R. v. Isaac, 2020 ONSC 7190

COURT FILE NO.: CR-19-10000631-0000

DATE: 20201123

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RICHARD ISAAC

Accused

Robert Wright and Tania Monteiro, for the Crown

Daniel Brodsky and Taro Inoue, for the Accused

HEARD: October 22 and 23, 2020

RULINGS ON ALLEGED FABRICATION OF EVIDENCE BY THE ACCUSED

b.p. o’marra j.

Overview

1In June 2018 the victim Victoria Selby-Readman lived in an apartment with the accused Richard Isaac. They were not involved in a romantic relationship but shared the apartment and rent. The victim had a very good relationship with her father. They kept in regular contact by telephone and text messages. On June 8, 2018, the victim sent text messages to her father saying that the accused was drinking too much and that she wanted him “gone today.” On June 9, 2018, her father initiated an exchange of text messages with the phone associated to the victim. There was a distinct change in tone from her text messages of the day before. She commented on what a thoughtful person the accused was and that she would be sharing an evening meal with him. She also said that he had been treated badly by his former spouse and that this led to his excessive drinking of alcohol.

2On June 10, 2018, the victim’s father sent texts to the victim but received no response. He tried to communicate with her again on June 11, 2018, with no response. On June 12, 2018, he decided to go to her apartment to see her. The custodial staff at the apartment building helped him gain access to her apartment. Once inside he made the horrific discovery of the badly beaten and decomposing body of his daughter wrapped in blankets and propped up against a wall. He immediately called the police.

3Video surveillance in the apartment building showed the accused going in and out of the elevator on June 8–11, 2018, inclusive of the fifth floor where the apartment shared by the victim and the accused was located. Video footage in the early morning of June 11, 2018, showed the accused carrying four garbage bags of items out of the apartment building. He met nearby with his father who had driven his van to pick him up. The accused had called his father early that morning to say he “couldn’t live here anymore” and asking to stay with him. His father drove the two of them to a family trailer in Fenelon Falls where the accused remained until he was arrested there on June 16, 2018, by members of the Toronto Police Service. He was charged with the murder of Victoria Selby-Readman.

4The police searched the trailer where the accused had stayed with his father. They recovered a hardcover journal left lying on a chair. It contained two pages of handwriting by the accused. The writing sets out that he returned to the apartment he shared with the victim on June 9 after shopping for alcohol and drinking a significant amount in the elevator. He wrote that when he entered the apartment he found the lifeless body of the victim. It was agreed at trial that at that date the accused faced outstanding criminal charges arising from incidents with his estranged spouse. The accused did not testify at trial. The defence submitted that the accused reasonably feared that he would be wrongly charged with the death of the victim at least in part because he faced outstanding charges arising from a prior domestic relationship at the time. The defence submitted that this explains why he failed to contact the police or ambulance service when he found the battered and lifeless body of the victim in the apartment.

5The Crown position was that the handwritten denial of involvement found by the police on June 16, 2018, was false and constituted fabrication meriting the appropriate instruction to the jury. The Crown further submitted that there was circumstantial evidence that the victim was killed on June 8, 2018, and that the text messages sent on her phone dated June 9, 2018, were in fact sent by the accused. The Crown submitted that this too constituted fabrication meriting the appropriate instruction to the jury.

6On October 23, 2018, I ruled that the alleged falsity of the handwritten words of the accused did not rise to the level of fabrication. The jury would be instructed to consider the denial set out in the handwritten notes in accord with the principles set out in R. v. W.(D.) 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. I also ruled that there was circumstantial evidence that the accused sent the return text messages dated June 9, 2018 on the victim’s cell phone to her father to divert attention from his involvement in the death of the victim. If the jury made that finding it would amount to fabricated evidence that merited the appropriate instruction to the jury.

7The trial is now completed. These are my reasons.

THE TEXT MESSAGES DATED JUNE 8 AND 9, 2018

8Screen shots of these text messages were filed as exhibits on consent. It was agreed that they were exchanged between the cell phone associated to the victim (V) and the cell phone of her father (F) who testified as to the messages he sent. The verbatim exchanges were as follows:

June 8, 2018, at 5:06 p.m.

V- My roommate is drunk again can you come over I need support

F- Working now bb. Just go out and leave him. That is the best thing to do Drunks are hard to deal with

V- He’s so stupid I want him gone today

F- Wait till tomorrow Try to ignore him Go out and work

June 9, 2018, at 4:03 p.m.

F- Hey bb How are you today

V- Good actually He's taking me out for supper I asked him not to drink anymore and he agreed with me

F- Goodb Sometimes best to be patient

V- He’s a nice guy Just hate to see him drink over his ex

F- Yes agreed

V- Sh’'s not worth it and he’s only hurting himself

F- Booze gets you no where Sorry bb Working now

V- When he's sober he’s so kind and thoughtful This week he brought me home flowers He said that he saw them and thought of me and that the place needed some brightening up OK gonna get ready to go out for supper

F- Have fun at dinner

V- Thanks (followed by 8 smiley face emojis)

9The indictment alleged that the victim was killed in the time period of June 8-10, 2018, inclusive. The victim was last seen alive on the building’s security video footage at 5:55 p.m. on June 8, 2018. The handwritten notes left by the accused refer to him finding the lifeless body of the victim in the apartment on June 9. There was no dispute that the victim was killed during the time frame set out in the indictment. For the purposes of this specific application the Crown alleges that the victim was killed on June 8. That is an individual piece of evidence that the Crown is not required to prove beyond a reasonable doubt: R. v. Morin 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345 at 354-355.

