Safranko and Ms. Fenton but were told that neither was at the house. The two men then asked to come in and be shown where Mr. Safranko left his things. The witness, who was afraid of the two men, let them in and took them to the laundry room, where Mr. Safranko sometimes left his things. She showed them a black knapsack which she assumed belonged to Mr. Safranko, although she was not sure. The men opened the knapsack and looked inside. One of them then said “If Destin doesn’t have the stuff in 24 hours . . . .” or other words to the effect that Mr. Safranko owed them something. After that, the two men left. The witness then contacted Ms. Fenton and told her what had happened.
II. THE ISSUES
[9] Crown counsel did not object during the defence witness’s testimony and cross-examined her after her examination-in-chief was complete. The defence then indicated that no further evidence would be called. Crown counsel was asked whether he intended to call reply evidence and indicated that he did not. The jury was accordingly excused until the following week and was told that it would hear the closing addresses of counsel at that time.
[10] The following day, Crown counsel applied for a mistrial. He submitted that the defence evidence ought to have been the subject of a third party suspect application brought in advance of the trial and had there been such an application, the evidence may have been excluded. Crown counsel took the position that even if the evidence was admissible, the Crown was nonetheless irremediably prejudiced because had Crown counsel known that the defence would be calling this evidence, he may have asked the Crown witnesses different questions and may have called different evidence. The defence took the position that the evidence was not properly characterized as third party suspect evidence and no pre-trial application was required.
III. ANALYSIS
A. Was an Application Required?
[11] Defence counsel wishes to rely on the evidence at issue for two purposes. First, he submits that it would be open to the jury to infer that the knapsack which the witness showed to the two men belonged to Mr. Safranko and that it contained the shotgun, which would in turn lead to the inference that the shotgun belonged to Mr. Safranko, not Ms. Fenton. Second, he submits that the evidence shows that the two men were angry at Mr. Safranko and looking for him, which could in turn lead to the inference that it was they, not Ms. Fenton, who were responsible for discharging the firearm at the door.
[12] The defence evidence is intended to show that Mr. Safranko, not Ms. Fenton, is guilty of some of the offences charged in the Indictment and that the two unidentified men, not Ms. Fenton, are guilty of the others. In my view, this clearly falls into the category of “third party suspect” evidence. As explained in R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750 (C.A.), aff’d 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824, third party suspect evidence is intended to “prove that B, not A” committed the offence with which the accused is charged. It is well established that before such evidence can be adduced, “[t]he defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence”: R. v. Grandinetti, 2005 SCC 5 at para. 48.
[13] Given that this is third party suspect evidence, it should have been the subject of an application before being adduced. However, while I have rejected defence counsel’s position, I am satisfied that it was honestly taken and that the failure to bring an application was not the result of any intentional disregard for the evidentiary rules. The Crown does not suggest otherwise.
B. Was the Evidence Admissible?
(i) The Legal Test
[14] The circumstances in which evidence of a third party suspect is admissible were explained in Grandinetti (at paras. 46-48):
Evidence of the potential involvement of a third party in the commission of an offence is admissible. In R. v. McMillan [supra] Martin J.A. stated the simple underlying premise to be:
[I]t [is] self-evident that if A is charged with the murder of X, then A is entitled, by way of defence, to adduce evidence to prove that B, not A, murdered X. [p. 757]
However, as he explained, the evidence must be relevant and probative:
Evidence directed to prove that the crime was committed by a third person, rather than the accused, must, of course, meet the test of relevancy and must have sufficient probative value to justify its reception. Consequently, the Courts have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value. [p. 757]
The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation.
The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence: R. v. Fontaine, 2004 SCC 27, at para. 70. If there is an insufficient connection, the defence of third party involvement will lack the requisite air of reality: R. v. Cinous, 2002 SCC 29.
[15] The same approach applies regardless of whether the identity of the third party suspect is known, although the principles may “play out differently” where the identity of the third party suspect is unknown: R. v. Grant, 2015 SCC 9 at para. 28.
