CITATION: R. v. South, 2017 ONSC 6320
COURT FILE NO.: CR-16-1727
DATE: 20171023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Darilynn Allison/David D’Iorio, for the Crown
- and -
ADRIAN SOUTH
Steven Hinkson, for the Accused
HEARD: October 2 & 3, 2017
RULING RE: ALTERNATE SUSPECT APPLICATION
BALTMAN J.
Overview
[1] On August 17, 2013, Mario Barnes was shot and killed inside his home at 7225 Lancaster Avenue, in Mississauga. At the time, Barnes was in his basement apartment along with Giovanni Lawrence-Pearson and Ossel Green. At approximately 4:00 a.m. someone kicked in the door to the apartment, came down the stairs and fired one shot that struck Barnes in the chest and killed him.
[2] The central issue in the case is identification: who did it? The shooter’s face was covered below his eyes, and he left the house without speaking to the other two. Lawrence-Pearson and Green both identified South as the shooter, although Lawrence-Pearson has since repudiated his statement. South’s DNA was also found near the scene.
[3] This is an alternate suspect application by South, wherein he asserts that there is evidence linking a third party, Dwayne Dixon, to Barnes’ killing. The defence relies primarily on an audio statement given by Jerome Parchment to police on October 19, 2013, in which he reports seeing Barnes punching Dixon (a.k.a. “Face”) in the face during an altercation approximately four months earlier. The defence theorizes that this incident, combined with other features, provides sufficient connection between Dixon and the crime on the central issue of identification for the jury to consider.
[4] Shortly after this motion was heard, and in order to allow the trial proper to proceed, I provided counsel with my ruling, with reasons to follow. These are my reasons.
The Legal Framework
[5] A person charged with a crime is entitled, by way of defence, to adduce evidence demonstrating that a third party is the true perpetrator. However, that evidence is admissible only if there is a “sufficient connection” between the alternate suspect and the crime. Without this link, the third party evidence is neither relevant nor probative: R. v. Grandinetti 2005 SCC 5, [2005] 1 S.C.R. 27, para. 47.
[6] The evidence may be direct or circumstantial, but if circumstantial, the inferences must be reasonable. Speculation is not permitted: R. v. Tehrankari 2012 ONCA 718, para. 37. The trial judge must balance the right to make full answer and defence with the need to ensure the trial does not spiral into a “trial within a trial”, distorting the Court’s truth seeking process: R. v. Browne 2017 ONSC 4615, para. 45; R. v. Borbely 2013 ONSC 48, para. 8.
Submissions and Analysis
[7] The defence submits that there is sufficient connection between Dixon and the crime based on opportunity, motive, propensity and identification. In my view the evidence in all of those categories is seriously lacking, if not completely absent.
[8] Starting with opportunity, the evidence strongly indicates that Dixon was nowhere near the crime scene when Barnes was killed. Dixon was arrested for firearms charges on September 10, 2013. He was interviewed by the police after they seized his phone. The cellphone records demonstrate that Dixon’s phone was a significant distance away from the crime scene before, during and after the shooting.
[9] As for motive, the defence relies solely on the fight between Dixon and Barnes that was witnessed by Parchment. Several aspects of this altercation suggest it was unlikely to be the motive for a killing. First, the incident occurred over four months before the homicide and there is no evidence there was any further friction between Dixon and Barnes during that interval. Second, when Dixon himself was questioned by police (Officer Harris) about the incident he denied being injured:
Harris: He mashed up your face, were you pissed off about that?
Dixon: What fa-my face is perfectly fine. I don’t know what you’re talking about.
And then later in the interview:
Harris: Then there’s this allegation that you got in a fight and he knocked some teeth out.
Dixon: My teeth are – like I don’t what the fuck you guys are talkin-oh…
Harris: Well, that’s why I wanna talk to you. Just ‘cause people say something doesn’t mean it’s true. That’s why I’m talking to you. It involves you.
Dixon: Yeah, but you’re seeing me and I’m telling you that’s not what went down. Nothing happened.
[10] Third, even Parchment - who claims he witnessed the scrap between Barnes and Dixon - described it more as a “punk-off” than a “fight”, and did not see any injuries on Dixon.
[11] Turning to propensity, the defence argues that Dixon’s phone number is connected to three other homicides. Any such connection is tenuous, at most. One of those involves a case that has already gone to trial, where Dixon was neither tried for the offence nor raised as an alternate suspect. The second case remains unsolved but according to the lead investigator Dixon is not a person of interest in the homicide. The third matter has been completed and the two accused persons entered pleas of guilt in 2015 and 2016; while Dixon was initially investigated in relation to the case, he was never charged with any offence and was not raised as an alternate suspect by the defence.
[12] The defence also relies on Dixon’s firearms charges to support propensity. It is true that at the time of the Barnes homicide Dixon was wanted on a firearms charge. However, that charge was subsequently stayed. As for the firearms charge for which he was convicted, that was in 2009, several years before this incident.
[13] Lastly, there is no plausible identification of Dixon as the shooter. Although Green reports hearing a rumour that Dixon was the shooter, Green consistently told the police that Dixon was not the shooter he saw that night. In his evidence at the preliminary inquiry, Green identified South as the shooter.
Conclusion
[14] The defence has failed to show that Dixon was sufficiently connected to the Barnes homicide by opportunity, motive, propensity or identification, either alone or in combination. Accordingly, the application is dismissed.
Baltman J.
Released: October 23, 2017
CITATION: R. v. South, 2017 ONSC 6320
COURT FILE NO.: CR-16-1727
DATE: 20171023
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
ADRIAN SOUTH
Applicant
RULING ON ALTERNATE SUSPECT APPLICATION
Baltman, J.
Released: October 23, 2017