Court File and Parties
COURT FILE NO.: 235/18 DATE: 2018/08/20
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Prosecution/Respondent – and – Michael John William Ball Accused/Applicant
Counsel: R. Dietrich and T. Shuster, for the Prosecution/Respondent A. Bryant and A.M. Morphew, for the Accused/Applicant
HEARD: June 25-26, 2018
PRE-TRIAL APPLICATION NO. 8 (THIRD PARTY SUSPECT / POLICE INVESTIGATION)
Pursuant to section 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict, or until further order of the court.
THE HONOURABLE JUSTICE J. R. HENDERSON
Introduction
[1] In this pre-trial application the accused, Michael Ball (“Ball”), makes two separate, but related, requests for evidentiary rulings.
[2] The first request is for a ruling regarding the admissibility of evidence that tends to show that third parties, James Baechler (“Baechler”), Christopher Smith (“Smith”), and Daniel Warwick (“Warwick”) were in the presence of the deceased Erin Howlett (“Howlett”) when she died, or in the alternative that these third parties assisted in disposing of her body. As discussed later in this decision, this is not a traditional third party suspect application as the defence does not suggest that any of these third parties caused Howlett’s death. However, for ease of reference, I will refer to this part of the pre-trial application as the “third party suspect” application.
[3] The second request in this application is for an order permitting the defence to adduce evidence to challenge the adequacy of the police investigation. I will refer to this part of the pre-trial application as the “police investigation” application.
[4] In my view, the legal analysis for both parts of this pre-trial application must be conducted in the context of the facts, the evidence, and the trial issues that exist in this case.
The Facts, The Evidence, and The Trial Issues
[5] Ball is charged with the first degree murder of his former girlfriend, Howlett, on or about June 27, 2013 in Kitchener, Ontario. Howlett went missing in the early evening of June 27, 2013, and her body was found in a duffel bag in the Grand River on July 5, 2013.
[6] The evidence discloses that Ball and Howlett had an intimate relationship that commenced in approximately April 2013. By early June 2013 that relationship had deteriorated, but there is evidence that suggests that Ball and Howlett continued to see one another at Ball’s residence at 50 Chestnut Street in Kitchener until the day she went missing.
[7] The evidence shows that Howlett regularly used illegal drugs, including cocaine and methamphetamine. Clearly, illegal drugs were at the foundation of Howlett’s relationship with Ball. Ball supplied Howlett with illegal drugs; Ball and Howlett consumed drugs together; and Howlett obtained drugs from Ball that she consumed with other male friends.
[8] The evidence discloses that Howlett had several other male friends, in addition to Ball, with whom she had an ongoing relationship. Those male friends included Baechler, J.P. Walton (“Walton”), Benjamin Fink, and Ian Turgoose.
[9] Shortly before her death, Howlett resumed an intimate relationship with Baechler whom she had dated in high school. Text messages suggest that Howlett and Baechler resumed their relationship in approximately mid-May 2013.
[10] At the time, Baechler lived with his best friend, Smith, at 43 Brubacher Street in Kitchener, which is located close to Ball’s residence. It is significant that Smith owned a black pickup truck, and that he permitted Baechler to use that pickup truck on a regular basis.
[11] Baechler and Smith testified that in the weeks leading up to Howlett’s death, Howlett spent every weekend with Baechler at Baechler’s residence. Smith was often present. During those weekends, Baechler and Howlett spent much of their time consuming illegal drugs. Generally, Howlett obtained those drugs from Ball.
[12] It is the theory of the Crown that Ball became upset with Howlett in early June when he discovered photographs of another male on her cell phone. There is evidence that Ball told his friend, Cody Cook (“Cook”), that Howlett was cheating on him and that she was stealing drugs from him. Ball told Cook that he was thinking of killing Howlett, and that he had purchased a duffel bag that was big enough for her body. There is evidence that in early June, Ball did in fact purchase a large duffel bag from K-W Surplus.
[13] Howlett was last seen alive at Ball’s residence at 50 Chestnut Street in the early evening of June 27, 2013. During the day, on June 27, 2013, Howlett exchanged text messages with five different men, including Ball. In the afternoon Howlett’s mother drove her to a café in Elmira, Ontario, where Howlett had lunch with her friend, Leah Walter. After lunch Howlett sent a message to Walton, who picked her up in Elmira and gave her a ride to Ball’s residence in Kitchener.
