R. v. Stinson, 2023 ONSC 7039

COURT FILE NO.: CR-1297-22

DATE: 2023-12-13

CORRECTION 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 27, 2023

CORRECTED RULING - PRIOR DISCREDITABLE CONDUCT

Non-Publication Ban is added on first page and back page.

CORNELL J.

Introduction

[1] The Crown has brought an application to have certain evidence admitted despite the fact that such evidence constitutes prior discreditable conduct.

Background

[2] A lengthy hearing was conducted to determine the admissibility of certain hearsay statements. There was considerable overlap between the hearsay application and allegations of prior discreditable conduct. This ruling should be read in conjunction with the hearsay ruling reported at R. v. Stinson, 2023 ONSC 5705.

[3] Given the tumultuous nature of the relationship between the accused and Jamie Lynn Rose (“Ms. Rose”) as well as the accused’s activities as a drug dealer, there is a considerable amount of evidence that the Crown wishes to introduce that involves prior discreditable conduct on the part of the accused. The Crown wishes to introduce this evidence to provide background and context to the series of events that resulted in a fatal fire. The Crown submits that this evidence provides circumstantial proof of the accused’s involvement in the matter. The Crown submits that the evidence goes to the issues of identity, animus, motive, planning and deliberation and intent.

The Law

[4] It has been established that prior discreditable conduct is presumptively inadmissible. If such evidence is admitted, there is a possibility that the jury will make improper use of such evidence by engaging in moral and/or reasoning prejudice.

[5] In order to be admissible, the Crown must establish, on a balance of probabilities, that the probative value of the evidence outweighs its potential prejudice.

[6] As set out in R. v. J.W., 2022 ONCA 306, [2022] O.J. No. 1875, at para. 15, evidence will be discreditable conduct evidence when it:

(a) tends to show that the accused has committed an offence that is not the subject matter of the charge or charges before the court; or

(b) tends to show behaviour on the part of the accused, either through prior or subsequent acts, records, statements or possessions,

(c) and which, in the opinion of the court, would be viewed with disapproval by a reasonable person.

[7] In undertaking an assessment of the prior discreditable conduct that the Crown wishes to introduce, I must first assess the probative value of that evidence, then assess the prejudicial effect and, finally, weigh the probative value against the prejudicial effect to determine admissibility. See R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57, at paras. 98-101.

[8] The test to be applied for admitting evidence of prior discreditable conduct is set out in R. v. L.B., 1997 CanLII 3187 (ON CA), [1997] O.J. No. 3042 (Ont. CA), at para. 10:

1. Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?

2. If so, is the proposed evidence relevant and material?

3. If relevant and material, is the proposed evidence discreditable to the accused?

4. If discreditable, does its probative value outweigh its prejudicial effect?

[9] If prior discreditable evidence is to be admitted, it must be relevant and material to a live issue. Having said that, relevance does not mean proof of the fact in question. This issue was addressed in R v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 38, as follows:

To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue.

The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue.” [Citations omitted.]

[10] The question about the use of misconduct evidence in cases of domestic homicide was considered in R. v. Moo, 2009 ONCA 645, [2009] O.J. No. 3706, at para. 98, where Watt J. stated:

In prosecutions for domestic homicide, evidence is frequently admitted to elucidate the nature of the relationship between the accused and the deceased. This evidence, which often discloses misconduct other than that charged, not only demonstrates the nature of the relationship between the parties, but may also afford evidence of motive and animus relevant to establish the identity of the deceased’s killer and the state of mind within which the killing was done. [Citations omitted.]

[11] Having set out the legal principles that apply to the admissibility of prior discreditable conduct, I will now undertake consideration of the evidence that the Crown wants to make use of bearing in mind the legal framework that has been outlined.

Analysis

[12] To assist with the organization of all of this evidence, counsel jointly prepared a summary attached as Appendix “B.” 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.

