COURT FILE NO.: 7998/19
DATE: 2019-12-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
W. Trent Wilson/Robert Skeggs, Counsel
for the Respondent
Respondent
- and -
Tania Bariteau, Counsel for John Pine
JOHN PINE, RONALD BARON AND
Kenneth G. Walker, Counsel for Ronald
WILLIAM ROSS
Baron
C. Bruce Willson, Counsel for William Ross
Applicants
HEARD: November 12-15, 2019
VARPIO J.
REASONS ON APPLICATION TO RAISE
THIRD PARTY SUSPECT EVIDENCE AT TRIAL
[1] John Pine, Ronald Baron and William Ross (hereafter “the Applicants”), each stand charged with a variety of offences. The charges stem from an alleged home invasion robbery that occurred on September 22, 2017. The applicants seek to adduce evidence that a third party, Mr. Seamus Fyfe, committed the robbery. For the reasons that follow, I would allow the application.
THE APPLICATION
The Alleged Incident
[2] On September 22, 2017, at approximately 7:15 a.m., three masked men broke into the residence of Mr. Jamie Narbonne and Ms. Chelsea Spadafora at 431 Third Avenue in the city of Sault Ste. Marie.
[3] The males are alleged to have carried firearms and to have stolen a number of items from the residence, including various electronics and a cell phone.
[4] A neighbour, Ms. Emilia Serrao, observed the males leave the residence in a black truck. Ms. Serrao was not able to describe the males as they were wearing masks and were completely covered. She observed the truck leaving the residence and heading north towards Second Line.
[5] The police were called shortly after the males left the residence. Neither one of the victims was able to provide a description of the males.
[6] The victims advised that, amongst other items, a cell phone was stolen from their residence. Around 9:12 a.m., the phone was located around the intersection of Second Line West and Goulais Avenue.
[7] Both victims provided a statement to police. Ms. Spadafora advised that the men were asking them “where is the girl you took?”, “where is the stuff?”. Both victims advised that men were going around their house looking for something.
The Police Investigation
[8] Police received “intelligence” that Seamus Fyfe had been doing drug collections around the time of the home invasion. Police associated Mr. Fyfe with a black Chevrolet pick-up truck. The police testified that they had previously seen Mr. Fyfe drive a black truck similar to the vehicle ultimately found at 33 Hamilton. The black truck believed to have been used in the home invasion was captured on video surveillance around the time of the robbery at the Northern Credit Union located at 612 Second Line West.
[9] Police attended 33 Hamilton Avenue, a purported residence of Mr. Fyfe and set up surveillance in that area. Police observed the black truck in the driveway of that residence.
[10] At approximately 2:25 p.m., Cst. O’Dell conducted a bail compliance check at another residence of Mr. Fyfe. Mr. Fyfe did not respond to the compliance check. No follow-ups were conducted.
[11] The police also observed Mr. Fyfe’s surety near 33 Hamilton Avenue at the time of the investigation.
[12] At approximately 3:00 p.m., Sgt Crema directed Cst. Runco to stop a red Ford Fusion that was leaving the driveway of 33 Hamilton Avenue.
[13] Cst. Runco stopped the red Ford Fusion to identify possible suspects in the home invasion. The purpose of the vehicle stop was for the continued criminal investigation.
[14] Once police pulled over the vehicle, they requested identification. The driver of the vehicle, Mr. Ronald Baron was arrested for drive while disqualified. The vehicle was then impounded for 45 days.
[15] Mr. Pine was identified as the passenger of the red vehicle. After being questioned by police, Mr. Pine was released without condition.
[16] No further surveillance was conducted on Mr. Fyfe’s residence.
Search of the Red Ford Fusion
[17] Police received a confidential tip that the Red Ford Fusion driven by Mr. Baron contained firearms in the trunk.
[18] On October 3, 2017, police called Odette Baron, the owner of the Red Ford Fusion and obtained “consent” via telephone for the search of the car. The police attended the compound where the Red Ford Fusion had been impounded. Police searched the trunk of the car and found a black duffle bag containing clothing and firearms.
[19] A number of items were seized from the car and were sent to the Centre for Forensic Sciences to be analyzed. DNA evidence linked certain clothing, firearms and other items to the accused persons. This evidence is the subject of a Charter application.
[20] The black truck involved in the home invasion was not searched at any point during the investigation.
The Evidence Against the Applicants
[21] The Applicant, Mr. Pine, was arrested on October 4, 2017, on an outstanding warrant relating to the home invasion.
[22] It is anticipated that the Crown will advance evidence of a fingerprint belonging to Mr. Pine located on the complainant’s cellphone.
[23] The Applicant, Mr. Baron was arrested on October 23, 2017, on an outstanding warrant related to the home invasion. The Crown is seeking to adduce Mr. Baron’s confession.
