COURT FILE NO.: 18-97

DATE: 20200429

ONTARIO

SUPERIOR COURT OF JUSTICE

S. 648(1) of the Criminal Code applies to all motions and applications heard and determined in this proceeding before trial pursuant to s. 645(5) of the Criminal Code, where the subject-matter of the motion or application is or relates to evidence to be heard at trial. Pursuant to s. 648(1), no information concerning any part of such motion or application or the reasons for ruling on such motion or application shall be published in any newspaper or broadcast by any means, including posting or distribution over the internet.

BETWEEN:

HER MAJESTY THE QUEEN

– and –

James Wise

Defendant

Jason Pilon and Jason Neubauer, counsel for the Crown

Ian Carter and Jon Doody, counsel for the Defendant

HEARD: March 4 and 5, 2020

reasons for ruling – admissibility of twelve remaining statements

lacelle, j.

Introduction

[1] The accused is charged with the first degree murder of Raymond Collison.

[2] The Crown has filed a Notice of Application identifying twenty-eight statements of the accused which it seeks to have admitted during his trial. An additional two statements were identified during the voir dire to determine whether any of the accused’s statements were caught by s. 24(2) of the Canadian Charter of Rights and Freedoms because they were sufficiently linked to a breach of the accused’s s. 8 rights.

[3] In a separate ruling addressing the admissibility of certain statements under s. 24(2) of the Charter, I concluded that a number of the accused’s statements would be excluded from the evidence at trial.

[4] The Crown now seeks a ruling that twelve of the remaining statements made by the accused are admissible as part of the prosecution’s case at trial. The Crown has characterized the remaining statements as belonging to three groups: 1) the “background statements”, which provide context and narrative relevant to other statements (statements 3, 4, 7, and 21); 2) “the interrogation statements”, which were made and recorded on video subsequent to the accused’s arrests in 2016 and 2018 (statements 6, 24 and 26); and 3) “the implied confession” statements (statements 6A, 7A, 9, 14 and 18), which the Crown says function in conjunction with the background statements as an implied confession by the accused.

[5] The voluntariness of the statements has been conceded. No additional Charter issues have been raised in respect of the twelve statements at issue in this voir dire. Consequently, the admissibility of the statements turns on other principles of law.

Overview of conclusions

[6] I have concluded that the “implied confession” statements are not admissible at trial because their prejudicial impact outweighs their probative value. The Crown agrees that if those statements are not admissible, the “background statements” are also inadmissible. Consequently, statements 3, 4, 7, 21, 6A, 7A, 9, 14 and 18 are not admissible at trial.

[7] Insofar as the “interrogation statements” are concerned, the parties agree that statement 6 is admissible subject to editing and admissibility arguments based on the principles set out in R. v. Hall, 2010 ONCA 724, 269 O.A.C. 199. The Crown takes the position that the editing required is dependent on the court’s ruling in respect of the “implied confessions”. During oral submissions, which preceded the disruption to the court system caused by COVID-19, the parties agreed that given she shortness of time between the voir dire and the scheduled commencement date for the trial, the proposed editing of statement 6 and the application of Hall would be addressed as the trial unfolds. The trial has not proceeded as scheduled. Accordingly, the parties may revisit the timing of any ruling required in respect of the editing of statement 6.

[8] With respect to the admissibility of statements 24 and 26, I have concluded that an edited segment of each of these statements is admissible. I am satisfied that utterances within each of these statements may be presented to the jury in edited segments without affecting the tenor or meaning of the accused’s utterances. I am also satisfied that they may be edited in a way that does not unfairly deprive the defence of arguments it might make regarding the meaning of the utterances made by the accused. So edited, the probative value of the statements exceeds their prejudicial effect.

[9] What follows are my reasons for these rulings.

Background

[10] By way of background, as I have indicated, the accused is charged with first degree murder in relation to the death of Raymond Collison. Both the accused and Mr. Collison were residents in a small rural community. They knew each other and had a number of acquaintances in common.

[11] Mr. Collison was last seen alive on August 28, 2009. In the timeframe before he went missing, he had been living in a trailer on a property near where the accused was living. The property where the accused was living included a garage where the accused was known to do mechanical work.

[12] Mr. Collison’s remains were found in a culvert in a rural area almost five years later on April 17, 2014. The location of Mr. Collison’s remains was a few kilometres from where the accused was living at the time that Mr. Collison was last seen.

[13] When Mr. Collison’s remains were found, there was a fan belt around the neck area of his remains. It was ultimately determined that Mr. Collison had been shot in the back of the head with a .22 calibre firearm. He had also been shot, from behind, in other parts of his body.

[14] The central issue in this case is the identity of Mr. Collison’s killer.

