Court File and Parties

COURT FILE NO.: 855/16 DATE: 2018-09-07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Reginald Berard

Counsel: Mr. Ludgate, for the Crown Mr. Waltenbury, for the Accused

HEARD: August 16, 2018

PUBLICATION RESTRICTION NOTICE:

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION BEFORE THE JURY IN THIS CASE SHALL RETIRE TO CONSIDER ITS VERDICT, PURSUANT TO THE ORDER OF JUSTICE A.D. KURKE, OF THE SUPERIOR COURT OF JUSTICE

Reasons on Third Party Suspect Application

A.D. KURKE J.

Overview of the case and the application

[1] Reginald Berard, the applicant, is charged with the Second Degree Murder of Marcel Couillard.

[2] From my ruling of September 13, 2017 in this case, on the admissibility of the applicant’s first statement to police, I excerpt the following to serve as background facts by which to assess the issues on this application:

a. Shortly after 8 p.m. on November 3, 2015, Greater Sudbury Police Service (“GSPS”) received a frantic call from Linda Terris, notifying police that her neighbour and friend, Marcel Couillard (“the deceased” or “Marcel”), was lying on the floor of his apartment at 511 Melvin St. He was surrounded by blood and appeared to have been stabbed.

b. Police responded to the call and arrived on scene within minutes. Officers and two paramedics entered the deceased’s apartment via the rear entrance of 511 Melvin St. Upon entry, they located the deceased lying on the floor in a supine position. There was a large volume of blood surrounding the deceased and on his body. There was blood present and notable bruising and swelling on his face. He was non-responsive.

c. Initially, officers and paramedics noted a conspicuous injury: a large vertical laceration along the deceased’s abdomen, which exposed his intestines. There was no one else in the apartment. Resuscitation efforts were terminated and Marcel was pronounced dead at 8:15 p.m.

d. Forensic officers from the GSPS processed the scene and seized several potentially relevant items, some of which were sent to the Centre of Forensic Science (“CFS”) for forensic DNA analysis.

e. On November 13, 2015, police were informed by the CFS that the applicant’s DNA was found on various items in the deceased’s residence, including a cigarette butt, a bloodstained beige cloth, and a single-edged kitchen knife with the deceased’s DNA located on the knife in the form of a “tissue-like” substance on it. Upon receipt of this information, police formed reasonable and probable grounds that the applicant had committed second-degree murder and they arrested him on November 14, 2015.

f. That day, the applicant provided a detailed account to officers explaining how he beat and stabbed the deceased to death in his own residence on November 3, 2015. He also provided details of how he attempted to eliminate evidence at the scene and deflect suspicion by moving the deceased’s body away from the entrance.

g. The autopsy conducted by Dr. Martin Queen revealed the existence of a number of blunt and sharp force injuries on the deceased’s body. Dr. Queen opined that the blunt force injuries were consistent with having been caused by a punch with a closed fist, as the applicant had described in his November 14, 2015 interview.

h. There were a total of 11 sharp force injuries. Dr. Queen identified a stab wound to the back, a vertical incision to the abdominal area, a stab wound to the left cheek, a cut to the neck and two incisions to the left ear. There were five additional parallel incisions located behind the left ear.

i. The stab wound to the back was fatal. The incision to the abdomen was likely fatal. The remaining sharp force injuries were superficial. Dr. Queen further opined that the stab wound to the back was consistent with having been inflicted by a single-edged knife. Dr. Queen further opined that the abdominal incision entered near the deceased’s waistline and was directed ‘upwards’ towards the chest area. This is consistent with the description provided by the applicant in his November 14, 2015 interview.

[3] Before the applicant’s arrest on November 14, 2015, police looked into and had dealings with numerous “persons of interest” who were considered to have been potentially involved in the commission of the offence.

[4] On this application, the applicant seeks leave to adduce evidence at trial about three of those persons as alternate suspects for the consideration of the jury: 1) Ronald Couillard, the deceased’s brother (“Ron”), 2) Philippe Charbonneau, and 3) Stanley Beaudry.

