COURT FILE NO.: CR-1297-22
DATE: 2023-12-13
CORECTION DATE: 2024-02-01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and – Applicant
Liam Stinson
Respondent
Grace Alcaide-Janicas, and Alayna Jay, for the Crown
Joseph Wilkinson and Liam Thompson, for the Defence
HEARD: September 28, 2023
CORRECTED RULING – AFTER-THE-FACT CONDUCT
Non-Publication Ban is added on first page and back page.
CORNELL J.
Introduction
[1] The accused is charged with first degree murder and attempted murder as a result of the death of three people who died in a house that was firebombed. One person managed to escape.
[2] This ruling should be read in conjunction with my hearsay ruling found in R. v. Stinson, 2023 ONSC 5705, as well as my ruling on prior discreditable conduct found at R. v. Stinson, 2023 ONSC 6075.
[3] The Crown has sought rulings on evidence that comprises after-the-fact conduct. The defence has acknowledged that all of that evidence is admissible with the exception of evidence that the Crown wishes to tender from Fern Bolduc.
Background
[4] On April 11, 2021, a fire was deliberately set to a townhouse at approximately 4:00 a.m. There were four occupants of the townhouse at that time. David Cheff managed to escape the inferno. Jamie Lynn Rose (“Ms. Rose”) and two others were trapped and died.
[5] Some ten months prior to the fire, Ms. Rose and the accused entered into some form of a domestic relationship. The accused was a drug dealer. Both the accused and Ms. Rose were drug users.
[6] As the relationship went on, Ms. Rose told others that she was afraid for her safety and that she wanted to leave the accused. She did so in late March or early April of 2021 when she moved into the nearby home of her friend, David Cheff.
[7] It is the theory of the Crown that the accused was angry and jealous as a result of this development. It is further the theory of the Crown that the accused believed that Ms. Rose would take some of his drug business to the Cheff residence. There is evidence in the days leading up to the fire that the accused spoke of taking revenge by getting junkies to do something to Mr. Cheff’’s house.
[8] On April 11, 2021, around 4:00 a.m., Jared Herrick and Phillippe Jeannotte firebombed Mr. Cheff’s residence using Molotov cocktails. It is alleged that in order for them to do so, the accused promised them fentanyl and money. Messrs. Herrick and Jeannotte have plead guilty to manslaughter and have been sentenced.
[9] On the evening of April 10th and continuing through the morning of April 11, 2021, Mr. Bolduc was in the company of the accused. It was during this time that Mr. Cheff’s residence was firebombed.
[10] After the firebombing, the accused went to the Radisson Hotel where he met up with Mr. Herrick. Mr. Bolduc was present at that time.
[11] Mr. Bolduc was arrested on April 24, 2021. During the course of a subsequent interview with the police, Mr. Bolduc said that prior to the fire, the accused told two junkies to set fire to a house because he [the accused] was angry. At the time this discussion was taking place in the accused’s home, there were plastic bottles with gas in them.
[12] On August 29, 2022, Mr. Bolduc was transferred from the Penetang Jail to the Sudbury Jail. He was placed in a cell with the accused and another individual, Connor Coutu.
[13] When Mr. Bolduc entered the cell, the accused said to Mr. Bolduc, “you fucking rat, you ratted on me.”
[14] Mr Bolduc said that after the statement was made, he was attacked by the accused and the other inmate, Connor Coutu, and was badly injured. He received a broken jaw that required surgery and the installation of a plate. He continues to suffer from numbness in his face and other injuries that he received as a result of the beating.
[15] Both Mr. Stinson and Mr. Coutu were charged with aggravated assault. Mr. Coutu has plead guilty to the charge. The accused has plead not guilty. He has taken the position that he was not in the altercation that took place, a position that is supported by Mr. Coutu, who says that he started the fight with Mr. Bolduc because of an outstanding “beef” with him.
Analysis
[16] To assist with the organization of all of this evidence, counsel jointly prepared a summary attached as Appendix “C.” A checkmark has been made in the middle column where counsel agree that such evidence is admissible. A capital “X” indicates that I have ruled that such evidence is inadmissible. The letter “A” indicates that I have ruled that such evidence is admissible where admissibility was contested.
