ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ZACHARY TORCASO
-and-
DERECK MAIONE
Mr. D. Didiodato, Counsel for the Crown
Mr. E. McCooeye, Counsel for Zachary Torcaso
Mr. M. Bennett, Counsel for Dereck Maione
HEARD: January 24, 2017
VARPIO J.
REASONS ON THIRD PARTY SUSPECT, SELF-DEFENCE AND DURESS
1These reasons deal with the following issues:
a) Mr. Torcaso’s request to leave the jury with the defence of third-party suspect;
b) Mr. Maione’s request to leave the defence of duress with the jury; and
c) Mr. Maione’s request to leave the defence of self-defence with the jury.
2In this case, the evidence was that two men entered Mr. Gridzak’s home. The Crown theory was that the first person in the home was Mr. Torcaso, who broke through the front door and assaulted Mr. Gridzak. The second person to enter the house was, as per the Crown theory, Mr. Maione. Mr. Maione allegedly entered the front door in possession of a knife and made his way into the kitchen where he, inter alia, spoke with Mr. Adam Pettenuzzo. The defence called no evidence after the Crown finished its case.
3Mr. Torcaso’s counsel submitted that the Crown had not proven beyond a reasonable doubt that Mr. Torcaso was the suspect that broke into the house. In support of this position, Mr. Torcaso asked the jury to consider the possibility that Mr. Alex Panco was that suspect. I permitted Mr. Torcaso to put the third-party suspect defence to the jury after hearing argument prior to closing submissions.
4For his part, Mr. Maione asked the jury to consider the defences of self-defence and duress whereby the jury could infer that Mr. Maione entered the house without a knife but, once in the kitchen, he pulled the knife from a block of knives in response to a threat. These defences applied to the weapons dangerous and assault with a weapon charges.
5After closing submissions, the Crown objected to the defence’s closing arguments (which were not vetted by me a fiori) and asked for a limiting instruction. I agreed with the Crown and provided such an instruction.
6Mr. Torcaso was ultimately found guilty of breaking and entering as well as two counts of assault. He was found not guilty of uttering a threat. Mr. Maione was found guilty of Breaking and Entering1, assault with a weapon and possession of a weapon dangerous to the public.
7These are the reasons in support of my decisions regarding the three aforementioned defences.
THIRD-PARTY SUSPECT
8In R. v. Grandinetti 2005 SCC 5, the Supreme Court of Canada clarified the test outlining whether or not evidence of a third party suspect could be left with the jury. The Supreme Court of Canada stated at paragraphs 46 to 49:
46 Evidence of the potential involvement of a third party in the commission of an offence is admissible. In R. v. McMillan (1975), 1975 43 (ON CA), 7 O.R. (2d) 750 (C.A.), aff'd 1977 19 (SCC), [1977] 2 S.C.R. 824, Martin J.A. stated the simple underlying premise to be:
[I]t [is] self-evident that if A is charged with the murder of X, then A is entitled, by way of defence, to adduce evidence to prove that B, not A, murdered X. [p. 757]
However, as he explained, the evidence must be relevant and probative:
Evidence directed to prove that the crime was committed by a third person, rather than the accused, must, of course, meet the test of relevancy and must have sufficient probative value to justify its reception. Consequently, the Courts have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value. [p. 757]
47 The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation.
48 The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence: R. v. Fontaine, [page43] [2004] 1 S.C.R. 702, 2004 SCC 27, at para. 70. If there is an insufficient connection, the defence of third party involvement will lack the requisite air of reality: R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29.
49 The trial judge correctly formulated the legal test for admitting third party evidence:
The cases establish that an accused may adduce evidence tending to show that a third person committed the offence. The disposition of a third person to commit the offence is probative and admissible provided that there is other evidence tending to connect the third person with the commission of the offence.