[16] Even where the evidence is logically relevant, there may be situations in which it is nonetheless excluded because its prejudicial effect substantially outweighs its probative value. Unlike evidence tendered by the Crown, which can excluded if its prejudicial effect simply outweighs its probative value, evidence tendered by the defence can only be excluded if the probative value is substantially outweighed: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577.
[17] The question of whether the evidence is logically relevant is distinct from the question of whether its probative value is substantially outweighed by its prejudicial effect. As pointed out by the Supreme Court of Canada in Grant at para. 21, “[t]he air of reality test and the Seaboyer admissibility test remain two distinct inquiries.
[18] It follows from the foregoing that the correct approach to determining the admissibility of third party suspect evidence is to first determine whether it is logically relevant, that is, whether there is a sufficient link between the third party and the crime to give the defence an air of reality. If the evidence meets that threshold, the second stop is to determine whether the prejudicial effect of the evidence substantially outweighs its probative value. This is the approach I intend to take with respect to both aspects of the third party suspect evidence in this case.
(ii) Mr. Safranko as a Third-Party Suspect
[19] In assessing whether the defence raised by the evidence question has an air of reality, I am not to weigh the evidence and must take the defence evidence at its highest: Cinous at paras. 53-54. However, even taken at its highest, the evidence shows only that there was a knapsack which was kept in the location where Mr. Safranko sometimes kept his effects. There is no evidence that there was anything in the knapsack, let alone a shotgun. The only evidence was that the two unidentified males opened the knapsack and looked inside. There is no evidence that they removed anything. There is no evidence that the defence witness looked inside the knapsack, nor did she testify that it seemed heavy or felt like it contained something.
[20] Even if it could be inferred that the knapsack belonged to Mr. Safranko, a dubious proposition in my view, the suggestion that it contained a shotgun is entirely speculative. As a result, there is no connection between Mr. Safranko and the shotgun other than his purporting to have seen it in Ms. Fenton’s possession. While it is obviously open to the jury to reject his evidence, there is no evidentiary basis for a finding that the shotgun belonged to or was possessed by Mr. Safranko. Insofar as the evidence is being tendered to show that Mr. Safranko is a third party suspect with respect to the possession of the shotgun, it is inadmissible.
[21] Given my conclusion that the evidence has no logical relevance, it is unnecessary to consider whether its prejudicial effect substantially outweighs its probative value.
(iii) The Unidentified Males as Third Party Suspects
(a) Logical Relevance
[22] In my view, if the defence evidence is accepted, it would be open to the jury to infer that the two men were upset with Mr. Safranko because he owed them something for some reason (Mr. Safranko admitted to having a history of theft). It would also be open to the jury to infer that they were looking for Mr. Safranko at a time proximate to the discharge of the firearm and that they had some awareness of the locations which Mr. Safranko frequented as they knew to look for him at Ms. Fenton’s home. Based on these inferences, it would be open to the jury to infer that the two men had a motive to harm Mr. Safranko. As noted in Grant (at para. 24), “[e]vidence that this third person had the motive, the means or the propensity to commit the crime will often establish this sufficient connection”. In my view, it would be open to the jury to have a reasonable doubt as to whether it was the two unidentified men and not Ms. Fenton who were responsible for discharging the firearm. Although the connection between the two men and the offence is somewhat tenuous, it is in my view nonetheless sufficient to meet the test set out in Grandinetti and Grant.
