COURT FILE NO.: CR-16-3840
DELIVERED ORALLY DATE: 20180618
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
James P. Fitzgerald, and Ellisson MacKenzie Wauthier
Counsel:
Brian Manarin, for the Crown
Robert DiPietro, for Mr. Fitzgerald Brian Dube, for Mr. Wauthier
HEARD: March 8 and May 23, 2018
RULING ON APPLICATION
Hebner J.
[1] Mr. Wauthier and Mr. Fitzgerald are charged as follows:
That they entered Bradley Jeavons’ dwelling house situated at 957 Moy Avenue, Windsor with intent to commit an indictable offence, contrary to s. 349(1) of the Criminal Code.
That they stole from Mr. Jeavons while armed with a baseball bat, contrary to s. 343(d) of the Criminal Code.
That they used a baseball bat in committing an assault on Mr. Jeavons, contrary to s. 267(a) of the Criminal Code.
That they threatened Mr. Jeavons with bodily harm, contrary to s. 264.1(1)(a) of the Criminal Code.
[2] All of the offences are alleged to have occurred on February 18, 2016.
[3] At the commencement of the trial, the accused brought an application for: (a) an order admitting the evidence of the involvement of an unknown suspect (or suspects) other than the accused in the commission of the offence; (b) an order allowing them to cross-examine Mr. Jeavons (the complainant) on alleged false break and enter complaints made against different persons; and (c) an order allowing them to adduce contradictory evidence from third parties. This is my ruling on the application.
Background Facts
[4] For the purpose of ruling on the third party suspect application, I summarize the facts set out in the materials provided by counsel.
[5] The complainant contacted police at approximately 8:14 p.m. on Thursday, February 18, 2016. Officers attended the complainant’s home at 957 Moy Avenue, upper apartment. The complainant told officers that there was a knocking on his door. Persons at the door identified themselves as Windsor Police. The complainant opened the door and, according to the complainant, three males rushed into the apartment uninvited and began assaulting him with baseball bats. The complainant identified both of the accused. Mr. Wauthier is the boyfriend of Jessica Vachon (“Jessica”), with whom the complainant had been in a physical relationship. Mr. Fitzgerald is Jessica’s stepfather. The complainant said that the accused threatened him if he were to continue to see Jessica. The accused did not identify the third male.
[6] Officers viewed the apartment and found that it had been “ransacked”. All of the drawers and cabinets appeared to have been opened by the suspects as if they were looking for something. Several items were taken.
[7] The complainant was taken to hospital. He had suffered a broken left orbital bone as well as several scrapes and bruises covering his body.
Crown Theory
[8] At the time of the offence, the complainant was 33 years of age. He lived alone in a one-bedroom apartment at 957 Moy Avenue in the upper unit. At the time of the offence, the complainant was involved in a methadone program. He met Jessica at the methadone clinic and the two of them struck up an intimate relationship. They kept their relationship “under raps” as Jessica had a boyfriend, Mr Wauthier. Mr. Wauthier found out about the relationship.
[9] The theory of the Crown is that the motive for the assault was the complainant’s relationship with Jessica.
Defence Theory
[10] The primary issue at trial will be identification. The accused say they were not the ones that attacked the complainant. The theory of the defence is that, due to the nature of the complainant’s lifestyle, he became a target of the drug subculture. The theory is that the complainant was attacked by individuals seeking to rob him of drugs and other items. The complainant then pointed to the two accused as the perpetrators so that they would be released on conditions and he would then be free to pursue his relationship with Jessica.
The Law
[11] The test for the admission of third party suspect evidence is originally set out by the Supreme Court of Canada in R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750. The Supreme Court confirmed that evidence of the potential involvement of a third party is admissible. The underlying principle is stated thus: “It 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.” However, the evidence must be relevant and probative. At page 757, Martin J.A. said:
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.
[12] In R. v. Grandinetti (2005), 2005 SCC 5, 191 C.C.C. (3d) 449 (S.C.C.), the Supreme Court dealt with the issue again and said, at para. 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.
