Superior Court of Justice - Ontario

COURT FILE NO.: CR-1087-19

DATE: 2021-09-29

RE: R. v. Robert Stephen Wright

BEFORE: The Honourable Mr. Justice R.D. Gordon

COUNSEL: Robert Parsons, Kevin Ludgate and Brittany Butler, Counsel for the Crown Michael Lacy, Counsel for the Accused

HEARD: September 7 and 8, 2021, via Zoom

ENDORSEMENT

[1] Mr. Wright is charged with the second-degree murder of Renee Sweeney who lost her life on January 27, 1998. He was arrested on December 12, 2018.

[2] On February 10, 1998 John Brian Fetterly was arrested and charged with Ms. Sweeney’s murder. The charge was withdrawn two days later. Mr. Wright seeks permission from the court to adduce evidence at trial that Mr. Fetterly was, in fact, the person who killed Ms. Sweeney.

[3] The Crown is of the view that Mr. Fetterly is not sufficiently connected to the crime to allow the evidence to be called and that in any event, the probative value of the evidence is far outweighed by its prejudicial effect. The Crown also contests the admissibility of much of the evidence tendered by the accused.

[4] As a starting point, it is not my intention to determine, at this time, the admissibility of the evidence expected to be called by the accused at trial. Rather, I will assume that the evidence filed in support of this application can or will be adduced in an admissible fashion at trial and I will determine if it sufficiently connects Mr. Fetterly to the crime as to allow the accused to call it.

The Applicable Law

[5] It is well settled that an accused is entitled to adduce evidence that some other person committed the offence as a means of raising reasonable doubt about their own guilt. However, the law is equally clear that to do so there must be a sufficient connection between the third party and the crime – an air of reality to the defence that the crime was committed by another. This requirement of an air of reality was summarized by Watt J.A. in R. v. Spackman, 2012 ONCA 905 as follows:

[121] It is essential that there be a sufficient connection between the third party and the crime, otherwise any evidence about the third party would be immaterial. An accused must show that there is some basis upon which a reasonable jury, properly instructed, could acquit based on a claim of third party authorship: Grandinetti, at para 47-48; R. v. Fontaine 2004 SCC 27, [2004] 1 S.C.R. 702, a para 70. Absent a sufficient connection, the “defence” of third party authorship lacks an air of reality and cannot be considered by the trier of fact: Grandinetti, at para.48.

[6] Importantly, the air of reality standard is not directed at the likelihood of success of the proposed third party defence at trial. Rather it is directed at the availability of the defence.

[7] As summarized once again by Watt J.A. but this time in R. v. Durant, 2019 ONCA 74:

[176] Application of the air of reality standard enjoins any consideration of the credibility of witnesses or the reliability of their evidence; of weighing evidence substantively, of making findings of fact; or of drawing determinate factual inferences: Cinous, at Para 87; R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para 12. However, in some circumstances, as for example where the elements of a defence can only be established by drawing inferences from circumstantial evidence, a trial judge must examine the totality of the evidence to determine whether the inferences required to ground the defence fall within the field of inferences reasonably available on the evidence adduced at trial; Pappas, para 25; Cinous, at paras 53, 91.

[8] Indeed, as recently confirmed by Rouleau J.A. in R. v. McRae, 2021 ONCA 525: “It is well established that in considering whether a defence has an air of reality, the accused is entitled to the most favourable view of the evidence. It is assumed that the evidence relied upon by the accused is true.”

[9] “The integrity of the administration of justice requires that the proceedings stay focused on the indicted crime and not devolve into trials within a trial about matters that may not be sufficiently connected to the case. Such tangents risk causing delays, confusion and distractions that undermine the trial’s truth-seeking function. This risk is especially heightened where the defence seeks to introduce other alleged suspects or crimes into the trial.” [R. v. Grant 2015 SCC 9, para. 4]. To that end, the court has discretion to exclude relevant evidence tendered by an accused if the probative value of the evidence is substantially outweighed by its prejudicial effect. [See R. v. Seaboyer 1991 76 (SCC), [1991] 2 S.C.R. 577 (S.C.C.)]. In assessing prejudicial effect the court is to consider the following factors: (1) The danger that the evidence will arouse the jury’s emotions of prejudice, hostility or sympathy; (2) The danger that the proposed evidence and any evidence in response will create a side issue that will unduly distract the jury from the main issue in the case; (3) The likelihood that the evidence will consume an undue amount of time; (4) The danger of unfair surprise to the opponent who had no reasonable ground to anticipate the issue and was unprepared to meet it; and (5) The danger that the evidence will be presented in such a form as to usurp the function of the jury. [See R. v. Clarke 1998 14604 (ON CA), [1998] O.J. No. 3521].

Analysis

[10] There is no doubt that Ms. Sweeney lost her life at the hands of another. The question is identity. Who committed the crime?

