COURT FILE NO.: CR-19-30000483-0000
DATE: 20210730
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOSHUA BEWLEY
COUNSEL:
Lesley Zamojc and Megan Petrie, for the Crown
Chris Murphy, for the Defence
HEARD: March 22, 2021
REASONS FOR JUDGMENT ON PRETRIAL APPLICATIONS
R.F. GOLDSTEIN J.
[1] On April 21, 2018 a man named Joshua Newby was in apt. 1822 of 40 Gordonridge Place in Scarborough. 40 Gordon Ridge Place is a Toronto Community Housing Corporation building. It has a reputation for crime and drug use. Mr. Newby was, allegedly, a drug dealer who worked out of apartments at 40 Gordonridge Place, including apt. 1822. A man came into the apartment and stabbed him in the neck multiple times.
[2] The Crown alleges that the man who entered the apartment and stabbed Mr. Newby to death was Joshua Bewley. The Crown theory is that Mr. Bewley deliberately disguised himself the morning of the murder. He travelled to 4301 Kingston Road to 40 Gordonridge Place. When he got to 40 Gordonridge Place he took the stairs to the 18th floor, entered the apartment, and stabbed Mr. Newby.
[3] Mr. Bewley is charged with first degree murder. His trial is scheduled to commence on February 7, 2022 and last for four weeks.
[4] There are currently two applications before the Court: a Crown application to admit recognition evidence, and a defence application to admit evidence of prior violent conduct by Mr. Newby in order to build a case for self-defence.
BACKGROUND
[5] At approximately 7:46 am on April 21, 2018, a man knocked on the door of apt. 1822. Jeff Hillyer was the resident of apt. 1822. He opened the door. Mr. Hillyer said that he did not know the man. He described him as a black man wearing a hoodie. Trina Noseworthy was a sometime girlfriend of Mr. Hillyer and a drug user. She initially told the police that this man came in, went straight to Mr. Newby, and stabbed him multiple times in the neck (her evidence changed at the preliminary inquiry). According to the pathology report, the stab wounds caused transection or injury to the carotid artery and jugular vein. The mechanism of death could have been exsanguination, air embolism, or a combination of both.
[6] According to another witness, a man entered apt. 1616, the residence of Jamie-Lynne Dunn. Ms. Dunn, another drug user and sometime girlfriend of Mr. Bewley exclaimed that the man was covered in blood. There was indeed a blood trail leading to Ms. Dunn’s apartment. The blood was Mr. Newby’s. Mr. Bewley’s DNA was found on a door handle leading to Ms. Dunn’s apartment. The Crown will argue that Mr. Bewley changed in Ms. Dunn’s apartment and left with a garbage bag containing his bloody clothing.
[7] Mr. Newby was a drug dealer known to sell crack cocaine and heroin to the residents of 40 Gordonridge- including Ms. Dunn and Ms. Noseworthy. Mr. Bewley is alleged to be a user of crack-cocaine. The Crown theory is that Mr. Bewley’s motive was a previous altercation between him and Mr. Newby.
[8] The police seized surveillance videos from 40 Gordonridge Place. The police also seized surveillance video from 4301 Kingston Road. Mr. Bewley resided with a man named Scott Todish at 4301 Kingston Road.
[9] Video surveillance shows that at 7:11 am on the day of the murder Mr. Bewley left at 4301 Kingston Road. His face was obscured but he was wearing recognizable clothing, including a red New England Patriots hat. Video surveillance shows that at 7:32 am Mr. Bewley – or at least the man in the same recognizable clothing – entered 40 Gordonridge Place. He entered Unit 1822. Mr. Bewley knocked on the door. Mr. Hillyer let him in. According to Mr. Hillyer, three other people were in unit at the time: Trina Noseworthy, Crystal Bruyea, and Willy Ballantyne. According to Ms. Noseworthy, who testified at the preliminary inquiry, Mr. Bewley went up to Mr. Newby and stabbed him in the neck several times. Ms. Bruyea also told the police that Mr. Bewley stabbed Mr. Newby in the neck. The police could not find Ms. Bruyea in time for the preliminary inquiry.
[10] Video surveillance from 40 Gordonridge also shows that Mr. Bewley – his face no longer obscured – left the building at 7:54 am. He was wearing a different hat and pants and carrying a garbage bag. He was no longer wearing a red New England Patriots hat. He was wearing a Toronto Raptors hat.