[13] Some of the prior discreditable conduct that is sought to be admitted by the Crown is inadmissible. This includes some of the proposed hearsay evidence of Ms. Rose for hearsay statements that were made by her on August 19, 2020, October 31, 2020, December 20, 2020, December 30, 2020, and March 12, 2021, as set out in my hearsay decision.

[14] The police evidence of December 20, 2020 is admissible in connection with the observation of drug paraphernalia in Mr. Stinson’s home, but no evidence shall be offered as to the observation that the accused showed signs of drug intoxication.

[15] The proposed evidence of Christine Wright in connection with the incident on the morning of December 20, 2020, has been ruled inadmissible. After applying the requisite test, I conclude that the information gathered by the police from Ms. Rose on the afternoon of December 20, 2020, is admissible. The probative value of such evidence exceeds its prejudicial effect.

Clinton Cool Facebook Messages

[16] On or about March 29, 2021, Ms. Rose exchanged messages with Clinton Cool (a.k.a. Buddha) via Facebook Messenger.

[17] The Crown submits that despite the bad conduct associated with this proposed evidence, such evidence should be admitted as it provides evidence as to the state of the relationship and the controlling nature of the accused’s conduct toward Ms. Rose as well being relevant to animus. Although the accused objects to the admission of this hearsay evidence, the defence acknowledges that such evidence is relevant to motive and animus with the exception of the reference to pimping and the gang rape in Ottawa. During the course of argument, the Crown conceded that the reference to gang rape is inadmissible.

[18] I conclude that the test for the admission of this evidence has been met. I conclude that the probative value of this evidence exceeds it prejudicial effect. This evidence is admissible.

Riley Roy

[19] Sometime in June of 2020, the accused was smoking crack with a group of people. Erin Lauzon called the police. As a result of this incident, the C.A.S. apprehended the accused’s children. The accused blamed Ms. Lauzon for this development and told Riley Roy that he wanted to take Molotov cocktails to her house. The accused then wanted to know where she lived, but Mr. Roy would not tell him.

[20] On other occasions, the accused would talk about using Molotov cocktails if someone upset him.

[21] The Crown submits that this is cogent evidence as Molotov cocktails were used to set the fatal fire in this case. The Crown acknowledges that such evidence is highly prejudicial to the accused but submits that the probative value exceeds such prejudice. The Crown acknowledges that if this evidence is to be admitted, a limiting instruction would be required.

[22] The defence takes the position that this propensity evidence is so prejudicial that a limiting instruction would be of limited, if any, use. I agree. In my mind, there is a real danger that the jury will make improper use of this evidence despite any limiting instruction that might be provided. This evidence is inadmissible as part of the Crown’s case-in-chief as the prejudicial effect exceeds the probative value.

[23] In the event that the accused runs a defence that suggests that Herrick and Jeannotte acted on their own without any involvement on his part, or otherwise, then I will entertain further submissions as to whether the Crown can call Mr. Roy to provide reply testimony about the accused’s desire to use Molotov cocktails on previous occasions.

[24] The Crown wants to call evidence about the fact that the accused threatened to damage Riley Roy’s car. This conduct is not relevant to any issue that the jury will need to consider and, accordingly, is inadmissible.

Jared Herrick

[25] David Cheff’s phone went missing. In April of 2021, it is alleged that the accused asked Mr. Herrick to reformat Mr. Cheff’s phone.

[26] The theory of the Crown is that the accused wanted Mr. Cheff’s phone as Mr. Cheff had an app on his phone that was connected to Mr. Cheff’s doorbell camera. This would permit the accused to know when Ms. Rose was coming and going from Mr. Cheff’s residence. This would constitute watching and besetting and would be relevant to constructive murder by way of criminal harassment.

[27] The problem with that theory is that the evidence before me indicates that the accused wanted the phone to be “cracked” in order to be reformatted. Once the phone had been reformatted, all of the apps on the phone would have been deleted, including the surveillance app. Apart from this, the evidence indicates that the doorbell camera was not working at the time in question and the door where the doorbell camera was located was not useable at that time.

