This week’s top three summaries: R v Dennehy, 2019 ABQB 912, R v Adams, 2019 ABPC 296, and R v Pine, Baron, Ross, 2019 ONSC 7009.
R v Dennehy (ABQB)
[November 29/19] Gladue Principles - Reduction from Start-Point Sentence - 2019 ABQB 912 [N.E. Devlin J.]
AUTHOR’S NOTE: There are a few ways to read this decision. For the Defence, the message is clear. In the proper circumstances Gladue principles can serve to reduce the jail portion of a sentence for an Indigenous offender significantly from a start-point sentence. Indeed, here a guilty plea and Gladue factors reduced the sentence to below one year for a three-year start-point. The logic of the decision is sound. Defence counsel should beware that the Crown will seek to distinguish the case using the factor of focus for the sentencing justice - the fact that Mr. Dennehy "did not really want to" commit the offence robbery. This will really drive at the nub of the issue in most cases: was the action compelled by Gladue factors which often result in addiction and dependance OR were they the poor choice of the person? For the reduced sentence to apply, Defence counsel should seek to portray their Indigenous clients as persons like Mr. Dennehey: people who would not have committed their action, but for the influence of Gladue factors on their lives and subsequently regret it. The challenge will be the there was evidence here that Mr. Dennehy even regretted his actions in the moment of committing them. That factor will be difficult to show evidence of in future cases.
Pertinent Facts
[1] Millet Liquor is a small, family-owned business on the main street of Millet, Alberta. Brandon Dennehy robbed it on February 24, 2018. At the time of the robbery, he had been awake for eight days in the throes of methamphetamine and alcohol.
[2] This case exemplifies the dynamic that brings an otherwise proud and capable Indigenous man into the criminal justice system. His background includes every feature of the post-colonial experience. This has driven his substance-abuse, which is the sole cause of criminal acts. He was ashamed and remorseful even as the crime began. He never disputed his involvement and worked to better himself while awaiting trial. I have determined that his whole-hearted desire to be with his family and lead a normal, healthy life motivates him so deeply that he needs no further specific deterrence, and that denunciation of his crime has been served by his year in pre-trial custody.
[3] Mr. Dennehy pleaded guilty on the day of his trial....
[4] On the day of the robbery, Stacy Tetlock was working alone at Millet liquor. Mr. Dennehy walked into the store and went over to the vodka shelf. He took a large bottle of Smirnoff and brought it to the counter. He put down the bottle and said, “I hate to do this to you, give me what’s in your till, give me all your money.” At the same time, he pulled out a spray can and enhanced his demand for cash by saying, “don’t make me use it, all I want is the money.” Ms. Tetlock complied, believing that the can was bear spray. She handed over $140 in a bag. Mr. Dennehy then announced that he was “gonna take beer too”, and did so one the way out.
[5] Before he left, Mr. Dennehy asked Ms. Tetlock for a hug and apologized.
[6] The store’s security footage identified Mr. Dennehy as the suspect. He was arrested a week later and gave the RCMP a full confession. In a recorded statement, he told Constable Seidemann that, by the time of his arrest, he had not slept or eaten in over a week, saying:
I just did it, did what happened on the video...To be honest, I was so drunk, I don’t remember doing it....So high on crystal meth you know, high and drunk.
[8] Two hard working members of the community were harmed by this crime. Ms. Tetlock lost both her job and her sense of safety as a result of the robbery. In her Victim Impact Statements, she wrote: “Since the event, I no longer feel safe while being out after dark, walking to my car pumping gas, I fear someone will come up behind me.” This episode left her too fearful and shaken up to return to work at the store.
Background of the Offender
[11] Mr. Dennehy is a 26-year-old Cree man, born and raised in Maskwacis. He is the father of four children, ranging in age from 3 to 8. The children live with their mother, Tiana, on the Louis Bull reserve in Maskwacis. Mr. Dennehy and Tiana have been together for most of their adult lives, though it appears their relationship has fractured due to his drinking. He expressed the hope that they could re-unite as a family after his release. Mr. Dennehy’s father related that, “his wife and his kids are his rock. When he was sober, they were his number one priority.”
