Court File and Parties

Court File No.: CR-20-307-00 Date: 2022-03-24 Superior Court of Justice – Ontario

Between: Her Majesty The Queen Counsel: C. Coughlin and P. Maund, for the Crown

And: Philip Fitzpatrick and Evan Wright Counsel: S. Caramanna and C. Laperriere, for Mr. Fitzpatrick J. Goldlist and M. Bavaro, for Mr. Wright

Heard: November 10, 2021

Ruling on Pretrial Application

Justice André

[1] Mr. Philip Fitzpatrick brings an application for an order granting him leave to lead evidence and cross-examine witnesses about a Crown witness called Marquis Grant-Mentis and his involvement in the murder of Mr. Brandon Hall, or alternatively, an order granting him leave to lead evidence and cross-examine witnesses on the issue that one of those responsible for the murder was a black man, rather than Mr. Fitzpatrick. The Crown insists that there is no air of reality to the suggested defence and accordingly, the court should reject the application.

Background Facts

[2] On June 21, 2018, a number of persons broke into the basement apartment of Brandon Hall. At least one of them kicked down the front door and, after entering the apartment, fatally shot Mr. Hall. Mr. Hall’s mother gave a statement to the police within hours of the incident and said that she had seen the leader, who was not wearing a mask, and gave a description of the male she had seen. During an extensive investigation, police officers recovered surveillance video from nearby businesses one of which showed two males proceeding towards the apartment. The Crown’s theory, which is partly based on statements from Mr. Fitzpatrick’s father and stepmother, is that the males in the video are the accused, Philip Fitzpatrick and Evan Wright, while Mr. Caramanna, on behalf of his client, submits that one of the two males showed on the videos was a black male; presumably, Mr. Marquis Grant-Mentis.

Evidence of Third Party Suspect

[3] Mr. Caramanna submits that the following evidence provides the evidentiary basis for the court orders that he seeks:

a) Cheryl Hall, Mr. Hall’s mother, who is the only eyewitness to the murder told the police, within a couple hours following the incident, that the shooter was a black male. She gave another statement on June 21, 2018, at about 1:02 pm that the leader did not even cover his face during the murder. She described him as a short stocky black guy wearing a red sweater. She described him as “dark”.

“He was the one who started the shooting,” she told the police Ms. Hall added that there were a “whole bunch of hands firing, at least four people including the black guy.” She described the black male as fat and not as tall as her son who was five feet ten inches tall. She described his hair as black, rather than blond.

Mr. Hall’s mother did not retract her statement regarding the identity of one of the shooters. While testifying in a preliminary hearing in March 2020, she repeated that the person with the gun was black. However, she then stated that the persons were all masked and that she observed them for only a short time. Furthermore, that she was stressed when she made her observations, that it was dark and that she had opened her door just a little bit.

b) The surveillance videos show, according to Mr. Caramanna, the “eye sockets” of both persons. The eye socket of one male, who is wearing a Raptors shirt and black sneakers with red laces, appears white while that of the other male is darker. In support of this contention, Mr. Caramanna submits that the affiant of the ITO prepared to obtain search warrants deposed that a white and black male approached the victim’s apartment while another officer testified at the preliminary hearing in this matter that the eye socket of the other person involved in the murder was “darker”.

c) Mr. Grant-Mentis was a friend of Mr. Hall. He had met Mr. Hall the day before the shooting and the two had smoked marijuana together. Mr. Grant-Mentis knew that Mr. Hall had been in Brampton where he was fatally shot, rather than in Toronto where his father resided.

d) On September 17, 2018, police officers saw Mr. Wright give Mr. Grant-Mentis a pair of shoes which were virtually identical to that being worn by the person with the dark eye sockets seen in the video. The Crown does not dispute that these shoes, which had the “Air Jordan” logo, were most likely the same shoes worn by one of the males seen in the videos.

e) The Peel Police Services initially charged Mr. Grant-Mentis with being an accessory after the fact in connection to the murder. They interviewed him on November 9, 2018. He was uncooperative. He said that he knew nothing about the incident. He then gave another statement to the police on November 21, 2018. He implicated Mr Wright in the murder rather than Mr. Fitzpatrick. He stated that Mr. Wright had told him what had happened. The police subsequently withdrew the charge against him. Mr. Grant-Mentis, Mr. Caramanna insists, knew intimate details about the murder which he either he got from Mr. Wright or because he was involved in it.

f) The person with the Raptors jersey seen in the video had a yellow and green glove. A yellow green glove was found on a walkway in a park close to the murder. The glove was found to have two DNA profiles, one of which was not identifiable.