[14] Walton testified that he dropped off Howlett at Ball’s residence between 4:30 p.m. and 4:45 p.m. on June 27, 2013, and then drove away. He observed three men who were present in the driveway when he dropped off Howlett, namely Ball, Cook, and Michael Milosiewicz (“Milo”). Walton testified that the three men appeared to be working on a vehicle in the driveway. This evidence is not particularly controversial.
[15] The evidence as to what occurred after Howlett arrived at Ball’s residence is inconsistent and contradictory.
[16] Cook testified that he was in the process of moving from his old residence to a new residence on Greenfield Drive, and that Ball was going to help him with the move that evening. Cook said that Howlett, Ball, Cook, and Milo all consumed some cocaine together at Ball’s residence, and that Milo left Ball’s residence shortly thereafter.
[17] Cook gave contradictory evidence as to who left next. In direct examination at the first trial, Cook said that he left Ball’s residence next to go to his own place to pack. This would have occurred sometime before 6:00 p.m. He said that when he left Ball’s residence, Howlett was still at Ball’s residence sitting on the deck. However, in cross-examination at the first trial, Cook said that he believed that Howlett left Ball’s residence before Cook left. Then, in re-examination, Cook returned to his original testimony that Howlett was still at Ball’s residence when Cook left.
[18] Cook was consistent in his testimony that after he left Ball’s residence, Ball drove separately to Cook’s residence to help him move. Cook said that Ball was with him from approximately 7:00 p.m. until approximately 8:00 p.m. when Ball left to return home.
[19] Warwick testified that Ball drove to Warwick’s residence at some point in the evening of June 27, 2013, picked up Warwick, and drove him back to Ball’s residence. I accept that all of Warwick’s testimony may be suspect, as Warwick may be of unsavoury character, and because Warwick gave several contradictory statements to police officers before his testimony at the first trial.
[20] At the trial Warwick testified that when they arrived at Ball’s residence, Warwick observed Howlett’s lifeless body. Ball told Warwick that he had killed Howlett by choking her and kneeling on her chest. Warwick also testified that, at Ball’s request, Warwick helped Ball put Howlett’s body into a duffel bag, and then into the trunk of Ball’s car. They then drove together to the Walter Bean Trail where they dumped the duffel bag with the body into the Grand River.
[21] Further, Warwick testified that while driving to Ball’s residence, Warwick and Ball disposed of Howlett’s cell phone in a sewer at a plaza, known as the Wild Wings Plaza, in Kitchener. That cell phone was later recovered from that sewer.
[22] Data from Howlett’s cell phone was presented at the first trial. That evidence showed that Howlett’s cell phone was used 89 times between 5:09 p.m. and 9:53 p.m. on June 27, 2013. On each occasion, the cell phone accessed the cell tower known as the CNR tower, which is the closest cell tower to Ball’s residence.
[23] I note that if Howlett had been at 43 Brubacher Street, Baechler’s residence, it is possible that Howlett’s cell phone could have accessed the CNR tower from that location, although the CNR tower is not the closest cell tower to 43 Brubacher Street.
[24] The last recorded outgoing use of Howlett’s cell phone was at 9:44 p.m., and Howlett’s cell phone accessed the CNR tower at that time. The last incoming use of Howlett’s cell phone was at 10:41 p.m., at which time Howlett’s cell phone accessed the cell tower near the Wild Wings Plaza.
[25] Baechler testified at the first trial. He said that he talked with Howlett daily in the weeks leading up to Howlett’s disappearance. Both Baechler and Smith testified that the relationship between Baechler and Howlett was getting serious by June 2013. They both testified that Howlett spent every weekend with Baechler at Baechler’s residence doing drugs in the weeks leading up to her disappearance.
[26] Baechler gave a statement to police that he last had contact with Howlett by telephone on the morning of June 26, 2013. This statement is contradicted by cell phone records that show that there was a 15-minute conversation between Howlett and Baechler on the evening of June 26, 2013, and that they exchanged nine text messages during the day on June 27, 2013.