[12] Before the events of recent years, Mr. Dennehy held a variety of jobs ranging from security, to working at the Samson gas bar, and latterly air-duct cleaning. He describes himself as having a skill for duct cleaning and had found success and satisfaction in it.
[13] Mr. Dennehy’s probation officer speaks highly of him, and told the Gladue writer that:
Brandon is very polite, he’s very easy to work with. When he’s sober, he’s very motivated, he can achieve his goals.....[he] presents as a good father and contributing community member.
Gladue Factors
[14] “Gladue factors” are potently present in Mr. Dennehy’s case. He has suffered the full spectrum of harm, and self-harm, which tragically typifies the post-colonial Indigenous experience in Canada. A point-form summary of the factors applying to Mr. Dennehy are enumerated in a dispiriting, page-long list in the Report. The specific details are deeply intimate and personal. I will not enumerate them in open reasons. There is increasingly little need to finely measure which offender can most effectively pathologize their Indigenous experience. Suffice to say, Mr. Dennehy has the archetypal Indigenous experience which s.718.2(e) and R v Gladue, 1999 CanLII 679 (SCC), 1999 1 SCR 688 were written to acknowledge and ameliorate. He possesses the entire gamut of experiential traits that are advanced as mitigating on sentence for Indigenous and non-Indigenous offenders alike. His background is no less impactful or mitigating than those considered in recent cases where Court of Appeal has called for a robust application of Gladue principles: R v Swampy, 2017 ABCA 134 (CanLII) at para 23.
[15] The same can be said for many of his immediate relatives and ancestors. They include two generations of residential school survivors who, together with the rest of the family, have suffered all of the personal and inter-generational damage that this history implies. Tragedy and trauma have touched Mr. Dennehy’s family in many forms. This pattern is now well-familiar to this Court: see e.g. R v Okimaw, 2016 ABCA 246 (CanLII) at para 81.
[16] Alcohol abuse has dogged the family, and has affected Mr. Dennehy closely. Consequently, home was not a stable or supportive environment for Mr. Dennehy through much of his growing-up. His school years were difficult as he was frequently bullied and also often missed classes for reasons of poverty and family dysfunction. He began using alcohol himself when he was 16, and was first exposed to methamphetamine in 2017. He was homeless in the period preceding this offence for a period, drinking and using heavily. Mr. Dennehy attributes his troubles with the law to his substance use. The record bears this out.
Rehabilitation
[18] After being granted release on these charges in the fall of September 2018, Mr. Dennehy went to the Kainai Healing Lodge. During his time there he completed an anger management course, a circle of life course, a domestic course, and their 6-week residential treatment program. He also completed an Emotions Management Course at the Samson Community Wellness program. While on bail in 2019, he attended numerous culture events, sometimes as a helper, and volunteered with his childrens’ school outings.
[19] During his most recent time in custody, Mr. Dennehy completed relapse prevention and addictions information courses. While at the Edmonton Remand facility, Mr. Dennehy was also part of its “Boot Camp” program. His participation was viewed so favourably that three Correctional Officers signed a letter praising his good conduct, performance, and helpful role in the unit as a worker and mentor to newly admitted inmates. This letter attested that he had completed a release planning and job preparation program, participated in Alcoholics Anonymous and Narcotics Anonymous, and attended the church group....
[20] Mr. Dennehy also came to the sentencing with a specific idea of which rehabilitative program he wishes to attend. He showed the Gladue writer[1] that he had written down in his journal that the day of their interview marked 66 days of sobriety. Promisingly, he also told the Gladue writer that he sees a lot of potential in himself. He feels he is a protector and very helpful to others. He identifies as an “oskawpews” (a cultural/spiritual helper) in the community. I find that Mr. Dennehy is sincere in his motivation to escape the clutches of addiction, and turn his life around. He has a positive self-concept that could form the nucleus around which a recovery can take place.
Sentencing Positions
[22] On behalf of the Crown, Ms. Dunn argued for a further sentence of two years, in light of Mr. Dennehy having served 242 actual days in pre-trial custody, for an effective net sentence of three years. ...
[23] On the offender’s behalf, Mr. Clark submitted that Mr. Dennehy had done enough time in prison. He urged the Court to impose a treatment-focussed sentence of 18 months probation.
