CITATION: R. v. Golov, 2017 ONSC 6672
COURT FILE NO.: CRIMJ(P) 1931/16
DATE: 2017 11 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. Esson, A. Berg, for the Respondent
Respondent
- and -
SEM GOLOV
L. Shemesh, for the Applicant
Applicant
HEARD: October 30 & 31, 2017, at Brampton
RULING
Hill J.
INTRODUCTION
[1] The applicant, charged with second degree murder, will stand trial in a few days before a jury.
[2] Constituted as a case management judge pursuant to Part XVIII.1 of the Criminal Code, I am asked by the applicant to rule upon the admissibility of evidence relating to the disposition of the deceased to engage in behaviours which might be characterized as aggressive, provocative or intimidating as being relevant to events which transpired on August 7, 2015.
FACTUAL BACKGROUND
Drinking at the Ravine
[3] In August 2015, Julien Theo resided with 36-year-old William Maassen (the deceased) who was one of his best friends. They were alcoholics and unemployed. On many days, if not on a daily basis, they would meet at the Woodchester Mall Shopping Centre (the mall) at 2458 Dundas Street W. in Mississauga. There was an LCBO outlet at this location and an adjacent wooded area, trail and ravine where the two, and other male friends (“ravinees”) would sit on logs, drink alcohol and socialize.
[4] On August 7, 2015, according to Mr. Theo’s preliminary inquiry evidence, he met the deceased between noon and 1:00 p.m. at a bus stop across from the mall. The deceased had an open beer at the bus stop. Beer was then purchased at the LCBO outlet and the two proceeded to their favourite spot down in the nearby ravine. A friend, Murray, drank beer with them for a time before he departed. Theo’s recall is that the deceased may have consumed what may have been two 16-oz. “tall boys” in the ravine.
[5] According to Theo, having borrowed some money from Murray, he set out for the LCBO to purchase more beer leaving the deceased on his own with the understanding that the deceased would come to meet him by a garbage can at the mall.
The Initial Confrontation
[6] On August 7, 2015, fifteen-year-old Jack Kryslak-Gallant (Gallant), by pre-arrangement, met the applicant near the mall in order for the applicant to buy liquor for the under-age Gallant at the LCBO with Gallant’s money. Gallant arrived by bicycle.
[7] After the applicant purchased two bottles of vodka on Gallant’s behalf, he returned to Gallant’s location at the wooded area at the top of the trail leading to the ravine.
[8] As they were talking at this location, and Gallant was placing the liquor in his backpack, according to Gallant’s preliminary inquiry evidence, he heard two males approaching from deeper within the forest – they were “loud and kind of obnoxious”. According to Gallant’s testimony, as these persons arrived at their location, an individual who it could be inferred was the deceased, asked them if they had any “weed”. They replied that they did not. Gallant was of the view that the male parties were “intoxicated” as they appeared “like nonchalant, happy”.
[9] At this point, according to Gallant, the deceased touched the applicant’s left shoulder. At this point, he “assumed” things would change – he began to feel “uncomfortable”:
… like now there’s like a problem and it wasn’t like – ‘cause they were – before they seemed very like, like, just happy and then now – like something had happened and now there’s like tension.
[10] On Gallant’s testimony, the applicant then got to his feet fast, aggressively and explosively, saying: “Don’t touch me”, at which point an “altercation” developed – it was “not exactly a fight”. The applicant aggressively pushed the deceased backward with a two-handed shove to his chest. With raised voices, verbal insults were exchanged. In his evidence, Gallant variously stated that the applicant and the deceased were “telling each other to like start something”, or that it may only have been the deceased saying this. Gallant witnessed that, for about a minute, they were “egging each other on”:
… to like someone to do something more … [l]ike asking the other person to do something, like do something, as in hit me or something.
[11] To Gallant’s recall, the two were “nudging each other” with light pushes to one another’s chest in what he considered to be an effort “to like provoke someone”. It was an “in your face” situation as the two stood “very close” to one another.
[12] Gallant informed the preliminary inquiry court that the deceased and his companion then stepped away and walked up the trail toward the mall. Shortly after, he and the applicant prepared to leave. Before Gallant got on his bicycle to ride away, there was some discussion with the applicant:
A. And then [the applicant] was asking if he like handled the situation well, if he was being like – if he was like being the dominant person in the situation, and stuff like this, and – yeah.