[11] Surveillance video showed that Mr. Bewley took the bus back to 4301 Kingston Road. According to Mr. Todish, Mr. Bewley told him that he had just killed someone and that it was “him or me”. He left the apartment but discarded the Toronto Raptors hat. Mr. Todish threw the hat away in a ravine. He later led the Toronto Police to the hat, who seized it. Forensic testing revealed that the hat had Mr. Newby’s blood and DNA on it.
[12] After the murder Mr. Bewley allegedly went to the home of Shalimar Rambaran. He showed her an article on a computer indicating that he was wanted for murder. He allegedly told her “it was him or me.” Mr. Bewley then took a bus to Vancouver. Vancouver police officers arrested him at the bus terminal on a Canada-wide warrant.
ISSUES:
[13] There are two applications before the court. The first involves the recognition evidence. The second application relates to the defence intention to raise self-defence. Mr. Newby and Mr. Bewley had an altercation prior to Mr. Newby’s death. Mr. Newby allegedly told people that he was going to get his gun to deal with Mr. Bewley. The defence also alleges that Mr. Newby threatened and assaulted Jamie-Lynne Dunn and Trina Noseworthy over drug debts. Thus, the three issues are:
(a) Should the Crown’s recognition evidence be admitted?
(b) Should the defence be permitted to admit evidence through cross-examination that Mr. Newby told people he was going to get a gun to deal with Mr. Bewley?
(c) Should the defence be permitted to admit evidence of prior altercations between Mr. Newby and Ms. Dunn and Ms. Noseworthy?
(d) Is the door open for the Crown to introduce evidence of Mr. Bewley’s criminal record and propensity for violence?
ANALYSIS:
(a) Should the Crown’s recognition evidence be admitted?
[14] Donna Dipchand is a probation officer. She testified that on January 27, 2021 Constable Rousseau of the Toronto Police showed her a montage of five video clips and asked if she recognized anyone. She did. She recognized Mr. Bewley. Constable Rousseau audio-taped the interview.
[15] Ms. Dipchand testified that she first met Mr. Bewley on October 3, 2016. Mr. Bewley was one of her clients. They met for about two minutes to half an hour. After that they had 14 meetings.
[16] She made notes of her meetings. All were in person, and all were in her office. They were typical probation officer/client meetings. When Constable Rousseau played the video clips, she recognized Mr. Bewley because of his facial features and his walk.
[17] In cross-examination, Ms. Dipchand testified that she was able to say that the man in the video was a former client. She did say that “based on all the previous clips I guess I can put it together”. She agreed that in relation to clip no. 3 without putting together all the clips she would not be able to identify Mr. Bewley. She insisted that from the amount of times she had met him she could tell who he was from his demeanor, his walk, and his facial features.
[18] Constable Rousseau testified that she was tasked to show the video clips to Ms. Dipchand. She had no prior involvement in the case. She did not know who was in the video or what was on the video. She paused the video from time to time. Ms. Dipchand identified one person on the video. In cross-examination Constable Rousseau could not recall how many times the video was paused, and could not say on which clips she paused it. She did note, however, that the interview was audio-taped, there was a transcript available, and it could be reviewed. She testified in cross-examination that her superior at the Homicide Squad provided her with recording equipment, but not video equipment. She testified that Toronto Police prohibit officers from using their own personal phones to videotape interviews.
[19] The Crown seeks to admit Ms. Dipchand’s identification of Mr. Bewley in the five video clips. Mr. Murphy, on behalf of Mr. Bewley, does not contest that the Crown can introduce Ms. Dipchand’s identification in clip 2. Clip 2 is a video of Mr. Bewley taken three days before the homicide outside 40 Gordonridge. He points to the fact that in relation to clip 5 (video of Mr. Bewley on a bus) Ms. Dipchand initially said that she couldn’t tell that it was Mr. Bewley. He also pointed to the fact that she mis-identified gym bags in Clip 2 and Clip 3. Finally, Mr. Murphy argued that the process was flawed – Ms. Dipchand was allowed to pause and go back and forth between clips.
[20] With respect, I disagree with the defence argument. Ms. Dipchand’s evidence meets the test for threshold admissibility. The problems identified by Mr. Murphy go to the weight of the evidence, rather than the admissibility.