(b) Probative Value and Prejudicial Effect
[23] As a result of my conclusion respecting logical relevance, I must consider whether the prejudicial effect of the evidence substantially outweighs its probative value. The analysis to be conducted was described in Grant in the following terms (at paras. 38-40):
As noted above, there are two components to the Seaboyer analysis. First, in applying Seaboyer, the trial judge must assess the potential probative value of the evidence. Where the evidence relates to an unknown third party suspect, probative value will depend in part on the strength of the connection or nexus between the two events -- that is, the degree of similarity between the indicted crime and the allegedly similar incident. As the Supreme Court of Wisconsin noted in [State v.] Scheidell, [227 Wis.2d 285 (1999)], “the greater the similarity, complexity, and distinctiveness of the events, as well as the relative frequency of the event, the stronger the case for admission”: (para. 41, citing State v. Sullivan, 216 Wis.2d 768 (1998), at para. 54).
Second, the Seaboyer test is concerned with the potential prejudicial effects of the evidence. Unknown third party suspect evidence, like Crown-led similar fact evidence, poses a particular risk of reasoning prejudice. Introducing evidence of other crimes that are sufficiently similar to the crime charged may risk “the distraction of members of the jury from their proper focus on the charge itself aggravated by the consumption of time” (Handy, [2002 SCC 56] at para. 144).
However, these significant prejudicial effects must nonetheless be evaluated in accordance with the fundamental principles governing criminal proceedings. In giving constitutional protection to the accused’s rights to make full answer and defence and to be presumed innocent until proven guilty, we must accept a certain amount of complexity, length, and distraction from the Crown’s case as a necessary concession to the actualization of those rights. (See, for example Scheidell, at para. 65, per Abrahamson C.J., dissenting in the result.).
Thus, the type of prejudice at issue here is prejudice to the integrity of the trial process, that is, “the impact on the complexity, focus and length of the trial process”: Grant at para. 61.
[24] In my view, the evidence in this case has little, if any, such prejudicial effect. The testimony of the defence witness occupied less than half a day of trial time. It was not complex. The jurors will either accept the defence witness’s evidence or they will not. Even if they accept it, it would be but one factor to consider and would not be dispositive. It would still be open to the jury conclude that Ms. Fenton was responsible for discharging the firearm. I see virtually no prejudicial effect arising from this evidence, let alone any that can be said to substantially outweigh its probative value.
[25] For the foregoing reasons, I concluded that the evidence of the two unidentified males as third party suspects was admissible. However, this did not put an end to the issue.
C. The Mistrial Application
(i) The Alleged Prejudice to the Crown
[26] Crown counsel took the position that even if the third party suspect evidence was properly admissible, the Crown was nonetheless irremediably prejudiced such that a mistrial was the only available option. As I understand the Crown’s argument, the prejudice arises not from the admission of the evidence, but from the fact that the defence did not bring an application to determine its admissibility in advance. As a result, the Crown was unable to adequately prepare for the third party suspect evidence. Crown counsel submits that had the application been brought before the trial, he may have called his case differently. As well, the police would have had an opportunity to investigate and may have been able to discover evidence that would contradict or call into question the veracity of the defence evidence.
(ii) The Rationale for Third Party Suspect Applications
[27] With respect, the Crown has misconceived the rationale for requiring an application to determine the admissibility of third party suspect evidence. As the authorities make clear, the purpose of the requirement is to ensure that only logically probative evidence whose prejudicial effect does not substantially outweigh its prejudicial effect is admitted. Its purpose is not to give the Crown advance notice of the defence case. While this may be for the Crown a fortuitous by-product of such applications, it is not the reason they are required.
[28] Unlike the Crown, the defence has no general duty to disclose in advance the evidence it intends to call. The differing obligations arise from the differing roles of the Crown and the defence, as was explained in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 at para. 12:
I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role.
See also R. v. Brown, 2002 SCC 32 at para. 82; R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293 at para. 57. The exceptions to this general rule are rare: R. v. Bakhash, 2017 ONSC 3835 at paras. 34-35. The exceptions that do exist are based largely on concerns about protecting the integrity of the trial process, not ensuring that the Crown has advance notice of the defence case.