[15] The Crown theory is that the accused shot Mr. Collison in his garage and used a fan belt attached to a shackle in disposing of his body. Police discovered what is alleged to be a bullet hole in the wall of the accused’s garage at a height that is said to be consistent with where Mr. Collison was shot in the back. Forensic examination of the garage revealed chemical indications of blood along the same wall. In a search of the accused’s garage, police also found fan belts similar in make and model to the one found around Mr. Collison’s remains. The same make and model could be used in 1997 Plymouth Neon vehicles. This type of vehicle was owned by the accused’s landlady at the time Mr. Collison disappeared. The accused was known to do automotive work for her.

[16] The Crown theory is that the accused used a truck he owned at the time of Mr. Collison’s disappearance to move the body from his garage to the culvert a few kilometres away where Mr. Collison’s remains were found in April of 2014. Police investigation determined that the truck was sold less than a month after police began searching for Mr. Collison. Police later recovered the truck and it was forensically examined. The Centre of Forensic Sciences located chemical indications of blood in the truck in a number of locations. The previous owners were interviewed by police and stated that they knew of no reason why there would be blood in the truck.

[17] At the time of the investigation into Mr. Collison’s death (which took place over a number of years) the accused was well known to police. Police had suspected for decades that the accused was responsible for a number of other crimes, including many homicides. They believed he was a serial killer. During their investigation of Mr. Collison’s death, police frequently referenced these other suspected homicides during their interactions with the accused. They also referenced evidence that I have since excluded from the trial because it was obtained in a violation of the accused’s s. 8 Charter rights.

The legal principles

Principles relating to the admissibility of evidence

[18] Several fundamental principles of the law of evidence must be considered in determining the issues before the court. They are summarized by Watt J.A. in R. v. Ansari, 2015 ONCA 575, 330 C.C.C. (3d) 105. For ease of reference, I reproduce paragraphs 102-111 in their entirety here:

Relevance is not an inherent characteristic of any item of evidence. Relevance exists as a relation between, on the one hand, an item of evidence and, on the other, a proposition of fact that the evidence is offered to prove. Relevance is a matter of everyday experience and common sense. An item of evidence is relevant if, by the application of everyday experience and common sense, it renders the fact it seeks to establish by its introduction slightly more or less probable than the fact would be without it: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16 (Ont. C.A.), at para. 204.

Relevance does not exist in the abstract or in the air: R. v. Cloutier, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709 (S.C.C.), at pp. 730-732; Luciano, at para. 205. Relevance is also relative; we assess and determine it in the context of the entire case in which the evidence is proffered and the positions of counsel in that case: Cloutier, at pp. 730-732; and Luciano, at para. 205.

To be relevant, an item of evidence need not prove conclusively the proposition of fact for which it is introduced. Nor does the evidence, to be relevant, need to make the proposition of fact more probable than not. An item of evidence is not irrelevant simply because it can sustain more than one inference. The requirement of relevance is met where the item of evidence reasonably shows, “by the application of everyday experience and common sense[,] that the fact is slightly more probable with the evidence than it would be without it”: Luciano, at para. 206.

Admissibility is a legal concept. Admissibility rules exclude evidence that is both relevant and material on the basis of some policy consideration that the law regards as of sufficient importance to warrant exclusion of evidence that would otherwise assist the trier of fact in ascertaining the truth of the matter at hand. The rule that excludes relevant and material evidence on the basis that its probative value is outweighed by its prejudicial effect is a rule of admissibility.

The prejudice component of this general exclusionary discretion may involve either or both of two types of prejudice.

Moral prejudice refers to the risk of an unfocused trial and a conclusion of guilt based on a prohibited chain of reasoning from a general disposition or propensity to guilt of the offence charged. In other words, a finding of guilt that is based on character, not conduct: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 (S.C.C.), at paras. 31 and 139.

Reasoning prejudice involves the distraction of the trier of fact from their proper focus on the offence charged by the introduction of evidence of other incidents that consume undue time and may be accorded more weight than should be their due: Handy, at para. 31 and 144.

When invited to exclude relevant, material and otherwise admissible evidence on the basis that its prejudicial effect predominates over its probative value, a trial judge will consider the individual constituents of the rule - probative value and prejudicial effect - and then balance them to determine which predominates.

The assessment of probative value involves consideration of the strength of the evidence; the extent to which it supports the inferences the proponent seeks to have drawn from it; and the extent to which the matters the evidence tends to prove are at issue in the proceedings: R. v. B. (L.) (1997), 1997 CanLII 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.), at para. 23.

An assessment of prejudicial effect should take into account:

i. the degree of discreditable conduct disclosed by the evidence;

ii. the extent to which the proposed evidence may support an inference of guilt on the sole basis of bad character;

iii. the extent to which the evidence may confuse issues; and

iv. the ability of the accused to respond to the evidence.