Facts relating to the alternate suspects

Ronald Couillard

[5] Ron resided in the same building as did his brother Marcel, and appears to have been in the building much of the day of Marcel’s death.

[6] Ron attended the crime scene shortly after the body was discovered by Linda Terris.

[7] Ron acted strangely at William Vezeau’s (“Willy’s”) apartment after the killing was discovered, according to Ron’s nephew Gilles Couillard (“Gilles”). Ron kept saying, “let’s not jump to conclusions, Marcel’s been complaining of stomach problems for a while.” He said that Marcel’s stomach just “blew up”. Gilles thought that Ron was just in shock. Gilles also described that Ron had mood swings after the homicide.

[8] Shortly after the killing, Gilles found Ron drunk in the backyard; Ron told Gilles, “We’re gonna get through this eh? Just keep your mouth shut”. Gilles did not know what this meant, but thought that Ron was implying that “we were gonna get the guy.” Gilles told police that Ron had done cocaine the night before the homicide, and that Ron had “maybe” planned the homicide. Gilles “wonders” if Ron saw red and had a fit of rage. He also told police that Ron used to have a machete. He had started thinking that Ron and Marcel’s relationship was rocky.

[9] According to what Ron’s ex-wife, Kathryn Noble, told police, Ron had issues with anger and hatred, which was why they divorced. Linda Terris called Noble at 7:50 p.m. on November 3, yelling that Marcel was dead. Noble went to Willy’s where she found Ron drinking and not making any sense. He was saying that Marcel’s stomach blew up.

[10] Noble told police that Ron once put a loaded shotgun to her head. She had seen Ron take out a gun, and Marcel a knife. She had seen Ron and Marcel at some point in the past “beat the crap out of” each other. Noble also told police that Ron slept with a machete under his bed and she had asked him about it after the homicide. Noble informed police that Linda Terris told her that Ron emptied the garbage and tidied up in Marcel’s before police got there. Linda then denied it to her. Linda Terris apparently also denied to police that she had said this.

[11] After the discovery of the homicide, police observed that Ron had a cut on his arm which appeared to be fresh. Cst. Lingenfelter attended 511 Melvin Street on November 4, 2015, to pick up Ronald Couillard. He found Ron outside drinking beer, and Ron also told him that he was smoking pot. Ron was emotional, “up and down”. He had bouts of crying and then was joking and laughing. Cst. Lingenfelter observed a fresh 1 ½” to 2” cut on Ron’s right forearm. Ron offered to provide a statement the next day. He could not on November 4, as he was intoxicated by alcohol and drugs.

[12] According to witness Cassandra Trudeau-Dominic in her call to the police dispatcher, Ron refused to perform CPR on his brother Marcel the night of the homicide. Ron said “there’s blood everywhere.” Trudeau-Dominic told Ron that the dispatcher wanted him to give Marcel CPR, and to check if he was breathing. Ron said, “he’s breathing”. Ron said there was too much blood on “his mouth and stuff” to do CPR. She described Ron and Marcel as best friends, who were together every day. They argued over small things, like brothers would, and mocked each other, which would upset Marcel.

[13] Witness Gail Thibeault told police that Ron and Marcel had gotten into an altercation around Christmastime. It was just over girlfriends and stuff, and what had happened in the past. They would have fights over “stupidity, girlfriends”.

[14] Witness Vanessa Bebonang-Fox told police that Ron and Marcel had been butting heads for a couple of months. She had never seen them fight.

[15] On November 3, 2015, Ron Couillard told police that he saw Marcel at 6:30. He went to see him to get coffee filters. He was at Marcel’s for about ten minutes, and then went back to bed. He said that he slept most of the day, and got up at 5:00. He then drank beer at 511 Melvin Street.

