CITATION: R. v. Fenton, 2017 ONSC 4589
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 24, 2017
RULING ON APPLICATION TO CALL REPLY EVIDENCE
SCHRECK J.:
[1] The Crown seeks to call reply evidence at Ashley Fenton’s trial by jury on charges of discharging a firearm, threatening and various firearm possession offences. The purpose of the reply evidence is to undermine the credibility and reliability of a defence witness who gave evidence from which the jury could infer that some unidentified individuals other than Ms. Fenton may have committed some of the offences. After hearing submissions, I gave brief oral reasons for dismissing the Crown’s application. Following are my more detailed reasons for my conclusion.
I. THE CONTEXT IN WHICH THE ISSUE AROSE
A. The Crown’s Case
[2] The complainant, Destin Safranko, and Ms. Fenton had been friends. Mr. Safranko testified that on November 16, 2017, he was visiting Ms. Fenton’s home when she showed him a sawed-off shotgun, which she described as her “new toy” and which she kept in a knapsack in the laundry room.
[3] The following day, Mr. Safranko stole some purses from Ms. Fenton’s home. Ms. Fenton and her then boyfriend called Mr. Safranko and threatened to “blow his brains out”.[^1] There was evidence that she and her boyfriend went to Mr. Safranko’s grandparents’ home to look for him. Mr. Safranko had been staying there but was not at home at the time.
[4] In the early morning hours of November 18, 2017, somebody discharged a shotgun at the front door of Mr. Safranko’s grandparents’ home while he and his grandparents slept. Nobody was injured but the door sustained significant damage.
[5] It was the Crown’s theory that Ms. Fenton was responsible for discharging the shotgun at the door. In addition to the testimony of the complainant, the Crown relied on a number of text messages that had been found on a phone seized from Ms. Fenton’s home, some of which had pictures of a shotgun attached to them. It was admitted that the phone belonged to Ms. Fenton. The Crown also relied on other evidence, including cell phone tower records.
B. The Defence Case
[6] The defence called a single witness, A., who was 13 years old at the time of trial. A. testified that on the morning of November 17, 2015, she was at Ms. Fenton’s home alone. Ms. Fenton was at work, but she was expecting Ms. Fenton’s mother to come over soon. She heard a knock on the door and opened it to find two men whom she had never seen before. The men asked if Mr. Safranko was there and A. advised them that he was not. They then asked if Ms. Fenton was home and she again replied that she was not. The two men then asked to come inside. A. agreed to allow them in because she was frightened. The two men asked to see where Mr. Safranko leaves his things, so A. took them to the laundry room, where Mr. Safranko sometimes left his effects. The men picked up a backpack which A. assumed belonged to Mr. Safranko, although she did not know this for sure. They looked inside the bag and then shouted something to the effect that Mr. Safranko must have “the stuff” within 24 hours. Following this, they left.
[7] After the men left, A. called Ms. Fenton. A. testified that to her knowledge, Ms. Fenton had two phones: a personal phone and a work phone. A. was not completely sure which phone she called as she had both numbers programmed into her phone, but said that she “pretty sure” that it was the personal phone. Ms. Fenton then came to the house and took A. to another location.
[8] In cross-examination, A. testified that the phone she had used to call Ms. Fenton had since broken and she could not recall the number. She agreed that she did not call Ms. Fenton on November 17, 2015 prior to the arrival of the two men, which was about 10 to 20 minutes after Ms. Fenton left for work. When asked, A. said that Ms. Fenton’s personal phone number was 647-303-XXXX and that was the number she had called after the two men left. When asked if she could have called Ms. Fenton’s work number, A. said “I don’t’ know”. The number of the phone that had been seized from Ms. Fenton and which was admitted to be hers was 416-678-XXXX.
C. The Crown’s Mistrial Application
[9] After the cross-examination of A. was complete, the defence closed its case. Crown counsel was asked whether he would be calling reply evidence and replied that he would not. The jury was then excused until the following Monday to hear the closing addresses (A. testified on a Wednesday).