[13] In Grandinetti, the accused wished to call evidence that a particular third person committed the offence. In this case, the accused wish to call evidence that unknown third parties committed the offence. The test is the same. The evidence is probative and admissible so long as there is other evidence tending to connect unknown third parties with the commission of the offence.
[14] In R. v. Grant, 2015 SCC 9, 2015 S.C.C. 9, the Court dealt with the admissibility of unknown third party suspect evidence. In that case, the accused was charged with the first degree murder of Candace Dirksen 23 years earlier. The Crown’s case depended on DNA evidence. The accused challenged the DNA evidence and sought to lead evidence that an unknown third party suspect had committed the murder. The trial judge refused to admit evidence of allegedly similar offences committed within months of the Dirksen murder while the accused was in custody on an unrelated matter. The accused was convicted of second degree murder by the jury. The Manitoba Court of Appeal concluded that the accused ought to have been permitted to lead the evidence, allowed the appeal and ordered a new trial. At the appeal before the Supreme Court of Canada, the Supreme Court laid out the following principles:
An accused person’s Charter protected right to make full answer and defence entitles him or her to challenge the Crown’s case and lead evidence to raise a reasonable doubt about whether the accused committed the crime. (para. 3).
However, the integrity of the administration of justice requires that the proceedings stay focused on the indicted crime and not devolve into trials within a trial about matters that may not be sufficiently connected to the case. “Such tangents risk causing delays, confusion and distractions that undermine the trial’s truth seeking function. This risk is especially heightened where the defence seeks to introduce other alleged suspects or crimes into the trial.” (para. 4).
First principles governing the admissibility of evidence are to be used when an accused seeks to lead evidence of an unknown third party suspect. In such cases the accused must first establish the logical relevance of the evidence. Once this threshold is met, the evidence will be admissible unless its prejudicial effect substantially outweighs its probative value.
In order for the evidence to be admissible, the accused must point to evidence on the record that gives the defence an air of reality. When applying this test, the trial judge must take the evidence to be true and must not assess credibility or make other findings of fact.
In the case of a known third party suspect, in order for evidence to be admissible it must show a sufficient connection between the third person and the crime for which the accused is charged. Evidence that this third person had the motive, the means, or the propensity to commit the crime will often establish the connection (para. 24).
Where the third party’s identity is unknown, the nature of the connection must reflect a different factual matrix. In such circumstances the sufficient connection generally arises from similarities between the crime charged and another crime that the accused could not possibly have committed. (para. 27). Like known third party suspect evidence, “in the absence of some nexus with the alleged offence”, unknown third party suspect evidence will constitute mere speculation (para. 28).
The greater the similarity, complexity and distinctiveness of the events, as well as the relative frequency of the event, the stronger the case for admission. (para. 38). The focus on similarities ensures that the evidence tendered is logically relevant.
Once the relevancy threshold is met, in the sense that a sufficient connection between the crimes exists, the trial judge must still be satisfied that the probative value of the evidence adduced outweighs its prejudicial effect. Relevant evidence concerning an unknown third party suspect will only be excluded where its prejudicial effects substantially outweigh its probative value. (para. 54).
[15] In R. v. Tremble, 2017 ONCA 671, the accused was convicted of first degree murder of his wife (Ms. Roberts). She had asked for a divorce. She died from blunt force trauma. There was evidence that Mr. Tremble had assaulted her and their young son in the past. Mr. Tremble sought leave to advance an alternate suspect defence before the jury. There had been two home invasions in the same geographical area and the same three month period that involved females (Ms. Loder and Ms. Varaschin) around the victim’s age being assaulted. One of these women was killed. The trial judge dismissed the application, and found that there was no air of reality to Mr. Tremble’s defence that an alternate suspect committed his wife’s murder. The trial judge found an insufficient connection to the other two home invasion crimes. The appeal to the Court of Appeal was dismissed. Weiler J.A. outlined the criteria in Grant and said at para. 65:
The Varaschin murder was committed sometime between August 30 and September 7, 2010. At that time, the appellant was not yet in custody as the Roberts murder occurred later on October 6, 2010. The appellant was in custody when the Loder attack took place, which was on December 7, 2010 so he could not have committed that crime. It is mere speculation on the part of the defence that the same individual could have committed the Varaschin and Loder crimes. Furthermore, no nexus between these crimes and the Roberts murder has been shown. Unlike in Grant, where the investigators concluded that the crimes at issue were likely committed by the same individual, the OPP in this case concluded that there was no connection between the Roberts murder and the other two crimes…. For these reasons, there was no air of reality to the appellant’s alternate suspect defence.
