Court File and Parties

COURT FILE NO.: 18-97 DATE: 2020-02-25

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

Counsel: Jason Pilon and Jason Neubauer, counsel for the Crown Ian Carter and Jon Doody, counsel for the Defendant

HEARD: January 20, 2020

reasons for ruling – other discreditable conduct

lacelle, j.

Introduction

[1] James Wise is alleged to have murdered an acquaintance of his, Raymond Collison. The Crown contends that it was the common perception in the community shared by Mr. Collison and the accused that Mr. Collison was mentally ill. The Crown seeks an order permitting it to call evidence about another occasion when the accused acted with animosity towards a mentally ill person who had upset him.

[2] By way of background, Mr. Collison was last seen alive on August 28, 2009. Mr. Collison’s remains were found in a culvert in a rural area almost five years later on April 17th, 2014.

[3] 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 head with a .22 calibre firearm. He had also been shot in other parts of his body.

[4] The Crown’s case against the accused is based on circumstantial evidence. Accordingly, motive will play an important role.

[5] The Crown’s evidence at trial will include a statement made by the accused to Paul Bourgeois about Raymond Collison. In that statement, the accused is said to have told Mr. Bourgeois that Mr. Collison bugged him when he was drinking, that he did not want him around, and he told him not to “go back”. The Crown’s case will also include a statement made by Mr. Collison to Tammy Smith indicating that the accused had told him he did not want him around anymore.

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

The proposed evidence

[7] In 2007, two years before Mr. Collison was last seen, Paul Bourgeois had a conversation with the accused about Mr. Bourgeois’ stepson, James Gallant. Mr. Bourgeois’ understanding was that Mr. Gallant had “said something or did something” to the accused. The next day the accused told him to make sure Mr. Gallant didn’t come around there anymore and that Mr. Gallant would get hurt. He was mad when he said it. This was one of two occasions where Mr. Bourgeois had seen the accused mad.

[8] Mr. Bourgeois was asked by police what Mr. Gallant had done to upset the accused. Mr. Bourgeois offered that Mr. Gallant was bipolar and “he’d say anything at all and he was pretty strong … but he had said something to [the accused] I don’t don’t know exactly I’ve forgot now and then [the accused] didn’t like it”.

[9] Mr. Bourgeois was asked if the accused knew that Mr. Gallant was bipolar, or that Mr. Gallant had a mental health problem of any kind. Mr. Bourgeois replied “no no”.

[10] James Gallant is now deceased and his account of what transpired with the accused is not in evidence.

The positions of the parties

The Crown

[11] In its Notice of Application, the Crown argues that there is some evidence of other discreditable conduct on the part of the accused “specifically in relation to a vocalized and /or demonstrated animosity/disdain/hatred threatening conduct towards “persons with health/mental health problems”. In oral argument, the Crown has expanded the argument about the accused’s animosity to include “persons who upset” the accused.

[12] The Crown argues that the evidence is relevant to several issues in this case. The Crown argues that in the main, these issues centre around the issues of motive or animus. The Crown also argues that the evidence would assist in explaining the relationship between the parties, fill in evidentiary gaps, and rebut any potential defences (e.g. that this was an accidental killing).

[13] The Crown submits that the probative value of the evidence clearly outweighs any potential prejudicial effect it might have, since the conduct alleged is relatively benign – it relates to intolerance rather than actual violence (such as has been admitted in other cases to prove issues like animus and motive). The Crown argues that any prejudicial effect the evidence might cause could be addressed by an instruction to the jury. The Crown submits that the jury is entitled to know that this is how the accused reacts to people who upset him.

The defence

[14] The defence submits that the incident with Mr. Gallant has nothing to do with the murder of Mr. Collison and cannot in any way be said to constitute “narrative”. It argues that the suggestion that the accused had a motive to kill Mr. Collison because he did not like mentally ill people is speculative in the extreme. Further, if, as the Crown’s evidence suggests, the accused did not know that Mr. Gallant was bipolar, there is no logical foundation to the Crown’s argument. The defence submits that evidence of past misconduct that is woven into a speculative theory of motive does nothing more than bring into the trial the bad character of the accused, and ought to be excluded on the basis that its prejudicial value exceeds any small probative value it might have.

