Court File and Parties

COURT FILE NO.: 26/18 DATE: 20190115 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JAMES ANTHONY SCORDINO Accused/Applicant

Counsel: Amy Stevenson, for the Crown Ari Goldkind, for the Accused/Applicant

HEARD: January 14, 2019

REASONS FOR DECISION – ALTERNATE SUSPECT APPLICATION

R ES TR I CT ION ON P UBL IC A T ION Pursu a nt t o s. 648(1) o f t he C r i m in a l Co de , no i n f o r m ati o n r e g arding this portion o f t he trial shall b e publ i s h ed in a ny d ocu m ent o r br o ad c ast or tra n s m itt e d in any w a y b ef o re t he jury reti r es to c o nsid e r its v erdict.

Conlan j.

I. Introduction

[1] James Anthony Scordino (“Scordino”) is charged with first-degree murder, contrary to section 235(1) of the Criminal Code, in the death of Angela Skorulski (“victim”) at her residence in Oakville on or about February 13, 2017.

[2] Scordino is about to be tried. Jury selection is scheduled for February 11, 2019 in Milton.

The Application

[3] Scordino applies for leave to raise the defence at trial that an alternate person, David Michael Hodgins (“Hodgins”), is responsible for the killing.

[4] The said request is typically referred to as a third party or alternate suspect application.

The Agreed Facts

[5] Counsel have done a commendable job at preparing and filing on the within Application an Agreed Statement of Fact. The following points are taken largely from that document.

[6] The victim’s body was found inside her residence on March 8, 2017. It was badly decomposed. She had been last seen/heard from on February 13, 2017. She received a text message from Scordino that evening that read “I’m in the parking garage”.

[7] The condominium building where the victim lived had security cameras and a key FOB system for the entrance/exit doors.

[8] There is video surveillance footage showing a male wearing a hooded sweatshirt at the building on February 13, 2017. The Crown will present evidence at trial that the said male is Scordino.

[9] Further, there is video surveillance footage showing the victim and the said male together at the building on February 13, 2017.

[10] There is no video surveillance footage showing Hodgins at the building on February 13, 2017 or between that date and March 8th.

[11] Assuming they were working properly, on or about February 13th, there was no way for someone to access the victim’s condominium unit without being captured on a security camera.

[12] There is evidence that Hodgins was at the building to visit with the victim on February 11 and 12, 2017.

[13] Hodgins had known the victim for a very long time. They lived together for a while. Before February 13, 2017, they communicated with each other regularly, sometimes daily. After February 13th, Hodgins did not try to contact the victim for eight days.

[14] Hodgins is the executor and sole beneficiary of the victim’s estate. Further, at the time of her death, the victim had transferred to Hodgins about $800,000.00 in assets in an effort to shelter herself from ongoing litigation that she was a party to.

[15] The police investigated both Scordino and Hodgins. The latter was a person of interest and never declared a “suspect”, although he was under police surveillance for a brief period of time.

[16] The police discovered three partial footwear impressions inside the victim’s residence which cannot be said to belong to either Scordino or Hodgins.

The Other Evidence Against Scordino

[17] The Crown is expected to present at trial the following inculpatory evidence against Scordino, much of which will be vigorously challenged by the Defence:

(i) the alleged murder weapon, a handgun, was registered to Scordino’s grandfather; (ii) proof of the gun’s registration was found hidden in the basement ceiling of Scordino’s home; (iii) bullets consistent with those found at the murder scene were located in Scordino’s basement ceiling; (iv) the gun itself was found hidden in the ceiling tiles of Scordino’s workplace; (v) Scordino, according to video surveillance footage, was at his workplace both before and after the killing allegedly occurred; (vi) the victim’s DNA was found in the barrel of and on the gun; (vii) Scordino’s DNA cannot be excluded as that found on the grip of the gun; (viii) clothing consistent with that worn by the male who was at the building on February 13, 2017 was found at Scordino’s workplace, and Scordino’s fingerprints were found on the garbage bag that held the clothes; (ix) the clothing contained blood with the victim’s DNA; (x) the clothing contained gunshot residue; (xi) Scordino and the victim communicated with each other by cellular telephone on February 13, 2017, and frequently before that date, but Scordino never tried to contact the victim after that date; (xii) Scordino deleted all of his texts with the victim; (xiii) Scordino did not attend the victim’s funeral; (xiv) Scordino, very shortly before the victim was killed, had agreed to take financial responsibility for the lawsuit that he and the victim were involved in against the University of Toronto; and (xv) Scordino met with another person later on February 13, 2017 and appeared to be distraught.