The Three-Year Start Point for Robbery & "Robbery with Restraint"
[24] The starting point for a liquor store robbery in Alberta is three years: R v Johnas. 1982 ABCA 331 (CanLII)....
[25] One of the companion cases in Johnas concerned a man named Leon Cardinal. He was a 19-year-old with numerous prior convictions for break and enter. A presentence report determined that Mr. Cardinal’s problem stemmed from alcohol. He is described in the reasons as unsophisticated and from a background of privation....
[26] The crown described Cardinal’s crimes as “robbery with restraint.” The Court of Appeal agreed, concluding that:
...we should treat him as the clerk did; as more of a drunk than a robber. The fact remains it was robbery and the sentence must reflect the seriousness of the offence. Had Cardinal cleaned out the till the sentence would be fit, if not low. In the particular circumstances we are of the opinion that a fit sentence is 15 months imprisonment... Johnas at para 94.
[27] I find that Cardinal’s crime closely resembles the events committed here. Cardinal’s offence was worse because his language was more aggressive and his implied threat more menacing. His criminal record was also materially worse than Mr. Dennehy’s. On the other hand, Mr. Dennehy did clean out the till, though I am not convinced that this factor balances-out the lesser degree of threats present in the case before me. The fact that Mr. Dennehy was already severely intoxicated when he committed the crime, while not mitigating per se, also suggests a lower degree of moral blameworthiness compared to someone who wilfully undertook a robbery with a clearer mind.
[28] Therefore, I find that the Johnas septet of cases provides a principled bases for a sentence in this case closer to the 15 months imposed on Cardinal, rather than the generic three-year starting point for a more violent, threatening, or premeditated robbery.
[32] This event was the quintessential “robbery with restraint”. Mr. Dennehy did not use a real weapon, caused no physical harm, and chose words that conveyed the minimum of threat necessary to make this a robbery. The crime was not premeditated, involved no attempt at disguise, and yielded a small, opportunistic ‘take’. I find as a fact that he would not have harmed Ms. Tetlock intentionally. The fear and financial loss wrought on the victims is consistent with the inevitable impact of a crime that crosses the line from theft to robbery. It therefore falls at the low end of severity for this category of offences. None of this minimizes the harm to the victims, rather it observes that such harm is the baseline assumption in robberies, which is what makes them serious.
Application of Gladue
[34] In the case of an Indigenous offender, the assessment of moral blameworthiness must also include consideration of whether his personal, familial, and generational experience played a part in bringing him into the criminal justice system: R v Gladue, at para 82; R v Laboucane, 2016 ABCA 176 (CanLII) at para 63.
[36] A direct causal connection between the offender’s Indigenous experience and the crime at hand does not need to be shown for these factors to gain traction in the sentencing process: Ipeelee at para 83; R v Laboucane at para 63. However, where the connection between these and the crime at hand is compelling, the mitigating impact on the offender’s level of blameworthiness will be greater: see e.g. R v Matchee, 2019 ABCA 251 (CanLII) at paras 36-44; Okimaw at paras 26 and 67. The mechanism by which Gladue principles operate was explained in Matchee at para 31:
One way of understanding s 718.2(e) and Gladue is as a partial remedy for the systemic discrimination suffered by aboriginal people which has led to their overrepresentation in the criminal justice system. The remedy requires sentencing judges to recognize these systemic factors and that they can play a part in offending behaviour. The sentencing judge is required to consider the individual circumstances of the aboriginal offender in this context, with a view to achieving a sentence that is commensurate with the offender’s moral blameworthiness. This approach ensures that systemic factors do not unconsciously lead to further discrimination in sentencing.
Application of Gladue Principles and Start Point Sentencing
[37] This offence took place in the context of a substance abuse binge by an Indigenous offender for whom substance-dependence is an inter-generational legacy. His motivation was to get more alcohol to continue the dissociative level of consumption. The crime was committed in a minimally threatening and risky way, and was inconsistent with the offender’s character when sober. I find as a fact that, but-for the traumas and dysfunctions that have flowed from his Indigenous experience, Mr. Dennehy would most likely never have been in contact with the criminal justice system. Much like the Court of Appeal in Okimaw, I find this offender’s personal circumstances are:
... founded on the unique systemic background factors which played a part in bringing this particular aboriginal offender before the court, and these unique systemic and background factors reasonably and justifiably impact on the sentence imposed: at para 26.