[28] I conclude that this evidence is not admissible as it is not relevant to an issue that the jury will need to consider.

[29] On April 7, 2021, the accused sent a text to Mr. Herrick telling him that he wanted payment of $140.00 that was owing and that if payment was not forthcoming, “he would send fetty heads to fuck him [Jeannotte] and his crib up.” On April 8, 2021, the accused sent a text to Mr. Herrick stating “Yo, today is the day that kid [Jeannotte] is paying up. Call me, fuck.”

[30] The Crown submits that this evidence is admissible for a number of reasons. This includes such evidence providing narrative and context to show that Mr. Herrick was working with the accused and to help the jury understand how and why Mr. Jeannotte participated in the fire bombing. It may also be relevant to potential defences.

[31] The defence submits that such evidence should not be admitted as the prejudicial effect is too great to admit as narrative. I disagree.

[32] The evidence is relevant to the issues suggested by the Crown. The test has been met. In my opinion, the probative value of this evidence is important and exceeds any prejudicial effect. This evidence is admissible.

[33] The accused acknowledges that the proposed evidence from April 8, 2021 about Herrick purchasing fentanyl from Stinson is admissible as well as evidence that the accused was upset that Ms. Rose was sleeping in Mr. Cheff’s bed.

[34] The accused acknowledges that Mr. Herrick’s evidence about the events of April 10, 2021, is admissible.

Phillippe Jeannotte

[35] The accused acknowledges that the evidence of Mr. Jeannotte that he purchased fentanyl from the accused and owed him money is admissible as well as the evidence that on April 10, 2021, Mr. Jeannotte went to Mr. Stinson’s house to obtain more drugs.

Darren McNamara

[36] About two months prior to the fire, Mr. McNamara went to the accused’s residence where he observed that half of Ms. Rose’s hair had been shaved off. Ms. Rose was crying. The accused was laughing and said, “Isn’t she beautiful?”.

[37] The Crown wants to use this evidence to show his animus against Ms. Rose as well as his controlling behavior.

[38] There is no evidence as to the reason why Ms. Rose was crying. There is no evidence about the tone that was used by the accused when he said, “Isn’t she beautiful?”. Perhaps he said it in a demeaning way. Perhaps he said it in a gentle tone to try and console her.

[39] It is my opinion that the prejudicial effect of this evidence far exceeds its probative value. For this reason, it shall be excluded.

[40] The balance of Mr. McNamara’s evidence is acknowledged by the accused to be admissible.

David Cheff

[41] The defence concedes that all of Mr. Cheff’s proposed evidence is admissible with the exception of evidence about Mr. Cheff’s phone going missing and ending up in the possession of the accused and Messrs. Jeannotte and Herrick. This evidence in inadmissible for the reasons previously expressed.

Kyla Leebody

[42] The evidence of Ms. Leebody is acknowledged by the accused to be admissible.

The Honourable Mr. Justice R. Dan Cornell

Released: December 13, 2023

Correction Release Date: February 1, 2024

Jamie Lynn Rose

(August 19, 2020)

1. Stinson drove off with some of Jamie Lynn Rose’s belongings, laughing.

2. Stinson threatened to drag her out by her hair.

See Appendix A

x x

Res gestae Necessary Reliable

Probative value outweighs prejudicial effect Relevant to identity, animus, motive and intent

Relevant to elements of the offence of constructive first- degree murder

• Transcript of 9-1-1 call

• Police incident report Cst. Warnock

Jamie Lynn Rose

(October 31, 2020)

1. Stinson stole Rose’s jacket which had her debit card in it.

See Appendix A

x

Relevant to identity and animus

Relevant to elements of the offence of constructive first- degree murder

• Transcript of 9-1-1 call

• Police incident report Cst. Warnock

Police

(December 20,

1. Visible drug paraphernalia in Stinson’s home as observed by police.

2. Police engage with Stinson and observe signs of drug intoxication.

x

Part of overall narrative. Provides context.

