COURT FILE NO: CR-21-696

DATE: 2021 10 20

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

J. Vlacic, for the Crown/Respondent

Crown/Respondent

• and -

RICHARD LIPSETT and DEAN SINCLAIR

Accused/Applicants

A. Morphew and K. Symes, for the Accused/Applicant Lipsett (Symes not appearing on the Application)

A. Trica and D. Stein, for the Accused, Sinclair (taking no position on the Application)

HEARD: October 14, 2021

Pre-Trial Application Ruling No. 2 - Scopelliti Application

Trimble J.

The Application

[1] On 20 August 2019, Mr. Lipsett was arrested for the murder of Wayne Wojcichowsky on the evening of 14-15 August 2019.

[2] Mr. Lipsett seeks to elicit evidence from the victim's former common-law spouse and from three sometime residents of the shelter at which the victim stayed, that the victim had a propensity to be verbally and physically violent when intoxicated.

Positions of the parties

[3] Mr. Lipsett argues that evidence with respect to the victim's propensity for violence when intoxicated, both with respect to the specific incident at issue, and in general, is relevant to Mr. Lipsett's possible defences of self defence, defence of his co-accused (Mr. Sinclair), and/or provocation. It is also necessary for Mr. Lipsett to make full answer and defence. Mr. Lipsett relies upon R. v. Scopelliti, 1981 CanLII 1787 (ON CA), [1981] O.J. No. 3157, 63 C.C.C. (2d) 481 (Ont. C.A.).

[4] The Crown concedes that the evidence that Mr. Lipsett seeks to tender with respect to the victim's propensity to be violent when he was intoxicated is admissible with respect to:

a) whether the victim started the fight;

b) whether Mr. Lipsett acted in self defence;

c) whether Mr. Lipsett acted in defence of Mr. Sinclair; and/or

d) whether Mr. Lipsett was provoked.

[5] The Crown recognizes that while there is some prejudice in the jury hearing of the victim's propensity to be violent while intoxicated, the prejudicial effect is not so substantial as to outweigh the probative value of the evidence.

[6] The issue for the Crown is the weather, and the extent to which the Crown may call evidence in reply as to Mr. Lipsett's own violent past by way of his criminal record. The Crown submits that it should be entitled to call in reply, if necessary, Mr. Lipsett's criminal record which contains convictions for offences for violence in

1992, 1994, 1995, 2004, and 2010. This is only fair, and in keeping with the case law.

[7] Mr. Lipsett argues that his criminal record is dated and irrelevant. In any event, putting in his criminal record is highly prejudicial to him and far outweighs any probative value. The jury would not have any context surrounding the charges such as the facts underlying the convictions and whether any conviction resulted as of a plea or a trial.

[8] Mr. Sinclair supported Mr. Lipsett's application. Given the Crown's concession, however, Mr. Sinclair made no submissions on the application.

Result

[9] Mr. Lipsett is permitted to lead evidence with respect to the victim's propensity to be violent when intoxicated. If Mr. Lipsett limits his evidence of the victim's propensity to be violent while intoxicated to the period of May to August 2019, the Crown may not lead reply evidence as to Mr. Lipsett's criminal record for violent offences and threats. If, however, Mr. Lipsett leads evidence of the victim's propensity for violence while intoxicated predating May 2019 or his propensity at large, the Crown may lead reply evidence of Mr. Lipsett's criminal record regarding violent offences provided the Crown also leads evidence of the underlying facts of the conviction(s) including whether the conviction followed a trial or plea.

Background

[10] Some of what follows comes from Mr. Lipsett's factum, which is taken, in part, from statements given by the two accused.

[11] Mr. Lipsett was apprehended on 19 August 2019 and gave a statement, the admissibility of which has yet to be determined. Mr. Sinclair was interviewed

by the police twice before his arrest. These statements, too, have not yet been determined to be admissible.

[12] In referring to this information I want to be clear that I am referring to it only for background and for the purposes of this Application only. I am not making any specific findings of fact for any other purpose.

[13] As a result of a telephone call from Mr. Sinclair at 8:09 AM, 15 August 2019, Peel Regional Police attended at a green space behind Tiger Auto Parts located near Torbram Road and Steeles Avenue West in Brampton. This green space ran down to a creek. There were two tents in the area, one for sleeping, and the other for storage, and a fire pit. When police arrived, they found the victim lying on the creek's bank, with his head in the water although his face above the water. He was neither breathing nor moving. Lifesaving efforts were commenced but he was pronounced dead at the Brampton Civic Hospital that morning.