B. (L.), at para. 24.

Principles relating to the admissibility of statements by an accused person

[19] Where the proposed evidence is a statement from the accused, additional considerations apply, such as voluntariness and Charter compliance issues. But a voluntary and Charter compliant statement does not gain admission into a trial without also conforming to the remaining rules of the admissibility of evidence. As noted in R. v. Ferris, 1994 ABCA 20, 149 A.R. 1, at para. 15, “[w]ords do not become admissible merely because they are uttered out of the mouth of the accused. It is for the party tendering the evidence to prove the connection between the evidence tendered and the fact [in issue]”. In other words, the statement must be relevant and probative of some fact in issue. A statement made by an accused person may be excluded where its prejudicial impact outweighs its probative value.

[20] The proposed use of an accused’s statement may also affect its admissibility. Where an exculpatory statement is tendered to show it was fabricated (and therefore supports an inference of guilt), and it has no other evidentiary value, it should not be admitted into evidence unless the trial judge is satisfied that there is sufficient evidence, independent of the falsity of the statements, to demonstrate fabrication: Hall at para. 163-4 and 168; R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 170 C.C.C. (3d) 365, at paras. 18-27. While the Crown will be “entitled to qualify the statement as voluntary and Charter-compliant”, unless the trial judge is satisfied there is sufficient independent evidence to support a finding that the statement was concocted, the out-of-court statement may only be used for the purposes of cross-examining the accused: Hall, at para. 168. The existence of independent evidence of fabrication must be addressed at the admissibility stage: Hall, at para. 168.

[21] The case law provides some examples of what may constitute independent evidence of fabrication: see Hall, at para. 165. However, “[e]vidence that supports the case for the Crown, which if accepted would result in the rejection of the accused’s evidence as unworthy of belief, should not be equated with evidence of concoction”: R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 126 C.C.C. (3d) 545 (Ont. C.A.), at para. 16; Hall at para. 164. There is an important distinction between a disbelieved exculpatory statement of the accused and a concocted statement of the accused: Hall, at para. 162, citing Coutts, at para. 15. As explained by Doherty J.A. in Coutts,

If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused’s version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown’s obligation to prove an accused’s guilt beyond reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused’s version of events.

[22] Additional guidance was given on this issue in R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 191 C.C.C. (3d) 289 (Ont. C.A.), at para. 99, where the issue involved an alibi. O’Connor confirms at para. 18 that the requirement for independent evidence of fabrication applies to both disbelieved alibis and disbelieved exculpatory statements generally. Baltovich holds that:

It is axiomatic however, that evidence capable of showing an alibi to be false does not automatically translate into evidence capable of showing that it has been fabricated. Were it otherwise, there would be no need for the stringent test that must be met before a finding of fabrication, as opposed to falsity, can be made. Having relied upon certain evidence to find that an alibi is false, the jury cannot, as a matter of course, turn around and use the same evidence to find that the alibi was fabricated. That would constitute impermissible bootstrapping and it would effectively nullify the time-honoured distinction between a false alibi, which has no evidentiary value, and a fabricated alibi, which can be used as circumstantial evidence of guilt.

[23] R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, also discusses the type of evidence that might constitute “independent evidence” of fabrication. Watt J.A. explained at paras. 287-288 that:

The independent evidence relied upon to establish fabrication often originates in sources external to the allegedly fabricated statement. For example, soliciting false testimony from a witness about an accused's whereabouts at a material time: R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5 (Ont. C.A.), at para. 165, leave to appeal refused, (2011), [2010] S.C.C.A. No. 499 (Ont. C.A.). But the necessary independent evidence may also emerge from the circumstances in which a false statement is made. Those circumstances, for example the detail provided and the timing of the statement, may reveal an intent to mislead the police or to deflect suspicion and thus may be evidence of a conscious mind that the accused committed the offence charged: O'Connor, at paras. 26 and 31. But evidence that supports the case for the Crown, which if accepted would cause rejection of the accused's statement as unworthy of belief, is not evidence of concoction: Hall, at para. 164; Coutts, at para. 16.

Contradictory exculpatory statements of an accused both (or all) of which cannot be true may also constitute independent evidence of fabrication: R. v. Andrade (1985), 1985 CanLII 3502 (ON CA), 18 C.C.C. (3d) 41 (Ont. C.A.), at paras. 82-83; R. v. Hubin, 1927 CanLII 79 (SCC), [1927] S.C.R. 442 (S.C.C.), at pp. 445-446; R. v. Samuels (2005), 2005 CanLII 15700 (ON CA), 196 C.C.C. (3d) 403 (Ont. C.A.) at para. 37, leave to appeal refused, (2006), [2005] S.C.C.A. No. 313 (Ont. C.A.).

Principles relevant to the editing of statements

[24] The “whole statement” principle or “entire statement rule” holds that “if the Crown tenders the statement of an accused, it cannot pick and choose those parts of the statement that it would like the jury to hear; it must take ‘the good with the bad’, and both the ‘good’ and the ‘bad’ are admitted for their truth, for and against the accused”: R. v. Mallory, 2007 ONCA 46, 217 C.C.C. (3d) 266, at paras. 198, 200, 203-210. A party wishing to adduce a statement must put in as much of the statement as is necessary to permit a fair understanding of the individual utterances: Mallory, at para. 203. Giving a jury “an isolated utterance taken out of context deprives the jury of the opportunity to decide the true meaning of the whole statement”: Mallory, at para. 208.