[27] Baechler testified that he last saw Howlett on June 23 and 24 when they attended a bonfire at a friend’s property, and then stayed together at Baechler’s brother’s residence. He said that they consumed a significant amount of drugs during that time. Baechler believed that Howlett got the drugs from Ball.
[28] Currently, Baechler is unable to account for his whereabouts on June 27 and 28, 2013. Further, there are no useful cell phone records to assist in determining Baechler’s whereabouts during this time period. Baechler testified that he did not make any efforts to contact Howlett over the weekend of her disappearance as he felt that Howlett might have been upset with him about a conversation that they had on June 26.
[29] This leads into the present police investigation application. Baechler was interviewed briefly by police in the initial stages of the investigation, but he was not asked to account for his whereabouts until approximately October 2014 after the preliminary hearing. Further, his cell phone was not examined until October 2014, at which time all useful data had been deleted or overwritten.
[30] Smith testified at the preliminary hearing. He cannot account for his whereabouts on June 27, but it seems clear that he left Kitchener on June 28 to go to a cottage. Smith did testify that, at Baechler’s request, Smith called Ball to ask about the whereabouts of Howlett over the weekend of her disappearance.
[31] Ball testified at the first trial. In this pre-trial application, I cannot rely significantly on Ball’s testimony as there is no certainty that Ball will testify at the second trial. However, I refer to Ball’s testimony at the first trial in order to put the issues in context.
[32] Ball testified that he, Milo, and Cook met at Ball’s residence at about 4:30 p.m. on June 27. They were planning to check Milo’s car before Milo went on a long drive out west. Ball testified that while they were examining Milo’s car, Howlett arrived on foot and walked right past them into Ball’s house without saying anything. This would have occurred at approximately 5:00 p.m.
[33] Ball said that Milo left shortly thereafter, and Cook and Ball went into the house. Ball sold Howlett a half gram of cocaine, and they all did one line of cocaine together. Then, Ball testified that Howlett left Ball’s residence. Ball does not know where she went.
[34] Ball testified that at approximately 6:00 p.m., Cook left Ball’s residence to go to his place to pack. Ball joined him just after 6:00 p.m. after Ball had completed a drug deal at his residence. He assisted Cook with his move and was back at his own residence approximately two hours later.
[35] Ball testified that he spent the rest of the evening texting and talking with friends, including Warwick, who was his drug dealer. He said that he and Warwick drove around together doing drug deals. He never saw Howlett again.
[36] Mary Scroggins (“Scroggins”) was an independent witness who testified at the trial. She did not know any of the parties. On June 28, 2013, between 8:00 and 9:00 p.m. she drove with a friend to the Walter Bean Trail parking lot.
[37] Scroggins testified that she observed a black pickup truck in the parking lot. It was the only other vehicle in the parking lot at the time. She gave a detailed description of that vehicle that was similar to the description of the black pickup truck owned by Smith, and often used by Baechler.
[38] Police officers prepared a photo lineup of pickup trucks that was shown to Scroggins. The results of that photo lineup were not tendered at trial. The defence in this pre-trial application questions the fairness of that photo lineup. At the trial, Scroggins was shown a picture of Smith’s pickup truck and she noted differences between Smith’s truck and the one that she observed at the Walter Bean Trail. She could not say that it was the same vehicle as the one she saw at the Walter Bean Trail.
[39] Scroggins also testified that while she was at the Walter Bean Trail she observed two males walking on the trail and she had a “bad feeling” about them. She gave a description of the two males which is not particularly helpful to this case. Within about 20 minutes of her arrival, the two males and the black pickup truck had left the area.
[40] There is also evidence from the forensic pathologist, Dr. Bulakhtina, who testified that when Howlett’s body was found on July 5, 2013, it was in an advanced state of decomposition. From the state of the body, Dr. Bulakhtina could not give an opinion as to how long the body had been in the river, or the time of death. Dr. Bulakhtina also testified that the cause of death was undetermined. Specifically, she could not rule out drug toxicity, strangulation, or positional asphyxia as possible causes of death.