[16] On November 5, 2015, in a KGB statement, Ron said he was at Marcel’s for only five minutes, not ten. He went back to his apartment, had a couple beer, and went to bed. Ron said that he got up from bed during the day at various points. At 5:30, he wanted to put the dog outside; only “Reggie” was there, and he looked like he was high. He last saw Marcel at 6:30. Ron was in the front apartment with Debbie Mackenzie and Willie when he heard screaming. Ron admitted that he and Marcel had argued a lot. Marcel was “mouthy” when he drank, and would not shut his mouth. Ron told police that the scratch on his arm was from putting his fist through his gate the day before. Police observed damage to the gate.

[17] Witness James Russell told police that he saw Ron and Marcel together at Willy’s, where Russell had gone at 1:30 or 2:00 p.m. to drink. Ron was there first, and Marcel came in an hour later. He believed that Ron and Marcel were there for a little more than a couple hours. He saw Ron and Marcel together at around 5:00 p.m., apparently on November 3.

[18] In answer to whether he saw Ron violent towards anybody, Russell answered that Ron was loud, but not a bad guy if you treated him right, but if you treated him wrong “there’s war”.

[19] William Vezeau told police that he saw Marcel at about 1:30 on November 3, 2015, and that Marcel had beer. He stayed for five or ten minutes. Ron was at Vezeau’s place when Marcel died, and Ron went to Marcel’s when they were told. Debbie MacKenzie, who apparently lived with Mr. Vezeau, placed Marcel at her place during the morning of November 3. Ron came by at 5 or 5:30 after sleeping most of the day. He did not leave until Linda Terris came.

[20] Ronald Couillard has a criminal record containing three entries: driving impaired in 1990, assault in 1991, and trafficking in a narcotic in 1992.

Philippe Charbonneau

[21] Philippe Charbonneau was believed by police to be a close friend of the deceased.

[22] Witness Heather Zeffer provided the central evidence concerning Charbonneau, in a KGB statement to police on November 6, 2015.

[23] On November 3, 2015, Charbonneau spent some time in the company of Zeffer. Charbonneau drove Zeffer to the Food Basics on Notre Dame, and “the bootlegger’s”. As they were leaving there, they observed police, and she thought that they were going to be stopped. Charbonneau told Zeffer right away, “they’re going to Marcel’s he got stabbed.” Charbonneau told Zeffer that he had been there earlier before he picked Zeffer up, and then corrected himself that it had been the day before.

[24] This statement by Charbonneau about how Marcel was killed concerned Zeffer, as there was nothing on the news about the killing. She asked Charbonneau if he had anything to do with it, and Charbonneau said “no”. He got mad and started cursing. She observed that Charbonneau had gotten about $500 worth of lottery tickets.

[25] Indeed, Zeffer appears to have called the police communications centre on November 4, 2015, and to have told “Lynn” that she was really scared and did not want falsely to accuse someone, but she was pretty sure that Phil Charbonneau did it. He had come to her house shaking. Zeffer told Lynn that the deceased was a good friend of hers, and that the deceased had owed Phil drug money. This alleged drug debt was not mentioned by Zeffer in her formal statement.

[26] Charbonneau provided two statements to police, one on November 4, and the other on November 17, 2015. In the earlier statement, Charbonneau told police that he had not been to Marcel’s on November 3. He had called Marcel at about 5:00 and told him that he would bring $10 that he apparently owed him. Charbonneau told police that Marcel did not owe anyone anything.

[27] In the November 17 statement, Charbonneau told police that Marcel had called him three times on November 3, in the early morning. He spoke with Marcel on the phone at 5 p.m. He recalled going to the Pinto to buy lottery tickets, and then getting to Food Basics with Zeffer at around 5:30 or 6. Then they went to “Marchelle’s” house, a bootlegger, around 6:30, and left at about 7. He saw ambulances in front of Marcel’s house, and police cruisers on Melvin. He headed home.

