CITATION: R. v. Bush, 2017 ONSC 7426
COURT FILE NO.: 15-2310
DATE: 20171212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
IAN BUSH
Respondent
James Cavanagh, for the Applicant Crown
Geraldine Castle-Trudel and Howard Krongold, for the Respondent
HEARD: November 24, 2017
Ruling on crown application to cross-examine the accused
beaudoin j.
[1] Ian Bush is charged with the December 18, 2014 robbery, forcible confinement and attempted murder of Ernest Côté. Earlier this year, he was convicted of a triple murder which occurred in 2007.
[2] The facts of the triple murder are these. Ian Bush travelled by public transit to 1550 Riverside Drive where he gained entry to the condominium building of the victims who were senior citizens. He posed as a courier to enter their apartment. Mr. Alban Garon was tied up, bludgeoned and then suffocated with a plastic bag. Mrs. Garon and the couple’s friend, Marie Claude Beniskos, (also a senior) where hogtied and suffocated by plastic bags placed over their heads. Credit cards belonging to Mr. and Mrs. Garon were stolen.
[3] In the December 18, 2014 allegations, Ian Bush is alleged to have committed a strikingly similar offence. The Crown has presented evidence that Mr. Bush took public transit to a condominium owned by a senior citizen, Ernest Côté. He entered the building by posing as a City of Ottawa worker. According to the victim, when the male knocked at the door, he demanded money. When Mr. Côté refused, the male pushed him into the apartment and bound his arms behind his back with duct tape.
[4] The intruder then removed a credit card from the victim’s wallet. He then covered Mr. Côté’s mouth with duct tape and placed a plastic bag over his head. He then wound duct tape around Mr. Côté’s neck to seal the bag. The intruder left the apartment with Mr. Côté’s credit card. Ernest Côté survived. He was able to free one hand, go to his bedroom, find a pair of scissors and puncture the plastic bag over his head.
[5] At the murder trial, the Crown brought a similar fact application to admit the evidence of Mr. Bush’s alleged involvement in the robbery and attempted murder of Ernest Côté to help prove the triple murder. That application was dismissed by Justice McKinnon who concluded that the evidence was too prejudicial to be allowed despite its probative value. A similar fact application brought by the Crown to admit the evidence of the triple murders in this case was also dismissed by me for similar reasons.
[6] Immediately after the release of my decision, Defence counsel and Mr. Bush were alerted that, should Mr. Bush testify to the effect that he did not understand the deadliness of a bag fastened over someone’s head, the Crown would seek to cross-examine on his conviction for suffocation murders by means of a plastic bag. At Defence request, I indicated, without prejudging, a preliminary inclination to permit such cross-examination.
[7] At the close of the Crown’s case and in advance of his application pursuant to R. v. Corbett 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, Mr. Bush indicated that he would testify as to the events of December 18, 2014 much in the same way that he described them to the forensic psychiatrists at the Royal Ottawa Hospital when they conducted assessments of his criminal responsibility on February 6, 2015.
[8] In his disclosure to the psychiatrists, Mr. Bush stated that he had no plan to rob any person in particular, that he had brought duct tape from his home; that he always carried a plastic bag with him for shopping and that he had taped the plastic bag around Mr. Côté’s neck ensuring that there would still be an opening by speaking to him and that he was satisfied that his victim could still breathe. He described this as a plan that he had conceived of the night before since he needed money for shopping and also that this was a theory that he wanted to test out.
[9] In his Corbett application, Mr. Bush sought to prevent the Crown from cross-examining him regarding the murder convictions. His counsel submitted that the modest probative value of the record with respect to his credibility was overwhelmed by the extraordinary potential for prejudice.
[10] I dismissed that application and concluded that Mr. Bush’s credibility as to the events of December 18, 2014 was of crucial importance. Mr. Côté was not available to testify. The fact that Mr. Bush had been convicted of three murders was highly probative. I concluded that a serious imbalance would arise if the jury believed that Mr. Bush had an “unblemished past.” The probative value of Mr. Bush’s record outweighed any prejudice and any prejudice could be addressed through a properly worded instruction.
[11] When the Defence indicated that it would bring the Corbett application, Crown counsel gave notice that he would oppose that application and seek to further cross-examine Mr. Bush on the underlying salient facts of the 2007 triple murders.
[12] The Crown acknowledges that I ruled that it could not lead evidence of the 2007 murders as part of its case in chief; a ruling that has been carefully respected throughout its case in chief. The Crown submits that should Mr. Bush choose to testify, this will occasion a material new circumstance. The Crown seeks to cross-examine him on the salient facts underlying the criminal conviction in the goal of demonstrating his prior knowledge of the deadliness of suffocation by plastic bags.
