Tricks of the Trade and Troublesome Traps…. Things Every Criminal Lawyer Ought to Know…and AVOID!

Over the course of career spent (largely) getting beaten up over at the courthouse, it stands to reason that aside from having resilience (read: thick skin) as a primary virtue, the typical criminal defence lawyer might have a few (ethically proper) tricks up his or her sleeve. With that in mind, I embark on a largely random process of culling various and assorted snippets of legal tricks of the trade, counterbalanced with a few troublesome traps. The list is by no means exhaustive, but may provide a little something in the back pocket that may or may not come in handy in a pinch.

So, in no particular order, we thus embark.

Trap: Visiting the client with the sins of the lawyer…

While the rule in Browne v Dunn is a basic tenet of criminal law practice, the nicety of the rule generally isn’t part of jailhouse folklore, and such clients, who typically (and understandably) are on the lookout for no one but themselves, often take a “let’s wait and see what they say” attitude before engaging in the precarious process of melding their trial narrative to fit the facts.
Of course nothing could make the life of the defence lawyer more difficult than the shifting sands of the client’s chameleonic testimony. How often as counsel have you stared incredulously at your client–who is testifying in chief–and thought, where in the hell did that come from??
Aside from your personal anguish, to make matters even worse, your failure to adhere to the the rule can adversely impact your client’s credibility at large and could cause you no end of grief and headache.
As is typically the case, this rule originated (or was expanded, to some extent) in a notorious case. In Marshall, the accused (a murdering drug dealer from Quebec) provided a variety of (admissible) statements to investigators that he and the deceased traveled together in his girlfriend’s Jeep from Montreal to Toronto to sell 5kg of cocaine. At trial, in stark contrast, he testified he borrowed a different car from his girlfriend, and the two drove separately to Toronto–adding that he stayed behind in Montreal to attend a birthday party. Neither Crown nor defence called any evidence from the girlfriend or anyone at the likely-bogus birthday party to corroborate (or contradict) the accused’s evidence on these points. Because the deceased’s blood was found in the Jeep, it was important for the accused to distance himself from that vehicle. The Crown called some of the accused’s criminal associates to elicit details of the drug deal. Much of the accused’s version as to “how it went down”, so to speak, was not put to these collateral witnesses.
It was determined–appropriately–that the trial Judge had three options open to him once the proverbial shit hit the fan: declare a mistrial; recall the witnesses; craft an instruction to the jury. The option of the instruction to the jury would be most beneficial to the accused, as the Judge would have to offer an instruction that the fault for failure to cross-examine rested with the accused’s lawyer, not the accused himself, as it may have been a “tactical decision”. The judge did, however, rule that it was okay for the Crown to cross-examine the accused about the questions his own lawyer did not raise when cross-examining the Crown witnesses (no place for a nervous lawyer to be, for sure, especially in front of a jury), and the Crown was presumably ecstatic to do so, and did so with great glee.
Although the Judge was careful in his charge to state that the “sins of the lawyer…should not be visited on the client”, he did state that “It is most problematic whether the failure of defence counsel to put the allegations to the Crown witnesses when they testified during the Crown’s case, should reflect adversely on the accused”, thereby seemingly opening the door to an adverse inference scenario.
On appeal, the Court was of the view that not only was the cross-examination by the Crown totally permissible, but that “the failure of counsel to cross examine Crown witnesses on central aspects of the appellant’s testimony was relevant to his credibility and it was proper for the trial judge to tell the jury that they may take this into account in assessing the weight to be given to the appellant’s uncontradicted evidence on these key issues”.
The Browne v Dunn failings in this case were so glaring it almost begs the question as whether they were deliberate. That being said, the case is not completely awful and it does have has utility for the defence and can be used to defence advantage. On the Browne v Dunn issue, the court stated:

The potential relevance to the credibility of the accused’s testimony of the failure to cross-examine the complainant on matters that the accused subsequently contradicts in his testimony will depend on many factors. These include the nature of the matters on which the witness was not cross- examined, the overall tenor of the cross-examination, and the overall conduct of the defence. In some circumstances, the position of the defence on matters on which the complainant was not cross-examined will be clear even without cross- examination. In other circumstances, the areas not touched upon in cross-examination will not be significant in the overall context of the case. In such situations, the failure to cross- examine will have no significance in the assessment of the accused’s credibility.

It should be noted, of course, that counsel are not obligated to waste hours of court time engaged in a futile cross-examination of an obdurate witness who shows no signs of revising or recanting his earlier testimony, see Khuc.

Make note as well that while it is popular to consider the rule as applying strictly to the defence, it does apply mutatis mutandis to the Crown. In McCarroll, a defence witness was not cross-examined as to his potential motive to lie, nor on his credibility at large. However, this formed a significant part of the Crown’s closing argument. The court ruled that the credibility of the witness was “central to the appellant’s position. Crown counsel’s treatment of his evidence was therefore highly prejudicial to the defence. The Crown’s decision not to put [the witness’] honesty in issue during the trial may well have influenced [the witness’] testimony as well as decisions the defence made to advance the case”.

While the court ruled that the trial judge’s “silence on this issue” amounted to a reversible error, it did not say what the trial judge was supposed to do.

In such circumstances, it is arguably appropriate to invite a judge to charge (or self-charge) in the same we she would on a lost evidence case, namely that the fundamental reliability of the Crown’s case was suspect, such as in Bero:

Where the failure to preserve evidence results in a breach of an accused’s s. 7 rights and where the defence has exercised reasonable diligence in attempting to preserve the evidence, I think the trial judge should also instruct the jury that the Crown was under an obligation to preserve the evidence and failed to do so, and that the defence cannot be faulted for not gaining access to the evidence before it was destroyed. These instructions would place the burden for the loss of the evidence on the Crown, where it belongs. These instructions may also help the jury assess the overall reliability of the investigative process which produced the evidence relied on by the Crown, and help the jury decide the significance, if any, of the absence of evidence that may have been available had the prosecution preserved all relevant evidence.

Trick: Splitting cases and splitting headaches…

Closely allied with the Browne v Dunn scenario is the one related to reply evidence. We all know that the Crown ought to call all evidence in its case probative of guilt…so where and how and under what limited circumstances should the Crown be permitted to call reply evidence?
Regard is had to the 1977 OCA case of Campbell, a case with facts so bizarre and sad they could have only emanated from Essex County (or, alternatively, Fargo, South Dakota).
The accused was charged with the attempted murder of his wife. She and the accused lived in the United States and she testified that just prior to the trip they made to Canada the accused went on his own to get some gasoline. They then proceeded to Canada and at some point the car was stopped. The accused then insisted that she look in the trunk. As she was doing this the accused shot her. He then shot her several more times, poured gasoline on her and set her on fire. The accused testified and denied going to get gasoline and denied being near the trunk of the car earlier that night before they came to Canada. He testified that in fact when they stopped the car his wife threatened him with a gun, threw gasoline at him, blinding him, that the gasoline blew back at her and was ignited by a cigarette she was smoking, that her gun fell and he picked it up and shot blindly but not intending to kill her.
One very piece of incriminating evidence was that the accused (after purportedly washing his eyes out with snow) left his wife behind–somewhere in the vicinity of Harrow–then drove back to the US side of the Ambassador Bridge, where he informed a US Customs officer, “I just killed my wife”, although quite naturally and expectedly, the accused tempered this comment with the proviso he “didn’t mean to shoot her” (bearing allegiance to the immutable rule of criminal shootings, that all guns are pointed with the intention of scaring, not shooting, and that during those nervous moments, all gunfire is accidental).
In any event, there were two issues related to reply evidence in this case, and they adequately explain the working of the rule. First, the Crown called one witness who was purported to have seen the accused opening the car trunk, and a second witness, an expert, on the issue of the ignition of the gasoline, i.e. whether the accused’s story was scientifically feasible.

In addressing these issues, Justice Martin noted:

The general rule with respect to the order of proof is that the prosecution must introduce all the evidence in its possession upon which it relies as probative of guilt before closing its case…. The rule prevents the accused being taken by surprise and being deprived of an adequate opportunity to make a proper investigation with respect to the evidence adduced against him. The rule also provides a safeguard against the importance of a piece of evidence, by reason of its late introduction, being unduly emphasized or magnified in relation to other evidence.