[17] The Crown submits that Mr. Bolduc’s evidence should be admitted as it is relevant to identification. Beyond that, the Crown indicates that this is evidence showing a consciousness of guilt and constitutes an attempt to intimidate a material witness.
[18] The defence opposes the admission of this evidence. Mr. Stinson is contesting these charges. If this evidence is admitted, the defence submits that it will result in a trial within a trial given the different versions of the event that have been put forward.
[19] After-the-fact conduct is circumstantial evidence that in this case would allow the jury to draw particular inferences based upon what the accused said to Mr. Bolduc and the fight that followed. The evidence must relate to a live, material issue in the case. Those issues have been identified by the Crown.
[20] The question of post-offence conduct was considered in R. v. Rosen, 2018 ONCA 246, where Watt J.A. stated, at para. 50:
Evidence of post-offence conduct is circumstantial evidence which is not subject to any special rule of admissibility. It simply cannot be suggested that evidence of anything done or said by an accused after an offence has been committed gives rise to special rules of admissibility or mandates special warnings to border its use by the trier of fact. It is for the jury to say, on the basis of the evidence as a whole, whether the post-offence conduct is related to the crime charged rather than to something else and, if so, how much weight, if any, should be assigned to it in the final determination of the adequacy of the case for the Crown: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 105 and 137.
[21] The Crown also proposes that this after-the-fact conduct is admissible on the question of the accused’s credibility. In R. v. G. (S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at para. 70, Cory J. laid to rest any doubt about this common-sense proposition as follows:
To require a jury to compartmentalize its thinking even further than this would be artificial and unnecessarily convoluted. It is a matter of common sense that evidence of bad character may reflect badly on the accused’s credibility, and that the jury can use it as a factor in determining if the accused is likely to be telling the truth. This is not the same thing as suggesting that the accused is guilty because she is a bad person, or may have a disposition to commit the type of crime for which she is charged.
See also R. v. Sheriffe, 2015 ONCA 880, [2015] O.J. No. 6609, at para. 70.
[22] Subject to the qualifying comments that follow, I am satisfied that the evidence that the Crown wishes to tender is relevant to a live, material issue in this case. I am further satisfied that the admission of this evidence does not offend any other exclusionary rule of evidence.
[23] I am concerned about the prejudicial effect if all of Mr. Bolduc’s evidence were to be admitted.
[24] The injuries that Mr. Bolduc received as a result of the assault at the hands of the accused and Mr. Coutu were very serious and apparently lifelong. I am concerned that details of the injuries that Mr. Bolduc received would profoundly affect the jury to such an extent that a limiting instruction may not be sufficient to address the possible misuse of this evidence. Accordingly, I will impose a limit on the ability of the Crown to introduce this evidence.
[25] The statement attributed to the accused is admissible as is the fact that Mr. Bolduc was assaulted by the accused and Mr. Coutu after the statement was made. The Crown may ask Mr. Bolduc if he was injured as a result of the assault, but not go into the level of detail that was provided in the KGB statement provided by Mr. Bolduc. I will require the Crown to be circumspect in how it approaches the evidence of the injuries that Mr. Bolduc received.
[26] With the proviso that has been set out, I am satisfied that the probative value of this evidence exceeds its prejudicial effect.
The Honourable Mr. Justice R. Dan Cornell
Released: December 13, 2023
Correction Release Date: February 1, 2024
Jared Herrick
Crown withdrew Application for #2, without prejudice.
- On April 11, 2021, after the fire, Herrick met up with Stinson in a room at the Radisson hotel asking for payment for setting the fire. Stinson was “freaked out” that Herrick was there. Stinson did not give Herrick the drugs that he came for and tried to avoid Herrick in the hotel lobby while Herrick was telling Stinson that he wanted his drugs.