[21] Non-expert opinion evidence of recognition – from a photograph or a video – from a person acquainted with the accused is admissible. Where the Crown seeks to introduce recognition evidence the court must hold voir dire must be held to determine the qualifications of that witness to make the identification. This voir dire is commonly referred to as a Leaney application: R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393; R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330 (C.A.) at para. 39. The admissibility of the evidence rests on the premise that an identification by a person who knows the accused is more likely to be reliable than an identification by a stranger.
[22] The purpose of the voir dire is to determine threshold admissibility. The court must be satisfied that the identifier is familiar with the accused and is in a better position than the court to make the identification. There must be “some basis” for the identifier’s opinion. The inability of an identifier to point to a unique feature or idiosyncrasy is for the trier of fact as long as “some basis” for the identification exists. The weight accorded to the identification is a matter for the trier of fact: R. v. Behre, 2012 ONCA 716 at para. 20; R. v. Hudson, 2020 ONCA 507 at paras. 29-30, 33.
[23] When assessing familiarity, the trial judge on the voir dire should focus on the nature of the relationship between the identifier and the accused “including the frequency of past contact.” The trial judge must ask whether the identifier is able to provide identifying information that the trier of fact will not be able to ascertain for him or herself. As Tulloch J.A. put it for the Court of Appeal in Hudson at para. 31, “a trial judge should only permit a recognition witness to testify where the judge is satisfied, on a balance of probabilities, that the witness’ relationship with the accused affords him or her a level of familiarity that will enable the witness to provide valuable and otherwise unavailable identifying information.”
[24] Edwards J. in R. v. R.D., 2019 ONSC 4536 at para. 15 found that there are three criteria that a trial judge can apply on the voir dire:
• The length of the prior relationship between the witness and the accused;
• The circumstances of the prior relationship; and,
• The recency of contact prior to the event where the witness recognized the accused.
[25] I agree. I also agree with the analysis of Code J. in R. v. John, 2010 ONSC 6085 at paras. 23-24:
I am satisfied that if a lay opinion witness could offer little more than a bare conclusory opinion that the accused is the man depicted in the photo or video of the crime, without providing any underlying basis for the opinion, then the evidence would be of little or no probative value and would be prejudicial because of the cross-examiner's inability to test its weight. As Rosenberg J.A. put it in Brown, supra, "the various witnesses explained why they recognized the appellant as the man in the videotape. The jury was thus in a position to evaluate the probative value of their evidence".
In the case at bar, the three proposed witnesses were all able to articulate the basis for their lay opinion. The defence was therefore able to test that basis, in cross-examination, and I was able to evaluate the weight of the witnesses' evidence. Accordingly, the testimony of the three witnesses is admissible.
I find that:
• Ms. Dipchand became Mr. Bewley’s probation officer in 2018, a relationship that continued until Mr. Bewley was arrested on these charges;
• As a probation officer, Ms. Dipchand met with Mr. Bewley on multiple occasions;
• The relationship between Ms. Dipchand and Mr. Bewley was deep enough that it afforded her many opportunities to make a proper comparison; and,
• It is not clear when the last contact had been between Mr. Bewley and Ms. Dipchand but it could not have been a particularly long time prior to the murder, as Ms. Dipchand maintained an active case file.
[26] I also take into account the following facts when determining threshold admissibility:
• Ms. Dipchand and Mr. Bewley met on 14 occasions;
• Ms. Dipchand took notes;
• She saw Mr. Bewley at different times;
• When shown the video, Ms. Dipchand immediately recognized Mr. Bewley as a former client, although it did take her a few moments to remember his name – which she did;
• Constable Rousseau did not know who Ms. Dipchand was supposed to identify; she was, therefore, unable to prompt her even unconsciously;
• Ms. Dipchand was able to recognize Mr. Bewley through his facial features and by his walk.
[27] There is no question that there is “some basis” for the identification by Ms. Dipchand. Moreover, I think that there is no question that Ms. Dipchand is in a better position than the trier of fact to identify Mr. Bewley. To put it in the language of Tulloch J.A. in Hudson, I am satisfied on a balance of probabilities, that Ms. Dipchand had the type of relationship with Mr. Bewley that affords her a “a level of familiarity” that will permit her to provide important identifying information to the jury.
[28] Mr. Murphy did point to the fact that for the fifth clip, Ms. Dipchand needed to “put it together” based on the other clips. He also pointed to her error with regard to the gym bags. In my view that is a question of weight for the jury.