Rebuttal evidence by the prosecutor is restricted to evidence to meet new facts introduced by the defence. The accused’s mere denial of the prosecution’s case in the witness box does not permit the prosecution in reply to reiterate its case or adduce additional evidence in support of it. In practice, however, it may be difficult to distinguish between evidence, properly the subject of rebuttal, and evidence of facts relevant to prove guilt which should have been proved in the first instance by full presentation of the prosecution’s case….

The court has, however, discretion to admit evidence in reply which has become relevant to the prosecution’s case as a result of defence evidence which the Crown could not reasonably be expected to anticipate.

Further, the court gave tacit approval to the following comment from Coombs:

From these authorities and others I think it is clear that the Judge in each case has a discretion with regard to the admission of evidence in rebuttal and that in exercising his discretion he should not generally allow such evidence to be given when it has before or during the presentation of the Crown’s case been both within the possession of the Crown and clearly relevant to the issue.

The court ruled that the evidence from the lay witness–since it was in the possession of the Crown–ought to have been adduced in chief (even though it was of nominal value), but that the expert evidence in reply was properly admitted:

The expert evidence however, was not primarily evidence upon which the Crown relied as probative of guilt; rather, it was adduced to refute the case advanced by the appellant in his testimony, supported by the evidence of a defence witness, a mechanic and a service station lessee, who testified that under the prevailing weather conditions, if a person with a glowing cigarette threw gasoline from a can at another person there was a “good chance” of the thrower igniting himself as a result of the back-splash of gasoline.

Although the appellant’s version of events was to some extent foreshadowed by the cross-examination of the complainant, the issue to which the rebuttal evidence of the expert witness was directed did not arise until the appellant testified.

While we are on this topic, please keep in your back pocket and in your mind the OCA decision Melnichuk, and in particular the comments of Justice Doherty:

I am aware of no authority which permits the Crown to assume that a material element of its case will go unchallenged and to call reply evidence when that assumption is not borne out by the conduct of the case for the defence. This submission ignores the burden of proof which rests on the Crown throughout the criminal trial process.

In other words, the Crown can’t run a lousy case and hope to patch it up in reply. Justice Doherty’s comment–who was in dissent at the OCA level–received the nod of approval on this point on later appeal by the majority of the SCC.

Trick: Thus spake the client…spontaneous utterances!!!

Astute readers will note there was also a sidebar issue in Campbell, which related to the admissibility of the accused’s statement to the Customs Officer, specifically as to whether the accused could testify as to his exculpatory statement to the Customs Officer.
From time immemorial, it was thought by the village elders that a statement of an accused could only be admissible at the instance of the Crown, and even then only after it was proven to be voluntary.
Although the Trial Judge in Campbell did allow the accused to testify as to what he said (and even at that he expressed some reservation about the correctness of that ruling), he did not allow the recipients of those comments to testify as to what they heard the accused say: this formed a ground of appeal.
The OCA ruled that if it was apparent the Crown was alleging recent fabrication on behalf of the accused, then the accused was entitled to state his narrative. In this case, the appeal court was not convinced that recent fabrication had been raised, so that being the case, it was not open to the accused to allege the trial judge had not gone far enough, when arguably he should not have gone there at all:

Much of the cross-examination of the appellant was conducted with a view to showing certain improbabilities in his story. If a witness cannot be cross-examined with a view to showing that his story is improbable, without bringing into play the exception arising from a suggestion of recent fabrication, he cannot be cross-examined at all without making the exception operative. Mr. Gold’s submissions really amount to this: in every case where the accused denies the truth of the Crown’s case, there is an implicit allegation that his story has been recently contrived. I do not think the exception is so broad.

Fast forward to 1996 and to yet another Windsor case, Edgar. In 2010, (yes, 14 years after the fact), the OCA revisited the rule prohibiting prior consistent statements of an accused, and reached a conclusion which is much more liberal in its scope and of definite assistance to the defence.
In this case, the appeal was based on the failure of the trial Justice to enter into evidence the entirety of Edgar’s post-offence statements to the police. There were three statements, two made shortly post-arrest, and a third made four hours after arrest. All were exculpatory.
The court recognized four exceptions to the rule prohibiting the introduction of prior consistent statements: state of mind exception; the rebutting of recent fabrication; “mixed” statements (a blend of exculpatory and inculpatory statements tendered by the Crown); and a res gestae exception.
The court concluded that all three statements were admissible, under the following proviso:
…it is open to a trial judge to admit an accused’s spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination….the statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence) but is evidence of the reaction of the accused which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence.
Note that as the law now stands, the accused’s statement is not contingent on it being a statement to a police officer: it applies to statements made upon arrest or when first confronted with an accusation, see Kailayapillai. Where an accused has time to “think things out”, this will militate against admission, see Badhwar, although it is not necessarily “the number of minutes, seconds or hours between the events and the making of the statement, but the issue is the probative value of the statement. The probative value of the statement may be substantially reduced by the passage of time depending upon the intervening circumstances and depending upon the issue to which the statement relates”, see Oram.
Bear in mind it is totally appropriate to recall the recipients of your client’s statement for corroboration purposes (in other words, don’t let the Crown send the officers home), or at a minimum have the Crown stipulate the words were thus spoke: Code, s. 655.
Trick: Officer, you don’t know Zack!

Bruce Duncan is a pretty darn good Provincial Court judge in Brampton. He has a strong Windsor connection–Andrew Bradie was his best man, and was the one time “go to” guy for appeal work (at least out of Windsor’s chambers at 691 Ouellette).
I would commend Judge Duncan’s decisions on just about anything to anyone…he has written several good ones on impaired and over .80’s, including Zack, which is a handy little case on the importance of note-taking by police officers.
In Zack, the defence brought a Charter motion alleging lack of reasonable and probable grounds to effect an arrest of an impaired driver. The officer testified that the defendant was unsteady on her feet, and that she (the defendant) was confused. This did not appear in the officer’s notes. The officer explained this away by stating that these observations were “something she would remember”, so therefore no need to reduce them to note form. Stated Justice Duncan:

The failure to note these observations is a serious omission and, as I have noted to counsel, it cannot be accepted. If it was ever an acceptable explanation, in this day of full disclosure, it cannot be an acceptable explanation for a police officer to say ‘I did not note it because I would remember it’. It is necessary for the officer to at least somewhere, maybe not necessarily in his notebook, put the significant observations he made. In my view, the absence of the questioned observations in his notebook leads to the conclusion that those observations were not, in fact, made at the time but are perhaps something that over the course of time the officer has come to believe that he saw. I cannot accept, on the balance of probabilities, that those observations were made.

So, astute lawyers, remember to phrase your cross-examination in like circumstances with the proviso, “So, it is not in your notes because you knew you would remember it, correct?”

Trick: I know your Honour just found my client guilty, and I know he didn’t testify, but now I would like him to testify, okay?

You don’t hear counsel saying those words too often, but guess what, there is authority for the proposition you can seek leave to have your client testify after a finding of guilt. Strange but true.
In Lessard, it was held a judge is not functus officio until he has imposed a sentence or otherwise finally disposed of the case. Therefore, a judge who has made a finding of guilt, either as a result of a guilty plea or on disputed facts, is empowered to vacate the adjudication of guilt at any time before sentence is imposed. Of course, the exercise of discretion in such circumstances is the product of exceptional circumstances.

In Lessard, the defendant was allowed to re-open his case post-finding-of-guilt based on his general nervousness throughout the trial process, and his overall mental condition. Happily, the defence had psychiatric evidence to bolster its submissions on the point. Referencing British case law (who can resist any judgment of Lord Borth-y-Gest?), in S. v Recorder of Manchester, the court stated that: “The desire of any court must be to ensure, so far as possible, that only those are punished who are in fact guilty. The duty of a court to clear the innocent must be equal or superior in importance to its duty to convict and punish the guilty.”