[38] I find that but-for his struggles with substance abuse, he is unlikely to commit any crimes at all. Specifically, I find that Mr. Dennehy does not want to participate in criminal activity. When he does, it is an anathema to his true character and a function of his unresolved trauma: see Okimaw at paras 56.
[39] In addition, the evidence satisfies me that Mr. Dennehy is, in fact, “not a bad guy”. His actions during the robbery, his rehabilitative efforts since, and the positive opinions of him provided by both correctional officers and his probation officer, convince me that this is the case. He is neither a habitual offender nor someone who disregards the well-being of others. To the contrary, even in the heavily altered state in which he committed this crime, the impact of his actions on others remained at the forefront of his mind. I find that he is hard-working, motivated, and a productive member of society when he is well.
[40] For all of these reasons, I find that Mr. Dennehy’s moral blameworthiness is at the low end of the spectrum. Moreover, despite his background, I find that he has not developed any criminogenic ways of thinking or antisocial habits and beliefs. He does not wish to hurt people. To the contrary, his role in causing harm is a source of shame and remorse for which he is eager to make amends. Therefore, I find that this is not a case where a proportionate sentence needs to punish or deter the offender or persuade him to change negative ingrained ways of being.
[42] While Mr. Dennehy committed this defence at a time that he was on probation for a similar crime, this is part-and-parcel of the causal matrix discussed above. On the particular facts of this case, therefore, this clearly aggravating fact does not attract the significant need for specific deterrence that it often would.
[45] As the British Colombia Court of Appeal stated in R v Sellars, 2018 BCCA 195 (CanLII) at para 28:
Aboriginal offenders pose unique circumstances that must be considered for sentencing. This has long been recognized in the well-established decisions of Gladue, Wells, and Ipeelee, and the codification of s. 718.2(e), which directs that all available sanctions, other than imprisonment, be considered for Aboriginal offenders in particular where that would be reasonable and consistent with the harm done to victims or to the community.
[46] In practical terms, this will often mean that rehabilitation and restoration will be elevated over denunciation and deterrence as the key animating purposes of sentence. The fact that this offence is serious, and caused serious harm to two innocent members of the community, does not obviate these principles: Laboucane at para 63; Ipeelee at para 84.
[48] The classic purposes of denouncing and deterring crime are often at the forefront in sentencing for crimes of violence committed against innocent members of the community. Robbery is one of those crimes: Johnas at para 33. This robbery, however, is somewhat unusual. I have found that Mr. Dennehy did not really want to commit it.
[50] Moreover, our Court of Appeal has called for, and demonstrated, vigorous application of Gladue principles in cases of much more serious violence, committed by much less sympathetic offenders than Mr. Dennehy: see e.g. Matchee and Okimaw.
[51] Equally, there is little prospect of deterring similarly situated individuals since, by definition, that class of people comprises substance abusers from traumatic backgrounds who commit crimes for reasons other than greed or malevolence.
[55] The evidence satisfies me that Mr. Dennehy does not pose a danger to the community if he receives the substance-abuse treatment he needs and wants. His detention after arrest helped him dry-out from the drugs and alcohol he had been binging on, and brought him some structure and purpose through the programming he undertook. Therefore, I conclude that no further physical detention and separation of Mr. Dennehy from the community is required.
[56] Rehabilitation must be the centrepiece of the sentence. As is so frequently the case, the negative consequences of Mr. Dennehy’s post-colonial experience manifest most clearly and negatively through substance abuse. The key to helping him and the community move forward in a safe and successful way is through treatment for this problem, and the traumas underlying it.
[58] For all of these reasons, I find that rehabilitation must be the dominant purpose of the sentence, and that purpose should start to be served as soon as possible. Therefore, since no further incarceration is required, a sentence of one day (comprised of the day Mr. Dennehy was sentenced), together with 18 months probation is the appropriate sanction. Given the intensity of Mr. Dennehy’s challenges, a year would be an insufficient length of time. Conversely, given his strong personal motivation, a maximum length probation order is not required.