Evidence of Opportunity

[11] At about 11:00 a.m. on the day of the crime, Ms. Sweeney was speaking to an employee at a related store by telephone. During that call, she told the other employee that she had to go as she had a customer. About a half hour later, two persons entered the store and found Ms. Sweeney deceased. They also observed an unidentified male crouched down behind a display rack around the check-out counter. The male stood up and ran past them out the front door.

[12] Later that same day, police interviewed Ray Hutchinson. Mr. Hutchinson had been called in to work at a computer store near the store where Ms. Sweeney was killed. He advised police that he came into close contact with a male person entering that store at around 11:00 a.m. He said that he was as close as two feet from him, looked directly at him and was able to provide the following description: “…hunched over, 5’8” or 5’9”, average build, brown hair wearing a hat with his hair sticking out to his cheek bones. Scruffy looking, maybe with a goatee, his hair was kind of covering his fact and he was around 30-35 years old.”

[13] On February 12, 1998 Mr. Hutchinson was shown a photographic lineup which included a photograph a Mr. Fetterly. Currently there is no audio or video record of the lineup procedure, however it appears he was advised: (a) That the person who committed the offence may or may not be in the lineup; (b) That he was not obliged to select anyone; and (c) That he should study the photographs closely before making any comments, consider that the photographs could be new or several years old, that the hair styles change and that persons can alter their appearance by growing or shaving facial hair. Mr. Hutchinson is noted by the officer as to have pointed at Mr. Fetterly’s photograph and said: “That’s him, definitely him” and “I’m positive”.

[14] On June 15, 1999 Mr. Hutchinson was re-interviewed by police. By then, the charge against Mr. Fetterly had been withdrawn and police had issued him a public apology. The tenor of the interview with Mr. Hutchinson was that the person he had seen was the murderer, that since Mr. Fetterly had been determined not to be the culprit his identification of Mr. Fetterly was incorrect, and given it was incorrect and that the description given by Mr. Hutchinson did not match the photograph he picked. Mr. Hutchinson must have been involved in some deliberate effort to mislead the police.

[15] In this context, Mr. Hutchinson explained that when he selected the man from the photo lineup he told the presiding officer that the man he saw on January 27, 1998 had a scruffy beard and longer bushy hair but that he recognized his eyes and that if the man he had seen was clean shaven he would look just like the man in the photo that he had picked out.

[16] Although Mr. Hutchinson does admit that he is no longer certain the man he picked out of the photo lineup was the man he saw go into the store where Ms. Sweeney was murdered, he could hardly say otherwise. He was told by police that the man he saw committed the murder; he knew that the man he picked from the lineup was Mr. Fetterly; and he knew the police had concluded that Mr. Fetterly was not the culprit. From this perspective, it is entirely reasonable for him to have then been uncertain of his identification of Mr. Fetterly and to have tried to think of who else he had seen that might resemble the person he saw. Of note is the following exchange with the police officer:

Chapman: In your previous statement you indicated that, that you were absolutely sure that was the guy that you saw going in that store okay so it wasn’t about his eyes or his hair or nothing like that it was just you, you indicated that you were absolutely positively sure that that was the guy.

Hutchinson: Ya I was.

Chapman: You were?

Hutchinson: Um hm.

[17] On the most favourable view of this evidence, Mr. Hutchinson confirms that when he made his photo identification of Mr. Fetterly, he was certain it was him. His subsequent uncertainty about the identification he made arises from his understanding that it could not have been Mr. Fetterly.

[18] Mr. Fetterly was no stranger to Sudbury. His mother resided there, and he was known to visit her from time to time. At the time of the murder he was ordinarily resident in Mildmay, Ontario, a four to five-hour drive from Sudbury, however he was not seen there from 11:45 p.m. on January 27 until January 29. He relied on hitch-hiking or buses for transportation. Although there is no evidence of him travelling to Sudbury there is a window of opportunity for him to have done so between when he was last seen in Mildmay and when the murder was committed.

Admissions of Guilt

[19] In a statement to police given on September 27, 1998 Cynthia Bryson related that she met Mr. Fetterly on March 31, 1998 when she visited his home with her sister. She described the following exchange during that visit:

John asked me if I knew who he was. At that point, I said, “Ya, you’re John the drug dealer, obviously.” John got mad because he said I did not recognize him. At that point, I really looked at him and said, “I don’t. Do I need to?” He said, “I’m the guy that killed that girl.”… He said again he killed that girl and then clarified and said he was the one that killed Renee Sweeney.

[20] Ms. Bryson went on to tell the police that she thought it was odd that he would tell her this if he had actually committed the crime and therefore did not believe what he said. However, she added that, looking back on the incident, she believed Mr. Fetterly was either directly or indirectly involved.

[21] In a statement given in August of 1998, William Lockhart told police that while staying with him, and while they were both consuming a significant amount of drugs and alcohol, Mr. Fetterly said to him words to the effect that he shouldn’t have jumped the counter and stuck her and that he had taken something and that he had buried something. When Mr. Lockhart was asked to just state what Mr. Fetterly had said to him, he responded:

You’re not understanding. I’m trying to help you, by trying to help myself remember. He stumbled out of the bathroom onto the couch and he said something like, I shouldn’t have jumped across the counter, I jumped across the counter and knocked something over, I shouldn’t have started stabbing her… I don’t remember his words exactly, he said something to that effect.