[25] Mallory also directs at para. 206 that “in determining whether statements qualify for separate treatment, factors to consider include the time gap between the utterances, the nature and form of the respective utterances, and the circumstances under which they were made”.

[26] However, editing of statements may be appropriate in certain instances. The principles that are relevant to the editing of statements were reviewed in R. v. Ronald, 2016 ONSC 3127, at paras. 6-8 as follows:

• Editing of a statement may at times be necessary because of the inclusion of irrelevant or unnecessarily prejudicial evidence, but such editing must not affect the tenor of a relevant statement;

• Edited statements must be free from unnecessary prejudice, but the remaining portions must retain their proper meaning;

• The jury should have as much as possible of a statement said to constitute an admission in order to place it into context for the purpose of determining its truth;

• Even though substantively irrelevant, contextual evidentiary relevance may allow admission; and

• The extent of the admissibility of that contextual evidence and probative value must still, however, be weighed and balanced against its prejudicial effect.

These principles arise out of more general common law evidentiary principles, which hold that,

Judicial discretion to exclude, on policy grounds, evidence which is relevant and, hence, prima facie receivable, is one of the organizing principles of our law of evidence . . . If, upon a prejudicial effect versus probative force analysis, the trial judge determines that the receipt of otherwise relevant evidence would have a negative effect on the truth-finding function of the trial, that evidence will be excluded . . . .In this context, prejudice refers, among other things, to any unfairness to the accused occasioned by the admission of the evidence . . . .The discretion described above is not a creature of statute but is interwoven by the common law throughout the fabric of the law of evidence.

Most of the cases dealing with editing of statements are highly fact specific. However, from those cases, it can be gleaned that certain topics are more likely to be found to be irrelevant:

• The officer's opinion concerning the strength of the Crown's case;

• Officer's opinion concerning the quality of the police investigation;

• Expounding on the theory of the police/Crown at length and/or multiple times without any meaningful response by the accused;

• Making references to evidence that does not exist;

• Officer soliloquy, commentary, opinion, misstatement of the inferences arising from attempts to exercise the right to silence or character disparagement;

• Opinion concerning the veracity or credibility of a witness or of the accused;

• Accused's criminal record;

• Other discreditable conduct or bad character evidence. [Footnotes omitted.]

[27] These general guidelines are also reflected in the decision in R. v. Barges, 2005 CanLII 47766 (ON SC), [2005] O.J. No. 5595. Barges also affirmed that:

a. The absence of a denial in circumstances where a denial would be expected does not amount to an adoption where the accused has a right to remain silent: at para. 89 (see also R. v. Bouchard, 2015 ONSC 4795, at para. 47);

b. It may not be possible to edit a statement where the objectionable aspects of the interview “render any remaining material quite meaningless. Furthermore, even with respect to those matters where there are admissions, the accused is entitled to have the entire circumstances of the interview placed before the jury so that it can properly assess what weight ought to be attached to any answers that he does give”: at para. 92 (see also Bouchard, at paras. 53 and 57).

The “implied confession” statements [statements 6A, 7A, 9, 14, and 18]

[28] I turn now to the factual context and analysis of the issues in this case.

[29] The accused was first arrested for the murder of Mr. Collison on November 11, 2016. He was released following this arrest and continued to reside at his apartment. He was arrested a second time on May 31, 2018. He was charged with the murder of Mr. Collison at that time.

[30] Between November 16, 2016 and the date of the second arrest in May of 2018, a number of statements by the accused were made on occasions when DC Hyndman (sometimes accompanied by another officer) visited him at his residence.

[31] The record of the statements consists of officers’ notes.

[32] What follows is a brief overview of the statements at issue here.

November 11, 2016 [statement 6A]

[33] This statement was audio-recorded. It was taken in the cellblock after the interrogation statement referred to in this application as statement 6.

[34] DC Hyndman explains to the accused that he is going to be released and the officer will bring him home. He also tells the accused he is interested in “how he operated” and “these things that happened”. DC Hyndman tells the accused he noticed things the accused “had done right” and suggests it was “very smart” on his part. The accused tells the officer he “can’t quite hear” him and asks about his medication. He later asks where his keys are. Later still, the accused responds to the officer’s reference to his own mother’s stroke and asks the officer questions about its severity. Shortly after this, the accused tells the officer he lost a lot of weight after his stroke. He agrees that he used to be really strong and he was bigger before his stroke. Nothing else of significance occurs during the statement.