[15] In response to the newly advanced argument that the accused also acts with animosity towards “persons who upset him”, the defence submits that this has been advanced by the Crown as an alternative because the Crown recognizes just how speculative its theory of animosity based on mental illness actually is. The defence argues that there is nothing remarkable about a person not wanting someone around who upsets them since most people feel that way. The defence argues the evidence has no probative value whatsoever, particularly since it relates to a single act, the context for which is not clear. On the other hand, a hatred or intolerance of any group in society is morally repugnant, and the admission of the proposed evidence carries great prejudice.

The legal principles

[16] The general rule is that evidence of the accused’s discreditable conduct is inadmissible unless it is the subject-matter of the charge: R. v. Tsigirlash, 2019 ONCA 650 at para. 23; R. v. Johnson, 2010 ONCA 646, [2010] O.J. No. 4153 (C.A.) at paras. 83-84. This rule will not apply where the evidence of discreditable conduct meets the test for similar fact evidence: Tsigirlash at para. 24.

[17] The test for the admissibility of similar fact evidence is set out in R. v. Handy, 2002 SCC 56, [2002] S.C.J. 57. Handy provides a framework for analyzing admissibility having regard to various factors. Ultimately, to admit evidence of similar facts or other discreditable conduct on the part of the accused, the Crown bears the onus of satisfying the trial judge on a balance of probabilities that the probative value of the evidence outweighs its prejudicial effect.

[18] Where the proposed evidence is said to be relevant to motive, as noted in R. v. Johnson, 2010 ONCA 646 at paras. 97 and 98, “a somewhat different analysis [than consideration of the factors in Handy] is required”, since the probative value of the evidence does not necessarily arise from its similarity to the offence charged. However, the court went on to hold at paras. 99-101:

It is not sufficient for the Crown to identify some past conflict between an accused and a victim, and then speculate that it establishes animus and therefore motive. The Supreme Court in R. v. Barbour, 1938 SCC 29, [1938] S.C.R. 465, at p. 469, warned that “it is rather important that the court should not slip into a habit of admitting evidence which, reasonably viewed, cannot tend to prove motive or explain the acts charged merely because it discloses some incident in the history of the relations of the parties.”

Thus, evidence of past misconduct that is woven in to a speculative theory of motive does nothing more than bring in the bad character of the accused, and ought to be excluded on the basis that its prejudicial value exceeds any small probative value it might have: see, e.g. R. v. Smith, 1992 SCC 79, [1992] 2 S.C.R. 915, at pp. 938-941.

On the other hand, evidence that provides the trier of fact with real insight into the background and relationship between the accused and the victim, and which genuinely helps to establish a bona fide theory of motive is highly probative, even in the absence of similarity with the charged offence: see, e.g. R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 (Ont. C.A.), at paras. 70-109.

[19] Handy also recognizes that the required degree of similarity of the proposed evidence will be context specific. The court held at para. 78 that depending on the issue to which the evidence is said to relate, “the drivers of cogency in relation to the desired inferences will” not necessarily be the same. The court further discussed the difference between general propensity evidence, which is always inadmissible, and evidence of a specific propensity, which may be admissible. It held at para. 87 that “cogency increases as the fact situation moves further to the specific end of the spectrum”.

[20] Ultimately, where there is an insufficient nexus between the accused’s prior discreditable conduct and the issues in the trial, the evidence ought not to be admitted: see R. v. Smith, 1992 SCC 79, [1992] 2 S.C.R. 915 at paras. 51 and 53.

[21] Further caution is warranted when the proposed evidence said to establish the accused’s disposition is based on a single event. The following comments by Doherty J.A. in R. v. Batte, 2000 ONCA 5751, [2000] O.J. No. 2184 at para. 98 are on point given the evidence in this case:

Despite its relevance, evidence that depends on propensity reasoning for its admissibility is usually excluded because its potential prejudicial effect outweighs its probative value: R. v. Arp, supra, at p. 361 S.C.R., p. 339 C.C.C. Often the evidence has little probative value because either or both of the necessary inferences needed to give the evidence probative force are tenuous. For example, the inference that an accused has a certain disposition based on evidence of a single discreditable act could be so tenuous as to have virtually no probative value. Similarly, where discreditable evidence is probative of a disposition, the inference that an accused acted in accordance with that disposition on the occasion in question will often be a very weak one. For example, evidence that an accused repeatedly abused “A” would not, standing alone, support the inference that he was disposed to abuse “B” on the occasion alleged in the indictment.