[16] My task, then, is to apply the above principles to the defence application in this case.
Argument of the Defence
[17] Mr. Dube submits that the Crown’s case rests entirely on the evidence of the complainant. There is no further evidence, physical or otherwise, connecting the accused to the scene of the incident. The defence intends to attack the credibility and reliability of the complainant’s identification evidence at trial. The defence theory again is that as a result of the relatively public, open, and apparent criminal lifestyle of the complainant, an unknown third party or parties targeted and then assaulted the complainant to steal his methadone carries and other drugs as well as possibly firearms. The complainant blamed the two accused so as to remove Wauthier from the love triangle that also involved the complainant and Jessica.
[18] I outline, in the following paragraphs, the argument put forward by the defence.
1. The Incident of February 18, 2016
[19] According to police reports, the police were called to the complainant’s residence. They observed that the residence had been ransacked in a manner consistent with people searching for drugs (protein powder dumped on floor, cereal boxes emptied). A digital scale with what appeared to be cocaine residue was present along with empty syringe wrappers and numerous used and new baggies. The victim was badly beaten and bleeding. When asked if he recognized any of his attackers, the victim said there were three males, all armed with baseball bats, one of whom he knows as “El” and two of whom he had never seen before. The victim said the attack had been a revenge attack relating to an ex-girlfriend. When Constable Baker challenged the victim and asked him about a roommate named York, who had been mentioned by the victim’s mother, the victim became irate and said “my mother’s got a big f – – – mouth”. The victim’s methadone, wallet, dog and cell phone were stolen.
[20] At the preliminary hearing, the victim gave the following evidence:
a) Wauthier would call his house and catch Jessica coming out of the victim’s house all the time. He would cry and tell the victim to stop sleeping with his girlfriend;
b) Fitzgerald called the victim before the incident and asked that he not talk to his stepdaughter, Jessica;
c) When Jeavons started talking to Jessica, she was on the outs with Wauthier. She moved to her aunt’s house in Amherstburg but Wauthier took everything away from her and she was trapped. Jeavons told her to go back to Wauthier and they would talk on the side;
d) Jeavons and Jessica were in love with each other;
e) Jeavons attends at the methadone clinic on Goyeau Avenue. Jeavons has been taking methadone carries for six years. Four or five bottles of methadone were stolen;
f) Jeavons denied that he is selling drugs. He claimed to be clean. Later in his evidence he admitted to using cocaine in December 2016 with Jessica. He claimed to know nothing about the empty syringe wrappers. He was aware of the digital scale and claimed to use it for marijuana;
g) Every Sunday, Jeavons would go down and shoot firearms at the range. He would occasionally shoot an AR – 15 (an assault rifle). He posted images of shooting an AR – 15 and a 9 mm handgun on his Facebook page.
h) Jeavons bought bear mace from the gun range. He kept it next to his chair in his apartment.
2. Other Incidents
[21] There are three other incident reports pointed to by the defence.
A) On April 28, 2014, Jeavons contacted the police about a break and enter at his residence located at 957 Moy Avenue. He told police he had left his residence locked around 1:45 p.m. He returned home around 7:00 p.m. and noticed that his kitchen window was opened and a pane of glass was missing. He went downstairs and spoke with his neighbour who advised that a female had come by. The female was identified as “Tearra”. The neighbour said that the female had gone into the apartment through his window. Jeavons’ bedroom had been ransacked with clothes strewn all over the bedroom. His wallet and his six methadone carries were stolen. The police attempted to speak with the neighbour, but the neighbour declined to cooperate because he said Jeavons was partly responsible for what happened.