Trick or Trap? The rule in Coke’s case…

This should be basic knowledge for all criminal law practitioners…when it comes to sentencing, you can’t be sentenced as a second time offender unless you have been sentenced as a first time offender. In other words, if you commit an offence while out on bail, you are considered a first time offender for both offences, since you had never been punished for the first offence before committing the second offence.

The leading case is Skolnick, where the chief Laskin J. opined:

The general rule is that before a severer penalty can be imposed for a second or subsequent offence, the second or subsequent offence must have been committed after the first or second conviction, as the case may be, and the second or subsequent conviction must have been made after the first or second conviction, as the case may be.

The rule has a more specialized application in impaired driving cases, where of course mandatory minimum sentences raise their oft-ugly heads.

So far so good…so this means that if you were treated as a first time offender on two prior impaireds (say, for instance, if the Crown did not rely on Notice for the second conviction), that you would be treated as a second time offender on your third impaired…right? Trap! It is not the fact of the degree of punishment which is imposed, it is the fact that there are subsequent convictions which governs: Nicholson.

Of course, the fact your client is racking up convictions doesn’t prohibit a judge from imposing whatever sentence he considers fit…it only means that the mandatory minimums are not triggered. And of course, the fact of committing further offences while on bail is a factor to be taken into account in considering the rehabilitative prospects of the client. So as is often the case in criminal law, you can win the battle but lose the war.

Trick: Shoppers, save time and money on bail reviews!

Q: What is the most expensive part of any bail review? A: the transcripts, of course!

Q: What is the most time consuming part of a bail review? A: Reading the selfsame transcripts, natch!

These days, where the typical bail hearing is as long as if not longer than the ultimate trial, it is helpful to know there is judicial authority for the prospect that you may certainly conduct a bail review without resort to transcripts: see Carrier.

Consider a circumstance where the client is released on consent, but there has been a change in circumstance. The Crown is politely but firmly rejecting your overtures to vary the bail order. I find that booking some bail review time and filing an Application tends to focus Crown energy on achieving a negotiated settlement.

A supplementary trick is that once you have the Crown consenting to your variation, bring the information forward in provincial court, effect the variation, and abandon the bail review. This makes everyone happy, maybe even you.

Trick: Tenuous at best…but admissible!

An authority no lower than the Supreme Court of Canada has ruled that the standard for admission of defence evidence is lower than that for Crown evidence…yes, stop the press…it is not a level playing field…in this instance, it is actually tilted…in our favour!

The case is Seaboyer which of course is ostensibly about the rape-shield provisions that now form s. 278 of the Criminal Code. Make note of this very nice defence-friendly passage authored by Justice McLaughlin:

Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law.

It is a handy case to reference in the event your trial is going badly and if the only evidence you have is something that is arguably inadmissible, like some third-party hearsay or your client’s highly calculated post-offence self-serving statement. And in any event, if it goes from bad to worse to downright awful, there is nothing wrong with quoting this case as a last ditch effort, which not only will show you know the law, but it puts something on the record in the event of an appeal.

Trap: Explaining away the Crown’s case…not exactly!

I have often wondered what trials would be like if we lived in a hypothetical world where the accused was entitled to testify first, rather than last. Can you imagine the dynamics of a two witness domestic case where the accused could testify first? One wonders how many complainants would end up being convicted! The chronological way in which trials are conducted (bearing in mind you have to start somewhere) in some ways grants an imprimatur of legitimacy to the Crown’s case that it often doesn’t deserve.

That being said, bear in mind it is not the responsibility of your client to explain away the Crown’s case. In Tonbram, a murder prosecution of a storeowner, Crown witnesses stated they observed a male placing a rolled-up and bulky carpet in the trunk of a light coloured vehicle–the theory being that the male was the accused and inside the carpet was the deceased. Unfortunately, the accused did not own any vehicle that matched that description. In cross-examining the accused, the Crown suggested that the appellant had extended credit to some needy customers, and they returned the favour by lending him a light coloured car. The appellant denied this and of course there wasn’t a shred of evidence or for that matter a good-faith basis to support the contention: see Lyttle.

The court ruled that it was “wrong for the Crown to present speculative propositions, unsupported by the evidence, in an attempt to explain away gaps in the Crown case or inconsistencies in the evidence…[and] the suggestion the accused had borrowed a car on the night of the murder to dispose of the body [was] close to, if not over the line.”

Similarly, in Walker, the elderly accused was charged with the murder of a 29 year old female–the Crown’s theory was the death was caused from injuries arising during a sexual assault and that the deceased body was placed in a hockey bag while she was still alive. The medical evidence as to the cause of death was inconsistent, there was no evidence to support the “buried alive” scenario. In dissing the Crown, the appeal court ruled that “The [Crown] statements also suggest the she was alive when she was buried. None of these possibilities arising out of the positioning of the body was explored through the forensic experts. Crown counsel was not entitled to conjure up such a horror story in the absence of any evidence to support it.” Further, the Crown alleged the accused had struck the deceased over the head with a pipe. The court ruled that “The inability of the experts to exclude various possible causes of death was not evidence as to their existence”. A new trial was ordered.

For further caselaw on this point, see Nugent [not Ted Nugent, but R v Nugent (1995) 100 CCC (3d) 89 (OCA)]

Trap: The State of Alabama v Gambini & Rothestein

This is not a real case, but it stands for a real proposition. Gambini & Rothestein were the two kids in My Cousin Vinny. Recall upon arrest, Gambini told the officer, incredulously, “I killed the store clerk???!!!!!?” Later, the officer testified–sans inflection–as to the “fact” of this “admission” that the young Yankee had killed the clerk.

In Ferris the Alberta Court of Appeal ruled a trial judge was wrong in permitting a portion of a conversation to be admitted into evidence. The accused had been arrested for murder and requested to make a call to his father. The call could only be made from the homicide office within the detachment. The officer who took the accused there heard the accused say during the call “…I killed David…”:

The court held the snippet of conversation ought to be ruled inadmissible.

The facts of this case are unique in that there exists no circumstances or context from which the true meaning of the words can be inferred. It is uncontradicted that the words were part of an utterance only, and that other words passed both before and after those words. It is uncontradicted that the words could have come at the beginning of a sentence, or at the end, such as ‘They think I killed David’, or ‘They think I killed David, but I didn’t’. His father could have asked him what the police think he did and he could have replied ‘I killed David’. Those utterances do not prove any fact in issue and are not an admission of guilt. Indeed, on the basis of the uncontradicted evidence, the possibility of statements with the words ‘….I killed David….’ Contain therein are numerous. There is no way of determining the meaning of thought to be attributed to the words. A trial judge could not ascertain, nor could the jury, the meaning of the words.

The Ferris decision was affirmed by the SCC and was reconsidered by the Ontario Court of Appeal in Hunter. There, the Crown sought to call a defence lawyer (believe it or not!) who overheard the accused speaking to his lawyer in an open area at the Toronto Old City Hall Courthouse. The lawyer claimed to have heard part of conversation, namely that of the accused stating: “I had a gun, but I didn’t point it”. On a voir dire, both the accused and his counsel denied ever saying that. The appellant was convicted.

On appeal, the decision is Ferris was revisited and endorsed. Justice Goudge wrote:

Where an overheard utterance is known to have a verbal context, but that context is itself unknown, it may be impossible to know the meaning of the overheard words or to otherwise conclude that those words represent a complete thought regardless of context. Even if the overheard words can be said to have any relevance, where their meaning is speculative and their probative value therefore tenuous yet their prejudicial effect substantial, the overheard words should be excluded.

The court ruled that the admission of the overheard statement resulted in a substantial wrong or a miscarriage of justice:

The Crown argued that even if the overheard utterance was admitted in error, it resulted in no substantial wrong or miscarriage of justice. I do not agree. The Crown characterized this evidence as very critical. Moreover, in the appellant’s first trial where the one significant difference appears to be that this evidence was not called by the Crown, the result was a deadlocked jury and a mistrial. I do not think it can be said that without this evidence the verdict would necessarily have been the same.

Trap: Certain curious circumspect circumstances of circumstantial evidence & circular logic…

I recall a colleague of mine once talking of a jury case involving an allegation of drug possession. The evidence was circumstantial, but nonetheless halfway through the trial, a question arose from the jury: “Where did the accused get the drugs?” Since the whole case was about whether the accused actually even had the drugs, and he hadn’t even testified, this hardworking jury went home early: a mistrial was declared.