[10] The following day, in the absence of the jury, Crown counsel submitted that the evidence of A. was third party suspect evidence and should have been the subject of an application prior to be adduced. The failure to bring an application, he argued, had irremediably prejudiced the Crown and as a result, a mistrial should be declared. I agreed that an application should be brought but held that it was premature to declare a mistrial. In the circumstances, I asked to hear argument on the admissibility of the evidence. After hearing submissions, I concluded that insofar as the evidence of A. was tendered to lead to the inference that there was a shotgun in the bag the two men looked at and that the shotgun belonged to Mr. Safranko, there was an insufficient evidentiary basis to treat Mr. Safranko as another suspect. However, there was in my view a sufficient nexus to consider the two unidentified males as alternate suspects in relation to the discharge of the firearm on November 18, 2015.
[11] Because the application should have been brought prior to the evidence being adduced, I permitted the Crown to reconsider its decision not to call reply evidence. The matter was then adjourned to the following Monday to allow the Crown to consider whether to seek to call evidence in reply. I also permitted Crown counsel to renew his mistrial application if, after considering the availability of reply evidence, he remained of the view that the Crown was irremediably prejudiced.
[12] When the trial resumed, Crown counsel renewed his application for a mistrial, largely based on the same submissions he had made earlier. I dismissed the application with reasons to follow.[^2] The Crown then sought permission to re-open the cross-examination of A. as well as permission to call reply evidence in the form of additional text messages and phone records relating to the phone seized from Ms. Fenton. Both requests were opposed by the defence.
II. ANALYSIS
A. Reply Evidence
(i) The Proposed Evidence
[13] The nature of the reply evidence, as I understand it, is as follows. The Crown wishes to introduce phone records which identify the number that was being used by A. in November 2015. Those records show that A. often contacted Ms. Fenton on the phone that was seized, that is, 416-678-XXXX. The only calls from A. to that number on November 17, 2015 were at 3:43 p.m. and 4:08 p.m. A call was placed from that number to A. at 4:18 p.m. The Crown intends to argue that if A. had called Ms. Fenton in the morning after the two men came to the apartment, she would have called her at 416-678-XXXX, not 647-303-XXXX as she claimed. A. testified that she believed she had called Ms. Fenton on her personal phone, and 416-678-XXXX was clearly used for personal communications. However, the records show that no calls were made by A. to 416-678-XXXX until later in the day. All of this, the Crown submits, undermines the credibility and reliability of A.’s testimony, which in turn makes it less believable that the visit from the two men ever happened.
[14] The Crown also wishes to tender a text message exchange between Ashley Fenton and her employer on November 17, 2015. At 10:11 a.m., Ms. Fenton’s employer texted her to ask her if she was working (the evidence is that Ms. Fenton was employed as a courier). Ms. Fenton replied that she was not as there was nobody to take care of her mother. Also, at 11:57 a.m. Ms. Fenton received a text from her mother saying “Ash I have to go and get food, Nessa can’t make it.” Nessa is Ms. Fenton’s sister. The Crown accepts that A. was not privy to either of these exchanges, but wishes to put them to her in order to “refresh her memory” that Ms. Fenton mother was not, as she claimed, at work that day and that Ms. Fenton’s mother was not going to come to Ms. Fenton’s apartment that day. This too, the Crown hopes, will undermine the credibility and reliability of A.’s testimony.
(ii) The Unforeseeability of the Issue
[15] It is well established that a trial judge has a discretion to admit evidence in reply concerning an issue that the Crown had no opportunity to deal with in presenting its case and could not reasonably have anticipated, or an issue that was of only marginal importance during the prosecution's case, but that took on added significance as a result of the defence evidence: see R. v. R.D., 2014 ONCA 302 at para. 20; R. v. Quance (2000), 2000 CanLII 5741 (ON CA), 146 C.C.C. (3d) 153 (Ont. C.A.) at para. 21; R. v. Aalders, 1993 CanLII 99 (SCC), [1993] 2 S.C.R. 482 at paras. 35-38. In this case, while it was put to the complainant in cross-examination that other individuals were angry with him, he denied this and there was no evidentiary basis for a third party suspect defence until the defence called its case. In these circumstances, I am satisfied that the issue of whether other people were angry at the complainant was of marginal, if any relevance before the defence called its case.