[28] Charbonneau told police that he got home between 7 and 7:30, and called Marcel on his landline, but there was no answer. He then called Bobby Grigg, who told him, “I think something happened to Marcel”. Charbonneau told police that he took a cab to the store on Melvin, and walked over from there. He told a police officer that he had just talked to Marcel at 5 p.m.

[29] A receipt of Zeffer’s from Food Basics showed a purchase time of 7:38 p.m. on November 3, 2015, thus providing independent information about when Zeffer and Charbonneau were at that store.

[30] Police could not verify that Charbonneau had taken a taxi as he had claimed in his November 17 statement. They do appear to have confirmed that Grigg told Charbonneau that “something had happened to Marcel”.

[31] Cst. Sandro Bortot located the deceased’s wallet while he was processing the crime scene as a forensic identification officer. In the wallet was $145 in cash.

[32] Charbonneau has a significant criminal record between 1973 and 2016. The vast bulk of that record relates to driving offences: driving impaired (x9), driving disqualified (x5), but there are several convictions for breaching probation or bail orders and failing to attend court. Mr. Charbonneau’s only conviction for violence is an assault conviction from 1994, for which he was sentenced to a fine and probation.

Stanley Beaudry

[33] Stanley Beaudry came to the attention of police on this matter on the night of November 3, 2015, when he crashed his bicycle into a pole on Melvin Street “in the area of the murder”. He was observed to have some injuries on November 5: a black right eye, and apparently injuries to his right arm, shoulder, and ribs.

[34] Beaudry was living at 51 Edith Street, a street off Melvin. His building is around the corner from Marcel’s residence, 511 Melvin. There are several residences on Edith, including at least one other multi-unit building. All of Edith Street is on more elevated land than 511 Melvin.

[35] Police records describe Beaudry being arrested at 1915 hours on November 3, 2015, on an unrelated charge, of which he was subsequently acquitted. Beaudry was taken to the police station on Brady Street that day, and released at 1935 hours on a Promise to Appear.

[36] Ron Couillard advised police that Beaudry had had a disagreement with Marcel about a month and a half prior to Marcel’s death, concerning dog toys; “Stan” told Marcel to “go fuck himself”. Marcel told Ron that he was going to get the dog toys back.

[37] Ron also told police that Stan used to beat up hookers in the summer. Ron had never seen Stan at Marcel’s. Stan had at some point come to Ron’s looking for beer, and Ron told him to fuck off. Ron thinks Stan came from the “top of the hill”.

[38] Witness Jerry Pilote responded to the screams of Linda Terris when she discovered Marcel’s body. Pilote passed by Beaudry as Pilote ran down Edith Street to assist. Beaudry just kept walking or running, even though “the lady” was asking him for help. Beaudry commented that “he had enough of his own problems”. On November 5, 2015, police found Beaudry’s long butcher knife under the sink in Pilote’s kitchen after a break and enter at Pilote’s apartment.

[39] Marcel’s sister, Gail Thibeault, told police that there were native people living up the hill on Edith Street. They are drug addicts and junkies. Marcel was selling a little bit of “weed” for a few months before his death. Thibeault believed that Marcel’s death had something to do with the “goofs” up the hill.

[40] Witness Roderick Bourget, a neighbour of the deceased, told police that there was a “needle” house up the hill. People come out of there 24 hours a day. Marcel told Bourget, “if I’m dead it’s people up the hill, males”, because he told them not to throw firecrackers. One (unidentified) male said to him, “I’m coming to get you”. A month and a half prior to his death, Marcel had said to Bourget, “if you find me dead in my apartment it would be from the people in the needle house”.

[41] Police observed Beaudry on a video from the Beer Store on Lorne Street at 1754 hours on November 3, 2015. Beaudry had a black eye, which appeared to be an old injury.

[42] Beaudry confirmed in his statement to police that as he returned from the police station after his arrest on November 3, 2015, he saw a lady on a phone crying and asking for help, but “I walked straight through”. He claimed not to know the people at 511 Melvin.

