COURT FILE NO.: CR-19-45
DATE: 20220923
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Michael Wentworth (a.k.a. Michael Verney)
BEFORE: Lacelle J.
COUNSEL: Fraser Kelly and Holly Chiavetti, for the Crown
John Kaldas and Raymond Wong, for the Respondent
HEARD: September 14th, 2022
ENDORSEMENT
Introduction
[1] The accused faces trial on multiple counts, including a count of robbery. The allegation is that he was one of two masked perpetrators who robbed a TD bank in Kingston in 1995.
[2] During the cross-examination of a police witness involved in the early stages of the investigation of the robbery, defence sought to cross-examine the officer about whether he pursued the investigation of other suspects who had been identified to him by other officers. The intention was to ask him about whether he pursued any additional investigation regarding three specific leads by reference not to the names of the persons involved, but to pages in his notes where they were referenced. As I understand it, the defence wanted to establish that three different leads were provided to police and that no further investigation was done by this officer. The defence wanted to do so because evidence of this kind could be capable of raising a reasonable doubt about whether the Crown had proved the issue of identity for this count on the indictment.
[3] The Crown objected for various reasons. The Crown’s issues with this questioning had been set out, for the most part, in its factum relating to the Crown application for the defence to disclose, in advance of trial, whether it intended to call alibi evidence, evidence of alternate suspects, and hearsay.
[4] Following a recess, the defence indicated that it was withdrawing the question. Since the issue may arise again in the course of the trial, the Crown requests a ruling which may assist counsel as the trial progresses.
[5] I have confirmed that I would not have permitted the questioning. I provided counsel with a brief explanation of my reasoning during the trial. This endorsement is intended to expand on my reasons for not permitting the questioning.
The position of the defence
[6] Prior to withdrawing the question, the defence argued that it was not intending to point to any particular individual as a suspect but sought to ask the question because the evidence is relevant to raising a reasonable doubt about the identity of the perpetrators of the robbery. The defence said this is therefore not a third party suspect application. Consequently, no application (and, implicitly, any vetting of the issue prior to cross-examination) was required before cross-examining on this issue. It relied on R. v. Gauthier, 2021 ONCA 216 as authority for the proposition that if circumstantial evidence at trial gives rise to a reasonable inference concerning other individuals who had opportunity to commit the offences, the defence is entitled to cross-examine and lead evidence on these issues without having to bring an application first. In support of its position it also relies on the cases of R. v. Jacobson, [2004] O.J. No. 1955, R. v. Lyttle, 2004 SCC 5, [2004] 1 SCR 193, and R. v. Fenton, 2017 ONSC 4572, as well as its written submissions in its responding factum to the Crown application at paras. 13-17.
Analysis
[7] I am mindful of the critical role that cross-examination plays in ensuring that an accused person may make full answer and defence: R. v. Lyttle, 2004 SCC 5 at paras. 2, 41-45. But the broad latitude generally given to the defence in cross-examination must also be filtered through the lens of relevance.
[8] The defence has not articulated any relevance to the questioning it proposes beyond pointing to the fact that in this police investigation, the police had identified other suspects. This is hardly surprising in this kind of investigation, particularly at the stage it was at when this officer was involved. There are no specifics advanced by counsel that provide any cogent connection to the offence and the other suspects identified in the officer’s notes. I find the evidence that the question is intended to elicit is not relevant. It invites only speculation.
[9] In this regard, this case is very different than the cases relied upon by the defence, Gauthier and Lyttle. In Gauthier, the accused was charged with various child pornography offences. The defence relied on evidence related to Skype syncing of the accused’s device to suggest someone else might have been responsible for the images. The Court of Appeal held that the trial judge misapprehended the evidence about where the computer files might have been uploaded and mistakenly applied the law of third party suspects when the test in Villaroman was applicable. Consequently, the trial judge improperly considered the evidence of opportunity to commit the offence. The evidence that was misapprehended by the trial judge was clearly relevant to the issue of opportunity and did not engage the issues raised in R. v. Grant, 2015 SCC 9 (discussed below), as this ruling does. I am unable to see how Gauthier assists in the present circumstances.
[10] In Lyttle, the trial judge was found to have unduly restricted the cross-examination by defence about a theory that was founded in good faith. The Supreme Court held that an evidentiary foundation was not required before counsel could pursue questioning about its theory. The trial judge’s error had further consequences because it gave rise to the loss of the accused’s right to address the jury last since the defence was forced to call police witnesses to establish a foundation for the questioning. There was no issue about the relevance of the questioning in that case. The issue related to whether counsel needed more than a good faith basis to pose the question.