[29] Mr. Murphy also pointed to the failure of Constable Rousseau to do a proper lineup or videotape the interview. I was not directed to any authority suggesting that the police ought to videotape a Leaney witness viewing a videotape for the first time. What is critical is that the police take steps to preserve the integrity of the recognition evidence. It is also important that the police conduct a fair and impartial investigation. The modern practice for photo lineups is to have an independent officer – one with no connection to the case and no knowledge of the suspect – conduct it. That way, the officer cannot give even unconscious cues to the witness. In this case, the police took reasonable steps to preserve the integrity of the recognition evidence. Constable Rousseau had no connection to the case and did not know the identity of the suspect. She also took notes and audiotaped the interview. I am satisfied that if there were any flaws in the procedure – and of course counsel is free to cross-examine on them – they go to the weight of the evidence, not its admissibility.
[30] Relying in Hudson, Mr. Murphy also points to the statement of the Court of Appeal at para. 31 that a trial judge ought to be wary of witnesses who have only a general level of familiarity with the accused. He also relied on R. v. Campbell at para. 10 and R. v. Olliffe at paras. 37 and 40 for the proposition that the Court must be mindful of the frailties of identification evidence.
[31] I agree, of course, with those points but in each case the Court of Appeal was not dealing with threshold reliability. The Court was dealing with the finding of an identification made by the trial judge. When the time comes, I will likely instruct the jury in accordance with the following statement at para. 36 of Olliffe:
… courts in this province have consistently ruled that the jury must be warned of the frailties of eyewitness identification even in cases of recognition evidence…
[32] Finally, I am satisfied that the probative value of the recognition evidence is high. Ms. Dipchand was able to identify Mr. Bewley in each clip and that will be valuable evidence for the jury. I am also satisfied that the prejudicial effect is low. There is little danger of a miscarriage of justice based on a misidentification. Although identity is not conceded, as will become apparent in the next sections of these reasons the primary issue in the case will likely be self-defence.
[33] Accordingly, the recognition evidence of Donna Dipchand is admissible.
(b) Should the defence be permitted to admit evidence through cross-examination that Mr. Newby told people he was going to get a gun to deal with Mr. Bewley?
[34] The defence anticipates that Joseph Wilson, who testified at the preliminary inquiry, will testify at trial. Mr. Wilson supplied crack cocaine to Mr. Bewley. He viewed Mr. Bewley as something of a nephew. According to Mr. Wilson, on April 19, 2018, two days prior to Mr. Newby’s death, Mr. Bewley and Mr. Newby had an altercation or confrontation. They were in the apartment of another resident of 40 Gordonridge, Wayne Griffiths. Mr. Newby “disrespected” Mr. Griffiths, who was also known as Uncle Wayne. Mr. Griffiths asked Mr. Newby to leave. Mr. Bewley stood up and confronted Mr. Newby. Mr. Newby produced a knife. He threatened Mr. Bewley. Mr. Wilson believed those threats were serious. Mr. Wilson also produced a knife, took the knife from Mr. Newby, and took Mr. Bewley out of the apartment. Later, Mr. Wilson heard from other people that Mr. Newby had gone to get a gun. The defence anticipates that Mr. Bewley will also testify that Mr. Newby told him that he was going to get his gun.
[35] Mr. Murphy seeks to be able to cross-examine Crown the witnesses in order to raise self-defence. He set out the defence position in his factum:
The defence position at trial will be that on April 21, 2018, the Applicant [Mr. Bewley] confronted Mr. Newby because Mr. Newby had previously threatened the Applicant and had assaulted both the Applicant’s girlfriend and her friend. A physical altercation ensued, during which the Applicant stabbed Mr. Newby in self-defence.
[36] Mr. Murphy seeks to establish the elements of self-defence. He does not, he argues, seek to lead any evidence about Mr. Newby’s criminal record, criminal occurrences, other intimidating behavior, or his general reputation for violence. In other words, Mr. Murphy argues that R. v. Scopiletti (1981), 1981 CanLII 1787 (ON CA), 34 O.R. (2d) 524, 63 C.C.C. (2d) 481 (C.A.) and its progeny do not apply. In doing so he relies on the opening of the Crown at the preliminary inquiry to show that the evidence regarding the altercation between Mr. Newby and Mr. Bewley will form part of the Crown theory. The Crown theory at the preliminary inquiry was indeed that Mr. Bewley’s motive can be found, at least in part, from that altercation.