[43] Beaudry has an extensive criminal record, extending from 1987 to 2017. The record contains many property offences, driving “over 80” convictions and breaches of court orders, but also robbery, assault (x6), uttering threats (x4), assault with a weapon, forcible confinement, assault causing bodily harm, assault with intent to resist arrest, and aggravated assault.

Governing Principles

[44] An accused may adduce evidence to suggest that another party was responsible for the offence charged, rather than himself: R. v. McMillan, 1975 ONCA 43, [1975] O.J. No. 2247 (C.A.), at para. 23, aff’d R. v. McMillan, 1977 SCC 19, [1977] S.C.J. No. 32. To justify its admission, however, such evidence must be relevant, and have sufficient probative value, gauged by the “alternate suspect’s” connection by other circumstances with the crime: McMillan, at para. 24. The defence must also be based on admissible evidence, which must not be excluded by some other evidentiary rule, such as the rule against hearsay: R. v. Arcangioli, 1994 SCC 107, [1994] 1 S.C.R. 129, at 13; R. v. Tomlinson, 2014 ONCA 158, at paras. 72-73; R. v. Kimberley (2001), 2001 ONCA 24120, 56 O.R. (3d) 18 (C.A.), at para. 80; R. v. D. (A.), [2004] O.J. No. 5938 (ONSC), at paras. 7, 17-20.

[45] The rule applies equally to the adducing of evidence by the defence in cross-examination of Crown witnesses and to the leading of evidence from the defence’s own witnesses: R. v. Tehrankari, 2008 CarswellOnt 8751 (Sup. Ct.), at para. 37, aff’d R. v. Tehrankari, 2012 ONCA 718; R. v. Tre Roberts-Stevens, 2018 ONSC 2450, at para. 36; R. v. Singh, 2014 ONSC 6512, at para. 15; R. v. Scotland, [2007] O.J. No. 5302 (Sup. Ct.), at para. 22.

[46] The leading authority on the admissibility of evidence of a known alternative suspect is the Supreme Court of Canada’s decision in R. v. Grandinetti, 2005 SCC 5. The Court held that evidence of an alternative suspect must be relevant and probative, which requires a sufficient connection between the third party and the crime. Put otherwise, there must be a sufficient basis for the defence, or an air of reality to it, based on which a reasonable, properly-instructed jury could acquit: Grandinetti, at paras. 46-48.

[47] Evidence of propensity, motive, and opportunity can all be elements of the alternate suspect’s connection to the crime. Evidence of opportunity is generally essential, coupled with direct or circumstantial evidence, or reasonable inferences drawn from circumstantial evidence, implicating the alternative suspect in the crime. Motive alone, without more, will be an insufficient basis to establish the necessary connection: R. v. Shchavinsky, 2000 ONCA 16877, [2000] O.J. No. 3357 (C.A.), at para 45. The connection must be more than mere conjecture or speculation: Grandinetti, at para. 47; R. v. Pan, 2014 ONSC 3800, at para. 38; R. v. Tre Roberts-Stevens, 2018 ONSC 2450, at paras. 11-12.

[48] The categories of “connection” to the crime are as variable as the facts of a particular case. Thus, possession of a physical object linked to a crime is capable of constituting a connection to the crime: R. v. Pierre, 2017 ONCA 140, at para. 9 (though in that case, other evidence compromised the probative value of the alternate suspect’s possession of the murder weapon three months after the crime).

[49] The disposition of an alternate suspect to commit such a crime as that in issue is probative and admissible, so long as there is other evidence tending to connect that suspect with the commission of the offence: McMillan, at para. 29; Grandinetti, at para. 49. But evidence of the alternate suspect’s violent disposition or animus towards the deceased is not sufficient to establish the necessary connection, without more. It is motive and opportunity that give probative value to propensity evidence: R. v. Tehrankari, 2012 ONCA 718, at para. 36.