[22] Batte also provides a cogent explanation for why courts must be cautious about admitting propensity evidence. As Doherty J.A. wrote at para. 100,

It is a fundamental tenet of our criminal justice system that persons are charged and tried based on specific allegations of misconduct. If an accused is to be convicted, it must be because the Crown has proved that allegation beyond a reasonable doubt and not because of the way the accused has lived the rest of his or her life. An accused must be tried for what he or she did and not for who he or she is. The criminal law’s reluctance to permit inferences based on propensity reasoning reflect its commitment to this fundamental tenet … [citations omitted]

Analysis

[23] As was noted by Watt J.A. in R. v. M.G.T., 2017 ONCA 736 at para. 66, in relation to hearsay statements, context is necessary to “assign [the statements] meaning. In the absence of meaning, they lack relevance”.

[24] This reasoning applies here. The court has no information about what the dispute between Mr. Gallant and the accused was about. There is nothing in the evidence that warrants the conclusion that it was based on the accused’s dislike for persons with mental illness. The Crown suggests that the fact that Mr. Gallant was mentally ill would have become known to the accused upon interacting with him. I have no evidence about Mr. Gallant apart from what is contained in Paul Bourgeois’s statement to police. I decline to speculate as to what the accused would have understood about Mr. Gallant’s mental illness once he had interacted with him.

[25] Without knowing the context for the dispute between the accused and Mr. Gallant, it is impossible to assign the meaning sought by the Crown to the accused’s statement to Paul Bourgeois that he should not bring Mr. Gallant around or he would get hurt. Without that context, all that is left is a bald threat to hurt Mr. Gallant, for some unknown reason. To the extent that the Crown also argues that this incident shows how the accused reacts to people who upset him, the lack of information about what prompted this response from the accused is similarly troublesome.

[26] This is not a case where the other discreditable conduct relates to the same victim. There is no connection between Mr. Gallant and Mr. Collison on the facts of this case. The proposed evidence is not probative of the relationship or history between Mr. Collison and the accused. The evidence draws its probity to issues in this case only to the extent that it demonstrates a capacity for anger and threatening conduct on the part of the accused. I am not satisfied that the Crown has demonstrated that the evidence is of a specific propensity on the part of the accused, as opposed to general propensity, which is always inadmissible.

[27] I find that the evidence is not sufficiently cogent to tend to prove that the accused had an animus toward the deceased because he was mentally ill or because the deceased had upset him. Nor am I satisfied that the evidence is probative of any other issue argued by the Crown. The evidence is not cogent enough to genuinely help establish a bona fide theory of motive: Johnson at para. 101; Smith at paras. 51 and 53.

[28] On the other hand, decontextualized evidence about a single event where the accused was angered and threatened harm to another individual is very prejudicial evidence. This conclusion is amplified when it is proposed to ascribe to the accused the speculative motive that his anger towards Mr. Gallant related to Mr. Gallant’s membership in a vulnerable group, the mentally ill. The more general conclusion sought by the Crown, that the accused threatens to harm people who upset him, is equally problematic given the prohibition on evidence of general disposition. Even assuming the proposed evidence was probative of any of the issues in this case, I find that its prejudicial impact far outweighs its probative value.

[29] Ultimately, I find the words in Johnson apply in this case: “a speculative theory of motive does nothing more than bring in the bad character of the accused”. The Crown has not justified the departure from the general rule that evidence of other discreditable conduct is inadmissible. The Application is dismissed.

The Honourable Justice Laurie Lacelle

Released: February 25th, 2020

COURT FILE NO.: 18-97 DATE: 2020-02-25

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.

HER MAJESTY THE QUEEN

– and –

James Wise

reasons for ruling – other discreditable conduct

The Honourable Justice Laurie Lacelle

Released: February 25th, 2020