Introduction

[1] Najib Amin stands charged with first degree murder. The Crown alleges that on 30 January 2016 Mr. Amin entered 121 Kendleton Drive and made his way to Unit 813 where he sexually assaulted and murdered Sylvia Consuelo. A detailed account of the facts can be found in R. v. Amin, 2019 ONSC 3059.

[2] As part of its case, the Crown intends to lead video and photographic evidence along with statements Mr. Amin made to undercover police officers. In response, the defence applies to call evidence of a third party suspect who they say is responsible for Ms. Consuelo’s murder.

[3] At the conclusion of argument, I allowed the defence application. These are my reasons for doing so.

The Third Party Suspect Evidence

[4] The defence seeks to call evidence demonstrating that Lawrence Hibbert murdered Ms. Consuelo. Mr. Hibbert is a resident of 121 Kendleton Drive, the apartment building in which Ms. Consuelo resided.

[5] The defence argues that Ms. Consuelo owed Mr. Hibbert $150 and this debt formed the motive for her murder. In the weeks leading up to Ms. Consuelo’s death, other Kendleton residents witnessed a series of arguments between Mr. Hibbert and Ms. Consuelo over the outstanding debt.

[6] The defence proposes to call the following three witnesses:

Judy Dendera, a resident of 101 Kendleton Drive who knew Ms. Consuelo and Mr. Hibbert. Ms. Dendera witnessed a confrontation between Mr. Hibbert and Ms. Consuelo where Mr. Hibbert yelled at Ms. Consuelo saying “give me the fucking money or I will kill you”. When Ms. Consuelo approached Ms. Dendera, she was shaking. Ms. Dendera told Ms. Consuelo that if anything happened to Ms. Consuelo she would report the incident to the police. After Ms. Consuelo’s death, Ms. Dendera did so.
Angela Owl, who lived next door to Ms. Consuelo. Ms. Owl heard a commotion emanating from Ms. Consuelo’s apartment on 26 January 2016. In the early hours of the next morning, at around 4.30 a.m., she heard someone banging on Ms. Consuelo’s door and yelling “you’re dead bitch, I’m gonna kill you, you’re dead”. She also heard Ms. Consuelo shout “somebody call the cops”.
Benjamin Biduga, another 121 Kendleton resident. He gave a statement to the police describing an altercation between Ms. Consuelo and Mr. Hibbert approximately two weeks before Ms. Consuelo’s death. He heard a woman screaming from the area around Mr. Hibbert’s apartment. When he opened his door, he saw Ms. Consuelo and Mr. Hibbert standing at the elevator. Mr. Hibbert yelled “you owe me $150” and Ms. Consuelo pushed him away.

[7] The defence also seeks to lead evidence that Mr. Hibbert was recorded on surveillance video walking around the Kendleton complex in the early hours of 30 January 2016. The video shows Mr. Hibbert walking between 101 and 121 Kendleton Drive and entering the elevator at 121 Kendleton Drive at 1.23 a.m.

LEGAL PRINCIPLES

[8] The leading case of R. v. McMillan (1975), 1975 43 (ON CA), 23 C.C.C. (2d) 160 (Ont. C.A.), aff’d, 1977 19 (SCC), [1977] 2 S.C.R. 824, sets out the test for admission of third party suspect evidence at para. 24:

Evidence that a third person had a motive to commit the murder with which the accused is charged, or had made threats against the deceased is commonly admitted on this principle. 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…

[9] Relevancy requires a sufficient connection. Any inferences relied upon to demonstrate that connection must be grounded in the evidence and not speculative or fanciful: R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 47. The defence must also show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence: Grandinetti, at para. 48; R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 70; R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 121; R. v. Tehrankari, 2012 ONCA 718, 298 O.A.C. 252, at para. 37.

[10] In R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 20, the court underlined the limits of the court’s analysis of third party suspect evidence in the following way:

In order for the judge to put a defence to the jury, the accused must point to evidence on the record that gives the defence an air of reality (R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3). The trial judge must determine whether there is some evidence that is "reasonably capable of supporting the inferences required for the defence to succeed" (ibid, at para. 83). The air of reality test applies to all defences, and acts as a threshold to ensure that "fanciful or far-fetched" defences are not put before the trier of fact (ibid, at para. 84). 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 (Cinous, at para. 54).

IS THE THIRD PARTY SUSPECT EVIDENCE ADMISSIBLE?

[11] Here, the defence seeks to establish animus, motive, and opportunity. These factors will normally satisfy the test of a sufficient connection between the third person and the crime: Grant, at para. 24; R. v. Murphy, 2012 ONCA 573, 292 C.C.C. (3d) 122, at para. 21.

[12] Ms. Dendera and Mr. Biduga’s evidence establishes Mr. Hibbert’s animus and motive. If the jury accepts that the man Ms. Owl overheard was Mr. Hibbert, her evidence would provide the same evidentiary punch.

[13] Further, Ms. Dendera and Mr. Biduga’s observations of Ms. Consuelo’s reactions show that she was clearly concerned about Mr. Hibbert’s intentions and behaviour.

[14] Finally, the video evidence shows Mr. Hibbert to be present and walking around 121 Kendleton during the murder time frame providing evidence of opportunity.

[15] Although I accept that the Crown may have countervailing evidence such as a conciliatory note written by Ms. Consuelo on 29 December 2016 and the denials of Mr. Hibbert, these are considerations for the trier of fact to weigh at trial rather than factors deciding the evidence’s admissibility.

[16] The admission of defence evidence is governed by the oft-cited principle in R. v. Seaboyer, 1991 76 (SCC), [1991] 2 SCR 577, and affirmed in Grant, at para. 7, on the issue of third party suspect evidence: defence evidence should be admitted unless its prejudicial effect substantially outweighs its probative value.

[17] In my view, the prejudicial effect of this evidence is slight. The witnesses to be called will testify on narrow, specific events. There is nothing complicated or distracting about their testimony nor will it consume an excessive amount of court time.

[18] Accordingly, the third party suspect evidence sought to be led by the defence is admissible.

S.A.Q. Akhtar J.

Released: 27 May 2019

COURT FILE NO.: CR-18-50000159

DATE: 20190527

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NAJIB AMIN

RULING ON APPLICATION TO ADDUCE EVIDENCE OF A THIRD PARTY SUSPECT

S.A.Q. Akhtar J.

R. v. Amin, 2019 ONSC 3123

Case Summary

Introduction

The Third Party Suspect Evidence

LEGAL PRINCIPLES

IS THE THIRD PARTY SUSPECT EVIDENCE ADMISSIBLE?

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 3