COURT FILE NO.: 19-6279

DATE: 2022/05/11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Donald Musselman

Accused

Matthew Geigen-Miller and Lisa Miles for the Crown

Natasha Calvinho and Forest Poff-Smith for the Accused

HEARD: October 20, 21, 2021

RULING ON THIRD PARTY KNOWN SUSPECT

ANNE London-weinstein j.

[1] The Applicant is charged with the shooting death of Markland Campbell. He seeks to lead evidence that it was I.A. who was the shooter. The Respondent maintains that there is no air of reality to the proposed evidence of a known third party suspect, and the application should be dismissed. I previously indicated that I would permit the evidence to be adduced with reasons to follow. These are those reasons.

Background:

[2] The Applicant is charged with second degree murder in relation to the death of Markland Campbell in the ByWard Market area of Ottawa on June 7, 2019.

[3] The Crown alleges that the Applicant shot Mr. Campbell twice in the neck and chest.

[4] A knife was found approximately 20 feet away from the spot where Mr. Campbell fell to the ground.

[5] Reanna Ashanti-Campbell, the victim’s daughter, witnessed the shooting and identified the Applicant as the person responsible.

[6] The Applicant is known to Reanna Ashanti-Campbell as they had been friends for approximately three years at the time of the shooting and had a brief prior relationship.

[7] The victim and the Applicant were unknown to each other.

[8] The Applicant was in the ByWard Market with friends on the night of the shooting. Those friends included David Vizigiro (known as Rico) and the proposed known alternative suspect, I.A. (known as Little Rico).

[9] David Vizigiro and I.A. are also known to Ms. Ashanti-Campbell. She was friends with Mr. Vizigiro’s girlfriend and had dated I.A. for a few months prior to the shooting in June of 2019.

[10] At some point in the evening, Mr. Vizigiro came upon Ms. Ashanti-Campbell. There was a disagreement. Ms. Ashanti-Campbell said that Mr. Vizigiro threatened her, and I.A. grabbed her arm, which ripped her shawl.

[11] Ms. Ashanti-Campbell was interviewed subsequent to the shooting and identified the Applicant as the man who shot and killed her father.

[12] Police attended the Applicant’s home and arrested him for murder.

[13] A search warrant was issued. The search warrant authorized a search for the white track suit with a red stripe believed to be worn by the Applicant at the time of the shooting. Police attended the home on June 8. They located a white track suit in plain view in the Applicant’s bedroom.

[14] Two days later police received a phone call from the Applicant’s stepfather. He indicated that he had found a firearm while cleaning his stepson’s room.

[15] Police obtained a search warrant and attended the home to seize the gun. The handgun was located on the bed. The Center of Forensic Science tested the firearm and two fired cartridge cases from the Campbell homicide crime scene and determined that the toolmarks on the cartridge cases corresponded to the firearm.

[16] Mr. Vizigiro and I.A. are known associates of the Applicant. They were with him on the night of the shooting and later attended the apartment of Mr. Vizigiro’s girlfriend at 2487 Iris Street.

[17] The Applicant submits that someone planted the gun in his bedroom.

[18] On February 19, 2020, Mr. Vizigiro testified at an examination for discovery.

[19] Mr. Vizigiro testified that he was friends with both the Applicant and I.A. and that he cared about both I.A. and the Applicant.

[20] Mr. Vizigiro testified that on June 7, 2019, he, the Applicant, and I.A. attended a recording studio in Barrhaven. After their recording session they attended the ByWard Market with the hopes of watching the Raptors basketball final.

[21] While they were hanging out, they ran into the deceased’s daughter. Mr. Vizigiro testified that he spoke to Ms. Ashanti-Campbell for about five seconds and then she spoke to I.A. I.A. and Ms. Ashanti-Campbell were an on-again off-again couple.

[22] About 40 minutes after the group had initially run into Ms. Ashanti-Campbell, an unknown older male came running up to Mr. Vizigiro demanding to know if he was “Little Rico.” The male yelled: “Are you Little Rico? Are you Little Rico?” at Mr. Vizigiro.

