COURT FILE NO.: CR-21-0092-00

DATE: 2022-11-08

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

N. Jerome and S. Frenette, for the Crown

• and -

Jeffrey Miller

G. Joseph, for the Applicant

Applicant

HEARD: October 5, 2022 at Thunder Bay, Ontario

Mr. Justice W. D. Newton

WARNING

A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING

UNDER S. 517 OF THE CRIMINAL CODE OF CANADA

Criminal Application Re: Third Party Suspect

Overview

1Mr. Miller is charged with committing the second-degree murder of Robenson Saint-Jean on March 29, 2019. His trial is scheduled to proceed before me without a jury on December 12, 2022.

2Mr. Miller brings this application for leave to adduce evidence of an alternate suspect through the cross-examination of two Crown witnesses, Detective Constable Bonthron and Detective Constable Verescak.

3The evidence sought to be adduced is that the police obtained information that an identified party had a motive to harm Mr. Saint-Jean, that the same identified party had a recent violent encounter with Saint-Jean, and that the police failed to investigate this potential suspect.

4As such, this application is both a known third-party suspect application and an application to adduce evidence of inadequate police investigation.

5For the reasons that follow, the application is allowed.

The Facts

6Based on the submissions and evidence as led on this application, the case against Mr. Miller is circumstantial. He is connected to the victim by acting as the victim’s recent driver in the drug trade. From physical and forensic evidence, the police allege a connection between the vehicle usually operated by Mr. Miller and the location where the victim’s body was found and further allege that the victim was stabbed inside that vehicle. There are no known eyewitnesses.

7Detective Constable Bonthron interviewed a known associate (the “Associate”) of both Mr. Miller and the victim on March 30, 2020. The Associate was involved in the drug trade at the time he was interviewed by police. The Associate described Mr. Miller as “my driver”. The Associate last saw Mr. Miller together with the victim a few days before the murder when Mr. Miller was acting as Mr. Saint-Jean’s driver. The Associate told police that he knew Mr. Saint-Jean was killed “over drugs” because he received drugs from his boss named “Pitbull” that Mr. Saint-Jean did not pay for. The source of that information appears to be either the Associate’s direct knowledge or communication directly from “Pitbull”. The Associate alleges he was told that “Pitbull” and Mr. Saint-Jean did not get along and that they had a physical confrontation during which they went “toe to toe” a few days before Mr. Saint-Jean’s death.

8This person provided a description, address, and phone number for “Pitbull”. During the police interview, he purportedly showed police a text message exchange with “Pitbull”.

9Based on police testimony at the preliminary inquiry, it appears that no steps were taken to locate and interview “Pitbull”. No explanation was provided by the Crown for this alleged failure to investigate.

Positions of the Parties

10Both the Crown and Defence agree that there must be an “air of reality” for the alternate suspect defence to be put to the jury. A defence possesses an air of reality where there is an evidentiary foundation upon which a properly instructed jury, acting reasonably, could acquit.

11The Crown submits that, even accepting the Associate’s evidence as true, it does not exculpate the accused. The Crown submits that the evidence simply intimates that “Pitbull” ordered the murder, and the accused executed it.

12The Defence submits that in these circumstances, the presence of motive and animus by “Pitbull” coupled with the failure to explore the alternate suspect, deprives the investigation of its reliability, and forms the basis upon which a properly instructed jury could acquit.

The Law

Known Third Party or Alternate Suspect

13An accused is entitled, by way of defence, to adduce evidence that someone else committed the crime. That evidence must be relevant, material, and admissible. To be relevant, there must be a sufficient connection between the third party and the crime¹.

14“Air of reality”, as defined in R. v. Cinous² addresses evidence that is reasonably capable of supporting the inferences required to acquit the accused³.

15As noted in R. v. Grandinetti⁴:

47 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.

16A sufficient connection will often be established where evidence demonstrates the third party, “had the motive, the means or the propensity to commit the crime”.⁵

17Evidence supporting a third party suspect’s motive to murder the victim cannot simply amount to “a chain of speculation joined by gossamer links.”⁶

18However, once logical relevance is established, the evidence will be admissible “unless its prejudicial effects substantially outweigh its probative value.”⁷

19In R. v. Scotland⁸ Trafford J. opined that a third party suspect application should be analyzed in the following way:

13 First, the court must exercise its discretion to admit evidence implicating third party suspects in a way that supports the presumption of innocence and gives practical effect to the right to make full answer and defence. These principles and the values underlying them are constitutionally recognized and an integral part of the rule of law in a free and democratic society.