The Crown’s Position

[4] Mr. Coughlin, on behalf of the Crown submits, relying on R. v. Tomlinson, 2014 ONCA 158, that there is simply no evidence linking Mr. Grant-Mentis to the murder. There is no evidence that he had a motive to participate in it; no evidence that he had an opportunity to be involved in it; no evidence that he was connected to the crime; and, no actual evidence putting him at the scene of the crime at the relevant time. Finally, there is no evidence that Mr. Grant-Mentis was wearing the shows he received from Mr. Wright proximate to the time of the murder. In short, there is no air of reality to the submission that there is any evidence linking Mr. Grant-Mentis to the murder.

Analysis

[5] Does the proposed evidence enable Mr. Fitzpatrick to advance an alternate suspect defence? To answer this question, I must first examine the applicable law and then apply it to the facts in this case.

The Law

[6] In R. v. Grandinette, 2005 SCC 5, 1 S.C.R. 27, the Supreme Court of Canada noted that to advance such a defence, an evidentiary foundation must give the defence an “air of reality” in that:

a) the evidence is reasonably capable of supporting the inferences required for the defence to succeed; and,

b) there is a sufficient connection between the alternate suspect and the offence that it could raise a reasonable doubt that the accused is the perpetrator. Without such a connection, the defence of third party involvement will lack the requisite air of reality: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3.

[7] In applying the air of reality test, a trial judge must assume the evidence relied upon by the accused to be true. Credibility is not an issue in this analysis. The trial judge does not make determinations about credibility, weigh the evidence, or make factual findings or draw factual inferences: see R. v. Bulmer, [1987] 1 S.C.R. 782. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury and not how the jury should ultimately decide the issue: Bulmer, at para. 68.

[8] Even if there is a sufficient connection between the third party suspect and the evidence, the trial judge must still be satisfied that the probative value of the evidence is not substantially outweighed by its prejudicial effects: R v. Grant, 2015 SCC 9, 1 S.C.R. 475.

[9] In Tomlinson, Justice Watt summarized the principles to third party suspect evidence. He noted the following at paras. 71-78:

[71] First, to begin with the uncontroversial. It is self-evident that if a person, A, is charged with the murder of X, then A is entitled, by way of defence, to adduce evidence to prove that B, not A, murdered X: R. v. McMillan (1975), 7 O.R. (2d) 750 (C.A.), at p. 757, affirmed , [1977] 2 S.C.R. 824; and R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 46.

[72] Second, evidence marshalled in support of a third party suspect defence, as with other evidence adduced in a criminal trial, must be compliant with the rules of admissibility. Said in a somewhat different way, the evidence proposed for reception must be relevant, material and admissible. The proponent does not get a free ride through the admissibility thicket upon mere announcement of “third party suspect”: R. v. Williams (1985), 18 C.C.C. (3d) 356 (Ont. C.A.), at p. 366, leave to appeal refused, (1985) 18 C.C.C. (3d) 356n.

[73] Third, as with “proof” of any fact, the evidence on which an accused relies to demonstrate third party involvement must be relevant to and admissible on the material issue of identity: McMillan, at p. 757; Grandinetti, at para. 46.

[74] Fourth, to satisfy the relevance requirement, there must be a sufficient connection between the third party and the crime. Absent this link, the third party evidence is neither relevant nor material: Grandinetti, at para. 47; R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 121. The evidence may be direct or circumstantial but any essential inferences must be reasonable, grounded in the evidence, and not conjectural or speculative: Grandinetti, at para. 47.

[75] Fifth, we often use the term “opportunity” or “evidence of opportunity” to describe the nature of the connection between the third party and the conduct charged that is essential to provide an air of reality to the third party suspect defence. Absent this evidence, circumstantial evidence of an alleged third party’s disposition and motive, for example, would be excluded as immaterial: Grandinetti, at para. 48.

[76] Further, when disposition evidence is proffered for reception in support of a third party suspect defence, the manner in which the disposition is established varies. Sometimes, as in McMillan, the relevant disposition is established by the opinion evidence of experts. On other occasions, the third party may have accumulated one or several prior convictions that demonstrate a relevant disposition or propensity: See, R. v. Arcangioli, [1994] 1 S.C.R. 129, at p. 141; R. v. Dorfer, 2011 SCC 50, [2011] 3 S.C.R. 366, at para. 1.