9In the case before me, the following evidence was before the jury:
a) Nadia Crowe’s evidence that Alex Panco, Zachary Torcaso and Dereck Maione were present at the scene when the three men picked her up from Mr. Gridzak’s residence;
b) Evidence from Ryan Gridzak, Adam Pettenuzzo and Andrew Langlois that two people entered the home;
c) Ryan Gridzak’s evidence that, upon breaking down the door, the first suspect uttered words to the effect of “Give me everything you have.” There may thus have been a financial motive for the crime;
d) Nadia Crowe testified that Alex Panco was outside the house throwing garbage cans at people around the time of the incident;
e) When he was arrested, Zachary Torcaso’s clothing did not match the clothing of the first person that entered the home;
f) The clothing (jacket) that Mr. Torcaso was wearing upon arrest had Mr. Gridzak’s DNA on it. Mr. Bissonette (the CFS expert) testified that: (a) the substance appeared to be blood; but (b) he could not draw any conclusions about how the blood got on the jacket; and
g) Mr. Gridzak’s evidence that he went outside the house post-assault in order to get the assailant out of his house. Mr. Gridzak was bleeding profusely as a result of having been assaulted.
10As regards Mr. Torcaso’s charges, identity was the major issue. The Crown’s identity evidence was largely based upon:
a) Eye-witness accounts of two witnesses (Mr. Gridzak and Ms. Crowe) whose recollections were clouded by alcohol and/or the passage of time; and
b) The DNA evidence described above.
ANALYSIS
11Accordingly, the inference that Mr. Panco was the person who broke into the home (as opposed to Mr. Torcaso) was not speculative but was an evidence-based inference available to the jury. In other words, said inference contained an air of reality. The eye-witness ID evidence of Ms. Crowe and Mr. Gridzak was subject to considerable cross-examination. The DNA evidence was not, as per Mr. Bissonette, determinative of whether Mr. Torcaso entered the home. Mr. Panco was, according to Ms. Crowe, at the scene and the evidence suggests that two of the three men in Mr. Torcaso’s party entered the house. Further, Ms. Crowe suggested that Mr. Panco was involved in aggressive behavior outside the home. The jury could thus have found that Mr. Panco’s aggressive state of mind was consistent with breaking and entering. Finally, assuming Mr. Panco went in the house while Mr. Torcaso remained outside, Mr. Gridzak’s blood could have been transferred to Mr. Torcaso’s jacket when Mr. Gridzak exited the home. As such, the defence of third-party suspect was left to the jury to consider since, in my view, the evidence about Mr. Panco’s possible involvement in the crime was such that the “sufficient connection” test in Grandinetti was met.
SELF-DEFENCE AND DURESS
12In answer to the charges of weapons dangerous and assault with a weapon, Mr. Maione asked the jury consider the defences of self-defence and duress. Specifically, counsel asked the jury to infer that Mr. Maione entered the house without a knife. The jury could make this inference, per counsel, by accepting only that portion of Adam Pettenuzzo’s evidence that suggested that Mr. Pettenuzzo saw the knife in the kitchen. Further, counsel asked the jury to infer that Mr. Maione pulled the knife from a kitchen block in response to: (a) a threat posed by Mr. Pettenuzzo; or (b) the threat of being locked in the house.
13These defences were not left with the jury because:
a) There was no evidence (direct or circumstantial) from which the jury could infer that the knife in question was drawn from a block of knives in the kitchen; and
b) There was no evidence (direct or circumstantial) to suggest that the knife was drawn in response to a threat.
14Accordingly, on the facts of this case, the defences had no air of reality.
THE LAW
15Sections 17 and 34 of the Criminal Code of Canada read as follows:
- Compulsion by Threats A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons). R.S., 1985, c. C-46, s. 17; R.S., 1985, c. 27 (1st Supp.), s. 40.
Defence - use or threat or force- s. 34 (1) 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 other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) 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:
(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 or 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 lawful.
16In order to leave self-defence and duress with a jury, said defences must possess an “air of reality” as per R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at pp. 30-31. The air of reality test requires that there be “evidence on the record upon which a properly instructed jury acting reasonably could acquit”: Cinous, at p. 29.
17It is trite to say that trial judges have an obligation to put all available defences to a jury. Instances may arise, however, where the evidence may not support all aspects of a given defence. In R. v. S.M. 2012 ONCA 255, the trial judge was faced with a situation where the evidence made clear that the accused and his friends entered a bus and approached the victim at the back of the bus. Someone asked the victim for a cigarette and the victim denied the request. The accused became aggressive and brandished a knife. The victim attempted to get the knife from the accused and the accused stabbed the victim to death.
18The accused gave an out-of-court statement whereby the accused stated that he was fearful for his life and, as a result, stabbed the victim in self-defence.