[59] Therefore, the key term of the probation Order is for Mr. Dennehy to attend treatment as directed by his Probation Officer, including and especially for substance abuse. He is also not to attend at any place whose principal business is the sale or provision of alcohol. As Mr. Dennehy is an addict in recovery, the Crown, much to her credit, did not seek an abstinence clause.
Restorative Justice
[62] Within the traditional, linear model of sentencing proceedings at common-law, there is usually limited opportunity for the people involved in, or affected by, a crime to communicate directly and forthrightly with one another. This is unfortunate, as the imperative of the criminal justice system playing a role in the process of restoration has only strengthened since s.718.2(e) was first enacted: R v Barton, 2019 SCC 33 (CanLII) at para 199; R v Parent, 2019 ONCJ at para 20; R v Sellars, 2017 BCSC 2236 (CanLII) at para 45, varied 2018 BCCA 195 (CanLII).
[63] As we enter third decade of Gladue principles being part of the Canadian law, it may be time for courts to consider broadening our procedural repertoire to achieve restorative outcomes: see R v Holmes, 2018 ABQB 916 (CanLII) at paras 4-5 and 8.
[64] In this case, the Court attempted a modest mechanism of restoration. During the sentencing hearing, I told Mr. Dennehy that I wanted him to write a letter to the victims of this crime six months from now, telling them what he had done to move his life forward. Interestingly, he interrupted me to say that he himself had thought about doing that. The purpose of such a letter is not to repeat his apology. That has been given. Rather, as I explained to Mr. Dennehy, the purpose is twofold: first, to demonstrate to the victims that he is on the road to becoming his better self. It may be meaningful for them to know that the person who hurt them has not just taken responsibility in words, but has actually has done things to make sure it does not happen again. This may help them feel that the seemingly senseless violation they endured has become a starting point for another person’s process of healing.
[65] Second, I hoped that giving Mr. Dennehy this task would provide him an additional goal to work towards, knowing that he had both an obligation and an opportunity to do properly what his ill-conceived hug during the robbery had intended. Whether Ms. Tetlock or Ms. Rempel choose to receive and read Mr. Dennehy’s letter is obviously up to them. However, Mr. Dennehy accounting to them for his recovery would be a modest but meaningful form of restoration.
Conclusion
[69] These reasons should not be read as giving a one-year sentence for robbery of a liquor store. Rather, the operative sentence here is rehabilitation and restoration through a lengthy period of probation, after enough jail to recognize and denounce the harm done to the victims. The fact that Mr. Dennehy came before me with the equivalent of almost exactly one-year time-served was more a function of scheduling than sentence architecture. As stated in Gladue at para 77:
[i]n appropriate cases, some of the traditional sentencing objectives will be correspondingly less relevant in determining a sentence that is reasonable in the circumstances, and the goals of restorative justice will quite properly be given greater weight. Through its reform of the purpose of sentencing in s. 718, and through its specific directive to judges who sentence aboriginal offenders, Parliament has, more than ever before, empowered sentencing judges to craft sentences in a manner which is meaningful to aboriginal peoples.
[70] These are the goals this sentence was formulated to achieve.
R v Adams (ABPC)
[December 3/19] Driving Prohibitions May Not Apply on Indigenous Peoples' Land - 2019 ABPC 296 [R.C. Shaigec Prov. J.]
AUTHOR’S NOTE: Sometimes the concept of Indigenous land has an effect the Criminal law. Here, the case was driven by the definition of "a street, road, highway, or any other public place in Canada" in the Accused's driving prohibition order. Depending on the circumstances of the particular Indigenous land, it may not fit this definition as factual finding available to the Court. This case provides a succinct overview the appropriate analysis.
Overview
[1] Terrance Adams is an Indigenous man who lives on the Paul First Nation. He is prohibited from driving on a “street, road, highway, or any other public place in Canada.” While driving on a road in Paul Band, Mr. Adams was stopped by police and charged with an offence contrary to section 320.18 of the Criminal Code. Is Terrance Adams prohibited from driving on roads that are on Indigenous peoples’ land?