Q. Is that a word that he used, “dominant”?
A. Yeah.
Q. And when you say if he was being, what was he actually – can you remember his words?
A. Well, yeah, like, if he was being dominant and said, like, was I dominant, like, did I handle it correctly and ….
Q. Okay. What did you say, if anything?
A. I said yeah.
[13] Gallant also testified that the applicant lifted his shirt revealing a knife handle sticking out of the waistband of his shorts while saying that “he could have stabbed the other guy and gotten away with it”.
Renewed Hostility
[14] As Gallant prepared to ride off, with the applicant at the entrance to the trail, he heard the two guys by the mall “yelling” toward the trail, “insulting [the applicant] and basically trying to like egg him on and stuff” and “trying to start something again”. It was Gallant’s impression from what he could hear that the deceased was trying to get the applicant to come toward him, to meet up.
[15] As he was riding away, Gallant observed the deceased walking in the applicant’s direction. There may have been more “cat calling” at this point from the deceased. Gallant felt that there was a possibility “the he would engage” the applicant. When, a few seconds later, Gallant looked back one last time he saw the applicant’s arms moving, punching the deceased – “hitting him [in] the upper chest area from the neck down to – from – like above the waist … and they’re like, like, right hooks and left hooks and they’re fast”. On Gallant’s evidence, in the two to three-second observation he made, the deceased wasn’t “like reciprocating any punches” or hitting back – “he was just like taking it” and “trying to cover himself”. The witness then saw the deceased clutching his stomach. Gallant did not see how the altercation started. He did not see a knife from where he was situated.
Theo Finds his Friend
[16] After Julien Theo made his alcohol purchases and headed for the rendezvous location by the garbage can, he could not see the deceased. He estimated that he had been away for about twenty minutes. Thinking his friend might still be in the ravine, he headed in that direction. He then observed the deceased on the ground on the pavement. When he reached the deceased he saw blood on his head. Theo thought that the deceased may have “fallen over drunk and bashed his head”. The deceased was barely breathing, and bleeding from the side of his body. Theo called 911. The deceased died at the scene.
The Autopsy Findings
[17] Dr. Ashwyn Rajagopalan, a forensic pathologist, conducted an autopsy on the deceased on August 8, 2015. The cause of death was a stab wound to the heart with death occurring within minutes. The expert concluded that a horizontally-oriented flat blade entered the deceased’s body between the fifth and sixth ribs in the centre of the chest piercing the pericardium and right ventricle of the heart. Three further stab wounds were identified – at the left upper chest near the shoulder, in the lower chest between the seventh and eighth ribs into the pericardium, and, a superficial wound to toward the left shoulder.
[18] Dr. Rajagopalan’s examination concluded that there were no defensive wounds on the deceased. There was a blunt force injury in the form of a red scrape on the dorsal or back side of the middle finger of the deceased’s left hand. The cause of the scrape could not be conclusively determined although it may have been “a blow struck” in the sense of “blunt contact between that hand and another object” such as another person.
[19] Analysis of the deceased’s blood disclosed 134 milligrams of alcohol/100 millilitres of blood. The presence of THC, the active ingredient of marijuana, was present in the deceased’s blood as was Venlafaxine, an anti-depressant drug, and, Olanzapine, an anti-psychotic medication. The deceased had been diagnosed as schizophrenic some years before and had been taking prescribed medications.
The “Beaking Off” Evidence
[20] In his evidence in-chief at the preliminary inquiry, Julien Theo was asked these questions about his friend by Crown counsel:
Q. Did you ever know your friend Will to carry a weapon of any kind?
A. No.
Q. Well, how would you describe him? What sort of a guy was he?
A. Extremely harmless.
Q. Did he have any sort of mental health or …
A. Yes, he was….
Q. …health issues?
A. Yeah, he was basically semi-schizophrenic.
Q. And did that affect his manner or behaviour at all?
A. Yeah, if he never took his medication he was a bit different.
Q. And how?
A. You could be walking with him and he’d – he’d say something stupid to someone, like give me five bucks or give me a beer or some – something stupid.
