COURT FILE NO.: 375/20
DATE: September 17, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Tyler Shuster, Kevin Kim, for the Crown
- and -
Riley Kostuk
Mary Cremer, for Mr. Kostuk
HEARD: July 5, 2021
The Honourable Mr. Justice H. S. Arrell
JUDGMENT re PRIOR EXTRINSIC MISCONDUCT
INTRODUCTION:
[1] The accused is charged with second degree murder in the death of Jacob Peets on June 29, 2019, in the City of St. Catharines, contrary to section 235(1) of the Criminal Code of Canada.
[2] The Crown brings this application seeking an order to allow the admission of prior extrinsic misconduct by the accused against Emily Raymond, a former girlfriend.
[3] The accused opposes the admission of these prior acts of misconduct.
THE FACTS:
[4] The accused, Jacob Peets and Emily Raymond first became acquainted while in high school. Emily Raymond and the accused started an exclusive romantic relationship in March 2019. The accused and Jacob Peets were considered best friends by each other. All three were friends and would socialize together and with others on weekends.
[5] On March 23, 2019, Emily Raymond and the accused were at a bar with others and had an argument. Upon arriving back at 45 Plymouth Ave. in St. Catharines, where the accused was living, the argument escalated and it is alleged that the accused punched Emily Raymond 3-4 times in the face and held a knife to her throat. Emily Raymond was taken to the Niagara Falls hospital by a friend who had received an SOS message from Emily Raymond and had arrived at the home.
[6] Emily Raymond was diagnosed with a broken nose that ultimately required surgery. Pictures of her injured face were exhibits on this motion.
[7] Emily Raymond got back together with the accused indicating she wished to give him a second chance. This was short lived, and the relationship appears to have ended late in April 2019 when Emily Raymond discovered the accused was having an affair with Leah Detenbeck during this time.
[8] During the short-lived resumption of their relationship, Emily Raymond alleges she was threatened a number of times by the accused when they got into arguments. She says he threatened that he would punch her again and hurt her worse than he had on March 23, 2019.
[9] By the end of April 2019, Emily Raymond and Jacob Peets began spending more time together and slept together on one occasion. They remained nonsexual friends thereafter. It appears that the accused found out about this sexual liaison between Emily Raymond and his best friend, Jacob Peets, sometime in May 2019. The accused allegedly was not happy about this sexual encounter and called Emily Raymond a “whore” for sleeping with his best friend. She denied to him that she had slept with Jacob Peets.
[10] Emily Raymond had become good friends over time with the accused’s mother, Nancy McGraw, who lived next door to the accused at 47 Plymouth Ave. Towards the end of June, Ms. McGraw and her husband were going to be away for a week and she asked Emily Raymond to dog sit while they were away. She agreed and at the same time she and the accused started to re-kindle their relationship.
[11] On June 28, 2019 in the afternoon, the accused, Emily Raymond, Jacob Peets and Randee Martin decide to meet at the accused’s home at 45 Plymouth Ave in the evening to socialize and later go to a downtown bar called the Fiddlers Pour House where they met up with other friends.
[12] It appears that three of the four individuals at the accused’s home were drinking various amounts of alcohol and smoking marijuana before they attended the pub just after midnight. It appears Ms. Martin may not have been consuming anything while at the accused’s home before attending the pub. While at the pub further alcohol was consumed in various levels.
[13] The evidence would indicate that the accused was ejected from the pub. His three companions attended outside with him. For some unclear reason, the accused called Emily Raymond a “whore” and spit at her face. Randee Martin took the accused aside and calmed him down and then the four left in a Central Taxi driven by Shujat Syed who delivered them to 45 Plymouth Ave. at around 1:30 to 1:45 am.
[14] While at the accused home and standing in the kitchen, Emily Raymond and Jacob Peets were about to smoke some marijuana when the accused again called her a “whore” and threw a marijuana bong at her. Jacob Peets intervened.
[15] The accused and Jacob Peets got into a pushing match and swearing at each other. Peets left the house and it is alleged the accused followed him. Shortly thereafter, Jacob Peets was found dead from numerous stab wounds on the front lawn of 45 Plymouth Ave.