Prejudicial but can be overcome by proper jury instruction

• Transcript 9-1-1 call

• Police occurrence report

Jamie Lynn Rose

(December 20,

3. Stinson has many people in and out of his place.

4. Stinson uses crack cocaine.

5. Stinson sells fentanyl.

6. Stinson got Rose back into drugs.

x A A A

Christine Wright

(December 20,

1. Stinson stood over top of Rose while she was trying to get help from her mother to leave him.

x

Relevant to identity and animus

Threatening conduct – relevant to elements of constructive first-degree murder

Highly probative. In combination with other threatening conduct, probative value outweighs prejudicial effect.

Transcripts Texts from Rose

Jamie Lynn Rose

December 30,

2020 Incident

1. Stinson became belligerent and difficult to deal with while drinking rum with Rose.

2. Stinson was belligerent with police, assumed a fighting stance and started swearing and yelling racial slurs at officers and challenging officers.

x

x

• Relevant to animus

• Threatening conduct – relevant to elements of constructive first-degree murder

• Highly probative despite being prejudicial.

Interactions with police and racial aspect is highly prejudicial and ought to be excluded.

Transcript of 9-1-1 call

3. Police arrested Stinson in part for Rose’s safety.

x

Relevant to threatening conduct and constructive first- degree murder.

Occurrence report Cst. Caverson

Jamie Lynn Rose

March 12, 2021 Incident

1. Stinson locked Rose out of the apartment without a coat.

2. A verbal argument with Rose became physical.

3. Stinson hit Rose in the head a few times after she pushed a table over.

4. Stinson threatened to kill her family.

5. Stinson broke her phone.

x

x x

x x

Narrative/context evidence re state of relationship and controlling nature of Stinson’s conduct towards Rose.

Relevant to animus.

Relevant to threatening conduct constructive first-degree murder. Probative value outweighs prejudicial effect.

• Transcript of 9-1-1

• Occurrence report and notes of Cst. Easter

Jamie Lynn Rose

(on or about March 29, 2021)

1. Stinson controls Rose’s money, health card, bank card, changes her passwords.

2. Stinson punched Rose out.

3. Stinson threatened to kill Rose’s kids and family a-n--d--h-a-s--t-h-r-e-a--te--n-e--d--to--h--a-v-e--h-e--r-g--a-n-g- r-a-p--e-d-.

4. Stinson broke her phone in half.

5. Stinson has people watching Rose.

Narrative/context evidence re state of relationship and controlling nature of Stinson’s conduct towards Rose.

Relevant to animus.

Relevant to threatening conduct constructive first-degree murder. Probative value outweighs prejudicial effect.

Text messages forwarded on or about March 29,

2021

Riley Roy

1. Stinson smoked crack with Roy “a lot “. Roy would sometimes buy crack from Stinson. Stinson sold fentanyl.

2. In around June of 2020, Stinson was smoking crack with Roy, Kayla Walsh. Erin Lauzon was present. Stinson got into an argument with Walsh over drugs. They were in each other’s faces. Erin Lauzon went to the washroom to call the police. Stinson asked Roy to go upstairs and stop her from calling the police.

Stinson was upset that this incident led to the CAS apprehending his children. He was upset with Erin Lauzon in particular for calling the police. Stinson told Roy that he wanted to take Molotov cocktails to her house. Stinson wanted to know where she lived but Roy would not tell him.

3. Stinson would talk about using/throwing Molotov cocktails if someone upset him.

x

x

Narrative/context evidence.

Cam be adequately dealt with by jury instruction.

Cogent evidence in the specific circumstances of this case as the weapons used to set the fatal fire were Molotov cocktails.

Highly prejudicial to Stinson, but probative value exceeds prejudice.

Jury instruction ought to be used to limit any moral prejudice in relation to CAS apprehension.