[41] Samples of Howlett’s liver were sent for analysis. Those samples showed the presence of cocaine, a metabolite of cocaine, methamphetamine, and an antidepressant.
[42] In light of this evidence, there are significant issues for trial, including: (1) What was the cause of Howlett’s death? In particular, was the death caused by a homicide or by a drug overdose? (2) Did Howlett leave Ball’s residence alive, or did Howlett die at Ball’s residence? (3) Who was present when Howlett died? (4) Who disposed of Howlett’s body by putting it in a duffel bag and dumping it in the Grand River?
The Third Party Suspect Application
[43] In this part of this pre-trial application the accused requests a ruling regarding the admissibility of evidence that tends to show that Baechler, Smith, and Warwick were present when Howlett died or that they assisted in disposing of her body.
[44] The defence submits that this is not a true third party suspect application as the defence does not take the position that any of these three “suspects” caused Howlett’s death. It is the position of the defence that Howlett left Ball’s residence on the evening of June 27; that she died of a drug overdose; that Ball was not present when she died; that some or all of the three suspects were present at the time of her death; and that some or all of the three suspects assisted in disposing of her body.
[45] The defence submits that evidence that tends to show that some or all of these suspects were present at the time of Howlett’s death or assisted in disposing of her body is relevant and material to the criminal charge against Ball. In particular, the defence submits that if the jury believes this evidence, then the jury may have a reasonable doubt about whether Ball caused Howlett’s death.
[46] The Crown does not dispute the defence request with respect to Warwick. Warwick will be a Crown witness who will testify that Ball confessed to him that he killed Howlett, and that Warwick, at Ball’s request, assisted Ball in disposing of the body. The Crown accepts that Warwick’s credibility is in issue. Therefore, the Crown acknowledges that the defence is entitled to call evidence that would tend to discredit Warwick, or show that Warwick was present at the time of Howlett’s death.
[47] However, regarding Baechler and Smith, it is the Crown’s position that this application is a true third party suspect application and that there is no evidentiary foundation for the application. The Crown submits that much of the proposed evidence that relates to Baechler or Smith is not admissible as it is irrelevant or has no probative value. Thus, the Crown submits that to permit this evidence would create issues that would distract the jury from its central task.
[48] Regarding Baechler and Smith, given the positions taken by counsel, there is an issue as to the law that applies to this pre-trial application.
[49] I find that this is not a true third party suspect application, but I find that the application should be considered in the same manner as a third party suspect case. That is, in a third party suspect case, the accused will defend himself by deflecting the blame onto another person. The accused attempts to show, or raise a reasonable doubt, that a third party may have committed the crime. In the present case, Ball is not attempting to deflect the blame onto another person, but Ball is attempting to show that there were circumstances that involved other persons that, if believed, raise a reasonable doubt about Ball’s guilt.
[50] I find that evidence that tends to show that Baechler or Smith were present when Howlett died, or that they assisted in disposing of the body, is evidence that is relevant and material to the factual issues in this case. This evidence, if believed, may permit a jury to draw an inference that Ball was not present at the time of death, and/or question whether Ball caused Howlett’s death. Accordingly, I find that even though this is not a true third party suspect application, the same concepts apply.
[51] A brief review of the case law is appropriate. Pursuant to s.7 and s.11(d) of the Canadian Charter of Rights and Freedoms, an accused has the right to make full answer and defence. The right to raise the possibility that another person may have been involved in the alleged crime, provided that there is an air of reality to that possibility, is one way in which an accused may exercise this right.
[52] The seminal case on third party suspects is R. v. McMillan, (1975), 7 O.R. (2d) 750, [1975] O.J. No. 2247 (O.C.A.). At para. 23 Martin J.A. wrote:
I take it to be 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.
[53] That same concept can be applied to the present case. To paraphrase the McMillan decision, if A is charged with murdering X, then A is entitled, by way of defence, to adduce evidence that tends to show that B, C, or D were present at the time of the death. If so, a jury may infer that it is likely that A was not present and therefore did not cause the death of X.
[54] In R. v. Tomlinson, 2014 ONCA 158, [2014] O.J. No. 930 (O.C.A.), at paras. 71-78, Watt J. reviewed the basic rules of third party suspect applications. The first rule set out in Tomlinson is a repetition of the basic rule discussed above in McMillan. The third and fifth rules relate to a connection between the third party and the commission of the crime by referencing identity and opportunity. In my view the third and fifth rules do not apply in this case.
