RULING ON THIRD PARTY SUSPECT ISSUE

hebner j.

[1] The Crown has requested a ruling as to whether a third party suspect application should have been brought by the defence before allowing the defence to ask questions of Ms. Davis-Baynes about her allegations that a man named George, and not the accused, was in the Nissan Altima with her when the vehicle travelled from Mississauga to Windsor and back at the time of that shooting and that the same man was with her the following night at the takedown. I advised counsel that, in my view, an application was not required. These are my reasons on that issue.

Background

[2] Mr. Johnson-Phillips has been charged on a two-count indictment arising out of an incident that took place in the early morning hours of August 27, 2018, in downtown Windsor. Specifically, Mr. Johnson-Phillips is alleged to have committed first degree murder of Jason Pantlitz-Solomon and attempted murder of Camille Lufitha-Molema.

[3] For both an overview of the facts and a description of each of the statements, including evidence Ms. Davis-Baynes has given in various court proceedings, regard should be had to my ruling on the Crown’s application under s. 9(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5, dated October 30, 2023, and marked exhibit number 6 on the voir dire.

[4] I refer to two statements in particular. On August 30, 2018, Ms. Davis-Baynes was interviewed by Officer Chris Shaw of the Windsor Police Service. The interview was audio video recorded. At p. 8-10 of the transcript, Ms. Davis-Baynes said she was with a man named George at the time the Nissan Altima was taken down in Mississauga. At the preliminary hearing in this matter, July 12 and 13, 2021, during her cross-examination, Ms. Davis-Baynes said that it was George who was in the car with her in Windsor at the time of the shooting. The only description provided was that he was of average height and a little darker than she was. On all other occasions, namely in a sworn statement taken with Officer Shaw on July 10, 2019, in her evidence-in-chief at the preliminary hearing and during her March 2023 voluntariness voir dire in her own case, Ms. Davis-Baynes said that the man in the car with her, both in Windsor at the time of the shooting and in Mississauga at the time of the takedown, was Mr. Johnson-Phillips.

The Issue

[5] At trial, Ms. Davis-Baynes was called to give evidence by the Crown. In examination-in-chief, Ms. Davis-Baynes recanted her most recent version of events and said that it was George who was with her at the material times.

[6] The Crown took the position that the defence could not point to George as the shooter in place of the accused because it had not brought an alternate suspect application. Mr. Moon asserted that an application was not required as the evidence was direct evidence that had come from a Crown witness. I agreed with the defence position.

Legal Principles

[7] Evidence of a third party suspect is evidence that someone other than the accused committed the offence. In R. v. Luciano, 2011 ONCA 89, the issue at the trial was the identity of the person who killed the deceased. There were two suspects, both of whom had an equal opportunity. At para. 213, Watt J. said:

A person charged with the murder of another is entitled to adduce evidence in response to the charge that shows or tends to show that another person committed the murder: R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750 (C.A.), at p. 757, aff’d 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824; IA Wigmore on Evidence (Tillers Rev.) at para. 139, pp. 1723-724.

But not every item of evidence offered in support of a claim that someone else killed the deceased will be admitted. To permit the introduction of evidence supportive of a claim of third party authorship, we insist upon a sufficient connection between the third party and the offence charged: McMillan at p. 757; Wigmore at para. 139, p. 1724; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 47. The evidence connecting the third party to the crime charged may be direct or circumstantial: McMillan at p. 758.

[8] Where the third party suspect is unknown, the defence must establish the logical relevance of the evidence. The test is explained in R. v. Grant, 2015 SCC 9 at para. 7:

Instead, first principles governing the admissibility of evidence properly balance the competing interests that arise when the 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).

[9] Is an application required where the defence points the finger at a specific person? Is an application required in the circumstances of this case? In my view it is not.

[10] An application is required to establish the logical relevance of the evidence the defence seeks to adduce (see R. v. Wentworth, 2022 ONSC 5370). In Grant, at para. 18, Karakatsanis J., speaking for the court, said:

Evidence is logically relevant where it has any tendency to prove or disprove a fact in issue (Corbett, at p. 715).

[11] In R. v. Murphy, 2012 OCA 573, the accused sought to call a witness who was expected to say that the gun and drugs belonged to him rather than the accused. The trial judge refused to allow it and the accused was convicted. The appeal was allowed and a new trial was ordered. At paragraphs 24 and 25 Laskin J. said:

[24] I accept the Crown’s submission that the requirement to show some nexus or connection between the third party and the offences applies whether the proposed evidence is direct or circumstantial or a combination of both. In all cases, the connection gives the proposed evidence its probative value: see Watt J.A. in R. v. Candir, 2009 ONCA 915, at paras. 131-132.