Trite, but true, that the building blocks that lead to proof beyond a reasonable doubt have to be made of real brick and mortar. What I mean by this is that one should beware the trap of admitting something that is not known…every iota of circumstantial evidence deserves its own challenge. And the only thing worse than admitting one thing that is not know, is admitting two things that are not known.

Perhaps to better illustrate this point, regard is had to Portillo. Noe and Wilfredo Portillo were a couple of Windsor drifters who were charged with the strangulation murder of an elderly man. The case was entirely circumstantial.

Underneath the deceased’s head was a scrap of paper with a footwear impression on it, and a similar footwear impression was found outside the deceased’s apartment. Two shoes bearing similar size, shape and tread patterns were found near–but not in–Wilfredo Portillo’s apartment. Although at trial the defence argued against the admissibility of the footwear evidence on the basis of probative value vs. prejudicial effect, the evidence went in anyway. The Crown argued the finding of the shoes and the shoeprints was such an ironic coincidence and was worth a few grains of circumstantial salt.

The court held that the trial court was wrong in admitting the evidence. It was not known that the shoeprints came from the found shoes, and just because the shoes were found near where Portillo lived, did not mean they were Portillo’s shoes–let alone that he was wearing them inside the deceased’s apartment at the time of the murder:

The evidence was offered through an expert witness who gave evidence in a forthright and objective manner. The expert used a variety of demonstrative aids, including charts and photographs to explain his evidence to the jury. Both the source of the evidence, and the manner in which it was presented, may well have given it an aura of cogency which on close analysis it does not deserve. ….[in] Crown counsel’s closing argument, the jury was invited to engage in the circular reasoning I have described above. While initially attractive, that reason goes beyond inference to assumption and speculation.

A similar circumstance arose in the earlier case of Town, a baby-shaking murder case, where the Crown sought to use the accused’s prior (alleged) intentional conduct towards the child to prove the accused’s (alleged) present intentional conduct. Regard was had to Millar and a specific quote from People v. Albertson (1944), 145 P.2d 7 (Ca.SC):

Circumstantial proof of a crime charged cannot be intermingled with circumstantial proof of suspicious prior occurrences in such manner that it reacts as a psychological factor with the result that the proof of the crime charged is used to bolster up the theory or foster suspicion in the mind that the defendant must have committed the prior act, and the conclusion that he must have committed the prior act is then used in turn to strengthen the theory and induce the conclusion that he must also have committed the crime charged. This is but a vicious circle. Here the evidence of suspicious prior occurrences affords no substantial proof whatsoever connecting defendant in any way with the charge on which he was tried.

As a mathematician might say, “0 + 0 = 0, not 0 + 0 = 1”.

Trap: When is an alibi not an alibi?

Remember back in the pre-Swain days, when the Crown was allowed to raise the accused’s mental state in order to “help” him? And then argue he was insane and have him remanded into custody to the pleasure of the LG ad infinitum? Those days, happily, are gone, but not the occasional soi disant helping hand extended by the office of Her Majesty.

Beware, for instance, of the trap that lurks where you are alleged to have raised an alibi defence. Consider the case of Wright.

The accused was implicated in a home invasion robbery. The evidence in chief was that a young man, Acosta, testified a female, Reid, attended at his house along with two other men, one of whom was the accused. Reid asked Acosta to take the other two men to “Randy’s” apartment to get drugs, which he did, and within where both Randy and Acosta were assaulted and robbed. Acosta–who claimed he was just “helping out”–identified Wright as an assailant. Randy, not surprisingly, had no idea who did what.

Reid (aka the “moll”) did not cooperate with the police and she did not testify at the preliminary hearing. At trial, she was the only defence witness–and only (so it is writ) met Wright’s lawyer at the courthouse in response to a Crown subpoena. (Quaere whether the Crown was more than happy to extend the largesse of the state to subpoena the young lady, with the reward of being able to cross-examine?) The defence apprized the Crown of the sum of her evidence. At trial, she testified that Wright stayed behind with her at Acosta’s apartment, that Acosta and the other individual went to Randy’s apartment, and that when Acosta returned, he was bloodied and angry.

The Crown requested an adverse inference instruction on what it characterized as untimely disclosure of the so called alibi. Apparently but sadly, the defence was okay with this. [Sidebar: for just about anything you need to know about concocted statements and adverse inferences, see Coutts & Middleton, and as to concocted alibis and adverse inference, see Levy.] On appeal, while there was no argument on the law, the issue was whether this was even an alibi to begin with.

The court held that:

The appellant’s defence, as advanced through Ms. Reid, was not based on facts extraneous to the facts as alleged by the Crown. To use the language in Cleghorne…the appellant’s defence was not “entirely divorced from the main factual issues surrounding the corpus delecti”. The defence was an admission of some involvement in the relevant events coupled with a denial of any involvement in the crimes.

The court held that “The prosecution did not need advance notice from the defence to appreciate that Ms. Reid’s version of events was relevant to its case against the appellant. Indeed, the police attempted, albeit unsuccessfully, to obtain her version of events. It cannot be said that without advance notice from the defence the prosecution had no reason or opportunity to explore Ms. Reid’s version of the relevant events. Consequently, the rationale for the adverse inference instruction does not operate in this case.”

Further, the court ruled that:

An alibi claim places an accused elsewhere and does not implicate the accused in any way in the crime which he or she is charged. Had the appellant disclosed his defence, he would have implicated himself by acknowledging his presence at the outset of the transaction with those who eventually committed the crimes. Prior disclosure of this kind of defence could well generate new theories of liability based on accessorial responsibility. To require an accused to disclose this kind of defence and thereby implicate himself in the crime, or risk an adverse inference instruction, is to impose a significant intrusion on the accused’s right to silence.

So, in other words, you don’t have to disclose your client’s alibi that he was in the men’s room when the fight in the bar started. Or that he wasn’t the driver of a car, but was a passenger instead: Loutchinski.

Epilogue: Sequel teaser…??

The author hopes that there may be a nugget or two in the aforesaid pages. A few topics have gone untouched but not unnoticed, such as “the theory of the Crown”, or adverse inferences from the failure to call witnesses, or the duty to call witnesses, and others TBD & TBA. Suggestions for other peaks and valleys worth exploring are humbly invited…and given interest, Tricks & Traps, Part II may appear at a later date.

To all of my hardworking colleagues, I hope that any of this has some utility.

All of which is respectfully submitted, this 31st day of March, 2015.

JL

* Member of the Windsor Criminal Lawyers’ Association. The opinions set forth in this paper are those of the author. The matters discussed herein are of general application only; counsel are urged to engage in their own independent research. This paper was delivered as part of a continuing legal education program to the WCLA, April 1, 2015.

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The ABC’s of Third Party Records

The ABC’s of Third Party Records

Paper delivered to the Windsor Criminal Lawyers’ Association,
Continuing Legal Education Program, July 24, 2014

In criminal proceedings in Canada, often the defence requires production of a witness’ personal records. In assessing whether to permit production of those records, the court has to balance the privacy interests of the witness against the accused’s right to have access to all information beneficial to his or her defence. The records are referred to as “Third Party Records”, meaning they are in the possession of another party. This paper explores the main themes involved in this aspect of criminal procedure.

A
is for Application, as in Notice of Application. The Code provides that any application for the production of Third Party Records (TPR’s, herein), be given on 7 days notice to all affected parties. And no, you cannot bring the Application during a preliminary hearing [s. 278.3(2)]. There is nothing, however, to prohibit bringing the Application mid-trial, or even rejuvenating a failed effort, other than the risk of being the subject of judicial and crown scorn (in other words, the usual).

What can you put in your Application? Just about anything. Use it as an opportunity to “frame the case”. According to O’Connor: “….the Applicant may resort to the Crown’s disclosure, to its own witnesses, and to cross-examination of the Crown witnesses at both the preliminary inquiry and the trial. On some occasions, it may also be necessary to introduce expert evidence to lay the foundation for a production application.