19The Ontario Court of Appeal (at paragraphs 16 to 18) described the trial judge’s refusal to allow the jury to consider self-defence and encapsulated his reasons as follows:
In a written ruling released several weeks after the trial, the trial judge provided more elaborate reasons that reiterated the same conclusion.
None of the evidence allows for an inference that S.M.’s stated subjective perception was objectively reasonable. There would have had to have been some direct evidence or indirect evidence allowing for an inference that S.M. could reasonably perceive that Michael Oatway was assaulting him or attempting to assault him. In this case, in my view, this evidence simply did not exist.
The trial judge ruled that there was no air of reality to self-defence under s. 35. He found that there was “no objective evidence that the accused had a reasonable apprehension of death or bodily harm”. In his written ruling, he stated: “there is no evidence at all to support the final element contained in s. 35 that S.M. declined further conflict and quitted or retreated from it as far as it was reasonable to do so before the necessity of preserving himself from death or grievous bodily harm arose.”
The trial judge concluded his discussion of self-defence as follows:
I am mindful of the important principle that every available defence should be put to a jury in a criminal case. It can never be clearer than in a first degree murder trial. However, there are cases where the overall perception or logic of putting a defence to a jury should come into consideration. In this case, apart from the evidence already referred to, the jury was aware of the following facts:
Michael Oatway was an innocent passenger on a city bus.
Four individuals proceeded to the back of the bus and one of the individuals accosted him with a knife.
Michael Oatway was 5’6 and weighed 123 to 128 pounds. The accused was 5’6 and weighed 141 pounds with a muscular and athletic build.
The entire matter lasted about three minutes.
Michael Oatway was alone minding his own business and listening to an iPod.
Despite several persons being present no one, including the three friends who went on the bus with S.M., could testify about Michael Oatway assaulting or attempting to assault the accused.
Michael Oatway died of a single stab wound to the heart.
There was no evidence that S.M. sustained injuries.
In view of these facts, it is inconceivable that a jury acting reasonably could acquit on the basis of a self-defence argument in this case. It seems to me that to do so would offend anyone’s basic concept of justice. [emphasis added]
20In upholding the trial judge’s ruling, the Court of Appeal made clear that the evidential basis for a defence must be contextual in that it must exist when considering all the evidence heard – and not heard – at trial. At paragraphs 28 and 29 of its judgment, the Court contrasted the facts of S.M. with the facts of R. v. McIntosh, 1995 124 (SCC), [1995] 1 S.C.R. 686 (where there was an evidential dispute as to what had happened in a case involving self-defence):
While the appellant’s out-of-court statements may be sufficient to give rise to an air of reality to the appellant’s subjective belief that Oatway [the victim] was unlawfully assaulting him, there was no air of reality to the proposition that that subjective belief was reasonable. It would be unreasonable for a person in the appellant’s shoes not to anticipate that pointing a knife at someone and threatening to rob and stab that person was likely to provoke a defensive response. It would be unreasonable to think that Oatway was not entitled to try to wrestle the knife away from the appellant. There is nothing to show that the appellant could have reasonably believed that Oatway was doing anything more than legitimately defending himself against the appellant’s attack. When considered against the background of the appellant’s own conduct towards Oatway and the evidence of the on-lookers as to a struggle to gain control over the knife, the appellant’s out-of-court utterance that Oatway was trying to kill him does not give an air of reality to the existence of a reasonable belief on the part of the appellant that Oatway was unlawfully assaulting him.
I do not agree with the appellant’s submission that this case is on all fours with McIntosh. There, while the accused was in possession of a knife, it is not clear that he threatened to stab the deceased at any point before the deceased, who he had provoked the accused with a verbal insult, came at the accused with a dolly raised at head level. On those facts, it would be open to a jury to find that the accused reasonably believed that by approaching the accused with the raised dolly, the victim was unlawfully assaulting the accused. [emphasis added]
THE KNIFE
21In this case, Mr. Maione wanted the jury to draw the inference that the second suspect (Mr. Maione) entered the house without a knife and drew the knife from a block of knives located in the kitchen. Mr. Maione’s counsel submitted that this inference (i.e. Mr. Maione drew the knife in the kitchen) was a necessary pre-condition (on the facts of this case) for Mr. Maione to present the defences of self-defence and/or duress. Counsel conceded before the jury that Adam Pettenuzzo testified that he saw the second suspect in the hallway with the knife but nonetheless asked the jury to accept only that portion of the evidence where Adam Pettenuzzo described seeing the knife in the kitchen. Counsel suggested that, given Mr. Pettenuzzo’s state of mind at the time of the incident, he could have been mistaken in seeing said knife in the hallway. Counsel then asked the jury to infer, based upon Adam Pettenuzzo’s accepted evidence, that the second suspect must have pulled the knife from a knife block located in the kitchen.
