COURT FILE NO.: CR-23-1329 DATE: 2024-06-13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Applicant – and – Felicity Altiman Respondent

Counsel: Brittany Butler / Kaely Whillans, for the Crown Steven Hinkson, for the Respondent

HEARD: June 3 and 4, 2024

DECISION ON APPLICATION

CORNELL, J.

Introduction

[1] Ms. Altiman is charged with the second-degree murder of Robert Keskinen. The Crown has brought an application to introduce prior discreditable conduct. The conduct consists of the accused threatening to stab a third party and brandishing a knife to show that the threat was real. In accordance with the reasons that follow, evidence may be led to show that the accused was in possession of a knife at the time in question, but the threats made by her to the third party are to be excluded.

Background

[2] On December 24 or 25, 2020, Robert Keskinen was murdered by being stabbed approximately 103 times. At the time of his death, he was in his apartment located at 221-517 Kathleen Street, Sudbury, Ontario.

[3] Prior to the murder, the accused was visiting in an apartment located across the hall from the deceased’s apartment. Wayne Shabogesic and his son, Dustin Simon, were present along with the accused.

[4] At some point in time, the accused advised Mr. Shabogesic and Mr. Simon that she was going to “grandpa’s place” located across the hall. She returned 1.5 hours later with beer and men’s clothing that belonged to the deceased. Upon her return, it was noted that her mood had changed. She was angry and upset. She had changed her clothing.

[5] Prior to leaving to visit with the deceased, it is alleged that the accused brandished a knife from her waistband and told Mr. Simon “If you steal my drugs, I’ll stab you”. This is the evidence that the Crown wishes to use at the trial.

Issue

[6] The test to be applied for admitting evidence of prior discreditable conduct can be summarized as follows:

a. Is the conduct, which forms the subject matter of the proposed evidence, that of the accused? b. If so, is the proposed evidence relevant and material to some issue beyond disposition or character? c. If relevant and material, is the proposed evidence discreditable to the accused? d. If the above is met, does the probative value of the evidence outweigh its prejudicial effect, specifically taking into account whether or not it engages improper propensity reasoning?

[7] The issue to be decided is whether the test has been satisfied.

Analysis

[8] For all intents and purposes, counsel for the accused conceded that the first three parts of the test had been met. The concern raised on behalf of the accused focused on the prejudicial effect if this evidence were to be admitted.

[9] The accused is a drug user, if not a drug addict. When the threat was made, Ms. Altiman was in possession of illegal drugs. The threat made by her was to prevent anyone from using or taking her drugs when she went to visit the deceased.

[10] It was submitted on behalf of the accused that the evidence should not be admitted as it will point to the fact that she is a drug user and would paint her as “a violent, knife-wielding woman”. The Crown responds by saying that this evidence is necessary as it “demonstrates that the accused was willing to use the knife to protect her drugs”.

[11] The evidence is not strong. Although it is proximate in time to the events in question, there is no suggestion that drugs had anything to do with Mr. Keskinen’s death. To the contrary, the Crown intends to put forward that the motive was one involving theft.

[12] Both moral and reasoning prejudice must be considered in cases such as this. I conclude that reasoning prejudice is not problematic in this case.

[13] The Crown submits that any risk of moral prejudice can be addressed by a limiting instruction. I disagree. This is not a case where the evidence is “so highly relevant and cogent that it’s probative value in the search for truth outweighs any potential for misuse”. See R. v. Handy, 2020 SCC 56 at paras. 41, 74 and R. v. Stubbs, 2013 ONSC 514 at para. 56.

[14] During the course of argument, I asked counsel for the accused what his position would be if I were to allow the evidence about the accused possessing a knife at the time in question, but excluded the evidence about the alleged threat to stab Mr. Simon if he stole her drugs. If that were to be done, it was acknowledged that the concern about the prejudicial effect of introducing the threat had been addressed.

Conclusion

[15] I find that the Crown may lead evidence to show that the accused was in possession of a knife and that she brandished it to Mr. Simon. If able, Mr. Simon shall also be permitted to describe the knife in question. No evidence can be led by the Crown about the existence of the accused’s drugs or the threat she made to stab Mr. Simon if he stole them in her absence.

[16] The Crown also wants to introduce evidence from Misty Assinewai who is prepared to testify that the accused has admitted to her that she would rob the deceased all the time. The accused told her the victim would hide his wallet under a pillow and she would pretend to be doing a crossword puzzle while going through his wallet and taking money. It was conceded on behalf of the accused that this evidence is admissible.

The Honourable Mr. Justice R. Dan Cornell Released: June 13, 2024