Pertinent Facts
[6] On March 4, 2019, at approximately 1:20 am, RCMP Constable Jamie Bona followed Terrance Adams as he drove his mother’s Jeep Cherokee through Paul First Nation, which is located approximately 30 kilometres west of Stony Plain. Mr. Adams drove down Central Road, onto Railway Avenue, and into the driveway of House 3461, where his uncle lives.
[9] All of the above driving occurred within the Paul First Nation.
[10] Mr. Adams was driving from his parent’s home to his uncle’s home. He had been sent to pick-up some medicine for his sick mother.
[11] Mr. Adams is 46 years old. He is a lifelong resident of Paul Band. He knew that he was prohibited from driving. However, all of his life he has been told, and he believes, that the roads on Paul First Nation are on “private property,” and that “on the reserve ... everyone drives,” because “you can’t get charged.”
[12] There are no paved roads in Paul Band. As Terrance Adams put it, Paul Band “starts where the pavement ends.” Mr. Adams believes that there are “No Trespassing” signs located at different points of entry into the Paul First Nation. The roads travelled on by Mr. Adams on March 4th are often only passable with a four by four vehicle. They are mud, clay and gravel roads, with deep ruts, that are almost always in “poor” condition. These roads are “maintained” by a grader that occasionally levels the path. This grader is arranged and paid for by Paul Band.
[13] The general public has no reason to use these roads. Paul Band is bordered by major provincial roadways, and non-residents do not need to travel on the Paul Band roads to connect to any provincial highway, or to travel to any location outside of the First Nation.
[14] When Mr. Adams drove down Central Road, he passed through what Constable Bona called the “core” of Paul First Nation. Specifically, this is where the daycare, health centre, school, and food bank buildings are located. However, these buildings are the home to services that are provided only to members of Paul Band.
[15] The use of these roads by non-Paul Band members is uncommon. Constable Bona, who has considerable experience patrolling in the First Nation, testified that he had only occasionally seen non-Indigenous people driving on these roads. Likewise, Mr. Adam’s mother, Rema Adams, explained that for the 67 years that she has lived in Paul First Nation, she has only seen non-Band members driving on these roads a “few times.”
Is the Indigenous Land in a Case a “street, road, highway, or any other public place in Canada.”
[3] There is no presumption that roads on First Nation’s land constitute a “public place”: R v Youngpine, 2001 ABPC 8 (CanLII) at para 8. To the contrary, Paul Band is a Treaty 6 First Nation. Treaty 6 provides, in part, that land is to “lay aside ... for the benefit of” Indigenous people. Further, the Indian Act, RSC 1985, c I-5, confirms, in sections 18(1) and 34(1), that Paul First Nation land is “set apart” for the “use and benefit” of the Indigenous people who live there, and that the Paul Band “shall” pay for, and maintain, their own roads. Finally, these principles must be viewed through the lens of section 35 of the Constitution Act, 1982. Section 35, which is to be interpreted in a “purposive ... generous and liberal” way, “recognized and affirmed” existing “aboriginal and treaty rights”: R v Sparrow, 1990 CanLII 104 (SCC), [1990] 1 SCR 1075 at 1106.
[4] In determining whether Terrance Adams was driving on a road to which the public has a “right of access,” or is ordinarily “entitled or permitted to use,” the following guides my approach. First, not all roads on every First Nation are the same: R v Plume, 2003 ABQB 269 (CanLII) at para 23. Second, the issue of public “right of access” is a question of fact, to be determined on a case by case basis: R v Bigeagle, 1978 CanLII 1808 (SKCA) para 7. And third, in weighing the facts, it is “necessary to consider the nature, purpose and locale” in determining whether the road in question was one “... to which the public generally have access,” rather than one that “has been constructed for the use and benefit” of members of the Paul First Nation: Alberta (Attorney General) v Fox, 1979 ABCA 343 (CanLII) at paras 15 and 18.
Application
[16] Paul First Nation does not take steps to actively “enforce” a “no trespassing” policy. Further, as explained by Constable Bona, non-Band members are occasionally invited to drive on these roads to attend special ceremonies such as a pow wow. However, neither the “tolerated” presence of a rare uninvited motorist, nor the occasional attendance of an invited guest, transform these private roads into roadways on which the public enjoys a “right” of access: R v Stewart (1972), 1972 CanLII 1386 (BC SC), 10 CCC (2d) 83 (BCSC) at 86.
