CITATION : R v. Gary White, 2017 ONSC 7279
COURT FILE NO.: 17-002
DATE: December 6, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Vincelli, for the Crown
Applicant
- and -
GARY WHITE
S. Smordin, for the defence
Respondent
HEARD: November 27, 28, 2017
The Honourable Mr. Justice H.S. Arrell
REASONS FOR JUDGMENT RE: SCOPELITTI APPLICATION
INTRODUCTION:
[1] Mr. White is charged with the second degree murder of Joseph Colson on March 28, 2016 in the City of Hamilton.
[2] The Defence has brought a Scopelliti Application seeking to tender evidence regarding the reputation of the deceased for violence. The Crown is opposed on the basis that the evidence sought to be called is not reliable, speculative at best, and is not probative of a propensity for violence.
FACTS:
[3] The deceased was found mortally wounded outside his apartment door. He went vital signs absent while being transported to hospital. It is clear from the scene pictures and autopsy pictures that Mr. Colson had been violently killed with 21 various stab type wounds. Large amounts of blood were visible on the floors and walls where the death occurred.
[4] Surveillance video was obtained that showed a suspect entering the building at about 4:55 p.m. carrying a dark coloured back pack style bag. The suspect was then observed running from the apartment at 5:01 p.m. without the bag.
[5] A search of the victim's apartment recovered a black back pack which contained personal identification of Gary White. Investigation revealed that White was Colson's cousin.
[6] A male, matching the description of the accused, was picked up by taxi near the scene shortly after the death occurred. He claimed he was just in a fight to save his life with a big guy who was trying to take his girlfriend.
[7] The taxi took White to his friend Jeff Taylor’s apartment where he got a change of clothes. He and Mr. Taylor then attended at a ravine behind Mr. Taylor’s apartment building and proceeded to burn clothing.
[8] Forensics Detectives conducted a search of the fire scene and located charred remnants of a blue pocket style knife, a hatchet, a jacket, jeans and a belt. These items were submitted the Centre of Forensic Sciences and tested for biological evidence. The victim's DNA was located on the metal head portion of the hatchet.
POSITION OF THE PARTIES:
[9] The Applicant submits that in all likelihood, key issues at his trial will be the partial defence of provocation and complete defence of self-defence. As such he wishes the opportunity to put forward evidence from five witnesses, two occurrence reports, and the deceased’s criminal record to show the alleged violent nature of the deceased, his reputation as a violent individual with a short temper and aggressive disposition. The defence points out that the accused and the deceased were related and close and as such the reputation of the deceased would be well known to the accused.
[10] The Crown argues that the evidence proposed to be called is mere innuendo, speculation, and completely unreliable. The evidence, says the Crown, does not show the deceased to have a violent disposition and is highly prejudicial to the Crown case with little probative value.
THE LAW:
[11] Under S. 34(1) of the Criminal Code, a person is not guilty of an offence if:
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the or;
(c) the act committed is reasonable in the circumstances.
[12] In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to the following factors listed under s. 34(2):
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use of threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was unlawful.
[13] In R v. Scopelliti (1981), 1981 1787 (ON CA), 63 CCC (2nd) 481 Martin J.A. stated as follows at page 496:
“It is well established that where self-defence is raised evidence not only of previous assaults by the deceased on the accused, but also of previous acts of violence by the deceased, known to the accused, towards third persons, is admissible to show the accused’s reasonable apprehension of violence from the accused. Evidence of the deceased’s reputation of violence, known to the accused, is admissible on the same principle . . .”
“Evidence of previous acts of violence by the deceased, not known to the accused, must be confined to evidence of previous acts of violence which may legitimately and reasonably assist the jury with respect to the accused’s claim of self-defence. To exclude, however, evidence offered by the accused which is relevant to prove his innocence would not, in my view, be in the interests of justice.”
[14] In R v. Cinous, (2002) SCC 29 at para. 92 the court set out the air of reality test as follows:
“This brings us to the application of the air of reality test to the facts of this case. The question to be asked is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true.”