22The evidence is simply incapable of supporting such an inference. First, both Andrew Langlois and Adam Pettenuzzo testified that they saw a suspect bring a knife down the hallway towards the kitchen. Both Mr. Langlois and Mr. Pettenuzzo testified that Mr. Pettenuzzo was in the hallway when the knife-wielding suspect “backed” Mr. Pettenuzzo into the kitchen. Mr. Langlois was never cross-examined about whether he actually saw the knife in the hallway.2 The hallway in question runs from the front foyer of the home (where the suspects entered the home) into the kitchen. As such, Adam Langlois gave unequivocal, uncontroverted evidence that the knife was taken down the hallway and thus, by necessary implication, into the kitchen.
23Mr. Pettenuzzo was cross-examined about the incident but, as will be seen, not about his recollection of seeing the knife in the hallway. In cross-examination, Mr. Pettenuzzo was asked the following questions and gave the following answers:
Q. You’re unable to say for example whether he [the second intruder] was doing the same this that you were doing- trying to break up this altercation between Ryan Gridzak and the person you have called the first assailant. You can’t help us with that can you?
A. The –no- the only thing I can really offer is that when I asked him where he got the knife he told me, he brought it outside the house, I didn’t think he was in there to break anything up.
Q. It must have- why did you ask him where did you get the knife?
A. It was just at the time something I could kind of get him off from attacking me to keep asking questions, to stop things from getting physical to kind of keep the adrenaline down as much as possible as not to further intensify things.
Q. It crossed your mind that he may not have arrived with the knife, but that he may have gotten the knife in Ryan Griszak’s house didn’t it?
A. Yes it did cross my mind.
Q. Because if he’s gotten the knife in Ryan Gridzak’s house, it would be easier to ask him to put it back.
A. Yes
Q. Do you think when this is all over and you went down into the basement, did you think these two people were going to come back into the house?
A. I was not really thinking about it at the time. I was more worried about what happened to Ryan and whether the police had been called.
Q. How familiar are you with the layout of Ryan Gridzak’s house?
A. I would say fairly familiar.
Q. Is it because you have been there many, many times?
A. Yes.
Q. Have you been in the kitchen many, many times?
A. I have.
Q. Have you ever been in the kitchen when meals were being prepared?
A. Once or twice, yes.
Q. Do you know whether there is a kitchen block on the counter with knives in it?
A. I can’t say yes or no to that question.
24Importantly, Mr. Pettenuzzo was not challenged any further about this evidence. He was not asked what basis – if any – he had for questioning the knife-wielding intruder as to whether or not the latter brought the knife from outside the house. Accordingly, it is possible that there was no basis for Mr. Pettenuzzo’s thought, but that the thought simply “crossed his mind”. Further, Mr. Pettenuzzo was not cross-examined as to whether his testimony that he saw the knife in the hallway could be incorrect.
25Instead, the entirety of the evidence at trial suggests that the knife did not come from the kitchen:
a) Both Mr. Langlois and Mr. Pettenuzzo described how Mr. Pettenuzzo was confronted by someone with a knife in the hallway. Mr Pettenuzzo was then backed into the kitchen; and
b) The knife-wielding suspect admitted to Mr. Pettenuzzo that the knife came from outside the house;
c) Mr. Pettenuzzo’s evidence was that the suspect left the house with the knife. He was not cross-examined on this point; and
d) No one testified that Mr. Gridzak was missing a knife after the break-in.