[78] Finally, where a third party suspect defence is advanced at trial, the question for the trier of fact is whether, on the evidence as a whole, the possible involvement of the third party raises a reasonable doubt about the guilt of a person charged: R. v. Khan, 2011 BCCA 382, 282 C.C.C. (3d) 396, at para. 91.

Application of the Law to the Facts

[10] In determining whether Mr. Fitzpatrick should be permitted to call third party suspect evidence, I must determine whether the evidentiary foundation gives the proposed defence an air of reality. This involves a consideration of the following questions:

a) Is the evidence reasonable capable of supporting the inferences required for the defence to succeed?

b) Is there a sufficient connection between the alternate suspect and the offence that it could raise a reasonable doubt that Mr. Fitzpatrick is one of the perpetrators of the offence?

[11] To determine these questions, the factors set out in Tomlinson can be transformed into the following questions:

a) Is there evidence that is relevant and admissible on the material issue of identity?

b) Is there a sufficient connection between the third party and the crime?

c) Is there “evidence of opportunity” to describe the nature of the connection between the third party and the murder that is essential to provide an air of reality to the third party defence?

A. Is there evidence that is relevant and admissible on the material issue of identity

[12] Mr. Caramanna submits that there is. He relies on the following evidence to support his position:

a) Ms. Hall’s statement and preliminary hearing testimony that the main shooter was a black male;

b) The surveillance videos which show that one of the persons was black;

c) The DNA profiles on gloves recovered near the scene had the DNA profile of an unknown person;

d) Surveillance evidence on September 17, 2018, showing that Mr. Grant-Mentis was given a pair of shoes by Mr. Wright which had been worn by one of the persons seen on the surveillance videos; and,

e) Mr. Grant-Mentis’ knowledge of intimate details of the incident which he could only have known because of his involvement in the murder or from someone else, presumably, Mr. Wright, who was involved in it.

[13] The Crown submits that Ms. Hall is unlikely to adopt her police statement and that the “only reasonable interpretation of the cumulative effect of Ms. Hall’s evidence is that she is unclear/uncertain what she saw in this highly stressful, fleeting moment within her apartment the morning she had her son were shot.”

[14] I have viewed the surveillance videos in question. They clearly show that the eye “socket” of one of the persons had light skin or was white. The eye socket of the other male could not be seen, in my view, either because

a) the lighting conditions where the surveillance video was made;

b) the fact that the person’s face was masked or

c) the eye area was black or dark.

Officer Borosiu, a Peel Regional Police Officer, testified at the preliminary hearing on March 11, 2020, that he believed that he saw this person’s eye area was darker than that of the first person but denied that he had formed the opinion that the male was black.

[15] Based on this evidence, in combination with Ms. Hall’s statement and testimony, a reasonable inference could be drawn that one of the persons seen on the videos was black. To that extent, I do not agree with the Crown that the videos do not support Mr. Caramanna’s contention that one of the shooters was black. Ms. Hall gave a statement that the leader of the group, which numbered four persons, was black and was not masked. She testified in March 2020 that the persons were masked but maintained that one of the shooters was black.

B. Is there a sufficient connection between the third party suspect and the crime?

[16] The Crown submits that no such connection exists. He notes further that there is no evidence placing Mr. Grant-Mentis at the scene of the crime when the killing occurred. Mr. Grant-Mentis’ DNA was not found on any glove. To that extent, this factor has not been met in this case. Therefore, the application should be rejected.

[17] Contrary to the Crown’s submissions, there is some evidence which ties Mr. Grant-Mentis to the murder even though there is no direct evidence connecting him to the offence. Surveillance evidence indicates that Mr. Grant-Mentis received the Air Jordan shoes worn by a person seen in the surveillance video, approaching the scene of the murder. The exchange could have been an innocent transaction, but it could also have been evidence of Mr. Grant-Mentis’ involvement in the incident.