[15] The court in R v. Petel, 1994 133 (SCC), [1994] 1 S.C.R. 3 at para. 24 stated that there was no formal requirement that the danger be imminent as that is only one of the factors to be considered by the jury in determining if the accused had a reasonable apprehension of danger and a reasonable belief that they could not extricate themselves otherwise than by killing the deceased.
[16] Murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. The test for provocation involves both a subjective and objective component. The air of reality test for provocation is the same as for self-defence, there must be some evidence that a reasonable jury, properly instructed, could acquit on murder but convict of manslaughter. This threshold test can be readily met, so long as there is some evidence that the objective and subjective elements may be satisfied. The judge should not weigh the sufficiency of the evidence. This function is reserved for the jury. See R v. Thibert, 1996 249 (SCC), [1996] 1 S.C.R. 37.
[17] The history and background of the relationship between the deceased and the accused is relevant on this issue. R v. Thibert, supra.
[18] The admissibility of evidence concerning a deceased person’s disposition toward violence is well-established. So long as the evidence is relevant to an issue in the trial and is more probative upon the issue than it is prejudicial to the prosecution’s case, it should be received. Thus, in R. v. Scopelliti, the court held that evidence of the disposition of the deceased may be relevant to a charge of murder where the accused relies on the defence of self-defence. See R. v. Scopelliti; R. v. Arcangioli 1994 107 (SCC), [1994] 1 S.C.R. 129; R. v. Varga (2001), 2001 8610 (ON CA), 159 C.C.C. (3d) 502 (Ont. C.A.).
[19] The Court of Appeal in R. v. Diu, (2000), 2000 4535 (ON CA), 144 C.C.C. (3d) 481 at para. 50 set out the test for relevancy:
“The test for relevancy is not high. In R v. Clark (1998), 1998 14604 (ON CA), 129 C.C.C. (3d) 1, Rosenberg J.A. explained: [T]he test of relevancy in the law of evidence is not an exacting one and is not dependent upon scientific proof. In R. v. L.B. (1997), 1997 3187 (ON CA), 102 O.A.C. 104 Charron J.A. quoted Paciocco & Stuesser. The authors explained that evidence will be deemed relevant “where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence.”
ANALYSIS:
[20] There are five witnesses that the defence wishes to elicit evidence from to establish the reputation for violence of the deceased and his reputation for having a hatchet near his person. The theory of the Crown is that a hatchet was involved in the killing of Mr. Colson. The defence is relying on the preliminary hearing transcripts to establish this alleged reputation of the deceased at this preliminary stage of the proceedings.
a) Jeff Taylor:
[21] The evidence the defence expects from this witness is that he was a friend of both the accused and the deceased. He knew the accused and deceased were related and close friends. He was aware that they had lived together for an extended period of time. He knew the deceased was an addict. He had witnessed him overdose on one occasion and the accused being instrumental in then saving his life. He had personally witnessed the deceased being verbally aggressive with the accused and others such that people around him would have to calm him down. He had seen him get physically aggressive towards others and the accused. The accused and others with the deceased would then try to defuse the situation. This witness was not asked, and gave no evidence of any timelines when he witnessed the above incidents.
[22] The Crown argues that the essence of this evidence is that the deceased and the accused were close friends and there is no evidence establishing the proximity of the events related by Mr. Taylor to the death of Mr. Colson and therefore should not be admitted. I disagree.
[23] The evidence of Mr. Taylor would indicate he knew the deceased had a reputation for being verbally and physically aggressive and had seen such actions personally. This evidence is admissible under Scopelitti as it meets the “not exacting test for relevancy”. It is probative on the issue of the deceased’s reputation for violence as known by the accused, and not prejudicial to the Crown who will have the opportunity to explore the evidence at trial and make such submissions as it feels are appropriate on the weight to be given to Mr. Taylor’s evidence.
b) Reginald White:
[24] Reginald White is the brother of the accused. His evidence confirms that the accused and the deceased were very close. Reginald White had known the deceased for a long time as they had grown up together and were cousins. He had worked with the deceased some 18 years earlier. He had observed Mr. Colson be both verbally and physically aggressive with other people. He was asked to relate a specific altercation and gave an example of an instance at work where he had to go and get his boss to come out and break up the altercation with Mr. Colson and two other co-workers. He was aware that the deceased had problems with drugs. He was aware that the deceased had a short temper and had experienced it personally. He was told by the deceased that he had once beat someone with a baseball bat. He also stated that Mr. Colson was somewhat paranoid and unpredictable. These behaviours had been constant and consistent for a very long time. He also indicated that he had last been physically in Mr. Colson’s presence some 10 years earlier and his evidence regarding his reputation were based on observations of at least 10 years earlier.