26To suggest that the trier of fact could draw an inference that the knife may have been taken from the knife block in the kitchen would be entirely speculative and without an air of reality as per Cinous. While questions were asked of Mr. Pettenuzzo as to his mind-set in asking the suspect about the knife, he was not questioned about whether the knife could have been drawn from the kitchen or whether he was mistaken when he testified that the saw the knife in the hallway. Mr. Langlois was not cross-examined about seeing the knife in the hallway at all.
27This is not a situation, like McIntosh, where the evidence was equivocal on constituent elements of a defence (thus opening the door to possible inferences in support of that defence). Instead, this is a situation like S.M. where there is no evidence to support an inference beneficial to the defence. While it is true that a trier of fact can accept all, some or none of a witness’ evidence, I believe that it is also the case that the trier of fact is not entitled to distort a witness’ evidence. In this case, the fact that Mr. Pettenuzzo was “backed” down the hall by a knife wielding-suspect was unchallenged. It was corroborated by Mr. Langlois. This fact is intertwined with the evidence that Mr. Pettenuzzo spoke with that same knife-wielding suspect in the kitchen. Accordingly, the trier of fact could not find that the suspect had the knife in the kitchen without also finding that he also had the knife in the hallway. Had Mr. Pettenuzzo and/or Mr. Langlois been pressed about seeing the knife in the hallway – or had Mr. Pettenuzzo been pressed as to why it “crossed his mind” to ask the suspect about whether the knife came from inside the house, the evidential basis to establish duress or self-defence may have existed (depending upon the answers given).
28The witnesses were not asked such questions and did not give such testimony. As a consequence, there was no evidence from which a reasonably instructed jury could infer that the suspect drew the knife from the kitchen block. To hold otherwise would be to distort the witnesses’ evidence and descend into conjecture. Given that there was no evidential foundation for either defence, neither defence had an air of reality.
THE THREAT
29With respect to both self-defence and duress, there must be some evidence capable of supporting an inference that the accused reasonably believed that he was being threatened. In this instance, there was no evidence capable of supporting such a finding. Mr. Pettenuzzo’s evidence was that he was trying at all times to be conciliatory towards an aggressive suspect that entered the house with a knife. Mr. Pettenuzzo’s evidence was consistent. Mr. Pettenuzzo was not cross-examined on this point. Mr. Pettenuzzo’s credibility was not challenged. Mr. Pettenuzzo did testify that, while in the kitchen, he moved towards the suspect. There was no evidence, however, to suggest that this movement could reasonably have been interpreted as being threatening.
30There was also no evidence – direct or circumstantial – to suggest that the suspect, while he was in the kitchen, believed that the front door was locked. This suggestion was not put to the Crown witnesses in cross-examination. The Crown witnesses did not raise it in their evidence. As such, there was no evidence capable of supporting an inference that: (a) the suspect became aware that the front door was locked while the suspect was in the kitchen3; or (b) the suspect drew a knife from a knife block in the kitchen in response to this threat of being cautioned within the house.
31Thus, there was no evidence from which the jury could infer that the suspect (while he was located in the kitchen) had a reasonable belief that: (a) Mr. Pettenuzzo was threatening him; or (b) the suspect was aware that he was “barricaded” in the house. As such, there was no evidence from which the jury could infer that the knife was drawn in the kitchen in reasonable response to a threat of any sort.
32Given this lack of evidence, in my view, the defences of self-defence and duress were not available to Mr. Maione since the defences did not have an air of reality.
CONCLUSION
33I am mindful of the fact that all defences need to be put to a jury, even where the accused is the initial aggressor. However, I am also aware that said defences must have an evidential basis in order to have an air of reality as per R. v. S.M. In this case, there was no such evidential basis.
Varpio J.
Released: April 18, 2017
CITATION: R v. Torcaso and Maione 2017 ONSC 833
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and –
ZACHARY TORCASO
-and-
DERECK MAIONE
REASONS ON THIRD PARTY SUSPECT, SELF-DEFENCE AND DURESS
Varpio J.
Released: April 18, 2017
Footnotes
- I note that Mr. Maione attempted to plead guilty to being unlawfully in a dwelling house at the outset of trial (he was charged with breaking and entering). That plea was rejected by the Crown
- I note that this is in contravention of the rule in Brown v. Dunne, (1893), 1893 65 (FOREP), 6 R. 67 (H.L.)
- I note that the evidence does not even disclose that the door was, in fact, locked while the suspect was in the kitchen.