[24] The Applicant, Mr. Ross, was arrested on December 21st, 2017, on an outstanding warrant related to the home invasion. It is anticipated that the Crown will advance evidence that a cigarette butt was found in the toilet of the victims’ residence bathroom. An analysis was conducted on the cigarette butt and the DNA analysis came back to Mr. Ross.
ANALYSIS
The Law
Relevance and Probative Value
[25] Evidence that may prove the innocence of an accused person is admissible provided it is both relevant and probative. In leading such evidence, a party must first establish the logical relevance of that evidence. Where the threshold of relevance is met, the analysis will then move to the issue of admissibility. Relevant evidence is admissible unless its prejudicial effect substantially outweighs its probative value.
R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577.
[26] Evidence of an alternate suspect is one example of this type of evidence. The Honourable Justice Martin of the Ontario Court of Appeal explained the “relevance” analysis in R. v. McMillan:
[It is] 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.
R. v. McMillan, 1975 43 (ON CA), [1975] O.J. No. 2247 (Ont. C.A.) (aff’d in R. v. McMillan, 1977 19 (SCC), [1977] S.C.J. No. 32) at para 23.
[27] With that said, the admission of said evidence is not automatic. The Ontario Court of Appeal in R. v. McMillan set out the test for the admission of evidence relating to third party suspects as follows:
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.
R v McMillan, supra, at para 24.
[28] The test was later adopted by the Supreme Court of Canada in R. v. Grandinetti, where Abella J. held that,
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 becomes relevant and probative if there is a significant connection between the third party and the crime.
R v Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at paras 47-48.
[29] Like all evidence, a court must nonetheless balance the probative value of the proposed evidence against its prejudicial effect. The relevant factors to consider are set out by the Ontario Court of Appeal in R. v. Clarke and can be summarized as follows:
The danger the evidence will arouse the jury’s emotions of prejudice, hostility or sympathy;
The danger the evidence and any evidence responding to it will unduly distract the jury from the main issue in the case;
The likelihood the evidence will consume an undue amount of time;
The danger of unfair surprise to the opposing party who could not reasonably anticipate the issue and prepare a response to it; and
The danger that the evidence will be presented in such a way that usurps the function of the jury.
R. v. Clarke, 1998 14604 (ON CA), [1998] OJ No 3521 (Ont. C.A.) at paras 34-35.
[30] The court in Clarke went on to note that the power to exclude relevant defence evidence is “narrower and constrained by the fundamental tenant that an innocent person not be convicted”. Citing the Supreme Court in Seaboyer, the court in Clarke also recognized that,
The right of the innocent not to be convicted is dependent upon the right to present full answer and defence. This, in turn, depends on being able to call evidence necessary to establish a defence and to challenge the evidence called by the prosecution.
R. v. Clarke, supra, at para 33.
R. v. Seaboyer, supra, at para 28-34.
APPLICATION TO THESE FACTS
[31] The Crown argues that the application ought to be dismissed in so far as it is speculative. The fact that three people were arrested and that evidence exists as against the three current accused persons demands that there is no air of reality to the application such that the prejudicial effect of admitting the evidence outweighs the probative value.
[32] I disagree with the Crown.
[33] First, the police had “intelligence” that Seamus Fyfe was having people engage in drug collection.
[34] Second, the black truck located at 33 Hamilton is similar to the truck seen at the location of the home invasion. Mr. Fyfe was previously observed to be driving a similar truck. This constellation of facts gives a solid nexus for thinking that Mr. Fyfe committed the robbery.
[35] Third, the fact that Mr. Fyfe’s surety was seen near 33 Hamilton Avenue during the investigation lends credence to the notion that Mr. Fyfe may have been using the truck on the day the robbery was committed.
[36] These facts demand that there is a strong nexus as between Mr. Fyfe and the crime in question. The strength of this nexus demands that the application has an air of reality as per R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3.
[37] With respect to the balancing of prejudicial effect and probative value, there is limited prejudicial effect in allowing the defence to call this evidence. This is not a “point the finger” at a random third party application where there is no basis to suggest that the third party is related to the incident. To the contrary, the police’s own investigation targeted Mr. Fyfe which in turn means that there is little risk that the jury will be unduly distracted. The fact that the evidence regarding Mr. Fyfe is intertwined with the investigation means that the evidence will not consume an undue amount of time. There is no danger of unfair surprise to the Crown since the evidence comes from the Crown brief. And there is no reason to believe that the jury’s emotions will be aroused in a display of prejudice, hostility or sympathy. Accordingly, the probative value substantially outweighs any prejudicial effect. Finally, this is not the type of evidence that would be presented in such a way so as to usurp the jury’s function.
[38] The application is therefore allowed.
Varpio J.
Released: December 3, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JOHN PINE, RONALD BARON AND
WILLIAM ROSS
REASONS ON APPLICATION TO RAISE THIRD PARTY SUSPECT EVIDENCE AT TRIAL
Varpio J.
Released: December 3, 2019