[17] Finally, employees at both the Paul First Nation school, and health centre, include non-Band members who drive on the above roads to get to and from work. However, as Justice Seaton noted in Galligos v Louis, 1986 CanLII 1274 (BCCA) at para 9, essential service providers, who are “invited to use the road for the purpose of the band or its members,” are not considered to be members of the “general public” for the purpose of defining what is a “public” road. Likewise, in R v Thunderchild, 1995 CanLII 6060SKQB at 5, the Court found that this class of service provider invitees, belonged “to the special group or limited class” for whom the roads on which they drove were originally constructed. I adopt this analysis.
[18] Having considered the nature, purpose, and locale, I have a reasonable doubt as to whether the public has a “right of access,” or is ordinarily “entitled or permitted to use,” the roads travelled on by Terrance Adams on March 4, 2019 in the Paul First Nation.
R v Pine, Baron, Ross (ONSC)
[December 3/19] – Evidence of an Alternate Suspect – 2019 ONSC 7009 [Varpio J.]
AUTHOR’S NOTE: The alternative suspect defence does not come up often. Here, the defence application to lead it was successful. The case provides a useful listing of caselaw and a re-iteration of the significant connection test. Examining the facts of the case, the significant connection test is not a high bar. Here it was sufficient that police evidence initially pointed to the alternative suspect, had some evidence supporting a possible connection, and ultimately did not exclude him.
Pertinent Facts
The Alleged Incident
[2] On September 22, 2017, at approximately 7:15 a.m., three masked men broke into the residence of Mr. Jamie Narbonne and Ms. Chelsea Spadafora at 431 Third Avenue in the city of Sault Ste. Marie.
[3] The males are alleged to have carried firearms and to have stolen a number of items from the residence, including various electronics and a cell phone.
[4] A neighbour, Ms. Emilia Serrao, observed the males leave the residence in a black truck. Ms. Serrao was not able to describe the males as they were wearing masks and were completely covered. She observed the truck leaving the residence and heading north towards Second Line.
[5] The police were called shortly after the males left the residence. Neither one of the victims was able to provide a description of the males.
Police Investigation
[8] Police received “intelligence” that Seamus Fyfe had been doing drug collections around the time of the home invasion. Police associated Mr. Fyfe with a black Chevrolet pick-up truck. The police testified that they had previously seen Mr. Fyfe drive a black truck similar to the vehicle ultimately found at 33 Hamilton. The black truck believed to have been used in the home invasion was captured on video surveillance around the time of the robbery at the Northern Credit Union located at 612 Second Line West.
[9] Police attended 33 Hamilton Avenue, a purported residence of Mr. Fyfe and set up surveillance in that area. Police observed the black truck in the driveway of that residence.
[11] The police also observed Mr. Fyfe’s surety near 33 Hamilton Avenue at the time of the investigation.
[12] At approximately 3:00 p.m., Sgt Crema directed Cst. Runco to stop a red Ford Fusion that was leaving the driveway of 33 Hamilton Avenue.
[13] Cst. Runco stopped the red Ford Fusion to identify possible suspects in the home invasion. The purpose of the vehicle stop was for the continued criminal investigation.
[14] Once police pulled over the vehicle, they requested identification. The driver of the vehicle, Mr. Ronald Baron was arrested for drive while disqualified. The vehicle was then impounded for 45 days.
[15] Mr. Pine was identified as the passenger of the red vehicle. After being questioned by police, Mr. Pine was released without condition.
[16] No further surveillance was conducted on Mr. Fyfe’s residence.
Vehicle Search
[17] Police received a confidential tip that the Red Ford Fusion driven by Mr. Baron contained firearms in the trunk.
[18] On October 3, 2017, police called Odette Baron, the owner of the Red Ford Fusion and obtained “consent” via telephone for the search of the car. The police attended the compound where the Red Ford Fusion had been impounded. Police searched the trunk of the car and found a black duffle bag containing clothing and firearms.
[19] A number of items were seized from the car and were sent to the Centre for Forensic Sciences to be analyzed. DNA evidence linked certain clothing, firearms and other items to the accused persons. This evidence is the subject of a Charter application.