[21] In cross-examination at that proceeding, Theo gave this evidence:
Q. Okay. Now you told the police that when you are with him, sometimes you get the sense that he will, and I’m going to use your words, beak off people. You use the word beaked off.
A. Sure.
[22] Asked to describe “beaking off”, the witness stated that as he walked down the street with the deceased, when the latter had consumed alcohol, he would suddenly loudly speak out to random strangers saying silly or “stupid shit” such as “Give me five bucks”. The deceased had done this with people on the path or trail at the rear of the mall. Questioned as to the frequency of beak offs, Theo responded, ‘[n]ot very often, once in a while”. Confronted with his August 9, 2015 statement to the police that the deceased had a “tendency” to beak off (“… maybe he’s done it so many times, I can’t remember”), the witness agreed that that had been truthful.
[23] In further cross-examination on the subject, Theo stated that when his friend beaked off, he would tell him to stop so that they wouldn’t get in trouble:
Q. Okay. And has anyone ever – am I using the term right, beaked back?
A. Depending on the person, I guess. Some people get a little bit sort of scared, I guess.
Q. Okay. And when you say some people get a little bit scared – he’s, he’s not a small guy, he wasn’t a small guy, he’s a big guy?
A. Yes.
Q. We have him at six one and a, and a half, so over six feet. He was….
A. Yeah, he’s a big guy.
Q. He was about 200 pounds? That’s how you remember him?
A. Yeah, basically.
Q. Okay. And so he’s, he’s a big guy?
A. Yes.
Q. And I’m presuming that when that happened, would you try to get in the middle of it to try to calm the situation?
A. Of course.
Q. Okay. And was there ever a time where you had the – had an inability to calm the situation?
A. No.
Q. No. There was always a time where you could calm him?
A. Yeah, pretty much, yeah.
Q. And you think that your presence assisted in calming the situation?
A. Well, I’m not with him 24/7.
Q. No, no, the times that would happen and he was…
A. Oh.
Q. …yelling out.
A. Yeah, but it’s, it’s only quick, brief. He’d just be quick, and then I say, shut up, Will, let’s go, you’re going to get us in trouble.
[24] At the preliminary inquiry, Theo indicated that he had never seen the deceased carrying a weapon:
Q. Have you ever asked him if he carries a weapon?
A. No, I wouldn’t [INDISCERNIBLE} why would he carry a weapon?
Q. Right.
A. He doesn’t need a weapon. He’s a big boy.
Q. Okay. He wouldn’t – according to you, it’s not a conversation you even had?
A. No, we don’t carry weapons.
[25] In Julien Theo’s August 7, 2015 statement to the police, the interviewee related information about the deceased beaking off, including the following:
A. …sometimes when he drinks too much he has a tendency to beak too much.
A. Because Will, after a couple of beers he does a lot of beaking.
And Will doesn’t mind taking a punch or anything…
A. …Fuckin’ dummy I tell him all the time.
Q. Have you seen him kinda get into beef with…
A. All the time.
Q. (Inaudible) at times?
A. All the time.
Q. Oh is that right?
A. Yeah that’s why I tell him to shut the fuck up.
A. Okay so lets say we have a beers.
Q. Okay.
A. And we’re walking down the friggin street.
Q. Okay.
A. And I’m saying, okay lets not get arrested. That’s what do when I going out…
Q. Okay. … for (Inaudible). I know what you’re saying.
A. Lets not get arrested. And he wants to yell at people. And I’m going shut the fuck up.
Q. Right.
A. We’re gonna get arrested.
Q. Right.
A. Because the police will show up.
POSITIONS OF THE PARTIES
Introduction
[26] Originally cast as a traditional Scopelliti application ((1982), 1981 CanLII 1787 (ON CA), 63 C.C.C. (2d) 481 (Ont. C.A.)), the applicant sought to have certain evidence ruled admissible:
…relating to the character of [the deceased] particularly his propensity for violence, his medical and psychological composition and his potentially volatile behaviour … [on the basis that] the proposed evidence is pivotal to support [the applicant’s] testimony that he reasonably feared [the deceased] … [who] physically and verbally accosted him and that [the deceased] had instigated both the physical and verbal contact between the two.