[16] The Crown is seeking evidence from the following incidents be ruled admissible as prior extrinsic misconduct by the accused:
a) the assault on Emily Raymond on March 23, 2019;
b) the verbal threats on Emily Raymond thereafter;
c) an essay written by Emily Raymond mentioning her abusive relationship with the accused which he allegedly read;
d) the verbal assault on Emily Raymond at the pub; and
e) the verbal assault and the throwing of the bong at Emily Raymond in the kitchen at 45 Plymouth Ave. after arriving back from the pub on June 29, 2019.
POSITION OF THE PARTIES:
[17] The Crown argues that the prior incidents of extrinsic misconduct by the accused are relevant and material to issues in the trial namely motive, animus, identity and intent. It further submits that the probative value of this evidence outweighs any prejudicial effect its admission might have. The Crown further opines that if the jury is not given this evidence it will be left with an incomplete picture of all of the facts and an inability to properly assess the credibility and reliability of key witnesses which are central to the case.
[18] The Crown’s theory is that the accused harboured an animus towards Ms. Emily Raymond and that Mr. Peets’ intervention between the two of them provided the motive for the accused to kill Mr. Peets. The Crown also argues that the accused was jealous of Jacob Peets and his relationship with Emily Raymond and when Jacob Peets intervened when the accused assaulted Emily Raymond in the kitchen the accused stabbed him.
[19] The defence argues that this prior extrinsic misconduct evidence of the accused is really being introduced by the Crown to establish in general terms that Mr. Kostuk is a violent person who engages in violent behaviour towards a woman he was dating, being Ms. Raymond. It is further submitted that the purpose of this discreditable conduct is to generate the effect of the jury inevitably drawing the conclusion that since the accused is capable of inflicting violence on a friend and a woman he was dating then he is therefore capable of inflicting violence on his best friend.
[20] The defence further argues that this discreditable conduct unfairly bolsters and “shores up” the credibility of Emily Raymond.
[21] The defence also submits that the prior assault on Ms. Raymond on March 23, 2019 has no evidentiary link with the present case because:
i) There is no evidence Mr. Peets was involved in or had any part to play in the March 23, 2019 assault;
ii) There is no evidence Mr. Peets had any knowledge of this incident;
iii) There is no evidence Mr. Peets had any feelings about the assault;
iv) There is no evidence the assault had anything to do with Mr. Kostuk’s relationship with Mr. Peets; and
v) The assault on March 23, 2019 is remote in relation to the death of Mr. Peets.
[22] The defence also opines that there is no evidence the assault of March 23, 2019 had anything to do with the formation of the animus or of the specific motive to kill Mr. Peets on June 29, 2019. There is no evidence Mr. Peets was involved in or had any part to play in general threats purportedly made by Mr. Kostuk on Ms. Raymond between March 23, 2019 up to June 23, 2019 or that in fact he even had any knowledge of these alleged incidents.
[23] The defence further submits that allegations of general threats on Emily Raymond during the time frame of March 23, 2019 to June 29, 2019 are remote in time in relation to the death of Mr. Peets. There is no evidence any of these alleged threats had anything to do with the formation of any specific animus or of the specific motive to kill Mr. Peets on June 29, 2019.
[24] The defence conceded that the aggressive conduct and the assaults on June 29, 2019 are relevant as it relates directly to the conduct of the parties at the bar as well as it relates directly to the conduct of the parties after leaving the bar, attending back at 45 Plymouth and leading up to the death of Mr. Peets. However, any impugned conduct that occurred before the parties arrived at 45 Plymouth earlier in the evening is not relevant to the events of the night of the murder and should not be admissible.
THE LAW:
[25] Prior discreditable conduct of an accused is presumptively not admissible. There are exceptions as stated by Binnie J. in R v Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at para. 41:
“While emphasizing the general rule of exclusion, courts have recognized that an issue may arise in the trial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse…
The learned judge further stated at para. 55 of Handy “…The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.”