B
is for Batte, a decision of the Ontario Court of Appeal. It is the hallmark case for considering the test of “likely relevance”–the legalese cornerstone of production.

I consider Batte the most restrictive pronouncement on the issue of TPR production. Sadly, it was decided at a time when TPR Applications were all the rage, and beleaguered Justices needed defence lawyers to back off and give them some breathing room. The decision has an eerie parallel to the “insufficient grounds” sections of the Code–after going through those (sections 278.3(4) et seq.), a normal-thinking person might be left wondering whether anything could ever be produced in a million years. Batte is also the case that comments most directly on the issue of likely relevance, which arguably could consist of any of the following:

● Whether it was established that certain of the records contained references to topics that were relevant to issues at trial, and particularly to the credibility the complainant;

● Whether there was evidence that the records had any direct relevance to the question of whether the appellant committed the acts as alleged;

● Whether there was evidence that anything in the records that would be admissible as a “free-standing” piece of evidence going to the question of whether the abuse occurred;

● Whether the potential relevance or evidentiary value of the records rested in their potential to refresh the memory of one of the complainants, or impeach her credibility;

● Whether there was evidence that the counseling process played any role in reviving, refreshing or shaping the memory of the complainant;

● Whether there was evidence the complainant suffered from any emotional or mental problem, which could have any impact on her reliability or veracity;

● Whether the Applicant could point to some “case specific evidence or information” to justify that assertion that the records were relevant to credibility;

● Whether the Applicant could show that the statements contained in the record had some potential to provide added information to the accused, or some potential to impeach the credibility of the complainant.

C
is for Carosella. Believe it or not, the genesis for TPR’s came right here from little old Windsor. (I believe the case was before the late Kenny Ouellette and that it was argued by Don Tait and Nat Bernardon.) The case touched on several legal issues that were in their then-infancy: lost evidence, judicial stays, disclosure obligations, privacy interests, the rewriting of sexual offences, third parties. Carosella was charged in 1992 with gross indecency covering the timeframe 1964 – 1966. The complainant initially attended a Sexual Assault Crisis Centre where she provided a narrative. Before going to the police, the complainant agreed that whatever she told the Centre could be subpoenaed to court.

At trial, an order was issued compelling the Centre to disclose notes of the interview with the complainant. But quite sneakily the Centre had shredded the notes of the complainant’s interview, as part its stated policy of combating production orders. (As I recall, the complainant was actually advocating production of the records, had they been in existence.) At trial, a stay application was brought, and through evidence of the Centre’s director the Court learned that approximately 300-400 other files had been shredded en masse.

The Supreme Court of Canada confirmed the trial judge’s ruling that a stay was appropriate. The Court confirmed that “the entitlement of an accused person to production either from the Crown or third parties is a constitutional right” and noted (although this position would later be revisited in R v La) that “to require the accused to show that the conduct of his or her defence was prejudiced would foredoom any application for even the most modest remedy where the material has not been produced. It would require the accused to show how the defence would have been affected by the absence of material which the accused has not seen.”

The Court held that if the material that was shredded met “the threshold test for disclosure or production, the appellant’s Charter rights were breached without the requirement of showing additional prejudice”. Because the notes related to the subject matter of the trial and were able to “shed light on the ‘unfolding of events’ or credibility”and were likely “the first written record of the allegations,” the trial judge was justified in determining that whatever was in the notes was relevant and material, and quite capable of forming the foundation for cross-examination.

D
is for Darrach. I know you are saying to yourself, isn’t this is supposed to be the ABC’s of TPR’s, and isn’t Darrach a case about prior sexual history and the twin myths. What gives?

Three Charter principles wind their way through both the Seaboyer and TPR regimes, namely: full answer and defence, privacy and equality. The Court in Darrach defined these rights relationally: “the scope of the right to make full answer and defence must be determined in light of privacy and equality rights of complainants and witnesses”, and that crafty defence lawyers should not be permitted to sidestep Seaboyer and go to Mills instead:

Mills upheld the constitutionality of the provisions in the Criminal Code that controlled the use of personal and therapeutic records in trials of sexual offences. The use of these records in evidence is analogous in many ways to the use of evidence of prior sexual activity, and the protections in the Criminal Code surrounding the use of records at trial are motivated by similar policy considerations. L’Heureux-Dubé J. [in Mills]warned that the production of therapeutic records should not become a tool for circumventing s. 276: ‘[w]e must not allow the defence to do indirectly what it cannot do directly’.

E
is for Evidence. Time and time again I am unfortunately in the position of having to argue (on behalf of complainants), that there is an insufficient evidentiary foundation for a TPR application and that we should therefore all go home.

In my view, defence counsel have to be tougher when it comes to OCJ Justices shutting down questioning that would assist in forming the foundation for a TPR application. I recently argued a case in Superior Court where the PH Justice made the following commentary to a defence lawyer who was legitimately pursuing a line of questioning related to the medical care of the complainant: “Well, you can ask her if she’s under the care of a psychiatrist even today and that’ll be as far as we’re going to go in that area”. The net effect of this comment was to curtail further, legitimate inquiry.

The Ontario Court of Appeal examined the issue of the extent of counsel’s questioning in R v EB, (a diary case, and which happily, for memory purposes, also begins with the letter “E”) wherein it was determined that “that there is no absolute bar to all questioning of a complainant at a preliminary inquiry concerning a private record, and that ss. 278.1 to 278.91 of the Criminal Code, by their terms, and the decisions in Mills and O’Connor do not preclude such questioning”.

The court recognized the quandary in such circumstances facing defence counsel (ironically similar to the application process itself), namely that it was “unlikely that the [accused] could obtain information relating to the complainant’s diary by any available means other than through limited cross-examination of the complainant”.

The court provided guidance as to the proper range of cross examination, stating that “only those questions which implicate the private or personal domain of the author of the record are impermissible. It follows that where it is acknowledged, as in this case, that cross-examination on the actual contents of the diary is impermissible, it is necessary to assess the proposed questions to determine whether they will intrude on the intimate and personal aspects of the recorded life experiences, thoughts and feelings of the diarist”. The court recognized that counsel “should be permitted to ask the complainant at the preliminary inquiry if a particular topic is covered within his diary, but should not be permitted to question the complainant about what he wrote or recalls recording concerning the identified topic”.

In other words, you can dance around the records as much as you like, but you cannot ask the complainant what was said.

F
is for fishing expedition. One thing about defence lawyers is that sometimes they never know when to stop. In White, the trial justice ordered disclosure of five years of the complainant’s medical records. Post-conviction, counsel argued at the OCA that not enough records were produced, and that it needed the records to firm up its contention that the complainant suffered from Munchausen’s Syndrome–a psychiatric condition marked by compulsive lying and tale-telling–bearing in mind there was no direct evidence in the piles of records the defence already had, that this was an accurate or even possible diagnosis. The Court of Appeal would have none of it:

There is also no merit to the submission that the trial judge should have looked at all of the records to see if they could afford some basis for the advancing of an opinion at trial that the complainant suffered from Munchausen Syndrome even if that diagnosis had not been previously made. The trial judge could not possibly make the kind of expert assessment which would be needed to determine whether the medical records could support a diagnosis of Munchausen Syndrome. Furthermore, although the defence had received considerable disclosure prior to bringing this application, there was no attempt made to put expert evidence before the trial judge suggesting what indications there were in the disclosed records, apart from the social worker’s notes, which could possibly support a diagnosis of Munchausen Syndrome.

This submission really comes down to the contention that a trial judge should, on request, examine a complainant’s medical and psychiatric records to see if they could possibly afford a basis for an expert opinion at trial that the complainant suffered from some physical or psychiatric problem which could be relevant to her credibility or reliability. This is exactly the kind of invasive “fishing expedition” which O’Connor declares to be improper and seeks to prevent.

Despite how awful this case is for the defence, when confronted with it be quick to point out that the court, at page 760, stated that the “likely relevance standard is not a high one” and add that, well, at least you are not as greedy as the lawyers in that case!

G
is for Gayme. This is the other half of the Seaboyer title of cause. The reason this case is important has nothing to do with Third Party Records Applications, it has to do with the general law of evidence.