[27] Queried about the applicant’s anticipated evidence at the trial scheduled to commence before a jury on November 14th, Ms. Shemesh, on behalf of the applicant, committed to her client testifying and advancing a claim of self-defence.
[28] The application proceeded on the basis of preliminary inquiry transcripts, statement evidence, facta from the parties, and the viva voce testimony of the deceased’s mother, Craig Martin and Peel Regional Police Service Constable Balogun.
[29] On hearing the witnesses’ evidence, and after considered reflection, Ms. Shemesh narrowed the focus of her application to the question of the admissibility of evidence which Julien Theo could provide respecting the deceased’s beaking off behaviour when he had consumed alcohol, evidence which would bear on the issue of who may have been the aggressor in the fatal confrontation.
[30] Before turning to that subject, the fact of the deceased being schizophrenic and medicated for that disability is not relevant on the record here to any material issue at trial. The deceased’s mental illness did not make him prone to violence or aggression. Given the evidence of the deceased’s mother that he was taking his medication, the detected presence of the medication in the deceased’s blood stream, and the absence of evidence from Theo that the deceased was “different” on August 7, 2015 in a way suggestive to him that the deceased was not medicated, there is no cogent evidence that the deceased was not therapeutically medicated on August 7, 2015 or that at any point when he had not taken his medication this caused him to be aggressive or threatening. The fact that the deceased had, on some occasions, used hard drugs is equally irrelevant.
The Applicant
[31] In her concluding submissions, Ms. Shemesh acknowledged that while the beaking off evidence may not clearly amount to the Scopelliti standard of “prior acts of violence on the part of the deceased such as to support an inference that the deceased had a propensity for violence of a kind likely to result in conduct of a kind that might cause a victim of such violence to consider that it was life-threatening”, the evidence of the deceased’s loud, intimidating and aggressive behaviour toward strangers when inebriated was nevertheless properly admissible in particular on the issue of the deceased as aggressor in confronting the applicant.
[32] It was further submitted that there were indications that Theo, a good friend of the deceased, may have minimized the degree of his friend’s aggressive or intimidating behaviours and that the beaking off evidence was contextually relevant to the short period immediately preceding the fatal stabbing, for which the applicant is essentially the only witness. The applicant’s factum states:
It is anticipated that the Applicant will concede that he killed Mr. Maassen on August 7th, 2015. The only issue at trial is why? The Applicant will testify that Maassen accosted him on two separate occasions. During the first incident, the Applicant will testify that Mr. Maassen accosted both him and Mr. Gallant demanding marijuana. The Applicant will testify that Mr. Maassen had been drinking alcohol, was loud and quite confrontational. He will testify that Mr. Maassen was physical with him and that the Applicant had diffused the situation. The Applicant will testify that he was concerned that Mr. Maassen may accost them again and that is why the two left the ravine. The Applicant was quite nervous about having to deal with a much larger and drunk man and the two walked up to the top of the ravine and Mr. Gallant left on his bike. While readying himself to leave – the Applicant will testify that Mr. Maassen came towards him – yelling at him and that the two became engaged in a physical altercation.
The Crown
[33] The Crown’s theory of the case, as I understand it, is that only the applicant was armed with a knife. After trying to impress Gallant with how he dominantly handled the initial confrontation, including stating that he could have gotten away with stabbing the deceased, the applicant subsequently resolved his annoyance with the deceased, although the deceased posed no real threat, by taking the opportunity with no nearby witnesses to kill the deceased with four stabs of his knife.
[34] The Crown factum recognizes the court’s inherent discretion to admit or exclude the type of evidence under review by this court.
[35] While the Crown accepts that evidence may be admissible bearing on the probability of the deceased “being the aggressor/provoker” supportive of an accused’s evidence “that he was attacked/provoked” by the deceased, even if the deceased’s disposition is unknown to the accused, it was submitted that the evidence of the deceased’s beaking off does not amount to specific occurrences of violence/provoking behaviour bearing any probative value respecting what transpired at the point in time when the deceased was stabbed by the applicant.