• Video - Radisson
• PH Transcript 4Oct22, p. 78, line 20 to p. 88, line 32
• Record, Vol. V, Tab 5
• Record, Vol. I, Tab 10, Exhibit D
2. While in custody at the Sudbury jail after their arrest, on several occasions Stinson warned Herrick that there better not be any “rats”. Stinson also assaulted Herrick.
• PH Transcript 4Oct22, p. 90, line 14 to p. 91, line 4
• Affidavit of Jared Herrick, Vol. III, Tab 22, 7 pgs.
X
Relevant and material
Purpose: to help prove identity of Stinson as the one who contracted with Herrick to set the fire
Inferences: that there was a common design as between Herrick and Stinson
Relevant to elements of contracted murder
Relevant to potential defences
More probative than prejudicial
Consciousness of guilt; attempt to intimidate a material witness
• PH Transcript
• Text messages
• Phone records
• Video
• PH Transcript
• Affidavit
Darren McNamara
- On the night of the fire, after two guys left Stinson’s home, he saw Stinson and “Junior” pacing back and forth at the window by the patio, looking in and out, looking through the curtains. And then, suddenly, shortly after, lights were flashing. Stinson said “Let’s get out of here”.
• PH Transcript, Volume 2, Tab 13(b), 21Sept22, p. 52, lines 10 ff
• PH Transcript, Volume 2, Tab 13(b), 21Sept22, pp 58 – 59, lines 13 ff
- During the walk from Stinson’s home to the Radisson, Stinson was stressed out and agitated.
• PH Transcript, Volume 2, Tab 13(b), 21Sept22, p. 63, lines14 ff
• PH Transcript, Volume 2, Tab 13(b), 21Sept22, p. 64, lines 27 ff
- In the hotel room at the Radisson, a guy showed up and was talking to Stinson and Kyla Leebody. The guy told Stinson he needs his stuff/Fentanyl and that he’s sick. Stinson told the guy “Hold on, we’ll talk”. They went into the washroom.
• PH Transcript, Volume 2, Tab 13(b), 21Sept22, pp 67-71, starting at p. 67 lines 29 ff
Demeanour evidence indicative of guilt; inference is that Stinson was nervous about police being around and wanted to avoid detection
Crown may request the inference that Stinson broke phone intentionally be drawn, however Walsh statement only relays that Stinson broke phone and does not speak to intentionality
Inference that Stinson did not want others in the room to overhear their discussion; attempt to avoid detection
Kayla Walsh
Stinson broke his phone the night of the fire
• Transcript, Statement of Kayla Walsh, dated April 20, 2021, Record, Volume 1, Tab 10F, pp. 74 – 75
On April 20, 2021, several broken phones were seized from the Godin residence (Stinson’s mother’s residence where he went to stay after the fire). They were damaged beyond the ability of the police to access their contents.
• Supplementary Occurrence Report, dated April 20, 2021, Record, Tab 10G
Destruction of evidence; attempt to sever connection with Herrick; inference of guilt as he is destroying evidence
Crown may request the inference that Stinson broke phone intentionally be drawn, however Walsh statement only relays that Stinson broke phone and does not speak to intentionality
• Statement
Fern Bolduc
(Former co-accused; interviewed by police)
On August 29, 2022 when Fern Bolduc was returned to the Sudbury District jail. Stinson stated: “you fucking rat, you ratted on me.” Stinson then participated in and directed another inmate to participate in the beating of Fern Bolduc.
Admit as per my decision
• KGB sworn statement of Fern Bolduc dated July 19, 2023, Record, Vol. III, Tab 19A
A
Relevance to identity and Mr. Stinson’s credibility; demonstrates consciousness of guilt; attempt to intimidate a material witness
Inadmissible; will create trial within trial. See Defence Chart p. 2
• Video Surveillance
• KGB Statement
COURT FILE NO.: CR-1297-22
DATE: 2023-12-13
CORRECTION DATE: 2024-02-01
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Liam Stinson
CORRECTED
RULING – AFTER-THE-FACT CONDUCT
Cornell J.
Released: December 13, 2023
Correction Release Date: February 1, 2024