What Gayme tells us that there are different standards for the admission of evidence between the Crown and the defence. This should be one case that every defence counsel is aware of. The standard of admission for defence evidence is less than that for the Crown. If you think I am joking, reference this passage:

Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law.

It is a handy case to reference in the event your trial is going badly and if the only evidence you have is something that is arguably inadmissible, like some third-party hearsay or your client’s highly calculated post-offence self-serving statement. And in any event, if it goes from bad to worse to downright awful, there is nothing wrong with quoting this case as a last ditch effort, which not only will show you know the law, but it puts something on the record in the event of an appeal.

H
is for hearing. Things you need to know:

i) the hearing is in camera;
ii) neither the complainant nor the record holder are compellable at the hearing, although they may attend and make submissions;
iii) at the conclusion, the judge may attach conditions to the production of the record;
iv) the record produced to the accused cannot be used in any other proceeding.

Q: What if you have both sexual offences and non-sexual offences on the same indictment?
A: s. 278.2 states that the provision applies “in respect of two or more offences that include an offence referred to in paragraphs (a) to (c)”…i.e. a sexual offence and a non-sexual offence. Ergo, the statutory regime applies.

I
is for inquiries. Reasonable ones. By the Crown. In McNeil, the SCC affirmed again that the Crown is cannot merely be a passive recipient of disclosure material. Instead, the Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant to the prosecution or the defence. This Court also recognized that police have a duty to disclose, without prompting, “all material pertaining to its investigation of the accused” as well as other information “obviously relevant to the accused’s case”.

J
is for joint counseling records. In R v RC, the OCA ruled that such records are included within the TPR regime. In this case, the husband and wife had consulted with a psychotherapist. Although the defendant husband had been present during the counseling sessions, the Court ruled not only that the joint counseling records were “records” within the meaning of the Code, but also that there was, presumptively, an expectation of privacy.

The information that the respondent sought to have produced was of this nature. It was about her “lifestyle, intimate relations or … religious opinions”. The fact that the respondent was present for some of these sessions and may have been privy to some of the disclosures by the complainant and the advice from Dr. Hardin did not undermine her reasonable expectation of privacy. First, if the respondent was present, it was likely because Dr. Hardin felt it would be helpful in treating the complainant. Thus, for example, disclosures in group therapy would not lose the protection of the Code provisions because other persons were present. Second, as the Mills analysis makes clear, the intrusion against which these provisions offer protection is not just intrusion by the accused but by the state”.

K
is for KTD (R v). This is a case from 2003 that I argued before the late Justice Ducharme. I took the position, on behalf of the respondent, that certain school records could be disclosed, with my consent. The court disagreed that I had the authority to make such a concession:

I would simply observe that concessions of counsel are irrelevant to and cannot fetter or oust the court’s jurisdiction to apply the standards for production required by the statutory scheme. In paragraph 8 of the Notice of Application, Tab 2 of the Application Record, counsel asserts that it was the school counselor who notified the Windsor-Essex Children’s Aid Society. Other documents reproduced in the Application Record, however, make clear that the complainant’s mother contacted the C.A.S. after the complainant had earlier confided in her maternal grandmother. The school counselor directed the complainant to the Sexual Assault Crisis Centre. But why does that fact, standing alone, establish the likely relevance of the counselor’s notes? Counsel says that those notes are likely relevant because they represent the first written record of the complaint.
Pressed to specify why a record should be produced merely because it is “first,” counsel for the applicant could say only that it was possible “the record may disclose a prior inconsistent statement” and “may relate to the credibility of the complainant.” Counsel also emphasized that the school counselor’s notes are likely relevant because the counselor referred the complainant to the Sexual Assault Crisis Centre rather than to the police.

L
is for L.P.M. (R v). This is a handy Ont. SCJ case in reference to CAS records. Useful on the issue of production of CAS records where the records contain the first statement of abuse to an investigative body. This is a nice, tidy decision by Justice Lane:

As the defence sets out in its application for production, in 1987 the C.A.S. investigated an allegation by the complainant to her stepmother that the accused had kissed her on the bum. I found the records likely relevant. They appear to be the first statement made to an investigative body about improper conduct by the accused in the indictment. They record interviews with the complainant. They are likely to assist with the evolution of the allegations before the court. There is a reduced expectation of privacy in records prepared by a body like the C.A.S. when the contact is initiated to spark an investigation. Balancing that interest against the right of the accused to make full answer and defence, I conclude that the accused’s interest is more pressing. For these reasons, I ordered production of the documents with the exception of those that were either administrative in nature or clearly of no probative value.

M
is for McNeil. (It is also for Mills, but you already know about that case.) McNeil was a case that involved a dirty cop. The question to be determined was whether police disciplinary records were the subject of an O’Connor type application. The court determined that police disciplinary records fell within the Crown’s first party disclosure obligation–but only in a case such as this one where the character of the police officer/witness was a critical component of the case.

The court ruled as follows:

I agree that it is “neither efficient nor justified” to leave the entire question of access to police misconduct records to be determined in the context of the O’Connor regime for third party production. Indeed, as discussed earlier, the disclosure of relevant material, whether it be for or against an accused, is part of the police corollary duty to participate in the disclosure process. Where the information is obviously relevant to the accused’s case, it should form part of the first party disclosure package to the Crown without prompting. For example, as was the case here, if an officer comes under investigation for serious drug-related misconduct, it becomes incumbent upon the police force, in fulfillment of its corollary duty of disclosure to the Crown, to look into those criminal cases in which the officer is involved and to take appropriate action. Of course, not every finding of police misconduct by an officer involved in the investigation will be of relevance to an accused’s case. The officer may have played a peripheral role in the investigation, or the misconduct in question may have no realistic bearing on the credibility or reliability of the officer’s evidence. The kinds of information listed in the Ferguson Report [i.e. contraventions of criminal and PSA matters, either concluded or pending] can provide useful guidance on those types of matters in respect of which a police force may well be advised to seek the advice of Crown counsel.
With respect to records concerning police disciplinary matters that do not fall within the scope of first party disclosure obligations, procedures such as those recommended in the Ferguson Report, tailored to suit the particular needs of the community in which they are implemented, can go a long way towards ensuring a more efficient streamlining of O’Connor applications for third party production. Trial courts seized with motions for disclosure under Stinchcombe or applications for third party production are well placed to make appropriate orders to foster the necessary cooperation between police, the Crown and defence counsel.

N
is for the nature of the records. Different records generate different degrees of a privacy interest and the expectation of privacy is heightened when the relationship between the complainant and the record keeper is most attenuated. Dull and boring records warrant a reduced privacy expectation. As was stated in Shearing, “A pilot’s log will record relevant flight information, because that is its purpose, but not what he or she had to eat for breakfast over the Atlantic Ocean.”

Somewhat more formally, the proposition was re-stated in Mills:

The court is entitled to look at the nature and purposes of the record, as well as the record taking practices used to create it. Some records are created for purposes different than the fact finding process engaged in by the courts. This is particularly the case with a therapeutic record. Counselling and therapeutic records can be highly subjective documents which attempt merely to record an individual’s emotions and psychological state. Often such records have not been checked for accuracy by the subject of the records, nor have they been recorded verbatim. All of these factors may help a trial judge when considering the probative value of a record being sought by an accused.

O
is for O.Reg 206/00. I often hear from counsel that the Children’s Aid Society is an investigative body, that they keep notes of their interviews, and that they are under a statutory duty to do so, but rarely does the authority for this proposition surface. You will find it in O.Reg 206/00 to the Child and Family Services Act. In particular, you will find it at s. 3 & s. 4 of the Regulation:
A society shall ensure that when a child protection worker first meets with a child and family who are the subject of a child protection investigation, the worker conducts a safety assessment in accordance with the Child Protection Standards and takes the actions that are immediately necessary to protect the child…and after completing a child protection investigation, a society shall…record the findings of the investigation.
P
is for Pomerance, Justice R. I argued a case in front of her a few years ago which, happily for all of us, I lost. Beth Craig was the lawyer. The case was R v WF. The issue was whether the defence could obtain CAS records where the sister of the complainant had, years earlier, (arguably) been coached at the instance of mother to fabricate a sexual assault tale against grandad. The issue of “coaching” was a live one in the current trial involving the younger sister and a different accused.

