Court File and Parties

COURT FILE NO.: CR-20-30000076-0000 DATE: 20200218

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JASON BARTLEY Applicant

Counsel: Celia Lindo-Butler, for the Crown Karen Lau-Po-Hung, for the Applicant

HEARD: January 27, 2020

BEFORE: T. Ducharme J.

THIRD PARTY SUSPECT RULING

INTRODUCTION

[1] Mr. Bartley is charged with several firearms offences as a result of the discovery of a handgun in his home during a search of his residence pursuant to a search warrant. The defence seeks to lead evidence, in the form of an agreed statement of facts, that the search warrant was issued based on information provided by two confidential informants who were both seeking a benefit that was contingent on arrests being made or something illegal being found in the home. The proposed agreed statement of facts reads as follows:

Agreed Statement of Facts

The following is agreed upon on behalf of Jason Bartley and the Crown Attorney:

1. Two confidential informants provided information to the police about Mr. Bartley and a firearm in exchange for a benefit.
2. Confidential informant #1: The ultimate decision on consideration would be made by Toronto police. No consideration was given at the time the information was provided and the informant was made aware that no consideration would be given unless illegal items were seized and/or arrests were made as a result of their information.
3. Confidential informant #2: The ultimate decision on consideration would be made by Toronto police. No consideration was given at the time the information was provided and the informant was made aware that no consideration would be given unless illegal items were seized, namely guns.
4. The confidential informants were advised that if they provided false or misleading information that resulted in a criminal investigation being undertaken they would be charged criminally. [^1]

[2] The defence position is not that one of the confidential informants necessarily planted the gun. Rather their position is that Mr. Bartley knew nothing about the gun and therefore someone else must have planted it. While they do not know who did so, they submit that it is worth noting that there are two people who stood to gain a benefit from the finding of the gun.

Lack of Advance Notice by Defence

[3] The Crown objects to the defence leading this evidence as they gave no notice of their intention to do so at the pre-trial conference. In particular, the Crown stresses this was not raised under Question 23 of the Pre-Trial Conference Form [Form 17] dealing with “Evidence of other Suspects”. The Crown relies on this lack of notice to prevent them from raising this at trial.

[4] In considering this argument, I note that Rule 28.04(11) and 28.04(12) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) provide as follows:

Changes of Position

28.04 (11) If either party changes any position taken and recorded on the pre-trial conference report, the party must provide written notice of the change to the other parties and the Superior Court trial coordinator and arrange for a further pre-trial conference as soon as practicable, and serve and file any notices, records, facta, books of authorities or other materials required by these rules.

28.04 (12) Failure to comply with subrule 28.04(11) may result in any application resulting from a change in position not being heard by the trial judge.

[5] In this regard, I note that this is not typical third-party suspect evidence as the defence is not identifying a specific third-party suspect. While this issue should have been raised at the pre-trial, I am not convinced that it readily fits under Question 23 of Form 17 dealing with other suspects. Moreover, in my view, this will not significantly change the nature of the defence or needlessly complicate the trial. Thus, to the extent that it is necessary, I will dispense with compliance under rule 2.01 as the Crown is not prejudiced. In this regard, I note that the Crown has been aware of the evidence in the agreed statement of facts and there is nothing further to investigate about this.

Innocence at Stake

[6] The Crown at one point took the position that this was properly an “innocence at stake” application and suggested that to proceed the defence must be able to establish that the disclosure of the informers’ identities is necessary to demonstrate the innocence of the accused. This is clearly not the case. The defence has not sought disclosure of the confidential informants’ identities and the proposed agreed statement of facts does nothing, either implicitly or explicitly, to reveal the confidential informants’ identities. Thus, there is no need for the defence to satisfy the strict requirements of the innocence at stake exception to confidential informer privilege.

No Air of Reality

[7] The Crown objects to this evidence on the basis that there is no air of reality to the claim that one of the confidential informants planted the gun at Mr. Bartley’s residence. In this regard, the Crown points to R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at paras. 47-48 where the court 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. [Emphasis added.]

[8] The Crown also relies on R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, at paras. 74-75 where the court wrote:

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.

Fifth, we often use the term “opportunity” or “evidence of opportunity” to describe the nature of the connection between the third party and the conduct charged that is essential to provide an air of reality to the third party suspect defence. Absent this evidence, circumstantial evidence of an alleged third party’s disposition and motive, for example, would be excluded as immaterial: Grandinetti, at para. 48. [Emphasis added.]

[9] It is the Crown’s submission that, as we know nothing about the identities of the confidential informants, no such “air of reality” can be established. Thus, to permit these facts about the confidential informants to be led will needlessly complicate the trial and invite the jury to speculate about the possible involvement of the confidential informants.

[10] The answer to the Crown’s objections can be found in the case of R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, where the Supreme Court of Canada dealt with a defence application to lead evidence relating to an unknown third-party suspect. The appellant was charged with murder and wanted to lead evidence about another similar murder that occurred several months later, that he could not have committed. At para. 3 the court stated the basic principle that:

An accused person’s Charter-protected right to make full answer and defence entitles her to challenge the Crown’s case and lead evidence to raise a reasonable doubt about whether the accused committed the crime.

[11] But the court added the following important qualification at para. 4 that:

the administration of justice requires that the proceedings stay focused on the indicted crime and not devolve into trials within a trial about matters that may not be sufficiently connected to the case. Such tangents risk causing delays, confusion and distractions that undermine the trial’s truth-seeking function. This risk is especially heightened where the defence seeks to introduce other alleged suspects or crimes into the trial.

[12] The court recognized, at para. 20, that “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.” But importantly, at para. 21, the court wrote “in most cases where the defence evidence relates to the facts underlying the offence charged, the logical relevance and the admissibility of the evidence will be obvious” (emphasis added). At para. 30, the court continued, “Once the relevance threshold is met, the trial judge must still be satisfied that the probative value of the evidence tendered by the defence is not substantially outweighed by its prejudicial effects.”

[13] In this case, it is clear that the information in the proposed agreed statement of facts “relates to the facts underlying the offence” and therefore its logical relevance and admissibility are established. The next step is to balance the probative value of the evidence against its prejudicial effect. However, in doing so, it is important to keep in mind that “the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law”: Grant, at para. 19, citing R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 611; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33; R. v. Arcangioli, [1994] 1 S.C.R. 129.

[14] In this case, the prejudicial effect of the proposed evidence is minimal especially given that the defence will not directly submit that either confidential informant planted the gun. Mr. Bartley’s plea of not guilty makes it clear that he did not know the gun was in his house and his position is necessarily that someone else planted the gun there. The additional fact that there are two confidential informants who stood to gain from the discovery of the gun, merely makes clear what is obvious from the information to obtain the search warrant. The Crown has raised several concerns relating to the confidential informants. Again, the proposed evidence does not breach confidential informant privilege at all. Moreover, any concerns about the use of confidential informants can be dealt with in my charge. Specifically, I shall instruct the jury that there is nothing unusual or suspicious about the use of confidential informants or the fact that they might receive a benefit for the information they have provided.

[15] I also do not regard the probative value of this evidence to be that great. But given the clear direction in Grant and Seaboyer that defence evidence should only be excluded where the prejudice substantially outweighs probative value, I conclude that this evidence can properly go before the jury.

T. Ducharme J.

Released: February 18, 2020

[^1]: This is the agreed statement of facts that was put before the jury. The arguments on this issue were based first on a slightly different agreed statement of facts and then the Crown indicated that the defence would have to call the affiant. After I had ruled, the Crown then agreed to this statement of facts. Nothing about this history affects the arguments made by counsel or my ruling.