[25] However, where the defence proposes to call direct evidence from another person taking responsibility for the crimes charged, that proposed evidence itself constitutes a sufficient nexus or connection. Nothing more need be shown and no formal application is necessary. To impose an additional burden on the defence, as the trial judge did, would be at odds with the passages in Seaboyer and Clarke emphasising the very narrow restrictions on the defence’s right to call evidence.

[12] In R v. Myers, 2021 ONSC 792, the issue was who, in a group of several persons, had fired a gun. The accused wished to cross-examine the witnesses to suggest that another person in that group fired the gun. At paras. 8 and 9 Harris J. said:

8 The law with respect to third party or alternative suspect evidence is not difficult to articulate. Stripping away the details, the touchstone is relevance. At the same time, it is recognized that third party suspect evidence has a potential tendency to distract the search for truth and significantly prejudice the crown’s right to a fair trial.

9 The cases establish that an accused in a case in which identity of the perpetrator is in issue may in his or her defence suggest that another person committed the offence charged. The evidence must be relevant towards showing the accused’s innocence and, more specifically must demonstrate a connection between the third party and the offence. The threshold for admission is the air of reality standard.

[13] Harris J. referred to the decision in Grant at para. 21 where Karakatsanis J. said:

In most cases, where the defence evidence relates to the facts underlying the offence charged, the logical relevance and the admissibility of the evidence will be obvious. However, where the evidence refers to a factual matrix beyond the offence charged, its relevance to a fact in issue or an available defence may be less clear. In such circumstances, the gate-keeping role of the trial judge may require her to determine whether the evidence is logically relevant and connected to a defence that has an air of reality.

[14] At paras. 13 and 14 of Myers, Harris J. said:

It is rare that third party suspect evidence is premised on direct evidence as it was in Murphy. All the leading cases cited above deal with circumstantial evidence, including often advancing evidence of propensity and disposition. Building a connection to the offence is usually the salient theme.

When the evidence is direct, the analysis is simplified. There is no need to evaluate whether the inference advocated by the defence is reasonable and can be drawn: see R. v. Arcuri, 2001 SCC 54 , [2001] 2 S.C.R. 828 (S.C.C.) at para. 23. Nor does direct evidence gather probative value through the indirect medium of character or disposition.

[15] I agree with this analysis.

Application of the Legal Principles to This Case

[16] In the case at hand, the evidence of an alternate suspect was given by the Crown’s witness when the Crown was questioning in chief. The witness provided a first name, George, and not much else – no last name, no contact information and no helpful description. In cross-examination, the witness gave more information as to how she met this person and their relationship. The witness said that she was a sex worker, that her trafficker, Philly, went to jail several months prior to the shooting, and that Philly arranged for George to take over for him while he was in jail.

[17] It cannot be said that this was a known third party suspect. There was little information by which this person could be identified. However, the evidence was clearly direct evidence. The evidence was relevant and demonstrated a connection between the third party, George, and the offence. Moreover, the evidence came from a witness called by the Crown in circumstances where the Crown knew that the witness had named George as the suspect in previous statements and evidence in court.

[18] This is not a case where the third party suspect evidence is grounded in propensity, disposition and/or opportunity. It is not a case where the connection to the offence needs to be proven.

[19] The merits of the defence may be suspect given the many different versions of events espoused by the witness and given the lack of any particulars of the man named George, but that is not the issue at this stage. As was explained by the Supreme Court in R. v. Cinous, 2002 SCC 29, [2002] 2 SCR 3 at para. 54:

The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury. See Finta, supra; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330. The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. See R. v. Bulmer, 1987 CanLII 56 (SCC), [1987] 1 S.C.R. 782; Park, supra. Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.

[20] Given the evidence of Ms. Davis-Baynes, and particularly the manner in which it first came up at trial, the third party suspect evidence was clearly relevant and the defence was entitled to explore the evidence in cross-examination. Under these circumstances it is my view that the defence did not require an application to do so.

Original Signed by “Justice P.L. Hebner”

Pamela L. Hebner

Justice

Released: November 6, 2023

Made a Court Exhibit on November 6, 2023

COURT FILE NO.: CR-21-5249

DATE: 20231106

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

Kahli Johnson-Phillips

REASONS FOR JUDGMENT

Hebner J.

Released: November 6, 2023

Made a Court Exhibit on November 6, 2023

His Majesty the King v. Kahli Johnson-Phillips, 2023 ONSC 6286

Case Summary

RULING ON THIRD PARTY SUSPECT ISSUE

Background

The Issue

Legal Principles

Application of the Legal Principles to This Case

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 2

Legislation 1