[14] Post-mortem examination concluded that the victim's cause of death was blunt force trauma to the base of the rear of his head. It was not clear whether the victim was dead when he entered the creek. The victim had many blunt force injuries all over his body.

[15] Video surveillance taken from businesses in the area showed two individuals, allegedly the accuseds, walking towards the camp site at 8:31 PM on 14 August 2019, the same two individuals leaving the next morning, at 7:39 AM. The video purports to show Mr. Sinclair returning at 8:06 AM.

[16] Forensic services examined the scene and recovered a bloodied rock and brick. The blood was determined to have come from the victim although the two accused could not be excluded as minor contributors to the mixture taken from the rock. A half-burnt shoe was found in the fire pit and its mate found on the far side of the stream. Police say these are Mr. Lipsett's shoes. The blood-stained clothes

that Mr. Sinclair is alleged to have worn on 14 August 2019 were also located. The blood could not be excluded as coming from the victim.

[17] Mr. Lipsett spent the night of 14-15 August at the campsite but denied any knowledge of any altercation involving the victim. He also said that when he left the next morning, the victim was still alive.

[18] Mr. Sinclair is reported to have said that he did not see the victim on 14 August 2019. He had been drinking that day and when he got back to his tent in the green space he went into his tent and fell asleep. When he woke up the next morning, he continued to drink before leaving for work. He did not attend work because he found he could not do so. He returned to the campsite at which point he found the victim in the water.

[19] At the beginning of August 2019 both of the accused and the victim were residents of a shelter located near the green space in which the victim was found dead. On 1 August 2019, the victim assaulted another resident (Mr. Langille) and, as a result, he was evicted from the shelter. Following the discharge, he also threatened the same resident. Mr. Sinclair was discharged from the shelter at about the same time because he had stayed longer than shelter policy allowed.

[20] Mr. Lipsett's position is that the victim, when intoxicated, became aggressive and violent. The evidence in this respect applies to two time periods. First, three witnesses who are either residents or employees of the shelter will give evidence with respect to the victim's violent tendencies during May to August 2019. Those witnesses (including the object of an assault by the victim, Mr. Langille) will testify that in the summer of 2019 the victim was drinking the point of intoxication on a daily basis, and often using cocaine several times a day. On 1 August 2019, Mr. Langille asked staff to cut the lock off the victim's locker because the locker contained medication of another resident, who had lost his key. The victim became angry when he heard of this and pushed Mr. Langille to the ground. After this,

shelter staff told the victim that he was being ejected from the residence. He left, then came back, pushed Mr. Langille a second time, and threatened him. Mr. Langille went to hospital although suffered no serious injuries.

[21] The second time period is a more general time period. Mr. Lipsett may call the victim's former common-law spouse who had cohabited with the victim for 15 years ending six years before the victim's death. They had two children together.

[22] The victim's former common-law spouse is expected to say that the victim was always violent when he was intoxicated. As to more recent events, it is expected that she will say that from March until May 2019, she allowed the victim to stay at her home on the couch because he was homeless. During this time, she did not permit the victim to consume alcohol or drugs, nor did he do so.

Analysis

Evidence of the Victim’s Character

[23] It is well settled that, generally, while the Crown may not proffer evidence about the disposition or character of the accused, no such rule operates to exclude evidence of the propensity of a witness. R. v. Scopelliti, 1981 CanLII 1787 (ON CA), [1981] O.J. No. 3157, 63

C.C.C. (2d) 481 (Ont. C.A.) at paras. 28 and 45, and R. v. Varga, 2001 CanLII 8610 (ON CA), [2001] O.J. No. 4262, 159 C.C.C. (3d) 502 (C.A.), para. 19.