[50] The Crown may rebut alternate suspect propensity evidence with propensity evidence relating to the accused: Tre Roberts-Stevens, at para. 36; R. v. Spackman, 2012 ONCA 905, at para. 122.

[51] Propensity or disposition evidence can come from expert opinion, from a record of criminal convictions, or from evidence of general reputation: Tomlinson, at para. 76; McMillan, at para. 33. The mere fact of an outstanding charge cannot be used to establish an alternate suspect’s disposition to commit a crime: Tomlinson, at para. 77.

[52] For the evidence relating to an alternate suspect to be admissible, the probative value of the evidence must exceed its prejudicial effect: R. v. Grant, 2015 SCC 9, at para. 46; R. v. Malley, 2017 ABCA 186, at para. 59. Prejudice can arise in many ways. It can include feelings of hostility aroused in the jury towards the alternate suspect based on disposition evidence, or the sidetracking of trials into investigations by the jurors of matters that are not sufficiently connected to the indicted crime. Such trials within the main trial about tangential issues cause prejudice because of their delay of the case, the confusion and distraction they can cause for the jury, and their potential to undermine the truth-seeking function of the process: R. v. Grant, at para. 4; Scotland, at para. 18; Tre Roberts-Stevens, at para. 36.

[53] However, for defence evidence to be excluded based on the prejudicial effect of the evidence, the prejudicial effect must substantially outweigh the probative value: Arcangioli, at 140; R. v. Seaboyer; R. v. Gayme, 1991 SCC 76, [1991] S.C.J. No. 62, at para. 44.

Analysis

Stanley Beaudry

[54] There is no air of reality to Beaudry having had anything to do with the killing of Marcel Couillard.

[55] Simply put, the strongest evidence against Beaudry is that of his disposition, as proved by his criminal record. Such evidence, however, is extremely prejudicial to the search for the truth, as the effect of Beaudry’s criminal record on the jury can only be anticipated to be overwhelming. Without more by way of a connection to the killing, Beaudry’s record invites the jury to speculate about his involvement based on nothing other than a sense that someone with such extensive criminal antecedents who lives nearby must somehow be involved.

[56] Any motive for Beaudry is speculative or conjectural. Such evidence as there is points to a disagreement over dog toys more than a month before the killing, and to cross words spoken by the deceased to those living in the “needle house”. That house might or might not be the house in which Beaudry was a tenant. These things cannot be reasonably or rationally said to create anything resembling a motive on the part of Beaudry to commit the crime that is at issue. Threats were directed at Marcel Couillard by a male “up the hill”, but it would require speculation to identify that person as Beaudry.

[57] Beaudry was seen with injuries, but it would be speculative to link them to the crime at issue here. Some of the injuries were perhaps attributable to his bicycle accident that was witnessed by police. A black eye is so generic as to again require speculation to surmise that it could have originated from a violent argument with the deceased, and it likely predated Marcel’s killing.

[58] There may have been opportunity for Beaudry to have slipped into Marcel’s apartment during the window of time in which he could have been killed. However, no particular evidence places Beaudry near the scene until he was observed passing in the street at the point in time when alarm was raised by Linda Terris after she discovered Marcel’s body. At that point, Beaudry was returning from the police station after his arrest earlier in the day. His butcher knife was not found in Marcel’s apartment, and nothing appears to connect that knife to the killing of Marcel.

[59] Witnesses may not be asked questions concerning Beaudry’s involvement in the killing of Marcel Couillard, as he has no sufficient connection to it.

Ron Couillard

[60] Ron Couillard had opportunity to commit the killing. He lived near the deceased, and was seen to have had contact with Marcel at about 5 p.m. the day of the killing.

[61] There is evidence from various persons that Ron Couillard had a violent disposition:

a. Kathryn Noble and Gilles Couillard put Ron in possession of a machete. Nothing in the evidence, however, indicates when this was, or if Ron had ever used the machete violently;

b. Noble also asserted that Ron put a shotgun to her head;

c. James Russell may have implied that Ron was capable of violence if he was mistreated, though Russell’s words to police are ambiguous;

d. Ron’s criminal record contains a dated entry for violence, a conviction registered in 1991.