[25] The Crown argues Mr. Reginald White’s evidence is too distant in time from the crime to be reliable as to the reputation of the deceased now. The Crown relies on R. v. Jackson 2013 ONCA 532 where the court found a conviction 4 years prior to the murder was too dated in proximity to the offence. However, the court in that case also found that the conviction did not go to violence and was not admissible on that basis as well. In Jackson the court was dealing with the deceased’s criminal record for acts of violence. The case at bar is distinguishable in my view as we are dealing with the reputation for violence of the deceased in the community as might be known by the accused that has been acquired over a long period of time. I would allow the evidence.
c) Mark Robertson:
[26] This witness is 47 years of age and has known the accused since they were teens. He was aware that Mr. Colson had a drug issue and had seen him use drugs. He had seen Mr. Colson be verbally confrontational with people. He had consistently always had a short fuse. If people did not agree with him they might have a fight. He had a safety issue with Mr. Colson. He recalled seeing Mr. Colson get physical with the accused on an occasion when the accused was trying to evict the deceased from his apartment, although his details on this event were less than precise. All of these observations he felt had occurred within a year of Mr. Colson’s death.
[27] The Crown again suggests that there is no real evidence of violence and what evidence there is from this witness, is vague. I disagree. Mr. Robertson’s evidence is consistent with the other witnesses that Mr. Colson had a short fuse and could be both verbally and physically aggressive and he feared for his safety when around him because of his unpredictability. The evidence of this witness is relevant and probative under Scopelitti on the issue of the deceased’s reputation.
d) Natasha MacLean:
[28] This witness is 21 and the daughter of Mr. Colson and thought of the accused as her uncle. Her evidence at the preliminary hearing would seem to indicate that she would visit her father regularly, he often bought fancy knives and always kept a hatchet on his bedside table which she saw whenever she was in his apartment. She also was aware of her father’s issue with drugs. In her KGB statement she indicated she didn’t know her father very well. She thought he may have once belonged to the Hell’s Angels but was far from sure on that point. She also made a vague comment that she had heard her father was abusive to her mother but she never saw any such activity.
[29] The Crown again argues that this evidence is vague and unreliable. I agree with regard to evidence regarding the Hell’s Angels. It is mere speculation and the worst form of hearsay. It will not be admitted. Likewise the evidence regarding abuse of her mother is likewise hearsay and in fact not witnessed by Ms. MacLean. I have not heard any reason why the former wife of Mr. Colson cannot give evidence herself on this issue if required. The evidence of the spousal abuse will not be admitted. The evidence of seeing the hatchet on her father’s bedside table when she visited him regularly is admissible since it is the Crown’s theory that a hatchet was used in this offence.
e) Sandra Page:
[30] This witness is 49. She knew Mr. Colson through the accused. She had known him for a few years. She had been at Mr. Colson’s apartment and had observed a “little axe” on the table by his bed. She was scared when she saw it and asked him why he had it. He had stated to her that he would use it if he had to. She had witnessed him being verbally aggressive with others. Whenever she saw him he was yelling at someone or being nasty. She was afraid of him. He told her once of running someone off the road with his motorcycle and didn’t care if he killed the person or not. She took these comments seriously. She saw him use drugs and she felt his short temper got worse with the drug use. She witnessed quick mood changes from happiness to anger with Mr. Colson. In re-examination the motor cycle she spoke of, was in fact an ebike, driven by Mr. Colson and the person he ran off the road was on another ebike. She had no information as to whether there were any injuries.