[36] The Crown’s factum described Julien Theo’s evidence of the deceased beaking off as limited to occasional vocal outbursts with unknown persons which did not include “threats of violence”. It was submitted that because the beaking off evidence essentially characterized the deceased as occasionally loud-mouthed, obnoxious and unruly, it did not carry sufficient probative value to reasonably support an inference that the deceased was probably the aggressor/provoker when he and the applicant became involved in a physical confrontation.
[37] It was alternatively submitted, that if it could be said that the proffered evidence was probative on the aggressor/provoker issue, that the court is obliged to consider, if the evidence were admitted, that prejudice would be occasioned to the prosecution case including such factors as unfair bad character stigmatization of the deceased, and the distraction and prolonging of the trial associated with a “side issue”.
ANALYSIS
Governing Principles
[38] Justice fundamentally includes “society’s interest in getting to the truth of the charges as well as the interest of both society and the accused in a fair process” R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 150; R. v. Seaboyer (1991), 1991 CanLII 76 (SCC), 66 C.C.C. (3d) 321 (S.C.C.), at p. 389. Wrongful convictions and acquittals both stand as miscarriages of justice.
[39] “It is fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues”: Seaboyer, at p. 389.
[40] Evidence is generally admissible where it advances in some degree the inquiry, in the sense of logical connection to a material issue in the trial. This may involve evidence “logically relevant to an available defence”: R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 45.
[41] Logical relevance arises where the proffered evidence, as a matter of logic, common sense and human experience, has some tendency to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence: R. v. J. (J.L.) (2000), 2000 SCC 51, 148 C.C.C. (3d) 487 (S.C.C.), at p. 507; R. v. Arp (1998), 1998 CanLII 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.), at para. 27; R. v. Pilon, 2009 ONCA 248, at paras. 32-33; R. v. Watson (1996), 108 C.C.C. (3d) (Ont. C.A.), at para. 33.
[42] Relevance must, of course, be assessed, not in a vacuum or “in the abstract” (R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 73), but in the context of the entirety of the evidence in a criminal trial, known and anticipated, as well the issues in the case, and the respective positions of the prosecution and the defence: R. v. Clarke (1998), 1998 CanLII 14604 (ON CA), 129 C.C.C. (3d) 1 (Ont. C.A.), at pp. 12-13; Watson, at para. 30; Arp, at para. 38; R. v. Morin (1988), 1988 CanLII 8 (SCC), 44 C.C.C. (3d) 193 (S.C.C.), at p. 218.
[43] While there is no minimum probative value required for evidence to be logically relevant (R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at p. 715 per La Forest J. dissenting in the result; R. v. Morris, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, pp. 191-2; Clarke, at p. 12), it must be recognized that probative value “will depend in part on the strength of the connection or nexus” between the proffered evidence and the factual matter to which it is said to relate – the evidence must have a sufficient connection beyond mere conjecture or speculation: Grant, at paras. 38, 41.
[44] Not all evidence which may be said to be logically relevant at a threshold level is admissible (Grant, at para. 19) as such evidence, where not otherwise subject to an exclusionary rule, falls to be assessed as well on a legal relevance standard engaging the court’s discretionary, and highly fact-driven, gatekeeper role to consider applicable counter-balancing factors such as (1) danger of arousing the triers’ emotions of prejudice, hostility or sympathy, (2) the prospect of the admitted evidence and responding evidence creating a side issue or satellite litigation unduly distracting the jury from the main issues for its determination, (3) the risk that the evidence and any counter proof will consume an undue amount of time unduly protracting the trial, and (4) the danger of unfair surprise of the opposite party unprepared to meet the evidence in question: Seaboyer, at p. 390; Grant, at para. 61.
[45] Where the legal relevance balancing is undertaken in the context of defence-led evidence, the court asks itself whether any prejudicial effects of the proffered evidence substantially outweigh the potential probative value of the evidence: Grant, at para. 41.
[46] In the context of defence-led evidence having logical relevance, bearing in mind the presumption of innocence and the importance to full answer and defence of letting an accused “confirm and strengthen the case for his innocence” (R. v. Bishop, 2013 NUCA 2, at para. 48 (notice of discontinuance filed [2013] S.C.C.A. No. 76)), courts have understandably been cautious in restricting the power of an accused to call evidence in his or her defence and reluctant to exclude even tenuous defence evidence: Seaboyer, at pp. 388-391; R. v. Arcangioli 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 141; Bishop, at para. 51.