Evidence of Alternative Suspects
[25] Evidence that may prove the innocence of an accused person is admissible provided it is both relevant and probative. In leading such evidence, a party must first establish the logical relevance of that evidence. Where the threshold of relevance is met, the analysis will then move to the issue of admissibility. Relevant evidence is admissible unless its prejudicial effect substantially outweighs its probative value.
R v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577.
[26] Evidence of an alternate suspect is one example of this type of evidence. The Honourable Justice Martin of the Ontario Court of Appeal explained the “relevance” analysis in R. v. McMillan:
[It is] self evident that if A is charged with the murder of X, then A is entitled, by way of defence, to adduce evidence to prove that B, not A, murdered X.
R. v. McMillan, 1975 CanLII 43 (ON CA), [1975] O.J. No. 2247 (Ont. C.A.) (aff’d in R. v. McMillan, 1977 CanLII 19 (SCC), [1977] S.C.J. No. 32) at para 23.
[27] With that said, the admission of said evidence is not automatic. The Ontario Court of Appeal in R. v. McMillan set out the test for the admission of evidence relating to third party suspects as follows:
Evidence directed to prove that the crime was committed by a third person, rather than the accused, must, of course, meet the test of relevancy and must have sufficient probative value to justify its reception. Consequently, the Courts have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value.
R v McMillan, supra, at para 24.
[28] The test was later adopted by the Supreme Court of Canada in R. v. Grandinetti, where Abella J. held that,
The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third party evidence is neither relevant nor probative. […]
The evidence becomes relevant and probative if there is a significant connection between the third party and the crime.
R v Grandinetti, 2005 SCC 5 (CanLII), [2005] 1 S.C.R. 27, at paras 47-48.
[30] The court in Clarke went on to note that the power to exclude relevant defence evidence is “narrower and constrained by the fundamental tenant that an innocent person not be convicted”. Citing the Supreme Court in Seaboyer, the court in Clarke also recognized that,
The right of the innocent not to be convicted is dependent upon the right to present full answer and defence. This, in turn, depends on being able to call evidence necessary to establish a defence and to challenge the evidence called by the prosecution.
R. v. Clarke, 1998 CanLII 14604 (ON CA), at para 33
R. v. Seaboyer, supra, at para 28-34.
Application to the Facts
[31] The Crown argues that the application ought to be dismissed in so far as it is speculative. The fact that three people were arrested and that evidence exists as against the three current accused persons demands that there is no air of reality to the application such that the prejudicial effect of admitting the evidence outweighs the probative value.
[32] I disagree with the Crown.
[33] First, the police had “intelligence” that Seamus Fyfe was having people engage in drug collection.
[34] Second, the black truck located at 33 Hamilton is similar to the truck seen at the location of the home invasion. Mr. Fyfe was previously observed to be driving a similar truck. This constellation of facts gives a solid nexus for thinking that Mr. Fyfe committed the robbery.
[35] Third, the fact that Mr. Fyfe’s surety was seen near 33 Hamilton Avenue during the investigation lends credence to the notion that Mr. Fyfe may have been using the truck on the day the robbery was committed.
[36] These facts demand that there is a strong nexus as between Mr. Fyfe and the crime in question. The strength of this nexus demands that the application has an air of reality as per R. v. Cinous, 2002 SCC 29 (CanLII), [2002] 2 S.C.R. 3.
[37] With respect to the balancing of prejudicial effect and probative value, there is limited prejudicial effect in allowing the defence to call this evidence. This is not a “point the finger” at a random third party application where there is no basis to suggest that the third party is related to the incident. To the contrary, the police’s own investigation targeted Mr. Fyfe which in turn means that there is little risk that the jury will be unduly distracted. The fact that the evidence regarding Mr. Fyfe is intertwined with the investigation means that the evidence will not consume an undue amount of time. There is no danger of unfair surprise to the Crown since the evidence comes from the Crown brief. And there is no reason to believe that the jury’s emotions will be aroused in a display of prejudice, hostility or sympathy. Accordingly, the probative value substantially outweighs any prejudicial effect. Finally, this is not the type of evidence that would be presented in such a way so as to usurp the jury’s function.