[37] The Crown at trial takes the position that it is not bound by the Crown theory at the preliminary inquiry and may not pursue that line. I agree with the Crown that it is well-settled that the Crown may change it’s theory to suit the evidence: R. v. Pickton, 2010 SCC 32 at para. 19. Indeed, it would be unfair and wrong if the Crown were bound to its preliminary inquiry theory and could not change it. That would not allow the Crown to respond to changes in the case as a result of evidence brought out at the preliminary inquiry, new evidence that has come to light, or even a good-faith change of position by Crown counsel. I am not, however, required to resolve the question. The Crown agrees – correctly, in my respectful view – that the defence is entitled to lead evidence that Mr. Newby made threats or was violent towards him prior to Mr. Newby’s death. The prior altercation between Mr. Newby and Mr. Bewley will likely be a central feature of this case, no matter which party brings it out in evidence.
[38] The real question is whether the defence should be permitted to bring out evidence in cross-examination that Mr. Newby had allegedly told people he was going to get a gun to deal with Mr. Bewley. The defence position, as put in the factum, is this:
Mr. Newby’s previous threats to the Applicant, and his previous assaults on Ms. Dunn and Ms. Noseworthy, formed an integral part of the circumstances on which the perception of the Applicant might have been based. The Applicant further submits that the way in which he reacted during his altercation with Mr. Newby cannot properly be assessed with out taking into consideration the fact that Mr. Newby had threatened the Applicant with a knife two days earlier and had announced that he was off to get his firearm.
[39] Thus, evidence of the earlier confrontation between Mr. Bewley and Mr. Newby is admissible but evidence that Mr. Newby subsequently told people that he was off to get his gun is not.
[40] As Justice Doherty noted in R. v. Khill, 2020 ONCA 151 at para. 42, self-defence as set out in s. 34(1) of the Criminal Code has three elements:
• First, the accused must believe, on reasonable grounds, that force is being used or threatened against him.
• Second, the action of the accused that constitutes the offence must be done for the purpose of defending himself; and,
• Third, the action of the accused that constitutes the offence must be reasonable in the circumstances.
[41] We are chiefly concerned with the first element in this application. The accused must have a subjective belief that force is being used or threatened against him. That subjective belief must be based on reasonable grounds: Khill, at para. 44.
[42] Generally, attacks on the character of the deceased are distracting and inadmissible. The jury may conclude that the death was a matter of civic improvement, as Doherty J.A. put it in R. v. Varga (2001) 2001 CanLII 8610 (ON CA), 159 C.C.C. (3d) 502 (C.A.) at para. 71. The accused is, however, entitled to establish a reasonable apprehension of violence from the deceased: R. v. Scopiletti at para. 29. Thus, an accused person may call evidence of prior violent acts by the deceased against himself or other acts of violence known to him. The accused may also call evidence of the deceased’s general reputation for violence.
[43] Thus, the disposition towards violence of the deceased is admissible if it is relevant. It may be proven by evidence of reputation, by proof of specific acts, and by psychiatric evidence in the proper case: R. v. Scopiletti at para. 42. Justice Martin warned, however, at paras. 46-47 that great care must be taken with such evidence:
I agree, of course, that evidence of previous acts of violence by the deceased, not known to the accused, must be confined to evidence of previous acts of violence which may legitimately and reasonably assist the jury in arriving at a just verdict with respect to the accused's claim of self-defence. To exclude, however, evidence offered by the accused which is relevant to prove his innocence would not, in my view, be in the interests of justice.
Since evidence of prior acts of violence by the deceased is likely to arouse feelings of hostility against the deceased, there must inevitably be some element of discretion in the determination whether the proffered evidence has sufficient probative value for the purpose for which it is tendered to justify its admission. Moreover, great care must be taken to ensure that such evidence, if admitted, is not misused.
[44] Ordinarily, evidence that a deceased person was going off to get a gun to deal with someone would be quite clearly relevant to the claim of self-defence. It is difficult to imagine anything more likely to generate a well-founded and reasonable fear of violence than a statement that someone is going to get a gun to take care of you. That is especially so when it comes after a confrontation involving knives and threats. But, is that evidence admissible in this particular case? In my view, the answer is “no”.
[45] In R. v. Williams (1985), 1985 CanLII 2073 (ON CA), 51 O.R. (2d) 321, 18 C.C.C. (3d) 351 (C.A.) the accused sought to introduce evidence that a third party had committed the offence. Justice Martin wrote that the disposition of a third party to commit a crime must be proven by admissible evidence. He stated at para. 31:
Where the disposition of a third person is sought to be proved by specific acts, those acts must be proved by admissible evidence and may not be proved by hearsay unless the hearsay evidence proferred falls under one of the exceptions to the rule excluding hearsay evidence.
