Court File and Parties

Court File No.: CR-23-30000283-0000 Date: 2023-06-02 Superior Court of Justice – Ontario

Re: His Majesty the King And: Robert Konashewych and Adellene Balgobin, Defendants

Before: S.F. Dunphy J.

Counsel: Peter Scrutton and Samuel Walker, for the Crown Michael Lacy and Marcela Ahumada, for the Applicant Robert Konashewych Juliana Greenspan and Ethan Radmonski for the defendant Adellene Balgobin

Heard at Toronto: May 31, 2023

Reasons for Decision

[1] The defence asked me to rule that evidence of certain facts may not be led by the Crown because the probative value of the proposed evidence is greatly exceeded by its prejudicial impact. The ten areas in respect of which a ruling is sought would instead be addressed by three agreements of the defence as to areas of evidence that they accept are admissible and four proposed admissions. While the document outlining each of these proposed admissions, relevant areas and proposed exclusions was prepared by the defendant Mr. Robert Konashewych, it is my understanding that it was prepared in consultation with counsel for Ms. Adellene Balgobin to some degree.

[2] In broad terms, the defence proposes to admit that the accused Mr. Robert Konashewych was in a relationship with Ms. Candice Dixon but also in a romantic relationship with Ms. Adellene Balgobin during the time frame at issue in this trial. He proposes to admit that Mr. Robert Konashewych was confronted about the affair with Ms. Adellene Balgobin by Ms. Candice Dixon during the relevant time frame but falsely denied he was having an affair with Ms. Adellene Balgobin and took active steps to deny the affair including hiring a lawyer to send cease and desist letters to demand others stop spreading rumours about the affair. In addition to those admissions, Mr. Robert Konashewych would concede the admissibility of the following evidence:

a. that Ms. Candice Dixon opened the RIFF statement addressed to the Estate and that its content and discussions around it may be led in evidence; b. that the lawyer’s letter was opened and the fact that its contents – which would not be specifically referred to – led Ms. Candice Dixon to consult her family lawyer who acquired the estate court file which Ms. Candice Dixon provided to police; and c. that Ms. Candice Dixon never heard Mr. Robert Konashewych mention Mr. Heinz Sommerfeld to her at any time.

[3] Having made these admissions and granted these concessions regarding admissibility, I am urged to exclude evidence of the specifics of the various events by which Ms. Candice Dixon learned of Mr. Robert Konashewych’s affair with Ms. Adellene Balgobin, specifically including the confrontation at the Office of the Public Guardian and Trustee (“OPGT”), the Sherway Garden confrontation, and the private greeting cards taken by Ms. Candice Dixon from among Mr. Robert Konashewych’s possessions left behind at the condominium locker shared by both. Much but not all the evidence sought to be excluded would be coming from Ms. Candice Dixon whose evident resentment of the infidelities of her former spouse were on prominent display when she was cross-examined last week on another voir dire matter.

[4] For the purposes of this ruling, I am assuming that both defendants are joining in the request and that Ms. Adellene Balgobin, whose counsel was consulted, seeks the same exclusions, and will stipulate to the same or materially similar admissions and concessions. I am aware that Ms. Greenspan was consulted on the document prepared by Mr. Lacy and of course she spoke generally in favour of my adopting the suggested course of action. The parties are all represented by senior counsel and have been efficiently and cooperatively sorting through issues as they arise. This is one issue on which they were unable to come to agreement. As evidence is about to commence, an abbreviated process and an early ruling were required.

[5] I have decided that I must reject this application, and these are my reasons. I delivered oral reasons on June 1, 2023 subject to delivering these written reasons which have been edited as to format, style and clarity. These written reasons, signed by me, are my official reasons.

[6] I start with first principles. This case is fundamentally a circumstantial evidence case. The testator whose will was allegedly forged is of course dead. The alleged witnesses to the will in question have never been found and the Crown alleges they never existed. There is no direct evidence – as far as I have been made aware at least – that the will is forged. No expert reports on the dating of the paper, ink or printer used have been filed. The Crown will be seeking to persuade the jury beyond a reasonable doubt that the will was forged and probated by or with the direct involvement of the accused. It will be for the jury to examine each piece of circumstantial evidence to consider whether, alone or in combination with other pieces of circumstantial evidence, the Crown has discharged its burden of proof.

[7] The threshold of relevance is not a high one, requiring only the existence of a logical relationship between the proposed evidence and the fact it is tendered to establish: see R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 108. It must also be relevant to a live issue. The path by which circumstantial evidence leads to inferences in relation to contested facts “relies on logic, common sense, and experience” and must be reasonable “according to the measuring stick of human experience”: Calnen, at para. 112, citing R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 77.

[8] There is no question that all the areas of evidence sought to be delved into by the Crown are relevant. Relevant evidence is presumptively admissible.

[9] Second, relevant evidence may be excluded where it is made to appear that the prejudicial impact of that evidence on the conduct of a fair trial significantly outweighs its probative value, a decision which is made after weighing a number of factors including the ability to prove a particular fact by other less prejudicial means and the ability to mitigate the prejudicial effect of the proposed evidence with a limiting instruction to the jury.

[10] Is this a case where that discretion ought to be exercised to curtail the Crown’s right to prove its circumstantial case as persuasively as it is able to ensure that the feared prejudice does not exert a dangerous magnetic effect upon the jury who must assess it?