[31] I conclude this evidence is admissible as showing an aggressive temperament such that this witness was afraid of Mr. Colson. It further confirms the presence of the hatchet in his home.
f) Criminal Record:
[32] Mr. Colson had a criminal record for assault which the defence would like admitted as showing a propensity for violence. The record also includes, at the same time, convictions for property offences. The deceased received a sentence of probation for 12 months. I have no evidence as to the details of this assault. The Crown objects to the tendering of the record on the basis it is 4 years prior to the offence and is therefore dated according to Jackson. Further, the Crown argues that the assault must have been extremely minor if the penalty was probation for 12 months and therefore would not be probative of evidence showing a propensity for violence.
[33] The assault is a crime of violence, unlike in Jackson. I have no evidence as to the seriousness of the assault. I conclude the record should be admitted for completeness and the Crown can elicit evidence as to the degree of violence, if any, that was involved.
g) Occurrence Reports:
[34] There are two occurrence reports regarding the deceased which the defence wishes to refer to at the trial on the basis that they show a pattern of violence. The Crown is opposed, arguing the reports do not show any pattern of violence and are mere contacts with the police, and not even charges, never mind convictions. Further, both reports will consume court time out of proportion to the probative value of the alleged evidence.
[35] The first report is dated May 19, 2004. A witness driving alongside the deceased witnessed what he thought was a verbal argument between the deceased and a female, and the deceased was waving around a hatchet. The witness waved at the vehicle to stop which it did and the female who was the deceased’s wife, indicated they were separating and having an argument. She was in no danger, was not threatened and had no fear of the deceased as he was never violent. He had just purchased the hatchet and it had a rubber guard on it. He was oblivious as to how his actions would look. The police investigated further; they confirmed there were no threats of any kind and no violence.
[36] I conclude that this occurrence report does not disclose any violence or threats of violence. The report is dated almost 12 years prior to this offence. It is of very little probative value and will not be admitted into evidence.
[37] The second occurrence report the defence wishes to rely on is dated August 3, 2014. It involved the deceased having an argument with his daughter and her boyfriend. Initially the deceased indicated while arguing with them, that the boyfriend assaulted him and then ran away. The daughter told the police the deceased “threatened to smash her head in”. She further stated the deceased caught up with her and her boyfriend on the street and he appeared like he was about to hit the boyfriend. It appears there was then shoving and pushing between the two with the boyfriend running away.
[38] I conclude this report appears to confirm threats of violence against the deceased’s daughter by him. It is recent in time to his death. It will consume very little extra trial time. The defence will be able to question the daughter on this incident and use this report.
CONCLUSION:
[39] The defence will be able to elicit evidence going to the character of the deceased as stated in this decision. I have concluded that while the Crown arguments on each individual piece of evidence have some merit when all of the evidence from the five witnesses, the conviction and one occurrence report are considered as a whole there is evidence, if accepted by the jury, capable of allowing them to conclude that the deceased was known to have a hatchet in his home, was unpredictable, was paranoid especially when on drugs, which he often was, and was aggressive both verbally and physically.
[40] As was stated in Diu, certainly at this stage of the proceedings, the test for relevancy is not high.
[41] As Major J. stated in R v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129:
The proposition is unquestioned that evidence which is logically probative may be excluded where its probative value is slight but its prejudicial effect upon the fair trial of the accused is great. However, courts are reluctant to exclude evidence offered by an accused in his defence: R v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, per McLachlin, at p.611:
Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted.
[42] The accused knew the deceased well and had known him for many years. Clearly he would be well aware of the personality traits of the deceased. I have not yet heard what evidence there may be on the issue of provocation or self-defence. It will be at the end of the trial as to whether there is an air of reality to those defences, and whether they will be put to the jury.
[43] I make no determination on the issue as to whether the Crown can lead character evidence of the accused as that issue is not before me. Likewise, I make no order as to how exactly the evidence of the deceased’s character will be put before the jury. I will hear submissions on that issue if counsel are unable to agree on a methodology.
Arrell J.
Released: December 6, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
James Vincelli
- and –
Gary White
Sandee Smordin
REASONS FOR JUDGMENT
HSA
Released: December 6, 2017