COURT FILE NO.: 15-M7871
DATE: 20180619
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
JOHN MCRAE Applicant
COUNSEL:
Marie Dufort/John Ramsay, for the Crown
Joseph Addelman/Mash Frouhar, for the Defendant
HEARD: May 28, 2018
DECISION ON SCOPELLITI APPLICATION
BEAUDOIN J.
[1] The applicant, John McRae, is charged with the second degree murder of his son, Michael McRae, pursuant to section 235 one of the Criminal Code of Canada with an offence date of July 7, 2015.
[2] The applicant now seeks to admit evidence relating to Michael McRae’s propensity to engage in aggressive and violent behaviour towards him and others.
[3] John McRae is expected to testify in this trial although the nature of that evidence remains unknown. The will-say statement of John McRae filed in support of the application is extremely limited. It simply refers to the deceased and applicant’s shared criminal history without linking this proposed evidence to the issue of self-defence.
[4] There is no issue that evidence of a deceased’s predisposition to violence known to an accused can be admissible to buttress an accused’s claim that the deceased was the aggressor on the occasion in question and that the applicant acted in self-defence or to show that an accused’s perception of violence from the deceased was reasonable.
[5] It is also clear that acts of the victim that are unknown to an accused can be introduced as evidence that the victim was the aggressor on the occasion in question. This is the general purpose of a Scopelliti application. The issue, in this case, is the extent to which unknown acts of violence of the victim can be used by an accused in assessing his state of mind on the occasion.
[6] The Crown’s case is closed. The parties had agreed that this application was to be argued at the close of the Crown’s case rather than in advance of the trial. The evidence heard to date discloses that the applicant and his son had a difficult relationship and shared a history of alcohol and substance abuse and a life of crime.
[7] On the date in question, there had been an argument between John McRae and Michael McRae at or about 3:30 p.m. The evidence to date suggests that John McRae initiated that argument and physically confronted his son. Threatening words were exchanged. Michael McRae responded to his father by pushing him away. John McRae’s friend then took him inside the apartment to avoid further argument.
[8] Sometime later, John McRae and the friend, Alain Chaput, went to a local bar and drank a number of beers. They returned to the apartment sometime around 5:45 p.m. John McRae went to his room. Chaput went into the kitchen and cooked his dinner. He observed Michael McRae asleep on the couch in the living room. He then went to his room to watch TV. Sometime around 6:40 p.m., John McRae came into his room and told him to call 911 as he had just stabbed his son. In the applicant’s statement to Detective Keith Jacobs, which I concluded was voluntary, he agreed with Detective Jacobs’ suggestion that he had stabbed his son while he was asleep. This was three hours after the earlier argument.
[9] The argument between John and Michael was overheard by others. While John and Michael exchanged death threats, John’s ultimate responses were that he would prevail in the end.
[10] In this regard, the Defence seeks to call the evidence of John McRae to speak of all the incidents of violence between himself and his son, and in particular, two 911 calls where John McRae was the caller.
[11] The Defence also seeks to call Heather Gaffney, Michael’s former girlfriend to give evidence as to her observations of the interaction between Michael and John. The Defence also seeks to have her give evidence that she was a victim in one incident, where Michael was not charged. The Defence also seeks to call Terri McRae, John’s daughter and Michael’s sister about her observations about their relationship.
[12] The Defence seeks to call an Ottawa police officer with respect to a February 5th, 2015 incident where the police officer will testify as to Michael’s violence towards him while intoxicated. John was not there at the time of the arrest. The police officer did phone John McRae and asked him if he would pick Michael up and John refused. John’s knowledge of that incident is limited to what the police officer told him.
[13] Finally, the Defence seeks to lead evidence of the victim’s entire criminal record.
[14] The law in this area is accurately summarized in the decision of Justice Campbell in R. v. Poirier, 2018 ONSC 329, a decision relied upon by both Crown and Defence. In that case, the accused was charged with second degree murder. It was alleged that the accused killed the deceased during the course of a New Year’s Eve altercation, by stabbing him to death in a street fight. The accused sought to lead evidence of other unrelated acts of violence by the deceased and other evidence revealing his aggressive disposition and reputation for violent behaviour in support of the anticipated testimony of the accused that he acted in lawful self-defence in his response to the aggression of the deceased. Defence counsel contended that this evidence was relevant and probative in to show that the deceased was probably the aggressor on the night in question, and probably remained the aggressor throughout the physical altercation.