[23] Mr. Vizigiro testified that the victim was also pushing him and grabbing at him physically. Mr. Vizigiro testified that when he was being assaulted, he felt cold metal pressed up against his head. He could not tell if this cold metal object was a gun or a knife.

[24] He then heard two quick gun shots ring out from an unknown direction. Mr. Vizigiro ran away along with I.A. and the Applicant.

[25] Mr. Vizigiro did not see the actual shooting. However, he testified that I.A. showed him the murder weapon, which was concealed within a shoulder bag.

[26] Mr. Vizigiro testified that I.A. always had this bag with him and that he was wearing the bag on the night of the shooting.

[27] The fact that I.A. was wearing the bag described by Mr. Vizigiro is corroborated by surveillance footage obtained by the Ottawa Police from the night of the shooting.

[28] Counsel for the Applicant anticipates calling I.A. to testify at the trial.

[29] I.A. is currently in custody facing charges of first-degree murder and three counts of attempted murder relating to a shooting at an Airbnb on Gilmore Street in Ottawa on January 8, 2020. I.A. was arrested in May of 2020. The Applicant proposes to adduce the evidence of the known alternative suspect through the evidence of I.A., Mr. Vizigiro, and any other relevant witnesses.

Legal Analysis:

[30] The rule governing the admissibility of evidence implicating known third party suspects in a crime was stated by Martin J.A. in R. v. McMillan (1975), 1975 43 (ON CA), 7 O.R. (2d) 750 (C.A.), where the court indicated at p. 757:

I take it to be self-evident that if 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: see Wigmore on Evidence, 3rd ed. (1940), vol. 1, p. 573, s. 139. A may prove that B murdered X by direct or circumstantial evidence.

Evidence that a third person had a motive to commit the murder with which the accused is charged or had made threats against the deceased is commonly admitted on this principle. Evidence directed to prove that the crime was committed by a third person, rather than the accused, must, of course, meet the test of relevancy and must have sufficient probative value to justify its reception. Consequently, the Courts have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value: see Wigmore on Evidence, ibid., pp. 573-6.

[31] This interpretation of the rule was affirmed by the Supreme Court of Canada in R. v. McMillan, 1977 19 (SCC), [1977] 2 S.C.R. 824, and more recently by Abella J. in R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at paras. 47-48:

The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation.

The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence: R. v. Fontaine, [2004] 1 S.C.R. 702, 2004 SCC 27, at para. 70. If there is an insufficient connection, the defence of third party involvement will lack the requisite air of reality: R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29.

[32] The threshold is not intended to be a high one. Any evidence, direct or circumstantial, linking the third party suspect to the crime is sufficient. The evidence must be admissible: see R. v. Williams (1985), 1985 113 (ON CA), 50 O.R. (2d) 321 (C.A.). The evidential basis for admissibility, where it is based on circumstantial evidence, must be based upon reasonable inferences and not speculation or conjecture: see Grandinetti, at para. 47; R. v. Badgerow, [2000] O.J. No. 5438 (S.C.), at para. 16; R. v. Kanthasamy, 2006 18368 (ON SC), [2006] O.T.C. 724, at para. 45.

Application of the Relevant Principles:

[33] The exercise of the court’s discretion must be done in a way that is consistent with the presumption of innocence, and which affords practical effect to the right to make full answer and defence: see R. v. Scotland, [2007] O.J. No. 5302, at para. 14.

[34] A trial judge must also be careful when analyzing potentially admissible evidence of a third party suspect not to intrude on the role of the jury. The availability of other reasonable interpretations of evidence or inferences that are inconsistent with the defence position does not render the evidence inadmissible. Such an approach would usurp the function of the jury. The approach is analogous to the test for sufficiency of the evidence for committal at a preliminary hearing: see R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828; United States of America v. Sheppard, 1976 8 (SCC), [1977] 2 S.C.R. 1067.