[11] While unquestionably relevant, the proposed evidence possesses two characteristics of particular importance to the weighing exercise that I am required to undertake in assessing this application. First, it falls into a category of circumstantial evidence concerning actions taken or statements made after the actions constituting the charged offence took place. Some components of the proposed evidence occurred after the filing of the various documents that led to the will being probated, a will which appointed Mr. Robert Konashewych executor of the Estate. Post offence conduct is potentially relevant if there is a reasonable basis upon which it may be concluded that the conduct in question relates to the charge and may be construed as an admission of one or more essential elements of it.

[12] Second, aspects of the actions and statements reflect conduct on the part of one or both accused persons that would be viewed with disapproval by a reasonable person, i.e., discreditable conduct. As jurors do not provide reasons for their verdicts, the risk that disapproval of the conduct in question may interfere with the dispassionate and rational weighing of the evidence by the triers of fact is a risk that must be addressed. Where such evidence tends solely to show that the accused is the sort of person likely to have committed the offence, our law treats such evidence as presumptively inadmissible: see R. v. J.W., 2022 ONCA 306, at para. 17.

[13] There is a second risk raised by this sort of evidence, but which is in common with circumstantial evidence more generally and that is the risk that the jury may leap to the inference consistent with guilt without giving adequate consideration to other reasonable explanations for the conduct or statements in question consistent with an innocent or non-culpable explanation. Simply put, the conduct of the accused in attempting to hide their romantic liaison from others may be viewed as nothing more than behaviour aimed at hiding infidelity in a long-term relationship to avoid the usual consequences of discovery or it may be viewed as steps taken in urgency to preclude anyone from discovering that the OPGT or Mr. Robert Konashewych had a connection to the Estate of Mr. Sommerfeld.

[14] The relevance of this evidence in terms of the allegedly criminal scheme that lies behind the charges before this court is demonstrated by the fact that it was not the discovery of an affair with Ms. Adellene Balgobin alone that led to the charges before the court. The relationship between Ms. Candice Dixon and Mr. Robert Konashewych had already broken down and Mr. Robert Konashewych and Ms. Adellene Balgobin had already been seen together at the mall before Ms. Adellene Balgobin learned anything about the existence of the Estate of Mr. Sommerfeld. It was Ms. Candice Dixon learning that Mr. Robert Konashewych had an interest in the Estate of Mr. Sommerfeld and that Ms. Adellene Balgobin and the OPGT were also involved in that same estate that caused the penny to drop leading to the private investigation undertaken by Ms. Candice Dixon and her family lawyer which in turn led to the police investigation being undertaken. The Crown’s theory is that the actions to be explored with the proposed evidence were undertaken for the primary or dominant purpose of preventing the dots being connected that were ultimately connected and led to the charges before this court. That theory is critical to the Crown’s case and is quintessentially one that would be for the trier of fact to consider and weigh.

[15] The potential prejudicial impact of the proposed evidence must be assessed at its true weight. The admissions and concessions proposed would place the main features of the discreditable conduct before the jury, albeit stripped of some of the details that the Crown may be relying upon to assist the jury in weighing it. Logically, the prejudicial impact of the proposed evidence is not simply the fact that it reflects discreditable conduct but the incrementally discreditable nature of the conduct above and beyond the prejudice which the admissions and agreed admissible testimony will entail. It is the degree of additional prejudice that the evidence to be adduced would bring into the equation by comparison to the prejudice that the admissions proposed would already give rise to that must be considered here. In either case the jury will have evidence before it of multiple deliberate lies being told by the accused regarding a relationship which is at the core of the Crown’s case. Some additional risk of prejudicial impact may arise, but it seems to me that it is more at the margins than a quantum leap.

[16] I am confident that the risk can be adequately mitigated by proper limiting charges. I have already given the jury panel a rather complete anti-bias instruction drawn from the Canadian Judicial Council up-to-date precedent, and I reminded the jury of that yesterday afternoon in relation to this precise question. I intend to repeat that instruction in my closing summation and jury charge. As well, I gave the jury a very specific instruction yesterday afternoon about setting aside their moral views about the conduct of the accused in carrying on an affair and denying it or lying about it and reminded them to pay careful attention to the restrictions on the use of evidence led for a limited purpose. While I have no doubt that there is some social degree of opprobrium that continues to arise in cases of infidelity and dishonesty in relationships, society is far more inclined to be neutral about such matters these days than was the case 10 or 20 years ago.

[17] It must also be borne in mind that I cannot lightly deprive the Crown of the ability to make the case it wishes to make as persuasively as it is able to, and to let the jury undertake the task of assessing it. This is not a case where the risk is that evidence of an accused lying or doing something on one occasion might impact the jury’s assessment of whether they lied or did a similar thing on a different occasion. The Crown’s allegation is that the lies, denials, and actions to cover up or conceal were primarily undertaken with a view to prevent the alleged fraud which was then still in process from being discovered or disrupted. It is not similar fact evidence.

[18] While Ms. Candice Dixon evidenced a tendency to show some resentment towards Mr. Robert Konashewych when she testified at the voir dire last week, the Crown has given me an overview of the areas it intends to cover in its examination-in-chief of her and I am satisfied that all reasonable steps have been taken and will be taken to keep her evidence reined in and focused on relevant matters without straying into her store of resentment about the way Mr. Robert Konashewych treated her in the matter of fidelity.

[19] I cannot find that the balancing I am required to undertake swings the balance in favour of exclusion. The Crown’s latitude to present relevant evidence should not be interfered with lightly. I do not think that the interests of justice weigh in favour of exclusion here. The application is dismissed.

S.F. Dunphy J. Date: June 2, 2023