[18] Second, Mr. Grant-Mentis initially denied any knowledge of the incident in his first statement to the police. The fact that he did so does not mean that the defence of third party suspect cannot attain an air of reality. See R. v. Henderson, 2021 ONCA 772, at para. 193. After being charged with accessory after the fact, he gave a statement which contained knowledge of the murder. Mr. Grant-Mentis attributed this knowledge to Mr. Wright. But his statement also raises an inference that his knowledge was on account of personal involvement in the offence rather than information received from Mr. Wright. To that extent, this factor has been met.

C. Is there evidence of opportunity to describe the nature of the connection between Mr. Grant-Mentis and the murder?

[19] The Crown submits that no specific evidence, be it direct, circumstantial, or forensic, links or suggests that Mr. Grant-Mentis had the opportunity to murder Mr. Hall. With respect to the evidence that Mr. Wright gave Mr. Grant-Mentis a pair of black Air Jordan shoes three months after the killing, the Crown submits that “in the absence of some evidence that Grant-Mentis possessed/owned/wore those shoes in a time proximate to the shooting, this evidence has no probative value”.

[20] However, there is, in my view, circumstantial opportunity evidence that Mr. Grant-Mentis may have been connected to the shooting. Ms. Hall indicated that four persons were involved including a black male. Mr. Grant-Mentis, who is black, was a friend of Mr. Hall. They met the previous day and smoked weed together. A person wearing the Air Jordan shoes which Mr. Grant-Mentis received from Evan Wright was seen making his way to the scene of the shooting. Mr. Grant-Mentis had intimate knowledge of the killing which he either received from Mr. Wright or because he was involved in it. While there is no DNA evidence directly linking him to the shooting, there was a DNA profile of a third person found in proximity to the scene.

[21] The Crown relies on a number of cases to bolster its submission that there is no “evidence of opportunity” in this case. These cases are Hudson and Grandinetti. In both of these cases, however, the accused relied on disposition evidence to prove the necessary nexus being the third party suspect and the offence. In Hudson for example, the third party suspect had a significant criminal record and had engaged in conduct similar to the allegations against the accused. In Grandinetti, the third party suspect was a drug dealer who had threatened the deceased one year before her death, and who had been released from jail three days prior to the murder. These cases are distinguishable from this case because they rely primarily on motivation and disposition to establish a nexus between the third party suspect and the offence charged.

[22] The Crown also relies on Tomlinson for his contention that there is no evidence of opportunity in this case. At trial, the accused adduced evidence from the girlfriend of the third party suspect that while they had been at the crime scene earlier in the day of the incident, they had left four hours before the shooting. On appeal, Justice Watt noted at para. 80 that “it is very doubtful that the evidence adduced at trial met the opportunity threshold, a condition precedent to the advancement of this defence and the admissibility of other evidence.”

[23] The Crown submits that if the opportunity threshold was not met in Tomlinson, it is inconceivable that it could be met in this case considering that Mr. Grant-Mentis had seen the deceased virtually twenty four hours before the shooting. However, the “opportunity threshold” in this case rests on circumstantial evidence which was absent in Tomlinson. Mr. Grant-Mentis is linked to a pair of Air Jordan shoes which was worn by a person who was seen approaching the deceased’s apartment and leaving it. Mr. Fitzpatrick’s father and his girlfriend gave statements that the persons on the video were similar in height and size to Mr. Wright and Mr. Fitzpatrick. However, they stopped short of identifying the two persons as Mr. Wright and Mr. Fitzpatrick. The only witness to the shooting stated that the main shooter was a black man. At least one witness has testified that the person wearing the Air Jordan shoes had “darker” eye sockets than the other male, thereby raising an inference that this person was black. Additionally, Mr. Grant-Mentis initially lied to the police and then gave them details of the shooting which he claimed he learned from Mr. Wright. In my view, this constellation of evidence meets the opportunity threshold which the court found to be lacking in Tomlinson.

[24] Should this evidence be held to be inadmissible? In Hudson, at para. 193, Justice Watt stated that the exclusion of relevant, material, and otherwise admissible evidence may only be justified on the ground that the potential prejudice to the trial process of admitting the evidence substantially outweighs its probative value: Murphy, at para. 17, citing R. v. Seaboyer, [1991] 2 S.C.R. 577, at pp. 611-12. This is not the case here.

[25] The evidence relates to the identity of the person or persons who killed Douglas Hall. It will be left to the jury to ascribe whatever weight to the evidence it deems to be appropriate.

Conclusion

[26] For the above reasons, the application is allowed.

André J. Released: March 24, 2022