[24] Indeed, the accused should be allowed to lead evidence with respect to the character of the victim if it is relevant to proving his innocence. It is in the interests of justice to do so, especially if it is relevant to demonstrating that the victim was the aggressor or to support an accused's account that he was attacked by the victim. In order to lead such evidence, it is not necessary that the accused knew about the victim's violent past at the time of the events. When the victim's prior disposition is not known to the accused, there must be some other evidence of the victim's aggression at the time of the events. Such evidence can only be

excluded if it's prejudicial effect substantially outweighs the probative value. R. v. Scopelliti, supra, at paras. 28, 30-33, 42 and 46; R. v. Cheveldayoff, [2018] O.J. No. 3783 (ONSC), at paras. 12-17, R. v. Patterson, 2006 CanLII 2609 (ON CA), [2006] O.J. No. 361 (ONCA),

at para. 24

[25] In this case, the Crown has conceded that the evidence of the victim’s violent disposition is admissible. I am not bound by this concession, but must determine, for myself, the question of admissibility of evidence about the victim’s violent tendencies.

[26] I agree with Mr. Lipsett's and the Crown's position that evidence about the victim's propensity to be violent when intoxicated is admissible. It is relevant to the issue of who started the altercation culminating in the victim's death, and to the defences of self defence, defence of Mr. Sinclair, and provocation. Further, it is not so prejudicial as to outweigh its probative value.

Reply Evidence

[27] What, if any, evidence can the Crown lead in reply with respect to Mr. Lipsett's own character or propensities?

[28] The Crown submits that it should be entitled to lead Mr. Lipsett's criminal record of convictions for violent offences. Mr. Lipsett says that doing so would be prejudicial for two reasons. First, it is outdated, with the last conviction being nine years before the victim's death. Second, the criminal record simply lists the conviction and the penalty but does not give the underlying factual basis of the charge or whether the conviction followed a trial or a plea. It is, therefore, prejudicial, and such prejudice outweighs its probative value.

[29] In Scopelliti, the Ontario Court of Appeal opened the door to the admissibility of such reply evidence when Martin J.A. said:

There is one further observation I would make with respect to the following statement in the reasons given by the trial judge for admitting evidence of previous acts of violence by the deceased:

While the matter has not been argued it would seem to me that the Crown can introduce evidence in rebuttal which would contradict the proposed evidence as to the disposition of the victims but cannot offer evidence as to the disposition of the accused that would not have been admissible as part of its case.

The learned trial judge was clearly right in stating that the respondent having introduced evidence that the deceased were of violent disposition, the Crown was entitled to refute this evidence by calling evidence that the deceased were of peaceable disposition. Moreover, the respondent having introduced evidence that he was a person of peaceable character it was also open to the Crown to call evidence to rebut such evidence of peaceable character. I would wish, however, to guard myself against being taken to hold that, even if the respondent had not adduced evidence of his peaceable character, it would not have been open to the Crown, to adduce evidence in reply with respect to the respondent's disposition for violence, if such were the case, as the trial judge's reasons seem to imply. It may be that by introducing evidence of the deceased's character for violence, an accused impliedly puts his own character for violence in issue. See Wigmore on Evidence, vol. I at p. 472. However, I set aside this question until it requires to be decided.

(emphasis added).

[30] In R. v. Williams, 2008 ONCA 413, the Court of Appeal revisited the issue. O'Connor ACJO wrote:

[58] When an accused relies on self-defence and leads evidence that the deceased was a violent person, the question of whether the Crown may lead reply evidence of the accused's propensity for violence arises. The Crown will be permitted to do so 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. See R. v. Sparkes, [2005] O.J. No. 1883 (C.A.), leave to appeal to

S.C.C. refused, [2005] S.C.C.A. No. 408; R. v. Yaeck, [1989] O.J. No. 3002 (Sup. Ct.); R. v. Robertshaw, [1996] O.J. No. 1524 (Ont. Ct. J. (Gen. Div.)); R. v. Hines, [2001] O.J. No. 1112 (Sup. Ct.); R. v. Soikie, [2004] O.J. No. 2901 (Sup. Ct.).

[59] In R. v. Yaeck, Watt. J. as he then was, explained as follows:

By parity of reasoning with that employed in R. v. McMillan [citation omitted], the prosecution should be entitled to show that the combat was between two persons of similar dispositions for violence, not one with and the other without it. The trier of fact would then have evidence bearing on the probability of each version of aggression, as well as the direct evidence

thereof, thereby being in a better position to assess the legitimacy of the claim.

[60] A decision whether to admit evidence of an accused's prior bad acts is subject to a trial judge's overall assessment as to whether the probative value of the evidence outweighs the potential prejudicial effect: R. v. Sparkes at paras. 7-8.