[13] The Crown submits that without a ruling permitting it leave to cross-examine on those facts, the palpably false and self-serving distortions of the truth in the accused’s anticipated evidence cannot be effectively challenged.
[14] The Crown submits that the best evidence of Mr. Bush’s knowledge of the outcome of affixing a plastic bag over a person’s head, is the evidence of the three murders he committed in 2007 wherein he suffocated three people with plastic bags.
[15] The Crown argues that this is one of the clearest of cases justifying leave to cross-examine on past misconduct. In the absence of such leave, the jury will be misled. The truth seeking function of the trial, “the public interest that getting at the truth”, will be seriously compromised. The Crown relies on case law that provides that testimony of an accused may constitute a material change in circumstances such that a previous evidentiary ruling may be revisited.
[16] Moreover, the Crown maintains that it should be able to cross-examine on the evidence having regard to trial fairness. It further submits that the weight given to the prejudice must be reassessed at this particular point in trial and that any potential prejudice to the accused can be cured by a proper mid-trial instruction to the jury.
[17] The Defence argues that the substance of any possible evidence to be given by Ian Bush was known to the Crown at the time of my similar fact ruling and that Mr. Bush’s decision to testify is not a material change that would justify the Crown’s attempts to introduce the similar fact evidence in cross-examination.
[18] The Defence cites paragraph 42 of my similar fact ruling where I said:
The Crown argues that without the information what Ian Bush did in 2007, the jury will be left with the fact that Ernest Côté had tape put over his mouth had a bag pulled over his head with tape wound around the bag and that Bush then left the apartment. The Crown anticipates some obvious arguments; that Bush could have choked or struck Côté if he wanted to kill him or that Bush merely wanted to immobilize him as he went to leave.
[19] The Defence argues that the Crown knew what the accused would say if he testified and that the Crown should have put the substance of that evidence before the court when it argued the similar fact application.
The Law
[20] The issue of revisiting a pre-trial ruling was carefully considered by R. A. Clark J. in R. v. Gager 2012 ONSC 2697, CarswellOnt 5750, where he had to decide if he should revisit his pre-trial ruling concerning two letters the accused (Gager) had authored while awaiting trial. Gager had brought an application to preclude the Crown from adducing those letters. Clark. J. allowed the application, in part, ordering that the letters be significantly redacted. After reconsidering the matter in the light of Gager’s testimony, the judge decided to permit the jury to consider certain additional portions of the letters, which he had earlier ordered redacted. In delivering a written ruling later, the judge extensively reviewed the relevant case law.
[21] In citing R. v. Underwood,[^1], Clark J. accepted as a general proposition that defence counsel are entitled, to some reasonable degree, to rely on the court’s rulings in terms of deciding how to defend against the crown’s case. He went on to say later in the same paragraph:
…That having been said, it is trite to observe that evidentiary rulings in a criminal trial are not immutably cast in stone, as it were: R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707.
[22] At paragraph 84, he went on to cite Adams, where at the conclusion of paragraph 29 of that decision, Sopinka J. stated:
…As a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the time the order was made have materially changed. In order to be material, the change must relate to a matter that justified the making of the order in the first place. [Emphasis added.]
[23] Clark, J. further concluded at paragraph 86:
86 In order to be considered material, so as to justify revisiting an earlier ruling, “the change of circumstances would have had to be one which altered the balance between the prejudicial effect and the probative value of the evidence in question”: R. v. Sessions, [1996] A.J. No. 1055 (C.A.), at para. 13.
[24] Clark, J. then cited the following cases at paragraphs 92 and 93:
92 In R. v. Harris, 1997 CanLII 6317, [1997] O.J. No. 3560 (C.A.), at para.37 ff., Moldaver J.A., as he then was, stated:
This illustrates the dilemma that trial judges face when they are called upon to make evidentiary rulings on a record that is fragmented and incomplete. In these situations, trial judges rely heavily on counsel to supply the missing links needed to arrive at a proper ruling. If counsel are less than diligent in their task or even worse, less than forthright, this is likely to skew the trial judge's reasoning process and result in rulings that later prove to be legally unsound, thereby raising the prospect of a mistrial.