[55] The rules in the Tomlinson case that are useful to the present case are set out in paras. 72, 74, and 78, as follows:
Second, evidence marshalled in support of a third party suspect defence, as with other evidence adduced in a criminal trial, must be compliant with the rules of admissibility. Said in a somewhat different way, the evidence proposed for reception must be relevant, material and admissible. The proponent does not get a free ride through the admissibility thicket upon mere announcement of "third party suspect".
Fourth, to satisfy the relevance requirement, there must be a sufficient connection between the third party and the crime. Absent this link, the third party evidence is neither relevant nor material: Grandinetti, at para. 47; R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 121. The evidence may be direct or circumstantial but any essential inferences must be reasonable, grounded in the evidence, and not conjectural or speculative: Grandinetti, at para. 47.
Finally, where a third party suspect defence is advanced at trial, the question for the trier of fact is whether, on the evidence as a whole, the possible involvement of the third party raises a reasonable doubt about the guilt of a person charged: R. v. Khan, 2011 BCCA 382, 282 C.C.C. (3d) 396, at para. 91.
[56] The decision in R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, [2005] S.C.J. No. 3 is also helpful. At para. 47-48 Abella J. wrote:
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.
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, [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.
[57] Regarding the requisite connection between the third party and the crime, Trafford J. wrote, and I accept, in R. v. Scotland, [2007] O.J. No. 5302, the following at para. 12:
It is important to recognize that this threshold is not intended to be a high one. Any evidence, direct or circumstantial, linking the third party suspect to the crime is sufficient. … The evidential link, where it is based upon circumstantial evidence, must be based upon reasonable inferences and not speculation or conjecture.
[58] Finally, the court must at all times be cognizant of the length of the trial and the potential for distracting the jury from its central task of determining guilt or innocence. Accordingly, the court retains a discretion to exclude otherwise admissible evidence if the prejudicial effect of the evidence outweighs its probative value. In the case of evidence tendered by the defence, evidence that is relevant to a defence in a criminal proceeding should not be excluded unless the prejudicial effect of that evidence substantially outweighs its probative value. See R. v. Seaboyer, [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62 at para. 43.
[59] I find that the concepts set out in the above-mentioned cases apply to the present pre-trial application, with necessary modifications to allow for the fact that the accused in the present case is not alleging that any of the three suspects caused Howlett’s death.
[60] In summary, I find that if the accused in this case adduces evidence, direct or circumstantial, that any of these three suspects were present at the time of Howlett’s death or assisted in disposing of her body, then it is possible that a reasonable jury properly instructed could infer that Howlett died in a manner that is inconsistent with Ball’s guilt, or have a reasonable doubt about whether Ball caused her death.
[61] Exhibit 40 in this pre-trial application contains a list of 42 pieces of evidence, grouped into six general categories, on which the defence requests a ruling. I will analyse the relevance, materiality, and potential use of each item by referencing these six categories.
[62] Category one is evidence that relates to Howlett’s drug use. The Crown agrees that all of the proposed defence evidence in this category is relevant and admissible. Therefore, I find that the evidence listed as items 1(a) to (l) in Exhibit 40 is admissible.
[63] Category two is evidence that relates to Howlett’s pattern of association and contacts. Items 2(a) to (d) in Exhibit 40 are pieces of evidence that go to the nature of Baechler’s relationship with Howlett. Given that the defence position is that Baechler was with Howlett when she died, I find that the nature of their relationship is relevant to an issue at trial.
[64] I acknowledge that if the proposed evidence establishes a serious relationship between Baechler and Howlett, that evidence may not be enough on its own for a jury to draw an inference that they planned to be together on the weekend in question, but I accept that the proposed evidence makes it more likely that the allegation is true in consideration of all of the trial evidence. Thus, it is relevant and material.