[47] Whether described as disposition, character, predilection or propensity, evidence of past behaviours of an individual may provide reliable circumstantial evidence of how that person may have acted on a particular subsequent occasion. Put differently, such evidence may enhance the probability of how the person acted at the time of the specific incident before the court and in turn impact upon the credibility of an accused’s testimony potentially raising a reasonable doubt as to guilt.
[48] As “a general rule, the character or disposition of the victim of an offence is irrelevant”: R. v. Vant, 2015 ONCA 481, at para. 66; R. v. Diu (2000), 2000 CanLII 4535 (ON CA), 144 C.C.C. (3d) 481 (Ont. C.A.), at para. 39 (notice of discontinuance filed [2000] S.C.C.A. No. 406); R. v. Hamilton, 2003 BCCA 490, at para. 34. The rule of inadmissibility is not however “unyielding where the evidence of disposition of the victim relates to a material issue” in the case and is not excluded in the balancing of legal relevance considerations: Vant, at para. 66. And, while it is recognized that disposition evidence relating to a deceased may be admissible in cases where self-defence is raised, in the form of evidence of specific incidents of aggression or violence, general reputation for such, or expert psychiatric evidence, “[t]here is no rule limiting prior misconduct by the deceased to cases in which self-defence is raised”: Watson, at para. 30; Diu, at para. 49.
[49] Evidence of a deceased’s prior disposition may, in appropriate cases, include evidence of prior aggression, intimidation, temper, turbulence, belligerence, or unpredictable lack of control, for example when under the influence of alcohol or drugs, as such evidence may, in an objective sense, carry probative weight respecting the probability of the deceased acting out aggressively on the occasion in issue: see R. v. Craig, 2011 ONCA 142, at paras. 10, 48-52 (temper when drinking); Evans v. United States, 277 F.2d 354 (D.C. Cir.), at paras. 1-10 (authority referred to in Scopelliti, at p. 497) (aggressive behaviour when intoxicated); R. v. Demelo, [1989] O.J. No. 1977 (Dist. Ct.), at pp. 2-3 (history of being a troublemaker, mouthy, aggressive and provocative).
[50] That said, a deceased’s disposition or pattern of past behaviour for violence or aggression unknown to the accused, evidence established by otherwise admissible evidence (R. v. Williams (1985), 1985 CanLII 113 (ON CA), 50 O.R. (2d) 321 (C.A.), at p. 331 (leave to appeal refused [1985] 1 S.C.R. xvi)), and not to be governed by the test applicable to evidence of an accused’s similar acts (Scopelliti, at para. 45; Grant, at paras. 33, 36), may, in a case where self-defence is raised, be probative respecting issues such as whether the deceased acted aggressively or provoked the accused on the relevant occasion, whether there existed a risk of harm to be assessed by the accused and the probability that circumstances led to the accused repelling an attack (leaving aside issues of the subjective aspects of an accused’s self-defence claim and whether he responded with excessive violence). The onus is on the prosecution to disprove self-defence where the trial record gives an air of reality to that defence, as will often be the case although the evidence may come exclusively from the accused. At para. 32, the Scopelliti case held, in relation to the admissibility of any prior specific act of violence or aggression on the part of the deceased, unknown to the accused, that there be some other appreciable evidence of the deceased’s aggression on the relevant occasion.
[51] The probative value of past aggressive propensity by a deceased must be assessed having regard to the nature of the past behaviour and the strength of its asserted linkage to the current transaction including consideration of temporal proximity: Scopelliti, at para. 48; R. v. Varga (2001), 2001 CanLII 8610 (ON CA), 159 C.C.C. (3d) 502 (Ont. C.A.), at para. 72 (leave to appeal refused [2002] S.C.C.A. No. 278); R. v. Jackson, 2013 ONCA 632, at paras. 24, 38 (affd 2014 SCC 30, [2014] 1 S.C.R. 672). To be logically probative, the disposition evidence relating to the deceased need not pass a significant probative value test: R. v. Yaeck (1990), 1991 CanLII 2732 (ON CA), 68 C.C.C. (3d) 545 (Ont. C.A.), at p. 563 (leave to appeal refused [1992] 2 S.C.R. xii); Hamilton, at para. 43; Varga, at paras. 71-74, 76.
