Court File and Parties
COURT FILE NO.: CR-16-50000176-0000 DATE: 20180703 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Applicant
- and - DELLEN MILLARD Respondent
Counsel: J. Cameron and K. Lockhart, for the Applicant Crown R. Pillay, for the Respondent Dellen Millard
HEARD: June 11, 2018
M. Forestell J.
RULING: ADMISSIBILITY OF DISCREDITABLE CONDUCT EVIDENCE
Background
[1] Dellen Millard is charged with the first degree murder of his father, Wayne Millard. Wayne Millard died as the result of a gunshot wound to his left eye. He died sometime between around 3:00 a.m. and 7:00 p.m. on November 29, 2012. His death was initially classified as a suicide. Dellen Millard was arrested and charged with the murder of Wayne Millard on April 10, 2014 after further investigation.
[2] Dellen Millard elected trial by judge alone and the trial commenced before me on May 30, 2018.
[3] The issues in the trial are whether I can be satisfied beyond a reasonable doubt that the death of Wayne Millard was a homicide and, if so, whether I can be satisfied that Dellen Millard killed Wayne Millard.
[4] The Crown introduced evidence from a retired Detective Sergeant of the OPP who examined computers and other electronic devices associated with Dellen Millard. Included in the material extracted from one of the hard drives is a photograph of Dellen Millard that shows him with his right eye covered in blood. The photograph was a profile picture for an account on an on-line gaming platform called “Steam”. The Crown also sought to lead evidence that the photograph was added to the account sometime between November 10 and 14, 2012 – two weeks before Wayne Millard’s death. The account remained active and the profile picture remained unchanged until it was last used on May 6, 2013. In the intervening time period the account was used for a total of 188 hours.
[5] Counsel for Mr. Millard opposed the introduction of the image and the related evidence on the basis that it was not relevant to any material issue in the trial or alternatively, that its prejudicial effect exceeded any limited probative value.
[6] I indicated on June 11, 2018 that the image was not admissible and indicated that reasons would follow. These are those reasons.
Analysis
[7] Evidence of extrinsic misconduct of the accused is presumptively inadmissible. [1] In this case, the evidence of the photograph and its posting as Dellen Millard’s profile picture from November 2012 to May 2013 is discreditable conduct evidence. The evidence is therefore presumptively inadmissible.
[8] Evidence of discreditable conduct that is relevant to a material issue in the case, however, may be admitted if its probative value exceeds its prejudicial effect [2]. The evidence must be relevant and material to an issue other than the general propensity of the accused to commit the offence or similar offences. [3]
[9] The approach to the assessment of the admissibility of discreditable conduct evidence is set out in R. v. B.L. [4]
Because of the inherently prejudicial nature of evidence of discreditable conduct, it is subject to a general exclusionary rule unless the "scales tip in favour of probative value." The trial judge who is charged with the delicate process of balancing the probative value of the proposed evidence against its prejudicial effect should inquire into the following matters.
- Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?
- If so, is the proposed evidence relevant and material?
- If relevant and material, is the proposed evidence discreditable to the accused?
- If discreditable, does its probative value outweigh its prejudicial effect?
[10] There is no dispute that the conduct which is the subject matter of the proposed evidence is the conduct of the accused. The next issue to be determined is whether the proposed evidence is relevant and material.
[11] As Watt J.A. explained in R. v. M.T.: [5]
¶36 Relevance is a matter of everyday experience and common sense, not an inherent characteristic of any item of evidence. Relevance exists as the relationship between an item of evidence proposed for reception and the proposition of fact the party tendering the evidence seeks to establish by its introduction. We assess the relevance of individual items of evidence in the context of the case in which the evidence is offered and the positions of counsel. An item of evidence is relevant if it makes the fact it seeks to establish slightly more or less probable than that fact would be without that evidence, through the application of everyday experience and common sense: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d), 16, at paras. 204-205.
¶37 Materiality is a legal concept. Evidence is material if it is offered to prove or disprove a fact in issue. What is in issue is a function of the allegations contained in the indictment and the applicable substantive and procedural law: Luciano, at para. 207.
[12] In R. v. Handy, [6] Binnie J. explained that the Crown must identify the live issue in the trial to which the evidence of disposition is said to relate.
