Corrected Decision: The text of the original Ruling was corrected on January 23, 2023 and the description of the correction is appended.

RULING ON THE ADMISSIBILITY OF Mr. greavette’s plea of guilt

[1] Ryan Babineau was stabbed to death in his apartment in downtown Barrie in November 2016. Indeed, it appears he was stabbed some 68 times.

[2] Three males were charged with criminal offences in relation to Mr. Babineau’s death: Abad Shire, Cory Greavette and Tyler Wren. Mr. Shire and Mr. Greavette were jointly charged, originally, with first degree murder, though those charges were subsequently downgraded to second degree murder. Mr. Wren may also have been charged originally with first degree murder. I am not clear about that. The charge against him was downgraded to accessory after the fact to murder.

[3] Mr. Wren entered a guilty plea to being an accessory after the fact on May 9, 2022. He was subsequently sentenced to five years in prison, less credit for pre-sentence custody.

[4] Mr. Greavette entered a guilty plea to manslaughter. I am not clear about the date of that plea because the Crown preferred a separate indictment against him for the purpose of resolution. I have not been provided with a copy of that indictment. It may be that the plea was entered on or about May 26, 2022. There is no dispute between the parties that the plea was entered, accepted and recorded on the indictment.

[5] The charge against Mr. Shire has proceeded to trial. The Crown’s case in chief is in. A central Crown witness testified that she was present at the time of the killing and witnessed both Mr. Shire and Mr. Greavette stab Mr. Babineau repeatedly, as many as 100 times in her estimation.

[6] Mr. Shire opted to testify in his own defence. He accepted that he was present at the time of the killing, but he denied that he participated in it. He said that it was Mr. Greavette, and Mr. Greavette alone, who stabbed Mr. Babineau. In fact, he said that he yelled at Mr. Greavette to stop and attempted to intervene to stop the assault.

[7] Mr. Shire seeks to adduce, as part of his defence, evidence of Mr. Greavette’s plea of guilt, as recorded on the indictment. His counsel asserts that the guilty plea is some evidence that supports Mr. Shire’s assertion that Mr. Greavette was responsible for the killing of Mr. Babineau. To some extent it supports Mr. Shire’s credibility.

[8] Crown counsel oppose the admissibility of the guilty plea. Their position is that the plea has no relevance. The live issue here is whether it was Mr. Greavette alone, or Mr. Greavette and Mr. Shire, who stabbed Mr. Babineau. The guilty plea of Mr. Greavette is incapable of assisting with the resolution of that live issue.

[9] The Crown also submits that evidence of the plea, without more, is misleading. The jury will not understand the extent to which Mr. Greavette accepted responsibility in Mr. Babineau’s death, nor will they understand the reasons why Mr. Greavette entered a plea to manslaughter. Moreover, the jury may improperly reason that if Mr. Greavette was found guilty of manslaughter, Mr. Shire must not be guilty, or must be guilty of no more serious an offence than manslaughter.

[10] By way of an alternative position, the Crown submits that if the court admits evidence of Mr. Greavette’s guilty plea, the court should admit evidence of the facts that supported that plea.

[11] I do not have a transcript of the facts read in at the time of Mr. Greavette’s plea, but Crown counsel advised me that he more or less pointed the finger at Mr. Shire as the principal attacker of Mr. Babineau, accepting only that he (Mr. Greavette) landed a small number of blows to Mr. Babineau’s legs near the end of the attack.

The Governing Principles

[12] As a starting point, I observe that to be admissible in a criminal trial, evidence must be relevant, material, not subject to an applicable rule of exclusion, and its probative value must outweigh any prejudice that it may engender by its admission. See R. v. Calnen, 2019 SCC 6, at para. 107, per Martin J. (dissenting, but not on this point); and R. v. Wood, 2022 ONCA 87 at para. 59.

[13] Relevance is a low standard. To be relevant, an item of evidence need only make a fact in issue more or less likely, as a matter of logic and human experience, than it would be in the absence of the evidence. See R. v. Candir, 2009 ONCA 915 at paras. 47-48

[14] The jurisprudence leaves little doubt that evidence of a prior conviction (or acquittal) of a former co-accused may be admissible in evidence where relevant to a live issue in the proceedings. See R. v. Martin, [1980], O.J. No. 1951 (Ont. C.A.); R. v. Duong, 1998 CanLII 7124 (ON CA), [1998] O.J. No. 1681 (Ont. C.A.); and R. v. Caesar, 2016 ONCA 599.

[15] Evidence of a guilty plea recorded on an indictment – in other words, a record of the proceeding – may be admitted under the public documents/judicial records exception to the hearsay rule, or pursuant to s. 23 of the Canada Evidence Act, R.S.C. 1985, c. C-5, or the common law doctrine of exemplification. See Caesar, as above, at paras. 33, 40 and 80.

[16] On the other hand, the transcript of the underlying facts read in at the time and in support of the guilty plea of a co-accused is presumptively inadmissible to prove those facts against another accused. This is because the transcript is subject to the rule against hearsay evidence where the transcript is offered for the proof of its contents. The contents of the transcript are admissible against the accused pleading guilty on the basis of the admissions exception to the hearsay rule. They are not admissible for the truth of their contents against any other accused person, unless they satisfy the requirements of necessity and reliability required by the principled exception to the hearsay rule. See Caesar, paras. 47, 64-71 and 80-83.