Given the vagaries that all too often exist when trial judges are asked to make "advance" evidentiary rulings, it seems to me that as a matter of prudence, apart from perhaps stating a tentative view, trial judges should resist making final rulings until such time as they are required to do so. Experience suggests that as the trial progresses, issues raised at the outset of the proceedings have a tendency to either disappear or get resolved. Those that remain outstanding are likely to be brought into much sharper focus as the evidence unfolds. To be certain, where the proposed evidence is likely to have a significant impact on the outcome of the trial, an ounce of prevention is worth a pound of cure and trial judges would be well advised to refrain from making conclusory rulings until such time as they are required to do so. (internal citations omitted)
93 In R. v. Savojipour, (2006), 2006 CanLII 3458 (ON CA), 79 O.R. (3d) 418 (C.A.), the appellant appealed his conviction for murder. Although the accused had led the police to the severed head of the deceased, the trial judge initially ruled that the accused had been conscripted against himself and, as a result, the prosecution could not adduce evidence of having discovered the head. The trial judge was later asked to revisit that ruling when, in the course of cross-examining, the pathologist, defence counsel asked the doctor about having taken oral swabs. Although satisfied that defence counsel’s reference to the head was inadvertent, the trial judge nonetheless allowed the Crown to adduce the previously excluded evidence. In upholding the trial judge’s decision, the Court of Appeal stated at paragraph. 15:
In our view, the conduct of the defence gave rise to a material change in circumstances that justified a reversal of the earlier ruling…The evidence that had initially been excluded in order to preserve the fairness of the trial was now admitted to restore the fairness of the trial process. There was clearly a risk that the jury might be misled or presented with a distorted picture. The argument that the “sins” of defence counsel were improperly visited upon the client is not valid. Absent a finding of ineffective assistance of counsel, which is not suggested here, the client is fixed with the steps taken in furtherance of his defence.
[25] Clark, J. concluded that Mr. Gager had effectively changed his strategy based on his earlier ruling. He went on to say at paragraph 97:
97 Mr. Fishbayn was entitled to rely on the earlier ruling as a shield against potential prejudice to his client, but when Mr. Gager effectively sought to convert the ruling into a sword by creating for the jury an arguably counterfactual picture of his involvement with the gang, he ran the risk that the ruling would be revisited at the instance of the other parties in order to offset any potential to mislead the jury engendered by the substance of his evidence to that point. (emphasis mine)
[26] In this case, the Crown could not disclose the contents of the protected psychiatric reports nor could the Crown have any confidence as to what evidence Mr. Bush would provide if he chose to testify two years later. The full extent of Mr. Bush expected evidence was brought into sharper focus when defence counsel detailed the nature of the evidence that he was expected to give; namely that this was not a planned home invasion and that Mr. Bush was simply “testing a theory” and had no knowledge of the deadliness of suffocation by plastic bags. As noted in both Sessions[^2] and Hong[^3], a material change in circumstances, in the context of rulings based on probative value and prejudicial effect, is a change that has altered or impacted the balancing in a manner sufficient to warrant re-examination. This is what happened here.
[27] In Niemi[^4], [2008] O.J. No. 4621, at paragraph 14, the court concluded that where an accused testifies as to matters in issue and there is a risk of that the jury will be misled, the Crown may use previously excluded evidence to challenge the accused’s assertions.
[28] Immediately after my similar fact ruling, Defence was put on notice that the Crown would seek to revisit it should Mr. Bush testify. Rulings excluding evidence preserve the right to a fair trial. They temporarily set aside the truth that could damage the integrity of the trial rather than permanently distorting the truth. In contrast, the impact of prohibiting cross-examination by the Crown on provable falsehood would be to distort the truth and put “blinders over the eyes of the triers of fact.”[^5]
[29] I agree with Clark J.’s conclusion in Gager that the defence is entitled to rely and evidentiary rulings as a shield against potential prejudice, but the defence should not be permitted to use these rulings as swords in constructing their defence; to distort the truth and to mislead the jury. To do so would permit an accused to take advantage of the court. As I held in my ruling on the Corbett application, any potential prejudice to the accused can be mitigated by a proper mid-trial instruction.
[30] For these reasons, the Crown’s motion to cross-examine the accused on the underlying facts of his prior convictions is granted.
Mr. Justice Robert N. Beaudoin
Released: December 12, 2017
CITATION: R. v. Bush, 2017 ONSC 7426
COURT FILE NO.: 15-2310
DATE: 20171212
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
– and –
IAN BUSH
Respondent
ruling on crown application to cross-examine the accused
Beaudoin J.
Released: December 12, 2017
[^1]: R. v. Underwood, 1998 CanLII 839 (SCC), [1998] 1 S.C.R. 77, at para. 83
[^2]: R. v. Sessions, (1996), A.R. 121 (C.A.), at para. 14
[^3]: R. v. Hong, 2015 ONSC 5454, at para. 14
[^4]: R. v. Niemi, [2008] O.J. No. 4621, at para. 14
[^5]: Language used by Smith J. in R. v. Rouschop (unreported)