[52] Turning to the discretionary balancing to be undertaken by the court to determine whether the probative value in the case of disposition evidence relating to the deceased is substantially exceeded by potential prejudice, various factors have received judicial examination. Depending upon the nature of the disposition evidence, moral or reasoning prejudice may arise, in terms of the triers of fact unfairly stigmatizing the deceased as a bad person or engendering hostility toward the deceased or a feeling that he may have been undeserving of the protection of the law: Scopelliti, at para. 47; Varga, at para. 71; Watson, at para. 42. The courts also take into account whether there will, in any event, be evidence in the prosecution case of aggressive behaviour on the part of the deceased: Varga, at paras. 73-76; Hamilton, at para. 76; R. v. Mulligan (1997), 1997 CanLII 995 (ON CA), 115 C.C.C. (3d) 559 (Ont. C.A.), at para. 26; R. v. Williams, 2008 ONCA 413, at paras. 65-67, 71.
[53] As observed in Grant, at para. 40:
… 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, [State v.] Scheidell, [227 Wis.2d 285 (1999)], at para. 65, per Abrahamson C.J., dissenting in the result.)
[54] Where propensity evidence of the deceased is admitted, a trial judge is obliged to instruct jurors as to its limited relevance to any issue they are to decide: Scopelliti, at paras. 47, 50, 53; Grant, at para. 61; Diu, at paras. 42-56; Hamilton, at para. 42; Mulligan, at para. 26; R. v. Hughes, 2007 ONCA 764, at para. 6.
[55] Where the court admits evidence of prior aggressive behaviours on the part of the deceased, the prosecution is generally entitled to adduce evidence of the accused’s prior postures for aggression or violence (Scopelliti, at p. 498; Jackson, at paras. 45-49) as well as evidence of the deceased’s peaceable nature in order to ensure that the triers have a fulsome and undistorted record: Scopelliti, at para. 54; Jackson, at paras. 14, 45-49; R. v. Sparkes, [2005] O.J. No. 1883 (C.A.), at paras. 6-8 (leave to appeal refused [2005] S.C.C.A. No. 408); Williams (2008), at paras. 58, 70; see also, R. v. Wiens, 2016 BCCA 34, at paras. 33-53 (leave to appeal refused [2016] S.C.C.A. No. 189); R. v. Krasniqi, 2012 ONCA 561, at paras. 61-66.
Whether the “Beaking Off” Evidence Should be Admitted
[56] A natural starting point is review of what evidence about the deceased is likely to emerge in the prosecution case itself.
[57] The deceased was a physically large individual described by Theo as “big” and as a “heavy weight”. He was an alcoholic who drank on a daily basis. He had a habit of drinking in a ravine by the Woodchester Mall Shopping Centre. On August 7, 2015, he was drinking alcohol. Whether he drank alcohol at home in the morning is unknown. He had an open beer at a bus stop before consuming more beer in the ravine with Julien Theo. When Theo came upon his friend’s body, he thought he may have fallen down drunk. The deceased’s blood/alcohol level at death was 134 mg. alcohol/100 ml. blood.
[58] Based upon Jack Gallant’s information, the deceased was loud and obnoxious asking the applicant and Gallant if they had any weed. After receiving a negative rely, he deliberately and unexpectedly touched the applicant’s shoulder leading to the deceased and the applicant standing facing one another in close proximity, loudly uttering insults and challenges to start a fight while physically “nudging” one another.
[59] Gallant’s observations led him to testify at the preliminary inquiry that a brief time period after the deceased had walked to the mall, the deceased again resorted to shouting, from a distance, insults toward the applicant, egging him on and apparently trying to start something again. The deceased advanced toward the applicant’s position leading Gallant to believe that he intended to engage the applicant once more.
[60] The anticipated evidence of the applicant is that the deceased came toward him yelling and that he defended himself during a physical altercation. An injury to the deceased’s left hand is consistent with his use of that hand to strike another person.
[61] The substance of Theo’s description of the beaking off behaviour of the deceased was that his friend would loudly say silly or stupid things to random strangers including at the location of the path proximate to the mall. The episodes were brief.