[46] As Spies J. put it in R. v. Leon, 2018 ONSC 1482 – another homicide case involving a claim of self-defence and an application to admit evidence of the violent nature of the deceased – disposition evidence “enjoys no special dispensation from the rules of evidence.”
[47] Mr. Bewley is obviously free to testify about statements made to him by Mr. Newby – if any were made – that he was going off to get his gun to deal with him. That would be evidence of Mr. Newby’s state of mind and intentions; it would also be evidence going to Mr. Bewley’s subjective state of mind and his reasonable apprehension of violence against.
[48] But what of the statement related by Mr. Wilson that he had heard that Mr. Newby was off to get his gun to use against Mr. Bewley?
[49] The evidence from Mr. Wilson – which is the only evidence proferred – is inadmissible hearsay. Mr. Wilson testified at the preliminary inquiry:
Q: So, just to be clear though. There’s this confrontation and Miko says during this confrontation to you and Josh that he’s going to go get his gun?
A: That was not said to me.
Q: Okay. Who did he say it to?
A: When I got back there, they said, he’s gone to get his gun. I said, you know, let him come.
Q: … So, Uncle Wayne told you…
A: No, I did not say anyone. I said I was told.
Q: Okay, I’m sorry, but I’m just…
A: Do not put words in my mouth first and foremost. I was told that. I didn’t say who.
Q: Okay. Who told you that Miko was getting his gun?
A: That’s irrelevant. More than one person said he’s gone to get his gun.
Q: Okay, well, who was in Uncle Wayne’s apartment when you were told that Miko was going to get his gun?
A: That is also irrelevant. I was told that by a human being. I will not call names. I was told that. When, if it comes to it, I can go get my gun too.
[50] Mr. Wilson then indicated that he would not “rat” on the people at Gordonridge. As he put it, “rats should be killed”. He continued to refuse to say who told him that Mr. Newby had announced he was going to get his gun. When Mr. Murphy asked the preliminary inquiry judge to intervene, Mr. Wilson stated “Well, I don’t know their names. I have Alzheimers.” The following exchange then occurred:
THE COURT: Would you tell us who the people were that were at Wayne’s? Not who said what, but who were the people that were there when you got back. It was you and Wayne and who?
WITNESS: Me, Wayne, my daughter, my street daughter, Gail. I can’t remember everybody else that was there. Crystal was there too. I don’t remember anybody else. As I said, they all tell me what’s going on and I’m highly respected there.
[51] There is no question that the evidence that Mr. Newby said he was going to get a gun to confront Mr. Bewley is hearsay to Mr. Wilson. If another witness had heard directly from Mr. Newby that he was off to get his gun that would also likely be admissible as evidence of the deceased’s state of mind and present intention: R. v. Humaid (2006), 2006 CanLII 12287 (ON CA), 81 O.R. (3d) 456 (C.A.).
[52] Here, Mr. Wilson denied that he heard Mr. Newby state that he was going to get his gun. He said he heard it from another human being and refused to say which human being. Even if the evidence were admissible, Mr. Wilson is something of an imperfect historian. There are problems with his credibility, to put it mildly. The Alzheimer’s claim gives something of the flavor of his testimony. He also has a very lengthy criminal record. His refusal to answer defence counsel’s questions are unlikely to lead a trier of fact to think that he is a person interested in a search for the truth. I do not, of course, need to resolve these credibility issues – they would be for the jury if the evidence were admitted.
[53] Accordingly, I find that Mr. Wilson’s evidence that Mr. Newby was off to get his gun to confront Mr. Bewley is inadmissible.
(c) Should the defence be permitted to admit evidence of prior altercations between Mr. Newby and Ms. Dunn and Ms. Noseworthy?
[54] The defence also anticipates that there will be evidence that in the spring of 2018 Mr. Bewley was addicted to crack cocaine. He had an intimate relationship with Jamie-Lynn Dunn. Ms. Dunn was a sex worker who purchased drugs from time to time from Mr. Newby. At the preliminary inquiry, Ms. Dunn testified that Mr. Newby would “drape her up” to scare her if she owed him money for drugs. To “drape her up” involved grabbing her by the lapels pushing her up against a wall, and demanding money. It did not involve hitting her. She still continued to buy drugs from Mr. Newby. She testified at the preliminary inquiry that Mr. Bewley was upset about the assaults. She told him, however, to let it go. According to Ms. Noseworthy, who also testified at the preliminary inquiry, Mr. Newby had “smacked” Ms. Dunn. Mr. Newby had also smacked Ms. Noseworthy around in the past when she owed him money for drugs.