November 16, 2016 [statement 7A]

[35] This is DC Hyndman’s first visit to the accused’s apartment. DC Hyndman serves the accused with a promise to appear and undertaking relating to other charges. After explaining that the accused’s blood sample is being sent to Toronto for analysis, the officer tells the accused he knows he killed Ray and that a media release is out (the Crown proposes editing most of this background out of the statement). DC Hyndman again tells the accused he knows he killed Ray, but he would like to offer the accused an opportunity “to go out on his own terms” and “tell him about the other people he killed and fill in some of those spaces”. He tells the accused he would be taken care of in jail and it would be better than living alone. The accused agrees. The officer gives him his card with his contact information and tells him “he can go out on his own terms with respect”. The accused says, “he would think about it”. The officer and the accused then shake hands and the officer leaves.

December 14, 2016 [statement 9]

[36] During the visit on December 14, 2016, amongst other things, DC Hyndman told the accused he knew he committed various crimes. DC Hyndman said he wanted to be able to let the families of the victims know what happened. He asked the accused if he would consider speaking to him about his crimes. The accused said he would consider it, but he needed to lie down.

March 22, 2017 [statement 14]

[37] In this visit, DC Hyndman discussed an article about the accused that had appeared in an Ottawa newspaper. DC Hyndman again asked the accused to tell him about the murders and said that he wanted to understand “why”. The accused told him “You will never understand, I don’t understand”. The accused said he could not tell him about the murders and the officer was wasting his time.

May 5, 2017 [statement 18]

[38] This visit opens with DC Hyndman raising the idea of “immunity from Crown”. The accused says that he is not saying anything, and he doesn’t trust the officer. The accused says he is sick. The officer tells him that “the people he killed” were sick too and “didn’t have a chance to get old like him”. The accused does not respond. The focus of the officer’s discussion then turns to another crime DC Hyndman believed the accused had committed and whether the accused had made a prior utterance about that event during the previous visit (the Crown proposes that this be edited out). This visit ends with the accused telling the officers he wants them to leave. DC Hyndman tells him he will die a coward. The accused responds he will “just die this way”.

The positions of the parties

The Crown

[39] The Crown argues that these statements, alone, and in conjunction with the “background statements”, constitute an “implied confession”. The Crown submits that the statements are confessions because they involve an admission of responsibility (although it concedes the degree and nature of that responsibility are not clear) for the killing of Raymond Collison. The Crown submits that the statements show a progression and to appreciate their meaning, they must be put in context. The Crown says that the accused begins by telling police “I have no story to tell” and ends by telling them “I’ll think about it” as they try to solicit his “deathbed confession”. Since only the killer could think about confessing, this statement is probative of the killer’s identity.

[40] The Crown accepts that to be admitted, the full context of the utterances would have to be left with the jury. Consequently, the references to the accused having killed other people would be included in the evidence heard by the jury.

[41] The Crown argues that the statements, particularly statement 7A, are not unclear as to how they relate to responsibility for the homicide of Raymond Collison. According to the Crown, the only way to read the utterance made in statement 7A (e.g. that the accused will think about confessing to his crimes) is that it includes the killing of Raymond Collison. Raymond Collison is specifically referred to by DC Hyndman at the outset of that visit. The Crown also relies on the fact that the accused had only been arrested for the murder of Raymond Collison as support for this position. It further submits that any lack of clarity about the meaning of the statement is an issue for cross-examination.

[42] The Crown says that as confessions that are voluntary and Charter compliant, the statements are highly reliable evidence that are highly probative to the issue of the identity of Mr. Collison’s killer.

[43] The Crown submits that the probative value of each statement outweighs its prejudicial effect. It relies on cases, including R. v. Redd, 2002 BCCA 325, 165 C.C.C. (3d) 412, leave to appeal refused, [2002] S.C.C.A. No. 315; R. v. Bonisteel, 2008 BCCA 344, 236 C.C.C. (3d) 170; R. v. Riley, 2009 CanLII 15451 (ON SC), [2009] O.J. No. 1374 (Ont. S.C.); R. v. Sims, 59 B.C.A.C. 64; and R. v. Daou, 2016 ONSC 1067, in which evidence of other homicides or other heinous crimes was left with the jury where reference to those crimes was intertwined with another highly probative admission by the accused. The Crown submits that any prejudice the evidence might occasion in this case may be cured by a jury instruction. The Crown emphasizes the many cases, such as R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670 and R. v. Buric, 1996 CanLII 1525 (ON CA), 28 O.R. (3d) 737 (C.A.), aff’d 1997 CanLII 380 (SCC), [1997] 1 S.C.R. 535, which caution trial judges that juries are sophisticated triers who are capable of following instructions given by a trial judge about what use they may make of all kinds of potentially prejudicial evidence.

[44] Finally, the Crown argues that admissibility of the statements is not an “all or nothing” proposition and it would be open to the court to admit only certain statements following the balancing of the probative value and prejudicial effect of each.

The defence

[45] The defence argues that none of the statements constitutes a confession, implied or otherwise. There is no detail. No elements of any particular crime are identified. The accused does not mention Raymond Collison. The defence argues that the Crown acknowledges that the utterances amount to the accused saying he will “think about” what the officer is saying. None of the cases cited by the Crown involve this kind of utterance being deemed a confession.