B) On June 29, 2014, Jeavons contacted the police about Tearra breaking into his apartment again. He told police he was asleep in his recliner when he suddenly woke up to find Tearra shaking his head while holding a small pocket knife in her left hand in a pink case with pepper spray in her right hand. She called him a rat before taking his wallet and fleeing the residence. She had entered through a sliding window located in the kitchen.
C) On April 18, 2017, Jeavons and his mother arrived at Jeavons’ residence at 2 – 2349 Baby Street. He told police that as he arrived, he observed two individuals, one known to him as Michael, exiting his apartment carrying a quantity of clothing. He said that Michael ran from his apartment and into a lower unit where he resides. The unknown male fled. Jeavons said that he circled the block before returning to his apartment where he noticed his television had been removed from the wall and was missing, along with two large speakers and an unknown quantity of clothing. Jeavons mother gave a conflicting story to the police. She said that when they arrived home they found the door to the apartment to be open. She said there were no suspects around when they arrived on the scene. When Jeavons was confronted with the conflicting information, he became uncooperative and no longer wished to make a complaint. Michael was originally arrested and was released without charges.
3. Facebook Photos
[22] Counsel for the defence points to Facebook photos apparently posted by the accused on his Facebook page in 2013 and 2017 in support of the third-party suspect application. At the preliminary inquiry, the complainant admitted posting photos of himself with an assault rifle on Facebook.
[23] Counsel for the accused seeks to call evidence of the 3 incidents outlined above in support of the defence theory that the attack was carried out by individuals in the drug subculture that attended at Jeavons’ house in order to rob him of his methadone. He also intends to rely on the pictures the complainant posted on his Facebook page dated December 30, 2013 and October 1, 2017 where the complainant appears to be holding assault rifles.
Analysis
[24] The question for the court is whether the defence has met the test outlined in Grandinetti and Grant such that he may introduce evidence of, and cross-examine on, unknown third party suspects and particularly the three incidents described above.
[25] The accused must first establish the logical relevance of the evidence by establishing a connection between the crime in this case and the break and enter offences outlined above. The first and second incident took place in 2014, almost two years before the crime in this case. Both of these incidents involved the same person, a young woman known to Jeavons. These incidents, as described above, are entirely different than the one before the court now, which involved three male assailants armed with baseball bats. Although there are similarities (namely the theft of the methadone carries and the ransacked apartment in the first incident) there are also significant differences. The third incident took place in April 2017, more than a year after the crime before the court. It took place at a different location as Jeavons had changed residences between the two events. Items were taken but did not include any methadone carries. In all three incidents, Jeavons was not harmed. In all three incidents, no charges were laid. In two of the incidents, Jeavons was not home at the time. All three of these incidents are a far cry from the incident before the court which involved a brutal attack on an unarmed man in his home.
[26] I agree with Mr. Manarin that there is an insufficient connection between the incidents described above and the crime in this case. There are simply an insufficient number of similarities to bring forth the required air of reality described in the case law outlined above.
[27] The Facebook photos do not change my conclusions. The first Facebook photo, dated November 17, 2013, was posted over two years before the crime. The second photo posted October 1, 2017, was posted after the crime. Jeavons admitted posting photos of himself with assault rifles on his Facebook page, but there is no nexus between the photos and the crime before the court. I fail to see how either one of these photos of Jeavons holding an assault rifle at a shooting range add to the argument of relevance in support of the third party suspect application.
[28] In my view, for the foregoing reasons the proposed evidence has not met the relevancy threshold requirement. Accordingly, there is no need to move on to the question of whether the probative value of the evidence outweighs its prejudicial effect. The application is dismissed.
“original signed and released as Exhibit”
Pamela L. Hebner
Released Orally: June 18, 2018 Justice
COURT FILE NO.: CR-16-3840
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
James P. Fitzgerald, and Ellisson MacKenzie Wauthier
RULING ON APPLICATION
Hebner J.
Released Orally: June 18, 2018