[31] R. v. Cheveldayoff, 2018 ONSC 428, Akhtar J. said:

[18] Where the accused is granted leave to adduce prior disposition evidence, the court may also permit the Crown to lead, by way of reply, evidence demonstrating that the accused also had a disposition for violent behaviour. This rule operates as a method for ensuring trial fairness and ensure that a balanced picture is presented before the trier of fact: Scopelliti, at p. 540; R. v. Yaeck, [1989] O.J. No. 3002 (S.C.), at para. 21; R. v. Robertshaw, [1996] O.J. No. 1542

(Gen.Div.), at paras. 19-21; R. v. Ferguson, [1996] O.J. No. 3847 (Gen.Div.); R. v. Hines, [2001] O.J. No. 1112 (S.C.), at para. 59, affirmed, 2007 ONCA 103; R. v. Soikie, [2004] O.J. No. 2901 (S.C.), at para. 13; R. v. Sparkes, [2005] O.J. No. 1883 (C.A.), at para. 7, leave refused, [2005] S.C.C.A. No. 408; R. v. Williams, 2008 ONCA 413, 233 C.C.C. (3d) 40, at paras. 58-60, 70; R. v. Kelly, 2011

ONCA 549, at para. 31; R. v. Forde, 2012 ONSC 6655, 294 C.C.C. (3d) 149, at

para. 21; R. v. Jackson, 2013 ONCA 632, 301 C.C.C. (3d) 358, at paras. 45-48,

affirmed, 2014 SCC 30, [2014] 1 S.C.R. 672.

[19] However, the court must place a check on the Crown's reply evidence. The only evidence that the Crown can adduce is that suggesting that the accused has a violent disposition: R. v. Borden, 2017 NSCA 45, 349 C.C.C. (3d) 162, at paras. 130, 152, 161; R. v. Rossignol, 2005 NBCA 11, 280 N.B.R. (2d) 312, at

para. 21; R. v. Head, at para. 15.

[20] Moreover, the evidence of the accused's violent disposition must not be too remote in time to the offence for which he is being tried for: R. v. Close (1983), 1982 CanLII 1914 (ON CA), 38 O.R. (2d) 453 (C.A.) at pp. 462-463; R.

v. Chartrand (2002), 2002 CanLII 6331 (ON CA), 62 O.R. (3d) 514 (C.A.), at

paras. 10-11.

[32] There must also be the necessary weighing of prejudice versus probative value. Cheveldayoff, para. 38.

Analysis

[33] In this case, if Mr. Lipsett leads evidence of the victim's propensity for violence when intoxicated limited to the period of May 2019 onward, then the

Crown may not lead evidence of Mr. Lipsett's criminal record for violent offenses. That record is only marginally probative. It is too remote, ending nine years before the current charges. Further, the prejudicial effect of introducing Mr. Lipsett's criminal record relating to violent offences would substantially outweigh any probative value of the evidence.

[34] If Mr. Lipsett leads evidence of the victim's propensity or violence generally or for any period before May 2019, then the Crown may lead reply evidence of Mr. Lipsett's own violent history. By alleging that the victim had a propensity for violence when intoxicated that is beyond the period of May to August 2019, Mr. Lipsett has expanded infinitely the inquiry unto the victim's propensity for violence when intoxicated. Trial fairness requires that a balanced picture is presented before the trier of fact. If Mr. Lipsett places before the jury the victim's propensity for violence when intoxicated beyond the period the May to August 2019, it is only fair that his own history of violence be placed before the jury.

[35] While the Crown, in the above circumstances, may lead in reply evidence of Mr. Lipsett's criminal record as it pertains to violence and threats, leading the criminal record and nothing more is overly prejudicial. It runs the risk of a jury improperly convicting Mr. Lipsett as violent person. The Crown, therefore, to be fair to Mr. Lipsett, must also lead evidence of the underlying facts of the convictions lead in reply, and whether the conviction was after a trial or on a plea.

Trimble J.

Released: October 20, 2021

COURT FILE NO: CR-21-696

DATE: 2021 10 20

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and -

RICHARD LIPSETT and DEAN SINCLAIR

Pre-Trial Application Ruling No. 2 - Scopelliti Application

Trimble J.

Released: October 20, 2021