[11] On the other hand, Grant does apply. In Grant, the court was considering the appropriate framework for determining the admissibility of defence-led evidence concerning an unknown third party suspect. While the specifics of the facts it was considering were quite different, the directives from that case are apposite here. It held at paras. 3-4:
Obviously, the identification of an accused as the perpetrator of the crime charged is essential to establishing criminal liability. The burden to prove beyond a reasonable doubt that the person before the court is the guilty party rests squarely on the Crown. In accordance with the presumption of innocence, the accused is never required to prove her innocence. An accused person’s Charter-protected right to make full answer and defence entitles her to challenge the Crown’s case and lead evidence to raise a reasonable doubt about whether the accused committed the crime.
However, the accused’s rights are not the only interests at stake. 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.
[12] The court also confirmed in Grant at para. 7 that
First principles concerning admissibility of evidence properly balance the competing interests that arise when defence seeks to lead evidence of an unknown third party suspect. In such cases, the defence must first establish the logical relevance of the evidence. This may be done by demonstrating a sufficient connection – or similarity – between the crime charged and another crime the accused could not possibly have committed to support the logical inference that the same person committed both crimes. Once this threshold is met, the evidence will be admissible unless its prejudicial effects substantially outweigh its probative value (R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577).
[13] So too here, where the defence would point to evidence that other suspects were identified as a basis to raise a reasonable doubt that the accused committed the offence. First principles apply. The first step is to establish the logical relevance of the evidence. While the context here is different than in Grant, its directive that the defence may establish relevance by “demonstrating a sufficient connection” to the crime charged is helpful. This is because it guards against evidence that invites only speculation. As Grant tells us at para. 28, “[l]ike known third party suspect evidence, “in the absence of some nexus with the alleged offence”, unknown third party suspect evidence will constitute mere speculation (R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750 (C.A.), at p. 758, aff’d 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824)”.
[14] As re-iterated in Grant, “[e]vidence is logically relevant where it has any tendency to prove or disprove a fact in issue”: at para. 18. In this context, I agree with Crown’s counsel’s statement that police suspicion does not amount to evidence that tends to prove anything. More specifically, I find that the fact that police identified other potential suspects, without more, does not assist in proving or disproving a fact in issue in this case. More is required to demonstrate a sufficient connection to the offence charged.
[15] The general rule permitting wide latitude in cross-examination does not overcome the finding that the proposed evidence is not relevant, particularly where permitting the questioning will cause prejudice to the integrity of the trial process. This is because if the question were permitted, it would necessitate permitting the Crown to advance further evidence about those aspects of the investigation in response (see for instance R. v. Spackman, 2012 ONCA 905). The result would be to distract from the focus of the trial and to increase its length.
[16] While there are other issues with the proposed question in this case (the Crown also emphasizes that it is double hearsay and potentially implicates the privacy of other individuals), given my finding about relevance, this issue need not be discussed at length. I would add simply that the law is clear that evidence in a criminal trial must be not only relevant, but properly admissible. As noted by Watt J.A. in R. v. Tomlinson, 2014 ONCA 158 at para. 72, “the proponent [of the evidence] does not get a free ride through the admissibility thicket upon mere announcement of “third party suspect”. I see no reasons why this dictate would not apply regardless of whether or not the identity of the third party suspect is known. Here, the proposed evidence to be elicited is also hearsay and therefore, presumptively inadmissible.
[17] For the parties’ benefit as the trial progresses, I confirm that in my view, as is evident from the above, Grant applies to questions of this kind.
[18] I am also persuaded that the threshold test for admissibility applies to cross-examination. This position is well-supported by the cases since Jacobson, including R. v. Scotland, 2007 CarswellOnt 8874 (S.C.) per Trafford J., R. v. Tehrankari, 2008 CarswellOnt 8751 (S.C.) per McKinnon J., R. v. Myers, 2021 ONSC 792 per Harris J. at para. 15, and R. v. Borbely, 2021 ONCA 17 at para. 36. This approach best protects the integrity of the trial process and is consistent with the accused’s fair trial rights. It will be followed in this trial.
Lacelle J.
Date: September 23, 2022