[29] The Crown maintains that the defence ought to have brought the application to tender the third party suspect evidence with notice at least 30 days in advance of the trial in accordance with the Criminal Proceedings Rules. However, I note that in many cases, applications of this nature are brought during the trial. See, for example, R. v. Mohammed, [2008] O.J. No. 5849 (S.C.J.) at para 63, aff’d 2009 ONCA 424, lv. refused [2009] S.C.C.A. No. 554; R. v. John, 2011 ONSC 4161 at paras. 1-3, aff’d 2016 ONCA 615, lv. refused [2017] S.C.C.A. No. 101; R. v. Khan, 2011 BCCA 382 at para. 84, lv. refused [2015] S.C.C.A. 374.
[30] I note as well that Rule 30.01 of the Criminal Proceedings Rules, which governs applications to admit evidence, applies only to “evidence . . . that a common law rule or other rule of admissibility renders presumptively inadmissible.” Evidence of third party suspects is not presumptively inadmissible like hearsay, similar fact evidence or evidence to which a privilege applies. Rather, it is presumptively admissible, provided that it is logically relevant, unless its prejudicial effect substantially outweighs its probative value.
[31] I do not wish to be taken as approving the defence failure to bring an application in this case. The application ought to have been brought, although I am satisfied that the failure of defence counsel to do so was an honest mistake, not a deliberate tactic. Nor do I wish to suggest that applications of this nature should not be brought as early as possible to ensure that disruption of the trial is kept to a minimum. However, this does not change the fact that giving the Crown advance notice of the defence case so that it can prepare to meet it is not the purpose of such applications.
(iii) Other Potential Remedies
(a) Prejudice Occasioned by the Evidence of the Knapsack
[32] While not a basis for the Crown’s mistrial application, I will address the potential for prejudice arising out of the defence’s unsuccessful attempt to have Mr. Safranko considered as another suspect. I am satisfied that a simple instruction to the jury that there was no evidence of what was contained in the knapsack and that they must not speculate in this regard will cure any prejudice that may have resulted from the evidence. In any event, I doubt that the jury would have been prepared to draw any conclusions as to the contents of the knapsack based on this evidence.
(b) Lack of Notice to the Crown
[33] While evidence of third party suspects, like other defence evidence, may take the Crown by surprise, the Crown may be entitled to some remedy in appropriate cases by being permitted to call evidence in reply. Indeed, the paradigmatic situation in which reply evidence is permissible is “where the defence has raised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown . . . could not reasonably have anticipated”: R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466 at para. 16. The law allows for the possibility of reply evidence precisely because the Crown is not entitled to advance notice of the defence case.
(iv) Conclusion on Mistrial Application
[34] As noted earlier, the defence evidence at issue in this case was brief and simple. What use the jurors will make of it will depend entirely on their assessment of the defence witness’s credibility. Even if they find her to be credible, they may well give little or no weight to the evidence. In cross-examining the witness, Crown counsel tested her memory of the relevant details and highlighted certain potentially implausible aspects of her account. Crown counsel asked for and was granted a recess before completing his cross-examination of the witness in order to ensure that he did not miss anything. He did not ask for further time to cross-examine her, nor did he ask for time to consider whether to call reply evidence. In all the circumstances, even if the lack of notice prejudiced the Crown, I am far from satisfied that it was the type of prejudice that would justify the drastic step of declaring a mistrial.
[35] I am, however, prepared to allow the Crown to reconsider its decision not to call reply evidence. Any evidence the Crown proposes to tender in reply must, of course, meet the requirements for proper reply evidence. See Hon. D. Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Reuters, 2017) at § 22.02.
Justice P.A. Schreck
Released: July 27, 2017
CITATION: R. v. Fenton, 2017 ONSC 4572
COURT FILE NO.: 0338D/16
DATE: 20170727
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ASHLEY FENTON
RULING ON MISTRIAL APPLICATION
P.A. Schreck J.
Released: July 27, 2017
[^1]: The boyfriend was charged together with Ms. Fenton but the charges against him have been severed and remain outstanding. [^2]: Because of her age, the witness has not been identified to protect her privacy.