[15] Justice Campbell reviewed the case law as follows:
The Governing Legal Principles
- The Character of the Victim is Not Generally Relevant
[5] Generally speaking, the character or disposition of an alleged victim of a crime is not admissible, at the behest of either the Crown or the Defence, as such evidence is usually not relevant to the question of whether the accused committed the crime charged, or any other issue. As the Court of Appeal for Ontario noted in R. v. Cameron (1995), at p. 357, the defence is not entitled to lead evidence to simply “blacken the character” of a victim in order to cast the accused “in a more favourable light.”
- Evidence of the Victim’s Disposition for Violence
[6] This general rule, however, “is not unyielding where the evidence of the disposition of the victim relates to a material issue.” For example, in some cases, typically cases in which an accused raises the defence of self-defence, evidence of the victim’s character or disposition for violence is admissible for purposes of: (1) showing the probability of the victim having been the aggressor; and (2) to support the accused’s evidence that he was attacked by the deceased. In such circumstances the victim’s disposition for violence may be established by evidence of specific acts of violence, by general evidence of the victim’s reputation for violent behaviour, and/or by psychiatric evidence (if the victim’s disposition otherwise falls within the proper sphere of expert opinion testimony). Further, the admissibility of such evidence of the victim’s disposition for violence does not depend on the accused having personal knowledge of the victim’s propensity for violence at the time of the alleged offence.
[7] As to the permissible scope of such disposition evidence, as Hill J. observed in R. v. Golov, 2017 ONSC 6672, [2017] O.J. No. 6810, at para. 49, the jurisprudence supports the proposition that:
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: … [Internal citations omitted]
[8] Such evidence may be excluded, however, in the discretion of the court, if its probative value is “substantially outweighed” by its prejudicial impact, particularly if the evidence was unknown to the accused and the other incidents of violent conduct by the victim were remote in time to the alleged offence before the court. In the exercise of this discretion, however, it is important to appreciate that one of the conditions of the admissibility of evidence of the victim’s disposition for violence, which is unknown to the accused, is the existence of some other “appreciable evidence” of the victim’s aggression on the occasion in question; otherwise, the victim’s bad character may be advanced improperly as a mere excuse for the killing under the pretext of evidencing the victim’s aggression. Accordingly, the fact that there may be other “appreciable evidence” that the victim was the aggressor on the date of the alleged offence does not render the tendered disposition evidence inadmissible (due to its reduced overall probative value) – it is a precondition to the admissibility of the evidence.
[9] Where the victim’s disposition for violence is not known to the accused, that evidence is not admissible to show a reasonable apprehension of harm on the part of the accused, nor is it admissible to show reasonable grounds on the part of the accused to resort to extreme measures in order to protect him or herself. In short, the victim’s disposition for violence is not admissible on the issue of the accused’s state of mind if the accused is unaware of that disposition. This only stands to reason. However, where the accused knew the victim’s disposition for violence, the evidence may also be relevant as to the accused’s reasonable apprehension of harm and reasonable belief that he or she had to resort to extreme measures to protect him or herself from the victim. (Internal citations omitted/Emphasis mine).
[16] Justice Campbell had cited the Golov decision of Justice Hill where he said at para 50:
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, and not to be governed by the test applicable to evidence of an accused’s similar acts, 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. (Emphasis mine)
[17] The applicant argues that evidence of other acts of aggression unknown to the accused is relevant to his state of mind and relies on the last paragraph 9 of the Poirier decision; the sentence commencing with the word “However.” That paragraph must be read in the context of the preceding paragraphs. In my view, that decision does not stand for the proposition that an accused can call evidence of other unknown acts of violence on the part of the deceased victim to support his reasonable apprehension of harm unless the accused meets two conditions: the accused knew of this disposition for violence and there is some other appreciable evidence of the victim’s aggression on the occasion in question. As Justice Campbell held – it is a precondition to the admissibility of the evidence.
[18] The applicant invites me to interpret “the occasion in question” broadly so as to include the events which commenced at around 3:30 in the afternoon when threats were exchanged.
[19] Scopelliti has been applied where there is an actual altercation or threatening or aggressive behaviour on the part of the victim at the time of the commission offence; in none of the cited cases has there been a break in time between an earlier event and the commission of the offence.