[46] The defence argues that while the utterances have very limited probative value, the prejudicial effect of an allegation of murder is, as described in Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, at its “zenith”. Even if the accused’s utterances can be read to include reference to Raymond Collison, they cannot be read as relating exclusively to him. Since it is impossible to edit the statements without creating a distorted picture as to what the accused was responding to, it is impossible to introduce the accused’s utterances without introducing extremely prejudicial evidence. The defence submits that a jury instruction may not be sufficient where the proposed evidence is extremely prejudicial, as was recognized by the Supreme Court in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 and R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544. In these circumstances, given their very limited probative value, the statements should not be admitted.

Analysis

[47] I agree with the parties that if these statements are admissible as admissions, the whole context for each statement must be admitted.

[48] However, even with the full context for the statements admitted, it is impossible to know what each means vis-à-vis the killing of Raymond Collison specifically, which is the only murder this jury will be charged with considering. As noted in Ansari, in determining the admissibility of evidence, the strength of the proposed evidence and the extent to which it supports the inferences the proponent seeks to have drawn from it are important considerations in determining its probative value. Here, the proposed evidence does not strongly support the inference the Crown seeks, which is that the accused’s utterances to DC Hyndman constitute admissions of responsibility for the killing of Raymond Collison. Further, I agree with the defence that even if the utterances (or the utterance in statement 7A) might include reference to Raymond Collison, the utterances could not be found to refer to him exclusively. As noted by the court in R. v. Boukhalfa, 2017 ONCA 660, 350 C.C.C. (3d) 29, at para. 185, citing its earlier decision in R. v. Hunter (2001), 2001 CanLII 5637 (ON CA), 155 C.C.C. (3d) 225 (Ont. C.A.), at para. 21, where the meaning of the proposed evidence is “highly speculative, its probative value is correspondingly tenuous”. Given the ambiguity in the utterances about the accused’s responsibility for the killing of Raymond Collison, I find the accused’s utterances have limited probative value.

[49] I further find that the admission of the proposed statements would be extremely prejudicial to the accused. The prejudice that may flow from an allegation of murder was described in Jeanvenne. In that case, the court found that the trial judge erred in failing to sever two unrelated counts of murder and proceeding with a single trial on both allegations. As in this case, there was no finding that the evidence met the threshold for similar fact evidence. The court held at para. 34 that there was a more stringent application of the severance test in these circumstances, which

flowe[d] from the common sense proposition that a jury may have great difficulty dissociating the evidence of one homicide from the other and in refraining from drawing the impermissible inference that because the accused may have committed one murder – bad character evidence of the highest degree – he or she is likely to have committed the other. The potential for serious prejudice to the accused is at its zenith in such circumstances. [Emphasis added.]

[50] Here, the allegation is not just that the accused is responsible for one additional homicide, but many. This amplifies the prejudicial effect of the statements. The factors identified in Ansari and other cases relating to the assessment of the prejudicial effect of proposed evidence includes the degree of discreditable conduct disclosed by the evidence, the extent to which the proposed evidence may support an inference of guilt on the sole basis of bad character, the extent to which the evidence may confuse issues, and the ability of the accused to respond to the evidence. All of these factors weigh strongly against the admission of the evidence here.

[51] Consequently, I find that whatever relevance and probative value the statements have to the killing of Raymond Collison specifically is far outweighed by the prejudicial effect of introducing vague allegations of other homicides by the accused. I am not satisfied that a jury instruction could cure the extreme prejudice that would be caused.

[52] This conclusion is reinforced by the suggestion that the accused’s utterances would need to be understood in the context of the progression from declining to tell his side of the story to the police, to “thinking about it”. The Crown submits that “there is a difference between remaining silent and saying you have nothing to say, which is not the same thing as saying nothing”. I am not persuaded that any utterances from the background statements where the accused declines to give his side of the story gives the “implied confessions” any more clarity or probative force, or that permitting a jury to consider the accused’s failure to accept an invitation to “tell his side of the story” would not run afoul of the well-established principle that no adverse inference may be drawn from the fact that an accused exercises his or her right to silence: see, for instance, R. v. Symonds (1983), 1983 CanLII 3518 (ON CA), 9 C.C.C. (3d) 225 (Ont. C.A.), at p. 227.

[53] Before leaving this issue, I note that a similar problem was reviewed by the Court of Appeal for Newfoundland in R. v. G.(D.W.), 2000 NFCA 6, 142 C.C.C. (3d) 439. In that case, the accused had been charged with multiple sexual offences relating to multiple complainants. The charges proceeded in separate trials following an order for severance.