(iii) The Collateral Fact Rule
[16] The unforeseeability of the issue is, however, only a threshold requirement for the admission of reply evidence: R. v. Ryan, 2011 NLCA 53 at para. 33. The proposed evidence must be otherwise admissible and, most importantly in the context of this case, must not offend the collateral fact rule. This was made clear by McIntyre J., writing for the Court in R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466 at para. 17:
Crown counsel, in cross-examining an accused, are not limited to subjects which are strictly relevant to the essential issues in a case. Counsel are accorded a wide freedom in cross-examination which enable them to test and question the testimony of the witnesses and their credibility. Where something new emerges in cross-examination, which is new in the sense that the Crown had no chance to deal with it in its case-in-chief (i.e., there was no reason for the Crown to anticipate that the matter would arise), and where the matter is concerned with the merits of the case (i.e., it concerns an issue essential for the determination of the case) then the Crown may be allowed to call evidence in rebuttal. Where, however, the new matter is collateral, that is, not determinative of an issue arising in the pleadings or indictment or not relevant to matters which must be proved for the determination of the case, no rebuttal will be allowed. [Emphasis added].
Later in his reasons, McIntyre J. put the rule more succinctly (at para. 21): “The fact that evidence is introduced by the defence-in-chief does not make it a proper subject for rebuttal evidence unless it is otherwise relevant to a matter other than credibility.”
[17] The scope of the collateral fact rule and the reason for its existence was explained in Hon. J. Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Reuters, 2017) at § 22.03:
The collateral facts or collateral issues rule prohibits the introduction of evidence for the sole purpose of contradicting a witness’ testimony concerning a collateral fact. The rule seeks to avoid confusion and proliferation of issues, wasting of time and introduction of evidence of negligible assistance to the trier of fact in determining the real issues of the case. It endeavours to ensure that the sideshow does not take over the circus. In general, matters that relate wholly and exclusively to the credibility of a non-accused witness are collateral, hence beyond the reach of contradictory evidence.
[18] Whether Ms. Fenton had two phones, whether A. called her on one and not the other on the morning of November 17, 2015 and whether Ms. Fenton was at work or not that morning have no relevance except with respect to the credibility of A. Even that is, in my view, tenuous at best given her testimony that she was unsure which phone she called and given that A. was not a party to the exchanges between Ashley Fenton and her employer or her mother.
[19] If the reply evidence the Crown seeks to call is adduced, the jurors would have to determine whether the records establish what telephone number A. was using in November 2015. They would have to determine whether A.’s evidence that she called Ms. Fenton on her personal phone at 647-303-XXXX was accurate and, if not, whether this was because she had mistakenly called Ms. Fenton’s work number, which she erroneously recalled as the personal number, or whether she was simply not telling the truth. They would have to consider whether Ms. Fenton’s text to her employer meant that Ms. Fenton did not go to work that day. If so, did A. testify that she believed Ms. Fenton to be at work because Ms. Fenton had told her this, or was she lying about where she believed Ms. Fenton to be? They would have to review the various texts messages from Ms. Fenton to other people in order to determine whether Ms. Fenton’s mother was in the hospital on November 17, 2015. If she was, did A. know this? None of this has anything to do with whether Ms. Fenton is guilty of the offences with which she is charged. In my view, this evidence creates a real risk that the jury will become distracted by issues of negligible importance and that are only relevant to A.’s credibility, that is, a real risk that the “sideshow would take over the circus”.
[20] In my view, the proposed reply evidence is “not relevant to matters which must be proved for the determination of the case” and clearly offends the collateral fact rule. As a result, the Crown’s request to call reply evidence is denied.
B. Re-Opening the Cross-Examination of the Defence Witness
[21] With respect to re-opening the cross-examination of A., Crown counsel had a full opportunity to cross-examine her. He requested and was granted the afternoon recess to consider what further questions he wished to ask. The Crown was well aware that the number A. testified she called Ms. Fenton at was not the number of the phone that was seized. In fact, the Crown questioned A. about this. Ultimately, her evidence was that she was unsure what number she called. I have been advised that the Crown is not in possession of any information with respect to any connection or lack thereof between Ms. Fenton and the number 647-303-XXXX. In the circumstances, nothing would be served by allowing further cross-examination and I decline to exercise my discretion to permit it.
Justice P.A. Schreck
Released: July 27, 2017
CITATION: R. v. Fenton, 2017 ONSC 4589
COURT FILE NO.: 0338D/16
DATE: 20170727
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ASHLEY FENTON
RULING
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]: The reasons have since been released: R. v. Fenton, 2017 ONSC 4572.