[20] The appreciable evidence to date is that Michael McRae was either sleeping or lying down on the sofa with his eyes closed when he was stabbed. There is no evidence that he was the aggressor at the time of the stabbing. To the extent that I could consider the earlier altercation between John and Michael as being part of the occasion in question, the evidence to date suggests that John McRae was the initial aggressor and that while Michael may have threatened to kill his father, John McRae responded in kind threatening to kill his son and that he would gain the upper hand in the end. None of the witnesses testified as to any fear on John’s behalf.
[21] John McRae can testify about his own troubled history with his son. That evidence is relevant having regard to the elements of self-defence as set out in section 34 of the Criminal Code.
Defence — use or threat of force
- 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.
- Factors
(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.
[22] It must be remembered that the Court retains a discretion to exclude evidence of a victim’s disposition for violence particularly where those acts are unknown to the accused and where they are remote in time to the event in question.
[23] I have no difficulty with Heather Gaffney and Terry McRae testifying about what they observed in the relationship between John and Michael McRae. I have no difficulty with John introducing the evidence of the 911 calls that he made. Heather Gaffney may not testify as to events where she was a victim of violence from Michael where John has no direct knowledge of them.
[24] When Heather Gaffney and Terri McRae testify, care will have to be taken to avoid introducing hearsay statements of Michael McRae for their truth. As Justice Spies said in R. v. Leon, 2018 ONSC 1482 said at para 56:
56 Before turning to the specific evidence the applicant seeks to introduce, I must also set out the law with respect to how evidence of specific acts must be proven. Disposition evidence enjoys no special dispensation from the rules of evidence. The proposed evidence must be provable by permissible evidence. In R. v. Williams (1985), 1985 CanLII 113 (ON CA), 18 C.C.C. (3d) 356 (Ont. C.A.) at p. 366, Martin J.A. stated:
Where the disposition of a third person is sought to be proved by specific acts, those acts must be proved by admissible evidence and may not be proved by hearsay unless the hearsay evidence proffered falls under one of the exceptions to the rule excluding hearsay evidence.
I would add to that statement, now, that in the alternative, the evidence must be admissible under the principled approach to hearsay evidence.
[25] As to the February 1, 2015 incident, I limit that evidence to what the applicant knew about the incident or what the Ottawa Police officer may have told him. That evidence may be relevant to John’s state of mind. I will not permit the police officer to testify about his own interactions with the victim.
[26] I fail to see the relevance of Michael McRae’s entire criminal record which stretches back to 1981. There is no question that the applicant was involved as a participant along with Michael McRae in the commission of some of these offences. To the extent that he has any direct knowledge of those events as a participant and they provide evidence of the deceased’s propensity for violence, the applicant may give evidence of those particular incidents and offences. In my view, any other evidence would only serve to simply “blacken the character” of a victim in order to cast the accused “in a more favourable light.”
[27] The applicant had also argued that his criminal record has been put into evidence by the Crown through his statement to Detective Jacobs and that trial fairness dictates that he should be able to do the same with respect to the deceased. The applicant did not seek to edit that statement and there was limited disclosure of his record in that statement. The jury has already been given a mid-trial instruction with respect to the limited use of a criminal record with regard to the evidence of Alain Chaput.
[28] Michael McRae cannot testify. His credibility cannot be challenged. The Defence has signaled that it will bring a Corbett application if they are unsuccessful in this application and if the Crown seeks to introduce the applicant’s entire record. The prejudicial value of the deceased’s entire criminal record substantially outweighs its probative value. To the extent that the jurors have heard about John McRae’s criminal record, further direction may be given on this issue in my final instructions.
[29] It has been conceded by the Defence that if the applicant is permitted to adduce evidence of the deceased’s disposition for violence, the Crown will be able to lead the evidence of the applicant’s disposition for violence subject to any limitations that might be applied as a result of the anticipated Corbett application.
[30] Further direction may be required during the trial as the evidence unfolds.
Mr. Justice Robert N. Beaudoin
Released: June 19, 2018
COURT FILE NO.: 15-M7871
DATE: 20180619
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
JOHN MCRAE Defendant
REASONS FOR JUDGMENT
Beaudoin J.
Released: June 19, 2018