[54] In a jury trial relating to the alleged offences involving one of the complainants, the Crown introduced a statement by the accused. During the course of the interview, the allegations of other complainants were discussed. The accused said things like: “If these children said I did it, then I did, I just don’t remember”; “I don’t know what made me do it, I must be sick in the head”; “I’m guilty, I did these things”; and “I’m guilty bye. I need to speak with you, I need help to figure out why I did these things”. The officer who conducted the interrogation testified that when the accused said these things, he understood him to be referring to sexual assaults to up to 5 complainants, and not just the complainant in the trial. Over the objection of the defence, the trial judge permitted the statement to be admitted once it was edited to ensure that it did not suggest there was more than one complainant. The Court of Appeal held that the accused’s statements could not be edited without affecting their tenor. It concluded that the statements should not have been admitted in the accused’s jury trial.

[55] The probative value of the evidence was far more compelling in G.(D.W.) since the comments were clearly admissions, as compared to the utterances at issue here. Nevertheless, the reviewing court found the prejudicial effect of introducing other allegations favoured the exclusion of the evidence. While the Crown would distinguish this case because the court did not advert to the curative powers of a jury instruction, I am not satisfied that the failure to expressly advert to the merits of a jury instruction makes the court’s rationale less persuasive.

[56] In the end result, I am not persuaded that any of statements 6A, 7A, 9, 14, or 18 may be admitted. The prejudicial effect of each statement outweighs its probative value.

The “interrogation statements” – statements 6, 24, and 26

[57] The accused was interviewed by police on May 31, 2018 (“statement 24”) and June 1, 2018 (“statement 26”). Along with his post-arrest interview on November 11, 2016 (“statement 6”), the Crown has characterized these as “the interrogation statements”.

[58] As I have already outlined, the parties agree that statement 6 is admissible subject to editing. That editing is dependent on the admissibility of other statements. The parties agree that the admissibility of statement 6 will be the subject of further argument during the trial.

[59] The focus of my analysis now turns to the admissibility of statements 24 and 26.

The positions of the parties

The Crown

[60] The Crown argues that these statements contain important utterances by the accused which are relevant to the issues in the case. The Crown concedes that the statements require editing. It proposes that the utterances it seeks to have admitted might be introduced as “snippets”. The Crown argues that editing the statement in this way will not so wholly remove the context for the utterance as to risk altering its meaning, such that admission of the edited portions would be unfair or prejudicial to the accused. In that regard, the Crown submits that in respect of at least one utterance dealing with the blood in the accused’s truck, the statements work together. The Crown submits that statement 26 was made a day after statement 24 and it resolves any ambiguity about the meaning of the accused’s utterance in statement 24.

The defence

[61] The defence concedes that there are utterances with some probative value in statement 24. However, the defence says that playing only snippets of the interview for the jury will remove important context. For instance, the accused insists throughout the interview that he is not saying anything. When his response to a further question from the officer is simply “no”, arguably, this response “is just part of that”. In other words, in context, the accused’s responses to the officer’s questions may be understood as an expression of the accused’s disinclination to answer the officer’s questions or participate in the interview. If any of his utterances are introduced as a snippet, the defence is deprived of that argument and the jury will be without sufficient information to fairly evaluate the evidence. The defence submits that the modest probative value of the utterances is outweighed by the prejudicial effect of admitting the statement in its entirety. As a result, the statements in their entirety should be excluded.

Overview of the statements

Statement 24 (Interrogation on May 31, 2018)

[62] Statement 24 contains a substantial amount of officer soliloquy as well as references to inadmissible evidence. To be admissible, the statement must be significantly edited. The Crown has submitted a transcript of the statement showing its proposed editing.

[63] On the Crown’s proposed edited statement, limited portions of the interview remain. In those segments, the following occurs:

a. the accused denies recognizing the intersection of Steen and Thompson Roads (i.e. the roadways near the culvert where Raymond Collison’s remains were located) or knowing that Mr. Collison’s body was found there (pp. 19-20);

b. DC Hyndman discusses at some length the significance of the fan belt to the investigation and the fact that the fan belt model found on Mr. Collison’s remains fits a 1997 Plymouth Neon. When asked, the accused denies knowing anyone who had that kind of car. DC Hyndman tells the accused his neighbour Betty had that kind of car and he knows the accused worked on her car. When the accused is asked if he worked on Betty’s car, he says “I’m not saying anything” (pp. 25-29);

c. DC Hyndman shows the accused a photo of his garage and asks the accused if he recognizes that location or what it is. The accused says “no” (p. 29);

d. DC Hyndman discusses his knowledge of the accused’s vehicles, including a truck he sold, which police obtained and examined after Mr. Collison’s death. DC Hyndman discusses the laboratory findings confirming that blood was located in a number of different areas of the truck. The officer asks at one point (after the accused has told him he isn’t saying anything), “all right well I’d like to know did you ever injure yourself that badly that there’d be blood in that many locations in your truck”. The accused’s response is noted as “unintelligible”. He then confirms he is “not saying”. The officer goes on noting the blood in the accused’s truck, the bullet hole in his garage, and the fan belts in his garage. He asks the accused if he sees the trouble he is in. This edited portion ends this way:

WISE: I’m not in trouble

HYNDMAN: hmmm

WISE: I’m not in trouble

HYNDMAN: you’re not in trouble well you’re here for murder Jim you’re in the most trouble you can be in

HYNDMAN: (activity heard) any questions on this

WISE: no

HYNDMAN: so you never cut yourself

WISE: no

Statement 26 (Interrogation on June 1, 2018)

[64] The Crown has advanced that some of the contents of statement 6 would only be admissible as context for the “confession statements”. Pursuant to my ruling relating to the “confession statements”, those portions of statement 26 will not be admitted.