[17] When admitted, the guilty plea of a co-accused is necessarily of limited evidentiary value. It is not generally admissible as evidence against another accused person. See Duong, as above, at para. 30. It means only that the co-accused pled guilty and that there was some evidence in support of his conviction. See Caesar, paras. 55 and 59.

The Principles Applied

[18] As I expressed to counsel during oral argument, I struggle with the relevance of evidence of Mr. Greavette’s conviction for manslaughter in the trial against Mr. Shire. Relevance is a relational concept. It reflects the relationship between an item of evidence on offer and a fact or proposition in issue in a proceeding.

[19] It is not, in my view, in issue in this proceeding that Mr. Greavette participated in the stabbing of Mr. Babineau. Both Crown and defence assert that he did. Where the parties depart in their positions is about whether Mr. Shire also participated. Evidence that confirms that Mr. Greavette took responsibility for participating in the stabbing does nothing to aid in the resolution of the central issue – did Mr. Shire participate?

[20] Having said that, I accept that evidence of Mr. Greavette’s plea does tend to support Mr. Shire’s credibility – at least in relation to his evidence that Mr. Greavette stabbed Mr. Babineau. And, like in Caesar, “it supports one of the intermediate inferences necessary to establish” Mr. Shire’s defence, namely that Mr. Greavette participated in Mr. Babineau’s killing. See Caesar, para. 60.

[21] It also safeguards against the jury reasoning that, in the absence of an explanation of what happened to Mr. Greavette, the jury may believe that the only person on trial must be responsible for Mr. Babineau’s death.

[22] Evidence of the guilty plea, as recorded in the electronic indictment, is reliable evidence. No one suggests that Mr. Greavette did not plead guilty to manslaughter.

[23] The Crown has identified potential prejudice to the Crown or to the process more generally should the evidence be admitted. I accept that the evidence does carry with it the potential for reasoning prejudice. In particular, the risk that the jury may improperly reason that because Mr. Greavette has accepted responsibility for the killing of Mr. Babineau, that Mr. Shire must not be guilty of it, or that he must not be guilty of any more serious offence than manslaughter. Alternatively, that because Mr. Greavette has been found guilty of culpable homicide in relation to Mr. Babineau’s death, that Mr. Shire must also be guilty of culpable homicide.

[24] I make two observations. First, though the court does have the discretion to exclude evidence whose potential for prejudice exceeds its probative value, in the case of defence-led evidence, that potential prejudice must substantially outweigh the probative value of the evidence. See R. v. Grant, 2015 SCC 9, at para. 19.

[25] Second, the nature of the potential prejudice here can be largely attenuated, in my view, by a clear limiting instruction to the jury. In particular, an instruction that makes it clear that Mr. Greavette’s plea of guilt means only that he offered a plea, it was accepted and there was some evidence to support it. It says nothing about Mr. Shire’s participation in the offence. Apart from establishing that Mr. Greavette participated in the stabbing, it is not otherwise to be considered by the jury in their assessment of Mr. Shire’s guilt. Moreover, that the jury must not reason that because Greavette entered a guilty plea, that Mr. Shire must also be guilty. Or that because Mr. Greavette was found guilty of manslaughter, that Mr. Shire must only be guilty of manslaughter.

[26] In the face of such a limiting instruction, I cannot conclude that the potential for prejudice associated with the introduction of Mr. Greavette’s guilty plea substantially outweighs its probative value, even though I find that probative value to be very modest in the circumstances of this case.

[27] For the foregoing reasons, I conclude that evidence of Mr. Greavette’s plea of guilt is admissible as part of the defence case.

[28] I come to a different conclusion with respect to the evidence of the facts supporting Mr. Greavette’s plea, essentially for the reasons set out in Caesar. The transcripts of those facts are hearsay. They are not admissible under any traditional exception to the hearsay rule. They are also not admissible pursuant to the principled exception for two reasons.

[29] First, they are not necessary. Mr. Greavette is present and available to testify.

[30] Second, they are not reliable. They were not taken under oath. There was no cross-examination of Mr. Greavette on the facts. And he had every reason to distance himself from the most serious aspects of the attack on Mr. Babineau and blame them on someone else, namely Mr. Shire. In the absence of an ability on the part of Mr. Shire’s counsel to cross-examine Mr. Greavette on the facts underlying his plea, those facts would work an immense prejudice against him.

[31] In the result, I conclude that evidence of Mr. Greavette’s guilty plea only is admissible in evidence as part of Mr. Shire’s defence. I will prepare a draft limiting jury instruction for counsel’s review and consideration.

C. Boswell J.

Date: January 20, 2023

January 23, 2023 Corrections:

Paragraph 20 originally read:

[20] Having said that, I accept that evidence of Mr. Greavette’s plea does tend to support Mr. Shire’s credibility – at least in relation to his evidence that Mr. Greavette stabbed Mr. Babineau. And, like in Caesar, “it supports one of the intermediate inferences necessary to establish” Mr. Shire’s defence, namely that Mr. Greavette caused Mr. Babineau’s death. See Caesar, para. 60.

As corrected, paragraph 20 now reads:

R. v. Shire, 2023 ONSC 553

Case Summary

Corrected Decision: The text of the original Ruling was corrected on January 23, 2023 and the description of the correction is appended.

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 2

Legislation 1