14 Second, the spectre of a wrongful conviction of an innocent person, tragically a rather common phenomenon in the recent history of our courts, is one that a trial judge should remain cognizant of in applications like this one. It is better to err on the side of admitting such evidence than to risk the conviction of the innocent. …

15 Third, it is my view that the correct application of the principles of R. v. McMillan, supra, requires the trial judge to analyze the admissible evidence for any reasonable interpretation or permissible inference, beyond conjecture or speculation, that supports the defence position. The availability of other reasonable interpretations or permissible inferences inconsistent with the defence position does not defeat the defence. Such an approach would usurp the function of the jury.

16 Fourth, on the other hand, the trial judge must be concerned about the length of trials and the distraction of juries from the task of properly determining the verdict. This legitimate concern is reflected in the discretion of a trial judge to exclude evidence tendered by the defence where its probative value is significantly exceeded by its prejudicial effect.

Inadequate Investigation

20An accused may lead evidence to suggest that investigators had “tunnel vison, failed to pursue important lines of inquiry, or otherwise carried out a deficient investigation.”⁹

21For example, it may be relevant if police failed to eliminate other suspects¹⁰.

22A deficient investigation “may sometimes influence whether the trier of fact has a reasonable doubt … .”¹¹

Analysis and Disposition

23Applying the four factors as set out in Scotland leads to the conclusion that the proposed evidence should be admitted.

24The admission of the evidence:

a. supports the presumption of innocence and gives practical effect to the right to make full answer and defence;

b. follows the proposition that it is better to err on the side of admitting such evidence than to risk the conviction of the innocent;

c. requires the trial judge to analyze the admissible evidence for any reasonable interpretation or permissible inference that supports the defence position; and

d. there is little prejudicial effect given that this is not a jury trial and that the proposed evidence is not likely to “derail” the trial.

25I recognize that the evidence is hearsay and “double” hearsay. It is so because it appears that the police failed to follow up on the information provided by the person who gave them this information.

26That information was that the alternate suspect,” Pitbull” had a motive to murder Mr. Saint-Jean over $22,000 of stolen drugs, had a recent dislike and propensity for violence against Mr. Saint-Jean as demonstrated by “going toe to toe” and, at least, some opportunity as he appeared to be present in the city at the time.

27Although the Crown submits that the Associate’s interview with police does nothing to exculpate Mr. Miller, I find that there is a sufficient evidentiary foundation that might allow a properly instructed jury, acting reasonably, to acquit the accused. “Pitbull” purportedly had a motive, animus and opportunity. It is for the trier of fact to make the necessary findings of credibility at trial.

28As such, there is an “air of reality” to the proposition that “Pitbull” is a potential suspect and the failure to investigate “Pitbull” as a suspect may be construed as a deficient investigation that may influence whether the trier of fact has a reasonable doubt of Mr. Miller’s guilt.

29Accordingly, the application is allowed.

Footnotes

1. 1R. v. Tomlinson, 2014 ONCA 158 at para. 71 – 74. (“Tomlinson”)
2. 22002 SCC 29. (“Cinous”)
3. 3Cinous at para. 82.
4. 42005 SCC 5. (“Grandinetti”)
5. 5R. v. Grant, 2015 SCC 9 at para. 24. (“Grant”)
6. 62005 SCC 5. (“Grandinetti”) at para. 58.
7. 7R. v. Grant, 2015 SCC 9 at para.7.
8. 82007 CarswellOnt8874. (“Scotland’)
9. 9R. v. Malley, 2017 ABCA 186 at para. 50. (“Malley”)
10. 10See for example R. v. Dhillon, 2002 CanLII 41540 (ON CA), [2002] O.J. No. 2775. (“Dhillon”) and R .v. Trakas, 2008 ONCA 410 at para.. 27. (“Trakas”)
11. 11R. v. Malley, 2017 ABCA 186 at para. 53.