Case-specific cogency. Despite being prejudicial to Stinson, probative value is greater.

When coupled with Darren McNamara’s evidence, this evidence is relevant to animus and elements of constructive murder.

• Transcript of PH 26Sept22

• PH Transcript

• photograph

4. About a week before the fire, Roy was at “Old Man Darren’s” place with Stinson and Rose. Stinson was being disrespectful to Darren and his house, and Stinson and Roy ended up in an altercation.

5. Roy was trying to get away from Stinson and visited Darren without him one day. Immediately after the altercation at “Old Man Darren’s”, Stinson was upset with Roy.

Stinson texted Roy told Roy that he saw Roy’s car outside Darren’s home. Stinson threatened to do something to Roy’s car.

x

Prejudicial effect likely greater than probative value. However, this incident may be relevant to consider if Roy requests testimonial aids, as he did at the preliminary inquiry.

Jared Herrick

1. On April 5, 2021, Herrick was asked by Stinson to help him “crack”/reformat David Cheff’s Samsung cell phone. Stinson then gave the phone to Phillippe Jeannotte to try to crack it and told Herrick not to give the phone to anybody.

x

Relevant to common design

Relevant to planning and deliberation. Inference that can be drawn is that Stinson is interested in cracking the phone in order to keep an eye on Rose, as the phone is connected to Cheff’s doorbell camera.

Relevant to constructive murder

Inference is that Stinson and Herrick are working together in drug trafficking; relevant to common design

• PH Transcript

• Copy of text messages

• PH Transcript

• Copy of text messages

Jared Herrick

(cont’d)

2. On April 6, 2021, Stinson was trying to reach Herrick to message the girlfriend of a cocaine dealer to buy cocaine.

3. On April 7, 2021, Stinson texted Herrick to tell him he wanted his $140 and that he would send fetty heads to fuck him [Jeannotte] and his crib up.

On April 8, 2021, Stinson texted Herrick: “Yo, today is the day that kid [Jeannotte] is paying. Call me, fuck.”

4. On April 8, 2021, Herrick arranged to purchase fentanyl from Stinson. He had been purchasing drugs from Stinson for about 4 months. Herrick would buy fentanyl from Stinson on a weekly basis.

5. Herrick and Stinson went to David Cheff’s residence 3 weeks to a month prior to the fire. Stinson was upset that Rose was there. Rose was sleeping in Cheff’s bed. Stinson was aggressive towards Cheff.

Relevant to potential defences

Narrative/context; helps jury understand how/why Jeannotte participated in the common design to firebomb a residence

Shows that Herrick is working with Stinson Relevant to potential defences

Narrative/context

Relevant to animus against both Cheff and Rose; relevant to motive in relation to both

Narrative/context

Relevant to planning and deliberation

• PH Transcript

• Text messages

• PH Transcript

• Text messages

• PH Transcript

• Text message

• PH Transcript

• Text message

Jared Herrick

(cont’d)

6. On April 10, 2021, the night before the fire, Stinson had approximately 10-15 people at his house. Herrick had shown up to buy some fentanyl. Mostly everybody was drinking, smoking crack, marijuana, fentanyl. Stinson was drinking and smoking crack.

Stinson told Herrick that he [Stinson] had somebody taking care of something.

Phillippe Jeannotte showed up with gasoline. Stinson wanted Jeannotte to light a fire “over there” because somebody owed Stinson money. Herrick gave Stinson $100 for five points (milligrams) of fentanyl, but Stinson didn’t have enough fentanyl and only gave Herrick 2 points, so Herrick agreed to wait to receive the remainder.

• PH Transcript

• Text messages

• PH Transcript

• Photograph of Herrick with Stinson

Phillippe Jeannotte

1. He purchased fentanyl from Stinson a couple of times as a last resort but owed Stinson money. On April 10, 2021, he was sick (i.e. dope sick) and went to Stinson’s house around midnight for more drugs. He deposited his television as collateral.