[65] The topic of the blood in the accused’s truck is re-visited in statement 26. The accused is asked “what about the blood in the truck, d’you have anything to do with that”. The accused says “no”. The portion of the interview immediately prior to this utterance includes two assertions by the accused that he has nothing to say. The Crown proposes that this portion of the interview is admissible.

Analysis

[66] I agree with the defence that the first three proposed segments of statement 24 raise Hall issues. They are exculpatory utterances where the accused denies knowledge of a specific fact or set of facts. If the sole reason for introducing them is to support the theory that these denials are fabrications that are post-offence conduct, and therefore circumstantial evidence of guilt, then the Crown must show what independent evidence is available to support a finding of fabrication. The Crown has opted to address that issue as the trial unfolds. Until that occurs, the admissibility of those portions of the statements will not be determined.

[67] The final portion of statement 24 relates to the issue of the blood found in the accused’s truck. The same topic is re-visited in statement 26.

[68] I agree with the Crown that information about the blood in the accused’s truck is highly probative to the issues in this case. The Crown’s case will include expert opinion that blood was found in the truck at multiple locations, and that the accused sold the truck within months of Mr. Collison’s disappearance. The persons to whom the accused sold the truck will testify that they have no knowledge or explanation for how the blood was deposited in the truck. In statements 24 and 26, the accused provides information which appears to indicate that the blood in the truck is not his. This evidence is therefore capable of removing an important gap in the evidence. The Crown will argue that in these circumstances the jury could draw the inference that the blood in the truck was that of Raymond Collison. That inference is consistent with the theory that the accused is responsible for the killing of Mr. Collison and that his truck was used in the commission of the offence.

[69] The defence argues that the prejudicial impact of admitting the evidence relates to the inability of the defence to place the accused’s utterances in context since the very many occasions when the accused declined to respond to the officer’s questions will not be before the jury. However, in both statement 24 and 26, the edited portion that would go to the jury could include instances of the accused declining to participate in the interview. The defence will be able to advance its argument. I find that the jury will have sufficient context for assessing the meaning of the utterances, including the potential meaning advanced by the defence. Since this is the case, I am not persuaded that the prejudicial impact of introducing an edited portion of the statement is significant. In any case, I find that the probative value of the evidence outweighs any prejudicial effect which might be caused by admitting an edited statement.

[70] In arriving at this conclusion, I have considered the factors listed in Ansari and other cases that are relevant to the assessment of the prejudicial effect of the proposed evidence. I find that the prejudicial effect which might flow from the admission of the evidence does not involve discreditable conduct and the consequent risk of moral reasoning prejudice. Further, the extent to which the evidence may confuse issues is modest. Finally, the accused’s ability to respond to this evidence may be sufficiently preserved since its argument as to the meaning of the utterances may still be advanced given the contents which will be included in the edited segments of each statement.

[71] I have attached in Schedule A and Schedule B to these reasons the segments which may be admitted in evidence. What I have approved omits some of what was proposed by the Crown. I have taken this approach to reduce the amount of officer commentary and soliloquy. In the event the defence takes the position that its arguments might be better advanced with a different approach to the editing, that issue may be raised in further submissions. Further, if the parties are not agreed as to how to resolve the issue, the question of what editing may be required because maps are visible during the edited portion of statement 26 may be addressed following further submissions.

[72] In any event, and subject to further submissions on the issue by the parties, a jury instruction will be given clarifying (amongst other things) that: i) the accused has a right to remain silent and refuse to answer questions from the officer and that no negative inference may be drawn because he exercised this right; and ii) what the officer says is not evidence.

SCHEDULE “A”

SCHEDULE “B”

The Honourable Justice Laurie Lacelle

Released: April 29, 2020

COURT FILE NO.: 18-97

DATE: 20200429

S. 648(1) of the Criminal Code applies to all motions and applications heard and determined in this proceeding before trial pursuant to s. 645(5) of the Criminal Code, where the subject-matter of the motion or application is or relates to evidence to be heard at trial. Pursuant to s. 648(1), no information concerning any part of such motion or application or the reasons for ruling on such motion or application shall be published in any newspaper or broadcast by any means, including posting or distribution over the internet.

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

James Wise

reasons for ruling – admissibility of twelve remaining statements

The Honourable Justice Laurie Lacelle

Released: April 29, 2020