The case is helpful in this regard–it is a nice restating of the proposition that in close cases, the court ought to err on the side of production. I refer to this as the so-called, “the tie goes to the runner rule” (there is also some language in Mills and O’Connor to this effect). Justice Pomerance stated it in this way:

This is a close case. It is by no means an overwhelming case for production, but nor is it obvious that the application should be dismissed. In finding that the records should be produced for inspection by the trial judge, I have considered the fact that close cases should be decided in favour of the accused. This is because of the “catch 22” that confronts the defence. The onus on the defence is designed to discourage and prevent fishing expeditions. I am satisfied that the application in this case is not of the fishing variety. There is a sufficient basis to ground the application. It is not borne of speculation, but rather is based on a concrete item of evidence contained in the disclosure materials.

Q
is for Quesnelle*, another case where the SCC had to show the OCA how out of touch with reality the OCA is. The case involved the production of police occurrence reports involving the complainant, a sex worker. The OCA had ruled that those types of police occurrence reports were so low on the scale of records that they could not even be considered records, and that complainant’s who engaged the police were implicitly waiving their privacy interests in police occurrence reports. Boy, were they wrong. According to the SCC,

The mere fact that a police occurrence report concerns a complainant or witness is not enough to make the report relevant to an otherwise unrelated prosecution. The Mills provisions echo this Court’s frequent warnings against relying on myths and stereotypes about sexual assault complainants in assessing the relevance of evidence in the context of sexual assault trials. For example, the fact that a complainant has reported sexual violence in the recent or distant past, provides sexual services for money, or suffers from addiction is not, without more, enough to render a police occurrence report “relevant”…. However, occurrence reports which raise legitimate questions about the credibility of the complainant or a witness, or some other issue at trial, will be treated as relevant.

*The author is personally grateful to the Supreme Court of Canada, for issuing this judgment on July 9, 2014, thereby making it easy to find a something beginning with the letter “Q.” This note also will serve to foreshadow problems the author will soon encounter in finding other topics to attach to letters.

R
is for Riley. This is the leading case on what is known as the collateral fact rule–namely a rule that prohibits the defence from contradicting a witness on a “collateral” matter. Be familiar with it because it crops up in the TPR regime:

….if it is seen that the accused’s inquiry is essentially in the direction of an issue that is collateral, production ought not to be ordered: Where the defence seeks to justify disclosure on the basis of anticipated relevance to particular issues, some inquiry is warranted into whether or not these issues are collateral to the real issues at trial. Since the defence cannot pursue inconsistencies on collateral issues, the defence is really no better off having production on that issue. It follows that failure to produce information relating only to collateral issues will not impair the accused’s right to full answer and defence. (Mills)

The application of this rule can and does get confused, intertwined and intermingled, with the competing right to a wide latitude in cross-examination, including forays into a complainant’s prior disreputable conduct. Beware, for present purposes, that the invocation of the collateral evidence rule may disrupt an otherwise valid TPR application.

S
is for subpoena. You need to get a special one for sexual assault cases. It is Form 16.1. These are issued over the counter in SCJ. My experience in OCJ is to provide a draft subpoena and affidavit and have it issued in chambers.

T
is for Third Party Records (you were warned, supra, in the footnote to Q).

U and V
are for …. come on! Do you know how hard it is to find something that begins with these letters?!
W is for waiver. It should be remembered that the Code specifically permits the complainant to waive the application of the Code where the records are in the possession or control of the prosecutor: see s. 278.2. There is good authority in Mills for the reception of records wherein there is an informed waiver:

If the complainant or witness waives the protection of the legislation, the documents must be disclosed to the defence: s. 278.2(2). Waiver should not be read in a technical sense. Where the complainant or witness, with knowledge that the legislation protects her privacy interest in the records, indicates by words or conduct that she is relinquishing her privacy right, waiver may be found. Turning records over to the police or Crown, with knowledge of the law’s protections and the consequences of waiving these protections, will constitute an express waiver pursuant to s. 278.2(2).

X, Y and Z
are for….seriously….what did I tell you about U and V already…did you actually think it would get this far!

In closing, my colleagues, carry these remarks with you, attributable to Eddie Greenspan:

There are three things you need to be a good trial lawyer. The first thing you need is a good case. The second thing you need is a good judge. And the third thing you need is good luck…and good luck to all of us!

July 21, 2014

John Liddle

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Closing Argument R v Wallace

Court File No.: CR-09-1585

SUPERIOR COURT OF JUSTICE
SOUTHWEST REGION

HER MAJESTY THE QUEEN

– and –

FRANKLYN WALLACE

SUBMISSIONS OF THE DEFENCE

INTRODUCTION

This case involves four charges against Franklyn Wallace: s. 433(a) arson regarding the property at 790 Bruce Avenue, Windsor; s. 271(1) sexual assault upon Renaila Zrdalic; s. 236 manslaughter upon Elizabether Conn; and s. 433(b) arson cause bodily harm, upon Sean Conn.

The incidents giving rise to the allegations arose on September 10, 2008, at the City of Windsor.

The factual background begins with a trip that Ms. Zrdalic (“Zrdalic) took from her home town of London, Ontario, with her older friend Kathy Broadhead (“Broadhead”). Zrdalic and Broadhead traveled to Windsor to visit a friend, Shirlene Williams (“Williams”). Their general intent was to meet people and enjoy themselves. Zrdalic affectionately referred to Broadhead as her “mother”.

Zradlic, Broadhead and Williams attended at the downtown Windsor liquor store on Church Street and purchased some liquor. They met Wallace, who was known to Williams, on the street. Wallace invited the three of them to his apartment located at 790 Bruce Avenue. The four attended Wallace’s apartment. Three of them, Zrdalic, Broadhead and Wallace consumed alcohol. Williams, who was pregnant, did not.

Zrdalic believed that Wallace was “hitting on her”, and it made her uncomfortable. She stated at one point he followed her into the bathroom and fondled her. She was also concerned about having left her young son behind in London, and wanted to leave Wallace’s apartment.

Zrdalic, Williams and Broadhead left the apartment and walked north on Bruce Avenue towards University Avenue, where Williams’ apartment was located. Zrdalic expressed some concern about having left a sweater behind at Wallace’s residence. The three returned to the Bruce residence, and observed a fire on the front porch area.

Wallace was observed to be outside the residence and was acting in an unusual manner. Police, ambulance, and fire fighting personnel were on scene.

A verbal exchange took place between Zrdalic and Wallace in which Zrdalic states Wallace told her he was responsible for the fire because she “wouldn’t be with him”. Wallace was placed under arrest.

THEORY OF THE DEFENCE

It is the theory of the defence that there is no direct evidence Wallace deliberately or recklessly set a fire. Further, Wallace would have no motive to set fire to his own residence. The “best evidence” the Crown can adduce is some admission from Wallace to Zrdalic that he did so.

The defence states that the evidence of Zrdalic, as it relates to Wallace’s supposed “admission” is inherently unreliable, and, even if he the words were spoken, it was only in response to Zrdalic’s accusation to Wallace that he was responsible for the fire.

The defence also submits that an accidental cause of be ruled out. This is in accordance with the evidence of the Fire Marshall and the accepted science related to smoldering fires in couches.

The defence also raises the defence that another suspect was responsible for the arson, namely Chris Wilder. Mr. Wilder testified that he was at the Bruce Avenue building the night of the fire, and he, along with a friend, Darren McKay, purchased and consumed crack cocaine. Later, feeling they were “shorted” on the purchase, they re-attended at the residence and with the help of an accelerant, set fire to the couch on the porch of the residence. The defence submits that this evidence exonerates Wallace, or raises a doubt as to his guilt.

ANTICIPATED THEORY OF THE CROWN

The anticipated theory of the Crown is that Wallace deliberately set a fire because of his anger over his sexual advances at being rejected by Zrdalic.