[55] The defence seeks to introduce evidence of the assaults on Ms. Dunn and Ms. Noseworthy by Mr. Newby for the purpose of explaining why Mr. Bewley sought to confront him. Ms. Dunn was Mr. Bewley’s girlfriend and Ms. Noseworthy was Mr. Bewley’s friend. The defence argues that Mr. Bewley sought to confront Mr. Newby over his violence towards these women. The Crown, however, argues that this evidence should not be admitted since the prejudicial effect outweighs the probative value. Both women testified that Mr. Newby had, in the past, confronted them about their drug debts but not really done anything beyond threats and minor physical assaults.
[56] I take a view that is different from that of both parties. I do think the probative value of the evidence outweighs the prejudicial effect. The defence anticipates that Mr. Bewley will testify (or call evidence) about his intention to confront Mr. Newby about his altercations with the two women. In my view, that makes the evidence of Mr. Newby’s alleged violence towards them probative of self-defence. I agree with the Crown that the altercations are remote and not particularly serious by the standards of behavior at 40 Gordonridge. In the circumstances of this case that is a matter of weight for the jury. I also find that the evidence is not particularly prejudicial. The jury will likely hear that Mr. Newby was a drug dealer, and that Ms. Dunn and Ms. Noseworthy were sex workers and drug users. It is unlikely to come as a surprise to anyone that drug dealers use violence to enforce their drug debts, especially against vulnerable people such as sex workers. It could be argued that the evidence goes to Mr. Bewley’s narrative, to motive, or to a pre-disposition towards violence by Mr. Newby.
[57] I therefore find that the evidence is admissible. The manner in which this evidence is characterized for the jury will be the subject of discussions at a pre-charge conference. As with the evidence of Mr. Newby’s confrontation with Mr. Bewley, the real question is whether and to what extent to which the Crown may call evidence of Mr. Bewley’s disposition for violence. I turn to that question next.
(d) Is the door open for the Crown to introduce evidence of Mr. Bewley’s criminal record and propensity for violence?
[58] The defence position is that this application is not a traditional Scopiletti application because there is no intention to introduce evidence of Mr. Newby’s criminal record, previous violent incidents, or general reputation for violence. The defence merely wishes to establish the elements of self-defence and Mr. Bewley’s motives in seeking to speak to Mr. Newby on the morning of his death. Mr. Murphy argues that Mr. Newby’s violence towards Ms. Noseworthy, Ms. Dunn, and Mr. Bewley himself only go to self-defence.
[59] Respectfully, I cannot agree.
[60] The weight of authority is against the defence on this point. Introducing evidence of the violent nature of the deceased opens to door for the Crown to introduce evidence that would give the trier of fact a balanced picture. Whether or not the defence application is characterized as establishing self-defence or introducing evidence of a general propensity to violence is a distinction without a difference: R. v. Kelly, 2011 ONCA 549 at paras. 5, 31.
[61] It will often the case that an accused person relying on self-defence seeks to show that the deceased was a violent person. The Crown my introduce reply evidence where “it is necessary to enhance fairness and ensure that the trier of fact has a balanced, not a distorted, picture of what occurred between the deceased and the accused and of their respective dispositions for aggression”: R. v. Williams, 2008 ONCA 413 at para. 58.
[62] In Kelly, the accused claimed self-defence. He sought to lead evidence that the deceased had sought to recruit young boys to commit robberies using weapons he provided. The implication was that the deceased had access to firearms. The Crown sought to introduce evidence of the accused’s own reputation for violence in the event the evidence was admitted. That position was resisted by the defence. The trial judge agreed with the Crown. The accused never called the evidence. On appeal, Doherty J.A. found that the trial judge had committed no error.
[63] In R. v. Sparkes, 2005 CarswellOnt 1873, [2005] O.J. No. 1883, the accused had stabbed his wife to death. He sought to lead evidence that she had, on occasion, been the aggressor in their physical disagreements. The Crown sought to lead evidence of the accused’s own criminally violent background. The Court of Appeal stated at para. 7:
If the defence put forward the propensity for violence of the victim as helpful in resolving who the aggressor was, then the propensity for violence of the appellant could also be put forward to prevent leaving the jury with a distorted picture.