[22] On the most favourable view of this evidence, Mr. Fetterly admitted to two persons that he killed Ms. Sweeney.

The Fingerprint Evidence

[23] In the course of their investigation of the crime scene, police located two fingerprints found in blood on a cash tray in close proximity to Ms. Sweeney. When Mr. Fetterly was identified as a suspect his fingerprints were compared to those on the cashbox. The prints were compared by Constable Waugh, Constable Zimmerman and Sergeant Evanochko. Although Constable Waugh was initially of the view that Fetterly could be eliminated as a source of the fingerprints, the other two officers were confident that Mr. Fetterly’s right thumb matched one of the fingerprints that had been located on the cashbox. After discussions among them and a further comparison, Constable Waugh tentatively agreed. It was on the strength of this fingerprint match, together with Mr. Fetterly’s proximity to a phonebooth from which an anonymous tip had been reported to police that he was arrested.

[24] Constable Waugh sought further assurances with respect to the comparisons. In short order, an RCMP examiner and two OPP analysts examined the fingerprints and determined that they did not belong to Mr. Fetterly. Constable Waugh agreed.

[25] After being provided with enhanced photographs of the fingerprints left at the scene, Constable Zimmerman retracted his initial opinion and agreed that Mr. Fetterly was not the person who left the fingerprints.

[26] Sergeant Evanochko has not retracted his original opinion that one of the fingerprints was a match to Mr. Fetterly. However, he made no subsequent examination of the fingerprints after the enhanced photographs were provided.

[27] On the most favourable view of this evidence, a fingerprint left in blood on a cash tray in close proximity to the deceased was found by one identification officer to match the right thumb of Mr. Fetterly.

Other Evidence of Connection to the Crime

[28] Police located shoeprints at the location of the crime which are believed to belong to the killer. The brand of the shoe was Brooks. The size is between men’s 8 and 10. There is evidence that Mr. Fetterly wore Brooks shoes sometime in the eight months proceeding the murder. His shoe size corresponds with what was found.

[29] There is significant evidence that Mr. Fetterly had a fascination with knives, the weapon used to end Ms. Sweeney’s life.

[30] Approximately $190 was stolen from the store where Ms. Sweeney died. If robbery was the motive for this crime, there is significant evidence that Mr. Fetterly’s financial situation was dire at the time and that he owed drug debts in Mildmay.

[32] Mr. Fetterly has a lengthy criminal record that includes crimes of violence such as extortion, assault, uttering threats, and criminal harassment.

The Strength of the Crown’s Case Against the Accused

[33] Given the state of the law as set out in Durant and McRae, supra, the strength of the Crown’s case is not a factor for consideration in determining whether the accused has met the evidentiary burden of establishing an air of reality.

Conclusion

[34] On the most favourable interpretation of the evidence that has been adduced, Mr. Fetterly, a man with a violent past and an affinity for knives who was in a dire financial situation, was positively identified by an eye witness as the man who entered the store about half an hour before the store was robbed and Ms. Sweeney was found stabbed to death. He is known to have worn the same type of shoe as was identified in shoeprints found at the scene of the crime and his foot size matches the size of the shoeprints found. He admitted to two separate people that killed Ms. Sweeney. The required air of reality to the defence that Mr. Fetterly killed Ms. Sweeney has been established.

Probative Value versus Prejudicial Effect

[33] The Crown submits that the evidence to be tendered by the accused against Mr. Fetterly is almost entirely unreliable and therefore of little probative value.

[34] As indicated above, I do not propose to rule today on the admissibility of the evidence to be tendered by the accused on the issue of Mr. Fetterly’s involvement in the crime. This ruling is directed at determining whether there is an air of reality to the notion that Mr. Fetterly committed the crime such as would allow defence counsel to attempt to elicit that evidence at trial. The eventual reliability of that evidence and its potential prejudicial effect will depend at least in part upon the manner in which it is eventually tendered. The admissibility of the evidence itself may be the subject of objection by the Crown at that time, or before the trial if it can then be determined on a fulsome evidentiary record. Obviously, whether the air of reality test is met such as to allow the defence to be put to the jury will depend on what evidence is eventually admitted at trial and whether an analysis of that admissible evidence leads to the same conclusions otherwise reached herein.

Conclusion

[35] The application is granted. There is an air of reality to the suggestion that John Fetterly committed the crime for which Mr. Wright stands charged such that he is entitled to lead evidence to that effect at his trial. The admissibility of that evidence having regard to the applicable rules and a probative value versus prejudicial effect analysis is reserved to when the evidence is called, or to a pre-trial motion in the event counsel are of the view that it can be adequately determined at such a hearing.

Justice R. D. Gordon

Date: September 29, 2021