[26] Watt J. gives the following instruction to trial judges in R v Luciano, 2011 ONCA 89 at para. 227 and 228:
“When evidence of extrinsic misconduct is tendered for admission, courts sometimes proceed directly to the probative value/prejudicial effect analysis upon which admissibility depends. But there are other questions that require response before the crucial balancing need be undertaken:
Is the conduct that of the accused?
Is the evidence relevant?
Is the evidence material?
Is the conduct discreditable to the accused?
An affirmative response to each question is essential before it becomes necessary to undertake the probative value/prejudicial effect analysis: R. v. B.(L.); R. v. G.(M.A.), (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35 (C.A.), at para. 10.”
[27] Evidence of an accused person’s extrinsic misconduct that only shows that he or she is the type of person to have committed an offence with which they are charged is inadmissible. Evidence that tends to show from extrinsic misconduct that an accused is a person of bad character but is relevant and material to an issue at trial other than propensity, may be admissible. However, the evidence must be more probative of that issue than its prejudicial effect and must not engage impermissible propensity reasoning. R v. T. (J.A.) 2012 ONCA 177, [2012] O.J. No. 1208 (Ont. C.A.) at para 51, 54 R v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57 (S.C.C.) at para 31, 35-36 10.
[28] The Crown bears the onus of satisfying the Court on a balance of probabilities that the probative value of evidence of prior discreditable conduct outweighs its prejudicial effect. In discharging this onus, the Crown is required to identify the issue that the discreditable evidence is related to and the non-prohibitive inferences to be drawn from the discreditable evidence. The Crown must establish that in a specific case, the probative value of bad character evidence outweighs its prejudicial effect. There is a narrow window of admissibility as the Supreme Court of Canada held in B.(C.R.), at para. 24:
Evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury.
[29] Identification of the issues in question is key to an assessment of probative value. The proposed evidence cannot be assessed in the abstract. It must be relevant to a live issue at trial and its probative value must be evaluated in relation to the issues at trial. If the issue in question is a minor one, the evidence will have less probative value. Conversely, evidence relating to a key issue in the proceedings weighs in favour of admissibility. R v. Handy, supra at paras 69, 73-75 and 99.
[30] Prior discreditable conduct may be relevant to establishing an accused person’s state of mind at the material time. Evidence of a mental state may be relevant to prove the accused did the act constituting the offence or it may be relevant to prove his or her intention or other mental state. R. v. Brissard, 2017 ONCA 891 at para 17.
[31] A non-exhaustive list of factors that may be considered in whole or in part in determining the probative value of the evidence includes the:
a. temporal proximity of the acts;
b. extent to which the other acts are similar in detail to the charged conduct;
c. number of occurrences of prior conduct (where there is an alleged pattern of conduct);
d. circumstances surrounding or related to the similar acts;
e. distinctive features unifying the incidents, if any;
f. existence of intervening acts;
g. reliability of the proposed evidence; and
h. strength of the evidence, i.e. the extent to which the proposed evidence supports the inference the proponent seeks to have drawn from it and the extent to which it tends to prove matters at issue.
R v. Handy, supra at paras 81-82, 128, 133
[32] While probative value goes to proof of an issue, prejudicial effect concerns the fairness of the trial. R. v. Handy, supra at para 148
[33] In assessing prejudice, the application judge must consider both moral prejudice (the danger that the trier of fact will convict simply to condemn the accused for prior bad acts) and reasoning prejudice (the danger the trier of fact will become confused or distracted from the actual charge against the accused). R. v. Handy, supra at paras 100, 139, 144-145
[34] Factors relevant to the assessment of prejudice include:
a. how inflammatory or discreditable the proposed evidence is;
b. the extent to which the proposed evidence may confuse or distract the trier of fact;
c. the potential for undue time consumption;
d. the extent to which the proposed evidence may support an inference of guilt based on bad character alone; and
e. the accused’s ability to challenge or respond to the proposed evidence. R. v. Handy, supra at para 83
ANALYSIS:
[34] I conclude that the Crown is correct that the evidence of the past history and relationship of the accused and Emily Raymond is relevant and material to understand the alleged animus the accused may have harboured against Ms. Raymond and the possible motive of jealousy regarding the deceased. This evidence gives context to that narrative and to intent which is competing against the 911 narrative expressed by the accused blaming the cab driver for the murder. The jury would not have a complete picture without this background history. Nor would the jury be able to properly determine the guilt or innocence of the accused on the merits of the case without this background information.