[64] In R. v. Forde, 2012 ONSC 6655 the accused killed his spouse’s former common law partner, one McNabb. Forde and McNabb were both drug dealers. McNabb went to Forde’s residence to confront a third party over a drug debt. McNabb and Forde started arguing. Both produced knives. Forde stabbed McNabb, who died. Forde claimed self-defence. The defence wished to adduce evidence of McNabb’s criminal record and propensity for violence. The real issue – as it is in this case – was whether the Crown could introduce evidence of Forde’s propensity for violence. Dambrot J. ruled that the Crown’s right to introduce such evidence did not depend on whether the defence sought to introduce it to show that McNabb was the aggressor, or whether Forde had a reasonable apprehension of violence from McNabb. As Dambrot J. explained at para. 36:
Similarly, in this case, the accused cannot avoid the reality that the evidence he proposes to adduce amounts to evidence of McNabb's disposition for violence, which opens the door to evidence of the accused's disposition for violence. Put simply, Forde proposes to lead evidence that McNabb has acted violently in the past towards him, and that this knowledge affected the reasonableness of his apprehension of violence from Forde as well as the reasonableness of his belief that he could not preserve himself from death or grievous bodily harm without stabbing him. The fact that the accused disavows the use of this evidence to establish that the deceased was the aggressor cannot somehow preclude the jury from reasoning in that way. In assessing this reasoning, the jury is entitled to take into account, and so the Crown is entitled to adduce, evidence that the accused is also a violent man.
[65] I think the same reasoning applies here. As several cases have put it, whether the evidence is introduced to show that Mr. Newby was the aggressor or that Mr. Bewley had a reasonable apprehension of violence is a distinction without a difference. The danger – that the jury will see a distorted and unbalanced picture of the two men – is the same.
[66] It is common ground that Mr. Newby was a drug dealer. That evidence will surely come before the jury. Mr. Newby had a criminal record consisting of a youth entry for aggravated assault and adult convictions for breach of probation and trafficking in a schedule I substance. Mr. Bewley has a much more extensive criminal record, including two convictions for robbery and three for assault. The jury will undoubtedly learn that Mr. Bewley was a drug user and was on probation through Ms. Dipchand’s evidence. If this were only an identity case the jury would not learn any more than that. They jury would be instructed about the limited purpose of that evidence. That, however, is not this case. Presenting Mr. Newby as the only aggressive and violent person in the encounter that led to his death would create a distorted and unrealistic picture for the jury.
[67] What are the parameters of the evidence the Crown may lead? As Campbell J. stated in R. v. Poirier, 2018 ONSC 329 at para. 11, the Crown may not
… lead any and all evidence suggesting that the accused is a person of bad character. For example, the Crown is not permitted to lead the contents of an accused's unrelated criminal record for offences of dishonesty such as fraud and theft. Rather, the Crown is limited to leading evidence suggesting that the accused has a violent disposition.
[68] The extent to which the Crown may lead such evidence is a function of the evidence brought out in cross-examination by the defence, or led by the defence. The basic point – that the Crown will be permitted to lead evidence of Mr. Bewley’s disposition for violence if the defence brings out evidence of Mr. Newby’s violence – will not change. The scope and manner of the reply is a matter of trial management. It is premature to decide now because we do not know precisely how that evidence will come out. I will entertain further submissions as to scope and manner as the trial unfolds.
DISPOSITION:
[69] The Crown application to introduce recognition evidence is granted. The defence application to cross-examine and lead evidence regarding prior altercations between Mr. Newby and Mr. Bewley is granted. The defence application to lead evidence of the altercations between Mr. Newby and Ms. Dunn and Ms. Noseworthy is granted. The defence application to bring out the evidence of Mr. Newby’s gun through the evidence of Mr. Wilson is dismissed. The defence is, of course, free to make a fresh application if other witnesses to Mr. Newby’s alleged statement become available. The extent to which the Crown may introduce evidence of Mr. Bewley’s own propensity towards violence is something that will be the subject of further submissions at trial, depending on the unfolding of the evidence.
Released: July 30, 2021
COURT FILE NO.: CR-19-30000483-0000
DATE: 20210730
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOSHUA BEWLEY
REASONS ON PRE-TRIAL APPLICATIONS
R.F. Goldstein J.