• Video statement, 30Apr21, pp 23 – 28, pp 30 – 31; p. 73

Narrative/context

Relevant to potential defences

Transcript of video statement to police

Darren McNamara

1.~~~~Stinson~~~~would break~~~~things in~~~~the~~~~house,~~~~e.g. tore~~~~off~~~~ the railing, during a physical fight with Rose.

• PH Transcript 21Sept22, p. 22, lines 5 ff; and, p. 44, lines 10 ff

Stinson often yelled at Rose

• PH Transcript 22Sept22, p. 2, lines 1ff

About 2 months prior to the fire, Stinson shaved half of Rose’s hair. She was crying but Stinson was laughing about it and said, “Isn’t she beautiful?”

• PH Transcript 22Sept22, pp. 2 - 4, starting at lines 17 ff, p. 2; p. 25, lines 12 ff; pp. 26-27, starting at p. 26, lines 19 ff

About two or three weeks prior to the fire, Rose went to McNamara’s house, told him that Stinson assaulted her and asked to stay at McNamara’s place. While she was there, Stinson came over and got into an altercation with McNamara after saying: “You’re trying to fuck around with my woman.”

• PH Transcript 22Sept22, p. 7-8, lines 15 ff

x

x

Relevant to animus against Rose Relevant to Rose’s state of mind Relevant to constructive murder

Probative value outweighs prejudicial effect

PH Transcript

Darren McNamara

Stinson ordered Rose: “Grab your stuff, you’re coming with me now”. Stinson also said:

“Well, what the fuck are you doing here?”; “You’re going to come home”.

• PH Transcript 22Sept22, pp. 9-10, starting at p. 9, lines 22

2. He bought drugs off Stinson.

• PH Transcript 22Sept22, p. 27, lines18 ff

3. On the night of the fire, Stinson, “Junior”, McNamara and one other guy were using rock cocaine.

• PH Transcript 22Sept22, p. 60, lines 4 ff

– PH Transcript

Narrative/context

David Cheff

1. Stinson would call Rose while Rose was at Cheff’s residence, argue with her and threaten her in text messages.

• PH Transcript 20Sept22, p. 57, lines 24 ff

• PH transcript 20Sept22, p. 58, lines 2 ff

• Statement, 1Sept22, p. 3

2. Stinson came to his door one time when Rose was staying there looking for her. Stinson was rapping at the door and was going kick it in.

Relevant to animus against Rose Relevant to Rose’s state of mind Relevant to constructive murder

Probative value outweighs prejudicial effect

David Cheff

(cont’d)

• PH Transcript 20Sept22, p. 59, lines 13 ff

3. Cheff used to go over to Stinson’s residence and used to smoke crack with him.

• PH Transcript 20Sept22, p. 60, lines 8 ff

4. Cheff would get Fentanyl from Stinson for his [Cheff’s] own drug customers who asked for it.

• PH Transcript 20Sept22, p. 61, lines 5 ff

• PH Transcript 20Sept22, p. 61-62, lines 21 ff

• PH Transcript 21Sept22, p. 9, lines 28ff

• Sworn statement, 09Sept22, pp. 17 - 18

5. One time, around the end of February or March of 2021, Stinson and Herrick were at Cheff’s house. Cheff had just bought a phone which was programmed to connect with his doorbell camera. The phone went missing. It ended up with Stinson, Jeannotte and Herrick.

• PH Transcript 20Sept22, p. 64, lines 12 ff

• Sworn statement, 09Sept22, p. 24

x

Narrative/context

Relevant to motive (drug debt) and potentially to animus

Relevant to animus/motive

Relevant to constructive first-degree murder Relevant to planning/deliberation

Narrative/context

Relevant to motive (drug debt) and potentially to animus too

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 - PRIOR DISCREDIBLE CONDUCT

Cornell J.

Released: December 13, 2023

Correction Release Date: February 1, 2024