[35] I also agree with the Crown that this background information is necessary for the jury to have to be able to properly evaluate the credibility of some of the witnesses especially Ms. Raymond, who has given different versions to the police about the murder. The jury should not be left with a sanitized version of the relationship between Ms. Raymond and the accused and how that relationship may have interacted with the accused’s relationship with the deceased.
[36] I disagree with defence counsel as to the significance of what the deceased knew as to the prior discreditable misconduct of the accused towards Ms. Raymond. What is significant is that this evidence potentially shows the animus the accused had towards Ms. Raymond and his potential jealousy when the deceased attempted to intervene. Whether the deceased knew of this animus is not relevant as it is the accused state of mind that is key. See R. v. Candir, 2009 ONCA 915 at paras. 51 and 52.
[37] In my view, it would be improper if the jury was left with the impression that the accused suddenly developed this animus towards Ms. Raymond outside the pub on the night of the murder for the first time, with questionable reasons for such animus. The contextual history of this animus is required by the jury to properly weigh all of the evidence it will hear.
[38] I am not persuaded by the Crown arguments that the essay being written by Ms. Raymond during the afternoon of June 28, 2019 is relevant, material or necessary to establish the theory of the Crown. The essay itself is not conduct by the accused even if the contents may have been. (See Luciano at paras. 227 and 228). The Crown has sufficient evidence of the potential animus in the accused’s mind as against Ms. Raymond and the essay is not required and will not be admitted into evidence nor will any mention of it. I also conclude that the essay is more prejudicial than is its very limited probative value and for that reason as well it will not be admissible.
[39] The assault on March 23 is clearly prejudicial, however, I conclude its probative value outweighs that prejudice. This is the start of the animus and violent behaviour of the accused towards Ms. Raymond. It is because of the violence of this assault that the subsequent threats and behaviour of the accused towards Ms. Raymond is significant to her in particular and her future conduct regarding his actions. I therefore conclude that the March 23 assault evidence is admissible, however, it shall be edited.
[40] I conclude that all of the details of this assault are not necessary to advance the Crown theory of the animus of the accused towards Ms. Raymond. The graphic details of the actual assault, the blood, the knife held at her throat, the SOS to a friend, the car chase, the details in the hospital, the broken nose, and the pictures are not necessary. The probative value of these details is limited and are certainly greatly outweighed by their prejudicial effect.
[41] I conclude that the graphic details of the evidence of the March 23 assault as listed in paragraph [40] will likely lead the jury to impermissible propensity reasoning. (See Handy at para. 36-40). Those details have the potential of poisoning the minds of the jurors against the accused and concentrating their minds on that single event rather than the actual murder.
[42] As such it would be best if the Crown and Defence could arrive at an agreeable statement of facts regarding this incident based upon my directions set out in para. [40]. If they cannot then the evidence that will be admissible will be strictly limited and will only include that the accused and Ms. Raymond got into an argument after being at a bar that escalated to the accused punching her 3-4 times in the face causing serious injury that required immediate hospital care at the Niagara Hospital.
CONCLUSION:
[43] To summarize the following extrinsic misconduct of the accused is ruled admissible:
a) The March 23 assault as restricted in para [42];
b) The subsequent verbal threats to assault Ms. Raymond again and cause worse injury than what occurred to her in the March 23 assault;
c) The assaults and verbal abuse outside the pub;
d) The assaults and verbal abuse in the kitchen at 45 Plymouth Ave just prior to Mr. Peets intervention.
Arrell, J.
Released: September 17, 2021
COURT FILE NO.: 375/20
DATE: September 17, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and -
Riley Kostuk
JUDGMENT
Released: September 17, 2021