[65] Accordingly, I accept that items 2(a) to (d) in Exhibit 40 are admissible pieces of evidence on condition that such evidence must be adduced in a permissible form. In particular, subject to a further ruling, the defence cannot introduce Baechler’s statement to Dane Howlett by calling Dane Howlett as a witness to provide hearsay evidence. Baechler is not an accused person and a statement that Baechler made to another party does not constitute an admission against interest.
[66] Item 2(e) relates to Smith’s phone records. In my view these records may be relevant to after-the-fact conduct by both Smith and Baechler as it is alleged that Smith called Ball at Baechler’s request after Howlett went missing and before her body was discovered. Smith’s phone records may also be admissible regarding Howlett’s drug use. Therefore, I find that Smith’s phone records are admissible, subject to a further ruling as to the use that may be made of these records at trial.
[67] Subject to the restrictions set out above, I find that all of the evidence listed as items 2(a) to (e) in Exhibit 40 is admissible.
[68] Category three is evidence of after-the-fact conduct of Baechler and Smith. The defence intends to use this evidence to show that Baechler and Smith had guilty minds about what happened to Howlett. Although the defence will not ask the jury to infer that either of the suspects caused Howlett’s death, the defence will ask the jury to infer that Baechler and Smith were aware of how she died and that they disposed of the body.
[69] In my view, it is possible that the jury could use the proposed evidence to draw the suggested inference, although the full impact of after-the-fact conduct and the use that the jury may make of it will not be known until all of the evidence at trial has been heard. Thus, I find that this evidence is generally admissible, but that either party may make submissions as to how the jury should be instructed at the end of the trial.
[70] Again, this evidence may only be adduced in a permissible manner. For example, Baechler’s statements to Dane Howlett, subject to a further ruling, should generally not be introduced through Dane Howlett.
[71] Regarding items 3(m) to (p), I accept the Crown’s submission that Baechler’s theory and Smith’s theory about how Howlett died are not relevant. Further, Smith’s interest in the case and the fact that he did not attend the first trial in response to a subpoena are not relevant.
[72] Accordingly, I find that items 3(a) to (l) in Exhibit 40 are admissible, subject to the restrictions set out herein. Items 3(m) to (p) are not admissible.
[73] Regarding category four, evidence of the disposal of Howlett’s body, I accept that evidence with respect to Baechler’s knowledge of the Walter Bean Trail and his comments about finding Howlett in the river are relevant. I also accept that there may be some relevance to Scroggins’ testimony about the black pickup truck and the two men she saw on the Walter Bean Trail.
[74] Accordingly, I find that items 4(a) to (e) in Exhibit 40 are admissible.
[75] Regarding category number five, evidence related to the harmonicas that Baechler allegedly threw into the river, I find that prima facie this evidence has little connection to the issues for trial. However, it may be admissible to explain why Baechler went to the river, or to clarify Baechler’s statement to police. Therefore, I find that this evidence is admissible provided that there is other evidence that Baechler went to the river at a relevant time.
[76] In this category, I also find that any evidence that Baechler and Smith spoke to one another about the case is relevant to their credibility.
[77] Accordingly, I find that items 5(a) to (c) in Exhibit 40 are admissible, subject to the above-mentioned restrictions.
[78] Category number six is evidence that Baechler and Smith had connections to the Elmira drug community. In my view this evidence is not relevant and not admissible.
The Police Investigation Application
[79] An accused is entitled to challenge the integrity of the police investigation that resulted in the criminal charge against him/her. In particular, the defence may allege that the police failed to adequately investigate the involvement of third party suspects. See the cases of R. v. Dhillon, [2002] O.J. No. 2775 (O.C.A.) and R. v. Mallory, 2007 ONCA 46, [2007] O.J. No. 236 (O.C.A.).
[80] If such a challenge is permitted, the court must define the parameters of the challenge as this “defence” has the potential to divert the trial into a blind alley or to introduce a side issue that may prove to be irrelevant to the central issue of the guilt or innocence of the accused. See the decisions in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para 184, and R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, [2009] S.C.J. No. 22 at para. 46.
[81] While permitted, a decision by an accused to challenge the integrity of the police investigation is a risky strategy. The risk is that by casting doubt on the integrity of the investigation the accused will make relevant and admissible investigative hearsay evidence that otherwise would be inadmissible. See the Dhillon case at para. 51, Mallory at para. 87, and R. v. Spackman, 2012 ONCA 905, [2012] O.J. No. 6127 (O.C.A.) at para. 123.