[35] The Crown submits that the evidence of the known third party suspect I.A., in this case, is fraught with irregularities that taint the credibility of the witness. The witness is also tainted, according to the Crown, by his connection to the accused and his efforts to “obstruct the course of justice by misleading the court as to who the actual perpetrator is, bringing the administration of justice into disrepute.”

[36] In R. v. Land, 2019 ONCA 39, 145 O.R. (3d) 29, Paciocco J.A., writing for the Ontario Court of Appeal, reminded trial judges that we are to presume the evidence to be true and to take the evidence at its highest when assessing whether an air of reality exists. Trial judges are to avoid determining credibility issues relating to the evidence when assessing whether an air of reality exists: see Land, at para. 76, relying on R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at paras. 20, 45; R. v. Scorcia, 2011 ONCA 17, 272 O.A.C. 335 (C.A.), at para. 6; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 53, 65, 82, and 97.

[37] In Land, Paciocco J.A. was dealing with the issue of whether there was an air of reality to the defence of provocation.

[38] The limited weighing that is conducted in determining whether an air of reality exists does not allow for consideration of the contradictions in the proposed evidence. The limited weighing simply requires a trial judge to determine whether available circumstantial evidence is reasonably capable of supporting the inferences that the accused would ask the jury to draw: Land, at para. 77, citing Cinous, at paras. 89-91. Paciocco J.A. noted that this is what he understood Wagner J., as he then was, to have been saying in R. v. Buzizi, 2013 SCC 27, [2013] 2 S.C.R. 248, when he spoke of the trial judge being “in the best position to determine whether the evidence that is capable of supporting the necessary inferences is credible.”

[39] Given the clarity of the law requiring trial judges to assume the evidence to be true (see R. v. Pappajohn, 1980 13 (SCC), [1980] 2 S.C.R. 120, at p. 127, R. v. Bulmer, 1987 56 (SCC), [1987] 1 S.C.R. 782, at p. 790; and R. v. Park, 1995 104 (SCC), [1995] 2 S.C.R. 836, at para. 13), Paciocco J.A. noted that, Wagner J., must have been referring to the credibility or reasonableness of the inferences relied upon by the defence. Paciocco J.A. wrote: “[i]n my view, neither this limited weighing, nor the direction to consider the evidence in its totality, should be mistaken as an invitation to evaluate the credibility of the evidence that the defence relies upon, or to consider the strength of the defence”: Land, at para. 77.

[40] In determining whether a defence has an air of reality, a trial judge must keep in mind that the jury may accept all, some, or none of what a witness says: Land, at para. 78.

[41] When determining whether there is an air of reality, the trial judge is required to disregard the contradictions in the defence evidence and examine whether the most favourable version of events supported by that evidence is sufficient: Land, at para. 79.

[42] The trial judge must ensure that the trial is not needlessly elongated or rendered more complex. Issues which will serve to merely distract the jury from their duty in rendering a verdict are to be avoided. Evidence of the defence may be excluded where its probative value is significantly exceeded by its prejudicial effect. The basis for this rule is to avoid the conviction of the innocent, and the preservation of the fairness of the trial: see R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, at pp. 609-612.

[43] However, a certain amount of complexity, length and distraction from the Crown’s case can be expected as a necessary concession to the actualization of the accused’s right to be presumed innocent until proven guilty, and to make full answer and defence. Grant, at paras. 40, 48.

[44] In order for evidence relating to a known third party suspect to have any probative value, the evidence must show a sufficient connection between a third person and the crime for which the accused is charged: Grant, at para. 24.

[45] Evidence that this third person had the motive, the means, or the propensity to commit the crime will often establish this sufficient connection.

[46] As the court recognized in McMillan, the sufficient connection test is nothing more than an elaboration of the logical relevance analysis applied in the particular context of allegations that another known individual committed the crime: at pp. 828-829.

[47] Without a sufficient connection between the third party and the crime, the third party evidence is neither relevant nor probative.