[62] Turing to the relationship between the deceased and Julien Theo, they resided together in August 2015 and Theo considered the deceased to be one of his “best friends”. When he learned, at the scene of the stabbing, that his friend had died, he punched a garbage dumpster in anger injuring his hand. It is evident from Theo’s August 7, 2015 video statement to the police that he feels a degree of guilt for being apart from his friend when the deceased met up with the applicant.
[63] Apart from the influence of his relationship with the deceased, and any feelings of guilt harboured as a result of being separated from him at the time of his death, there may be reason to question whether Theo minimized the circumstances of the deceased’s beaking off episodes. For example, although Theo maintained at the preliminary inquiry that the beaking off occurred infrequently, he had related to the police that his friend had “a tendency to beak too much” and that it had happened “so many times” that he could not remember them all. Such a characterization suggests behaviour which was repetitive and not remote in time. Cross-examination of the witness at the preliminary inquiry also raised the prospect that the beaking off may have exhibited a level of aggression, threat, or serious intimidation beyond harmless loud-mouthing and annoyance to others. For example, there were occasions of beaking off when his “big” friend “scared” people. At times, Theo would try to get in the middle of it to try to “calm” the situation which he was “pretty much” able to accomplish. Theo told the police that his friend didn’t mind taking a punch and was “into beef[s]” with others “[a]ll the time”.
[64] The prosecution case itself evidences aggressive and provocative behaviour on the part of the deceased on August 7, 2015 as described by Gallant which, taken at its most unflattering level, reflected preparedness on the deceased’s part, after consuming alcohol, to insult, and engage in a fight with, the applicant. The beaking off evidence, indicating that the deceased, having had alcohol to drink, had a propensity for loudness and vocalization leading to potentially scary confrontation and beefs requiring Theo’s intervention to diffuse the situation or to calm matters down, may be seen as minimally supportive of the deceased’s aggressive nature, at times, when drinking, including on August 7, 2015. The evidence is therefore logically relevant to whether the deceased was the aggressor or may have presented a threatening risk for violence to be assessed by the applicant without regard to the issues of whether the applicant actually held a subjective perception of significant physical harm, or whether he unreasonably assessed the risk in the sense of the killing being excessive or unnecessary to preserve himself from significant physical harm or death.
[65] Turning to the prejudice prong of the admissibility equation, Julien Theo is a Crown witness and no particular distraction, delay or protraction of the trial would be occasioned by admission of the beaking off evidence led through this witness. The beaking off evidence, unlike perhaps evidence of a deceased’s prior criminal record for violence, is low-weight discreditable conduct without any elevated risk of attracting impermissible reasoning prejudice respecting the deceased. As accepted by Ms. Shemesh, if admitted, the prosecution would be at liberty to introduce offsetting evidence of the deceased’s peaceable disposition including Gallant’s lack of concern for the applicant’s safety, and Theo’s evidence that the deceased was fine on August 7, 2015, that the deceased was “[e]xtremely harmless”, that he and the deceased were “nice people” who did not carry weapons, and that his friend was not known to encourage fights or engage in punch-throwing.
[66] In the end, the triers of fact may conclude that the beaking off evidence provides little or no meaningful context for understanding the applicant’s claim of self-defence. Be that as it may, it cannot be said that the evidence is not at least capable of being marginally relevant for the purpose for which it is tendered.
[67] As well, the trial judge will instruct the jurors as to the limits of their ability to consider the beaking off evidence so that that evidence is not misused.
CONCLUSION
[68] This ruling is in a sense, contingent or conditional, as trial evidence has not been led at this point before the triers. By statute (Criminal Code, s. 551.3(4)) and by jurisprudential authority (Murphy, at para. 4; Hamilton, at paras. 68-9; Jackson, at para. 15), there is recognition that, in limited circumstances, a ruling of this type may need to be revisited intra-trial.
Hill J.
Released: November 6, 2017
CITATION: R. v. Golov, 2017 ONSC 6672
COURT FILE NO.: CRIMJ(P) 1931/16
DATE: 2017 11 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
SEM GOLOV
RULING
Hill J.
Released: November 6, 2017