[82] In the present case, on page 3 of Exhibit 40 defence counsel lists 8 challenges that the accused wishes to raise regarding the police investigation. I will analyze these challenges by referencing the challenge numbers in Exhibit 40.
[83] I find that in any criminal trial there are certain routine challenges to the police investigation that may be raised by the defence without the need of judicial permission to do so. I accept that police departments do not have unlimited funds or resources to pursue every possible lead or to conduct a scientific analysis of every item, and that choices have to be made by police officers. Defence counsel are thus entitled to routinely question the failure of police to pursue certain leads. However, this type of challenge does not amount to an attack on the core of the investigation; it is only an exploration of the absence of evidence.
[84] In my view, the first six challenges listed by the defence on page 3 of Exhibit 40 fall into this category of routine challenges that do not go to the core of the police investigation. In this case these routine challenges include such things as the failure to conduct scientific testing on a beer can that was found on the Walter Bean Trail; the failure to test Howlett’s hair to analyze the concentration of drugs in her body; and the failure to seize a video recording from a surveillance camera.
[85] The Crown accepts, and I agree, that the defence may raise the challenges listed as items one to six on page 3 in Exhibit 40, and that the Crown will not respond to these challenges by tendering any investigative hearsay evidence.
[86] Challenge number seven listed in Exhibit 40 is a request by the defence to challenge the photo lineup of pickup trucks that was presented to Scroggins by police. The defence alleges that the lineup was unfair and biased.
[87] The position of the Crown is that Scroggins will not be a Crown witness at the second trial and that her evidence has no value. Therefore, the Crown submits that any challenge to the photo lineup is an irrelevant side issue. The defence submits that the defence will call Scroggins as a witness.
[88] In my view Scroggins’ evidence regarding the presence of the black pickup truck and the two men at the Walter Bean Trail may have some limited value. It is relevant in terms of time and location, but the identification of the truck in the parking lot and the two men on the trail is weak. That being said, it is evidence that may be heard by the jury. If so, the jury will have to decide if it will give any weight to this evidence. I find that if Scroggins’ evidence is before the jury, then the adequacy of the photo lineup of pickup trucks that was shown to Scroggins is relevant.
[89] Accordingly, I find that if either the Crown or the defence call Scroggins to give evidence regarding the black pickup truck and/or the two men on the trail, the defence may challenge the fairness of the photo lineup of pickup trucks that was shown to Scroggins. If that occurs, the Crown may be entitled to call rebuttal evidence in the form of investigative hearsay evidence.
[90] Challenge number eight relates to the adequacy of the police investigation into the involvement of Baechler. As discussed earlier, police officers did not examine Baechler’s cell phone, nor did they inquire about Baechler’s whereabouts on the weekend of Howlett’s disappearance until October 2014.
[91] The Crown agrees, and I accept, that the defence is entitled to challenge the police investigation into the involvement of Baechler in the ways set out at paragraphs 8(a) to (g) on page 3 of Exhibit 40. Again, if the defence chooses to challenge the police investigation in this way, the Crown may be entitled to call rebuttal evidence in the form of investigative hearsay evidence.
[92] In summary, I find that the defence is entitled to challenge the adequacy of the police investigation in all of the areas set out on page 3 of Exhibit 40.
Conclusion
[93] For these reasons, regarding the third party suspect application, I find that the evidence listed in Exhibit 40 as items 1(a) to (l), 2(a) to (e), 3(a) to (l), 4(a) to (e), and 5(a) to (c) is admissible, subject to the restrictions set out herein.
[94] Regarding the police investigation application, I find that the defence is entitled to challenge the adequacy of the police investigation in all of the areas set out on page 3 of Exhibit 40.
[95] If the Crown intends to rebut the challenges to the police investigation with investigative hearsay evidence, the Crown’s rebuttal evidence should be vetted with defence counsel prior to the start of the trial. If there is any issue with respect to the rebuttal evidence, then the admissibility of this evidence may be decided by further motion to this court.
J. R. Henderson J. Released: August 20, 2018