[62] It is mainly the evidence of Kathryn Noble that describes Ron Couillard’s disposition for violence. Of the indications she has to offer, it is noteworthy that the evidence does not detail when the incident with the shotgun arose, or when Ron had possession of the machete. It only appears that Ron no longer had the machete after the killing of Marcel. James Russell’s evidence offers little to the picture beyond a vague generalization. The 1991 assault conviction was registered 14 years before the killing of Marcel. Ron Couillard’s disposition for violence is hardly substantial.

[63] Moreover, the evidence of Ron Couillard’s violent disposition is mostly not based on allegations that have already been proven. It is likely that Ron would deny the allegations of Noble, and perhaps of Gilles, as to his disposition. In such circumstances, the jury would be required to adjudicate the claims of Noble and Gilles about Ron’s alleged violent conduct or possession of a machete. The potential for prejudicial reasoning is high. The jury would be diverted from the task imposed upon them by the indictment, and might well, if they see substance to Noble’s claims, leap to conclusions about Ron Couillard’s responsibility for the death of Marcel, simply because of their views about a man who would hold a gun to his wife’s head.

[64] It is also worth considering in this context the nature and strength of the Crown’s case in relation to the alleged murder weapon, found at the scene, with DNA of the accused and the deceased upon it. While the strength of the Crown’s case should not, in general terms, be a determinative factor in the assessment of evidence of alternate suspects, the apparent strength of the evidence relating to the murder weapon weakens still further any speculative connection between the “missing” machete and the murder of Marcel Couillard: see Tre Roberts-Stevens, at para. 36 (iii).

[65] Evidence also shows strange behaviour on Ron’s part:

a. He refused to perform CPR on Marcel, though the 911 operator urged him to try;

b. He strangely spoke of Marcel having complained of stomach pains, urged people not to jump to conclusions, and suggested that maybe Marcel’s stomach had just blown up;

c. He told Gilles Couillard to keep his mouth shut so that they could get through “this”;

d. There is evidence that Ron exhibited mood swings after the killing;

e. Gilles Couillard somehow knew that Ron did cocaine the day before the killing and speculated about Ron’s involvement in the killing.

[66] Evidence presented on the application showed that Ron was severely affected by the death of Marcel. He indulged in substances to an extent that delayed his ability to provide a formal statement to police. Marcel’s decision not to give CPR was not heroic, but it does not obviously imply a guilty conscience. Gilles Couillard went on to explain to police that he believed Ron’s efforts to silence him related to getting to the actual perpetrator. Cocaine use does not allow by itself an inference of homicidal violence. It would require conjecture or speculation to give relevance to this evidence and to connect it to the killing of Marcel Couillard.

[67] As to motive, there are indications of difficult relations between the brothers:

a. Gilles Couillard thought that Ron and Marcel’s relationship was rocky;

b. Ron Couillard told police that he and Marcel argued a lot;

c. Cassandra Trudeau-Dominic described how Ron mocked Marcel, thus upsetting him. But she also described a very close relationship between the brothers;

d. Gail Thibeault described an argument between the brothers at a prior Christmas, over girlfriends;

e. Vanessa Bebonang-Fox observed the brothers “butting heads” in the preceding months, but never any actual violence;

f. Kathryn Noble had seen Ron take out a gun, and Marcel a knife. She also claimed to have seen the brothers beating each other up.

[68] There is, in all of this, no particular motive that could ground a reasonable belief that Ron killed Marcel. There is evidence of occasional animus between the brothers, but nothing of significance shown to be proximate to the date of the killing. Only Kathryn Noble has Ron and Marcel potentially violent towards one another. However, on her evidence, Ron brandished a gun, not a knife, and there is no way to tell when this alleged event, or the apparent fistfight, might have taken place, or what caused them.