10On June 8, the accused is seen on video leaving the building at approximately 6:43 p.m. and returning at 7:34 p.m., when he is observed drinking in the elevator. On June 9, the accused is observed leaving the building at approximately 2:07 p.m. and returning at 2:17 p.m. carrying alcohol that he had purchased.

11When the body of the victim was photographed by the forensic identification officers in the apartment on June 12 she was wearing the same clothes she was last seen alive in on June 8.

12The records for the victim’s cellphone show a pattern of regular and consistent texting each day until the evening of June 8 when it drastically diminished. On June 9, there is an uncharacteristic lack of activity on her phone other than a nine second call to voicemail. There were no text messages until the exchange with her father’s cellphone at 4:07 p.m.. The victim’s cellphone did not require a password. When the police recovered her phone in the apartment on June 12 they were able to gain access by simply pressing the home button and swiping on the screen. The victim was observed carrying her phone in her hand when she was observed on video on June 8 at 5:55 p.m.. The phone was examined forensically for fingerprints and none were found on the home button, screen or back of the phone. A forensic identification officer testified that the shiny surface of a phone such as this would normally be a good source for fingerprints.

13The tone and content of the texts sent on the victim’s phone on June 9 were very different from the texts she sent on June 8 to her father. The texts on the latter date present a far more positive and sympathetic image of the accused. The victim’s father testified that at the time he thought it was odd or unusual that his daughter referred to an evening meal as “supper” rather than dinner. It was not the word used in their family. He responded with the word “dinner.” It was interesting to note that in the handwritten notes of the accused found by police on June 12 he used the word “supper” more than once.

14Destruction of potential evidence or alteration of the scene where the alleged offence occurred are examples of after-the-fact conduct that a trier of fact may consider as connecting the accused to the commission of the offence: R. v. Vant, 2015 ONCA 481, 324 C.C.C. (3d) 109 at para. 129. Evidence from which the jury could infer that an accused planted evidence at a crime scene or caused someone else to do so is capable of constituting after-the-fact conduct that implicates the accused in the offence. The issue comes down to whether there is sufficient evidence capable of giving rise to such an inference: R. v. Sheri, (2004) 2004 CanLII 8529 (ON CA), 185 C.C.C. (3d) 155 (Ont. C.A.), at para. 61; R. v. Davison and others, (1974) 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.).

15There is no direct evidence that the accused sent the text messages on June 9 on the victim’s phone. However, there is a circumstantial basis for the jury to find that the victim died before those messages were sent and that the accused used her phone to respond to texts from the victim’s father. That is a finding that the jury may or may not make. If the jury made this finding, the impugned texts would be the epitome of fabrication. They would be evidence created to deceive and deflect responsibility. The jury will be instructed that if they are not satisfied after a careful consideration of all the evidence that the victim had died before those texts were sent and that it was the accused who sent them they must not draw any inference against the accused related to that evidence. If the jury are so satisfied they may consider that evidence as indicating that the accused knew that he had been involved in her death. It will be for the jury to decide whether he did so in an attempt to conceal his involvement in her death. The jury may also consider that evidence in assessing the credibility of the handwritten notes of the accused that were recovered by the police on June 16. As with other items of after-the fact conduct in this case, the jury will be instructed that they may not use such evidence related to level of culpability, specifically to whether the intention for murder had been proven beyond a reasonable doubt. It can only be used by the jury on the issue of whether he caused her death.

THE HANDWRITTEN WORDS OF THE ACCUSED FOUND BY POLICE ON JUNE 16, 2018

16These two pages of notes were in a hardcover journal that was left sitting on a chair in the trailer at Fenelon Falls where the accused was arrested on June 16. He wrote that he made the notes on June 12. That was the day after he was observed on a surveillance video carrying four garbage bags as he hurried out of the apartment building where the body of the victim was later found. The notes are a denial of involvement in her death. He claimed that he went out shopping on June 9 for some alcohol and returned to find the battered and lifeless body of the victim. He wrote that he threw up and made sure the door was locked. He said her pants were down and he pulled them back up and covered her with blankets and a towel. He eventually contacted his father to pick him up because he could not stay there anymore.

17The parties agree that the jury must be instructed to consider the denial set out in the handwritten notes based on the principles set out by the Supreme Court of Canada in W.(D.). The Crown submits that the denial should be rejected by the jury but also that they should be instructed to consider it as a fabrication meriting a further instruction as to its use.

18It is understandable that in many cases a trier of fact may logically infer fabrication from disbelief of a denial by an accused. However, the law draws an important distinction and limits as to the use of evidence that is disbelieved. To establish fabrication, the Crown must adduce evidence independent of the evidence in question that contradicts or discredits the exculpatory evidence. An alibi or other exculpatory statement that is disbelieved is not and does not, without more, become an item of evidence that adds to the strength of the Crown’s case. However, where the Crown adduces evidence from which the trier of fact can infer fabrication, that evidence is capable of supporting an inference of guilt. R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 7 C.R. (6th) 205 (Ont. C.A.) at para. 17; R. v. B. (P.), 2015 ONCA 738 at para. 169.

19The Crown submits that the timing and nature of the handwritten notes and the detail provided support an inference of fabrication. It is tempting for a trier of fact to infer fabrication from disbelief. I am not satisfied in this case that such a potential inference should be left with the jury. The jury will be instructed that they may not use a rejection of the handwritten denial as independent evidence of involvement in the death of the victim.

RESULT

20The jury will be instructed to consider whether the text exchanges dated June 9, 2018 on the victim’s phone were in fact sent by the accused. If they so find they may consider that as evidence of fabrication related to his involvement in her death. In regard to the handwritten notes of the accused, the jury will be instructed that they may only consider them in accord with the principles in R. v. W.(D.) and not as independent evidence of his involvement in the death of the victim.