[18] Undoubtedly, it is a strong prima facie case for the Crown.

II. Analysis

The Positions of the Parties

[19] The Defence concedes that it cannot place Hodgins at the crime scene on February 13, 2017.

[20] The Defence stresses that this Application should be granted in order that Scordino be able to make full answer and defence at trial.

[21] The Crown submits that, at its highest, the Defence has presented evidence that Hodgins had a motive to kill the victim, but that is not enough.

The Law

[22] It is up to the Defence to satisfy this Court, as the gatekeeper, that there is an air of reality to the alternate suspect theory sought to be presented to the jury at trial.

[23] The issue is “whether there is evidence upon which a properly instructed jury acting reasonably could acquit if it accepted the evidence as true” R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paragraph 81.

[24] The threshold to be met by the Defence on the within Application is not an onerous one. It does not require this Court to determine that the proposed defence at trial is at all likely to succeed.

[25] In addition, it must be remembered that the air of reality test may be met by direct evidence, circumstantial evidence, or both.

[26] Evidence that points to a third party suspect is generally admissible if it is relevant and sufficiently probative. On the latter, the question is whether the alternate suspect is sufficiently connected with the crime charged. R. v. McMillan, R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27.

The Law as Applied to our Facts

[27] Despite Mr. Goldkind’s very able submissions, the air of reality test is not met in this case.

[28] Taking the Defence evidence at its highest, and speaking very bluntly, let us assume that Hodgins had a strong financial motive to kill the victim. He wanted to keep the hundreds of thousands of dollars in assets that she had transferred to him, and he wanted to administer her estate and collect as the only beneficiary thereof.

[29] Aside from that, there is a complete absence of anything connecting Hodgins to the crime. He cannot be placed at or near the scene on the alleged murder date. There are no forensics that implicate him. There is nothing, but for an eight-day gap in time that Hodgins tried to contact the victim after February 13th. Viewed in the context of the chart attached to the Agreed Statement of Fact, however, that gap in time has very little, if any, significance.

[30] The Defence is concerned that the jury will be misled into thinking that only Scordino failed to try to contact the victim in the days after February 13th. There is no risk of that misapprehension, however, as the Defence is permitted to question Hodgins at trial about his contact with the victim both before and after February 13th.

[31] The Defence is concerned further about the jury being misled into thinking that only Scordino stood to benefit financially from the death of the victim. Similarly, there is no risk of that misapprehension as the Defence is permitted to question Hodgins at trial about the transfer of assets from the victim to him and with regard to his status as executor and sole beneficiary of her estate.

[32] The Defence is also concerned about being hamstrung in challenging Hodgins about being “coy” and/or inconsistent, pre-trial, on the details of his financial connectedness to the victim. Again, there is no risk of that prejudice occurring. The Defence is permitted to explore those alleged testimonial shortcomings in cross-examination of Hodgins at trial.

[33] The Crown takes no issue with any of the above.

[34] What the Crown opposes, and what this Court hereby prohibits, is the Defence suggesting at trial, whether in cross-examination of Hodgins, or in opening, or in closing, or at any other juncture of the proceeding, that Hodgins killed or may have killed the victim.

[35] Of course, this ruling is subject to being revisited during the trial should the evidence warrant such reconsideration.

III. Conclusion

[36] For all of the above reasons, the Defence alternate suspect application is dismissed.

Conlan J.

Released: January 15, 2019