[48] The Crown, in arguing that the connection between the third party and the crime was insufficient, provided the case of R. v. Brown, 2010 ONSC 6057. In dismissing the defence application to adduce evidence of a known third party suspect, the court noted at paras. 19, 24:

The use of the similar terms – sufficiently connected and sufficient connection [referring to Grandinetti] – suggest that the degree of connection between the third party suspect and the offence must be something more than just any connection. Rather, it suggests that there must be some substantial evidence linking the third party to the offence. I would add that the nature of the connection or link must be one that suggests that the third party suspect committed the offence, not merely that the person was present at the time that the offence happened.

Speculation is not evidence. Speculation is not probative of anything. Speculation is also something very different from having a doubt. Doubt, specifically reasonable doubt, is based on reason and common sense, not conjecture and speculation. [Emphasis added.]

[49] The case of Brown is distinguishable from the case before me. In Brown, there was very little apart from a possible motive that pointed to an alternative suspect. In the case before me, there is much more evidence connecting I.A. to the offence. With respect, I do not agree that the evidence must be substantial, or demonstrate a substantial connection linking I.A. to the offence. Rather, I must be able to find that I am satisfied that there is a sufficient connection between the known third party, in this case I.A., and the crime, to establish an air of reality to the defence of a known third party suspect. In this case I.A. was not merely present at the shooting. The proposed evidence linking him to the shooting includes:

• Mr. Vizigiro’s testimony at discoveries that Ms. Ashanti-Campbell spoke to Little Rico, I.A., in the ByWard Market before the shooting. They were an on-again off-again couple.

• Ms. Ashanti-Campbell testified that I.A. grabbed her arm and ripped her shawl

• Mr. Vizigiro testified that the deceased came running up to him and demanded to know if he was Little Rico. He looked angry. I.A. is known as Little Rico.

• The victim was yelling at Mr. Vizigiro and pushing and grabbing him. He felt something cold and metal pressed up against his head.

• Mr. Vizigiro then heard two gun shots ring out.

• Mr. Vizigiro, I.A., and the Applicant fled.

• I.A. was carrying a bag.

• I.A. showed the gun to Mr. Vizigiro.

• The gun was in the bag.

• I.A. is recorded on video footage carrying the bag.

[50] While Mr. Vizigiro testified in a somewhat equivocal manner, in that he reversed much of his evidence during the Crown’s re-examination of him, I am to presume that his evidence is taken at its highest and is true: Land, Grant.

[51] If I take Mr. Vizigoro’s evidence as true, and at its highest point, it establishes a sufficient connection linking I.A. to the offence such that an air of reality has been established. I.A. was at the scene at the time of the shooting and had an argument with the victim’s daughter. The victim was looking for him. I.A. had the gun in his bag. He showed the gun to Mr. Vizigoro. The defence will be permitted to cross-examine Crown witnesses and lead evidence in regard to I.A. being a known third party suspect. While someone else planting the gun in the Applicant’s bedroom seems farfetched, it cannot be said that a reasonable jury properly instructed would not acquit based on hearing all of the proposed evidence. The defence has indicated it plans to call I.A. However, my analysis of the proposed evidence which I find establishes an air of reality to the defence of a known alternative suspect is based on the proposed evidence absent I.A.’s evidence.

[52] This evidence will not unduly prolong the trial or mislead or confuse the jury. There is also little danger that the evidence will distract the jury from the main issue in the case, nor will it consume an undue amount of time. The issue in this case is whether the Applicant shot and killed Mr. Markland Campbell. The evidence’s probative value is not substantially outweighed by the prejudicial effect of permitting the evidence to be admitted. The application granting the defence the ability to cross-examine Crown witnesses and lead evidence of I.A. as the known third party suspect is granted.

Anne London-Weinstein J.

Released: May 11, 2022

COURT FILE NO.: 19-6279

DATE: 2022/05/11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Donald Musselman

Accused

Ruling on third party known suspect

Anne London-Weinstein J.

Released: May 11, 2022