[69] There remains on the record at the application no evidence that Ron took out garbage from the deceased’s apartment after the killing. From Kathryn Noble it is hearsay, and its alleged originator, Linda Terris, has disavowed it.

[70] Lastly, there is the evidence of the injury to Ron Couillard’s arm. Such evidence, even without the explanation from Ron that he had injured himself putting his fist through a gate and the police observation of damage to the gate, would at best require speculation to establish by it any kind of connection to the killing of Marcel Couillard. The corroborated evidence of Ron’s innocent explanation serves only to weaken the probative force of that evidence still further.

[71] In all of the circumstances, I find that the evidence about Ron Couillard as an alternate suspect is almost entirely that of opportunity. No sufficient evidence of motive has been put forward for Ron to have killed Marcel, though there is evidence of occasional past animus between the brothers. Evidence of disposition in relation to Ron Couillard is tenuous, and its probative value is substantially outweighed by the prejudicial effect inherent in its proof before the jury.

[72] Ron Couillard may not be advanced at the trial of this matter as an alternate suspect.

Philippe Charbonneau

[73] On the application, there was no evidence to explain how Charbonneau knew about the stabbing death of Marcel at the time he and Zeffer observed police. In the circumstances of this case, possession by Charbonneau of this knowledge is akin to unexplained possession of a physical object directly related to the crime.

[74] Police confirmed that Bobby Grigg told Charbonneau that “something had happened to Marcel”, but Charbonneau’s indication to police was that this was after he had returned from his outing with Zeffer. That utterance of Grigg also does not appear to mention that the death was by stabbing. Significant questions remain about the source of Charbonneau’s knowledge.

[75] As to opportunity, Charbonneau told police that he said to Marcel at 5 p.m. that he was going to bring him money that he owed him. He also told Zeffer, initially at any rate, that he had seen Marcel earlier in the day on November 3.

[76] Charbonneau’s credibility is called into question by his apparent evasion to police, that he had travelled by taxi. Certainly, Charbonneau had every reason not to admit to police that he was driving, given his criminal record and likely licence status. Nevertheless, Charbonneau’s lack of candour may well be of importance to the jury as they consider Charbonneau’s conflicting statements about contact with Marcel on November 2 or 3, and how, when, and what he found out about Marcel’s death.

[77] Zeffer also has Charbonneau in possession of a significant number of lottery tickets, and she claimed that Marcel owed Charbonneau a drug debt. Attributing to Charbonneau drug debt collection as a motive at this stage, based on Zeffer’s unsourced claims, would be unreasonable. Robbery as motive, based on Charbonneau’s considerable purchase of lottery tickets, is possible, though still tenuous. Police discovery of money in Marcel’s wallet does little, however, to obviate such possibilities.

[78] Charbonneau has an extensive criminal record, with a single conviction for Assault in 1994.

[79] In all of the circumstances, I am satisfied that Charbonneau has a connection to the crime, based mostly on his knowledge of what had happened to Marcel, before he had any known reason to possess that knowledge. On his own statements at various times, to various people, Charbonneau could have had contact with Marcel, and he indicated to police an intention to have contact with him after 5 p.m. on November 3. Disposition evidence, though scant, is not entirely lacking.

[80] While some aspects of the evidence do not support the connection, other aspects deserve exploration at trial. In my view, the prejudicial effect of permitting the defence to explore this issue at trial does not substantially outweigh the relevance and probative value of the evidence.

[81] Philippe Charbonneau may be advanced at the trial of this matter as an alternate suspect.

Conclusion

[82] Accordingly, the application is allowed in part.

[83] The defence may explore Philippe Charbonneau as an alternate suspect, on admissible evidence.

[84] If and as necessary, I will hear from counsel about whether defence exploration of Charbonneau’s violent disposition should permit Crown counsel’s exploration of Berard’s own criminal background, if any.

A.D. KURKE J. Released: September 7, 2018