[13] The live issue in this case, that the Crown identified in argument, is whether the death of Wayne Millard was suicide or homicide. The evidence of the photograph was said to relate to the issue because it is improbable that the accused would have posted a photograph of himself with an apparent wound to the eye two weeks before his father killed himself by shooting himself in the eye. It is more probable that the accused would have posted such a picture at that time if he contemplated killing his father in that manner. The Crown also submitted that the evidence that the accused left the photograph as his profile picture after the death of his father makes it improbable that the death of Wayne Millard was a suicide because, if it was, Dellen Millard would be expected to be upset and traumatized by the death and would not want to see a reminder of the event each time that he opened his computer and saw the profile picture.
[14] Clearly, the issue of whether I can be satisfied beyond a reasonable doubt that the death of Wayne Millard was a homicide rather than a suicide is a material issue in the trial.
[15] I cannot conclude, however, that the evidence of the photograph and the timing of its posting is relevant to that issue. The reasoning advanced by the Crown is speculation rather than inference.
[16] Justice Doherty, in R. v. Morrissey, [7] described the process of inference drawing, as opposed to speculation, as follows:
A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.
[17] In this case, the chain of reasoning advanced by the Crown is that a person who posts a photograph of himself that depicts a bloody wound where his eye should be is more likely to inflict such a wound on another person. This is purely propensity reasoning and it is speculative. Alternatively, the Crown submits that I can conclude that a person who lost a parent to suicide through a gun wound to the eye would not likely leave a profile picture of himself with a similar wound in a location where he would regularly see it. This chain of reasoning is also speculative. I cannot draw the inference that Dellen Millard or a reasonable person in his position would react to the profile picture in the manner described by the Crown or even that most people would concern themselves with removing such a picture after the death of a parent.
[18] I find that the evidence is not relevant and material. However, even if I am mistaken and the evidence meets the relevance threshold, the probative value of the evidence is minimal. The minimal probative value is exceeded by the prejudicial effect of the evidence.
[19] In R. v. B.L., [8] at paras. 23 and 24, Charron J.A (as she then was) described the assessment of probative value as follows:
In assessing the probative value of the proposed evidence, consideration should be given to such matters as:
(i) the strength of the evidence; (ii) the extent to which the proposed evidence supports the inference(s) sought to be made from it (this factor will often correspond to the degree of similarity between the prior misconduct and the conduct forming the subject-matter of the charge); and (ii) the extent to which the matters it tends to prove are at issue in the proceedings.
[20] Some of the factors to consider in the assessment of the probative value of the evidence are the proximity in time to the alleged offence, the similarity of the other acts, the circumstances surrounding the other acts and the offence, any distinctive features of the other acts and the offence and any intervening events. [9]
[21] The probative value of the evidence must be weighed against the potential for moral or reasoning prejudice. The proper approach to the assessment of prejudice was described in R. v. B.L. as follows: [10]
In assessing the prejudicial effect of the proposed evidence, consideration should be given to such matters as:
(i) how discreditable it is; (ii) the extent to which it may support an inference of guilt based solely on bad character; (iii) the extent to which it may confuse issues; and (iv) the accused's ability to respond to it.
[22] In this case, the proposed evidence provides little support for the inference of murder rather than suicide. The inference, if available, depends on me reasoning that the photograph is evidence of the intention of Dellen Millard to shoot his father in the eye. Even if the evidence supports this inference, its probative value on the issue is minimal. Admittedly, the prejudice is also minimal. This is a judge alone case and there is less danger that I will infer guilt based on bad character. However, there is a potential for prejudice in distracting from the issues at trial and creating unfairness to the accused in requiring him to respond to and defend himself against a distinct allegation of criminal misconduct.
[23] Given the tenuous probative value of the evidence, I find that even if the evidence could be found to be relevant and material, its prejudicial effect outweighs its probative value.
Conclusion
[24] The evidence is not admissible.
M. Forestell J.
Released: July 3, 2018
Footnotes
[1] R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31-36; R. v. Cloutier, [1979] 2 S.C.R. 709, at p. 731 [2] Handy, supra, at para. 55 [3] R. v. Vanezis (2006), 213 C.C.C. (3d) 449 (Ont. C.A.) [4] R. v. B. (L); R. v. G. (M.A.), [1997] O.J. No. 3042 (C.A.), at para. 10 [5] 2012 ONCA 511 at paragraphs 36 and 37 [6] R. v. Handy, supra, note 4 at para. 74 [7] (1995), 97 C.C.C. (3d) 193, 22 O.R. (3d) 514 (C.A.), at p. 209 [8] B.L., supra, note 8 at para. 23 [9] R. v. K. (C.P.) (2002), 62 O.R. (3d) 487 (C.A.) at para. 30 [10] R. v. B.L., supra, note 8 at para 25