The anticipated theory of the Crown as it relates to an accidental cause of the fire is that there was little or no evidence to support the factual suggestion smoking could have created a smoldering fire, that there were no smoker’s materials present in the couch remains, and that the timeline of the fire negates the potential for an accidental, smoldering fire.

The anticipated theory of the Crown as it relates to the “other suspects” defence is that Wilder’s testimony is not credible and is unreliable, that the events described were denied by McKay, and that Wilder’s version of events is not corroborated by the opinion evidence of the Fire Marshall.

DEFENCE RESPONSE TO ANTICIPATED CROWN THEORY

i) Wallace Responsible for Arson

The defence states that there is no air of reality to the notion Wallace would set fire to his own home because of his frustration at not “having” Zrdalic.

First, event accepting Zrdalic’s evidence at its highest, that Wallace had been fondling Zrdalic, there is no evidence that Wallace ever threatened Zradlic or wanted her or anyone else to draw the conclusion that he had an interest in harming Zrdalic. At times the exchanges between Wallace and Zrdalic were banter or flirting—he told her he loved her and he wanted to be with her, she told him, how could he say that, he didn’t even know her. These exchanges were taking place in Wallace’s apartment, while Wallace, Zrdalic, and Broadhead were consuming drugs and alcohol, and, along with Williams, were generally having a good time.

The evidence from Zrdalic was that Wallace did not have her phone number or any other way of contacting her, and there was no expectation from Zrdalic that, after that evening, she would ever meet Wallace again, or that she would ever return to the Bruce Avenue address.

The best evidence is that Wallace was inside the apartment when the fire was first observed. The Crown theory in short makes no sense—Wallace, suffering anguish over not obtaining Zrdalic’s affections, was driven to burn down his own house, with him in it, to in some way show her that she should have been with him. And to make this point, Wallace risked killing himself.

The defence will comment on the credibility and reliability of Zrdalic later in these written submissions. In short, though, the defence states that Zrdalic’s evidence ought to be rejected.

As to her reliability, she admitted she was drunk and stoned throughout the evening. This was corroborated by Williams, Broadhead, and Lamont Rhue. It was also observed by Officer Meismer. Her ability to recall the events throughout the evening was questionable. She presented as a poor historian.

As to her credibility, she, on her own admission, stated she was “careless with the truth”. As detailed below, when confronted with her evidence from the preliminary hearing, with her statement to Windsor Police, and her statement to an investigator, her trial testimony on several key points was shown to be contradictory. Further, her evidence on several key points was in contradiction to that of other witnesses.

ii) Potential for a Smoldering Fire

The defence submits that the potential for a smoldering fire cannot be eliminated. There was evidence of smoking activity taking place on the porch, involving Zrdalic. Other persons were seen in and around the porch area by Lamont Rhue. The Fire Marshall’s evidence, from a strict forensic perspective, supports the notion that a smoldering fire could not be ruled out. The reasons provided by the Fire Marshall in his Report for rejecting a smoldering fire were not supported by the evidence. The first reason offered is there were no smoker’s materials found at the fire scene. This lack of evidence, however, does not prove the opposite proposition is true. The second reason provided relates to a timeline of 20 minutes for a smoldering fire to commence. The Fire Marshall operated on the assumption that the timeline was 10 minutes. The timelines provided by Zrdalic, Broadhead and Williams could not be determined with any degree of certainty, and no investigative inquiry was made to develop a clearer picture of what the actual timeline would have been. Consequently, the “facts” relied upon by the Fire Marshall were not proven and in any event were inherently unreliable.

Moreover, the rejection of this possibility is predicated on the assumption that only Zrdalic, Broadhead and Williams could have inadvertently started the fire through careless smoking and only within the short timeline considered by the Fire Marshall, when in fact the introduction of a combustible to the couch could have taken place hours earlier.

As it relates to the Fire Marshall, the defence submits that in certain instances his reasoning process as reflected in his Report was fundamentally flawed, was not in accordance with accepted practice in his field, and that his opinion was generated more to support the conclusions of the police, rather than those supported by the evidence at trial.

iii) Wilder Responsible for Arson

The defence submits that the evidence of Chris Wilder that he and Darren McKay were responsible for the fire ought to be accepted. Wilder had absolutely no motive or reason to fabricate his evidence.

Wilder became involved in the Brentwood Programme in the spring/summer of 2009. The dictates of his conscience led him to “come clean” with Brentwood staff. He provided a statement to his counsel, and then later to Windsor Police. Wilder felt a need to come forward because, in his words, “an innocent man was charged with something he didn’t do”. Aside from a lengthy, sworn statement to Windsor Police, Wilder testified at Wallace’s bail review and later provided a supplementary videotaped statement to Windsor Police providing additional details. There is no known connection between Wilder and Wallace. There is no sustainable suggestion of collusion or any improper motive.

Wilder’s statements to the police were subjected to critical scrutiny by Crown counsel and the Fire Marshall. Wilder’s evidence on some points was less than clear, and on some occasions was contradictory. However, there is no explanation for the potential risk that Wilder faced by coming forward. The Crown accused Wilder of imagining these events, although Wilder had told his employer of his involvement in the spring of 2009. Moreover, the “alibi” of McKay was not revealed by him or his spouse until the last possible moment—testifying at trial—when it was clear to both of them that McKay was the subject of a serious police investigation.

Further, the defence submits that the Fire Marshall’s opinion as it relates to the Wilder evidence was influenced by the selective information provided to him by the police and Crown counsel and was further tarnished by his own belief his job was to work with the police.

SUMMARY AND COMMENTARY ON THE EVIDENCE

This trial was one which was essentially bifurcated, with the Crown calling Reply evidence from lay witnesses and recalling the Fire Marshall on the issue of whether Wilder was responsible for the fire. Because of this, in these written submissions I have not followed the strict chronological path of the trial, but have combined the evidence from each of the defence and Crown cases—both in chief and in cross-examination—starting with the Zrdalic narrative, followed by the Wilder narrative, and concluding with a discussion of the expert evidence, with a view to making these submissions easier to follow.

1. Firefighters Wayne Derozario and Gary Neufeld

Mr. Derozario was part of the response team from the Windsor Fire Department (“WFD”). His fire engine was first to arrive at the scene. During the process of setting up to tackle the fire, he had his attention drawn to Wallace who was yelling “I showed them” and rambling on either incoherently or “speaking in tongues”. Mr. Neufeld, who was in one of the crews to arrive at the fire scene early on, testified he observed Mr. Wallace yelling, “Help put out the fire”.

Mr. Derozario testified he did not understand what was meant by Wallace’s words “I showed them”. Although he saw Wallace pacing back and forth, he was not in the way. Wallace obliged them by staying on the sidewalk. He approached the cabinets of their truck. He had his hands out, but he didn’t touch anything. Derozario later saw Wallace pacing frantically back and forth. A young lady approached him. The fire was “fully involved”. He later saw Wallace being arrested.

Mr. Derozario did not know with any certainty what Wallace meant when he said “I showed them”: who was shown what, and when? It is not even known if Derozario was the recipient of the comment, or whether there even was an intended recipient. The inference the Crown would in all likelihood ask the court to draw is that Wallace’s comments were in reference to the fire, that he “showed them”, meaning he showed Zrdalic that he had set the fire.

This conclusion, while somewhat enticing, is only one of many inferences that could be drawn from this three word statement. It should be borne in mind that Mr. Derozario, who arguably was in the best position to put the words in context, was in a subjective sense unable to ascribe meaning to or draw any inference from the words.

Our courts have cautioned strongly about drawing incriminating inferences from what could be considered “excerpts” of spoken passages. The defence refers the court to the appellate cases of R v Ferris (Alta.C.A.), and R v Hunter (Ont.C.A.), which are summarized at the conclusion of these written reasons as Appendix “A” and the full texts of which have been added to the electronic version. These cases stand for the proposition that it is inherently dangerous to rely on a portion of a statement where it lacks sufficient context, or where there exists the potential for alternate meanings. In certain circumstances, such “excerpts” stand to be ruled inadmissible as having a prejudicial effect not outweighed by probative value.

On the facts of this case, it is not known what Wallace said before or after. The best Mr. Derozario can say is that Wallace was rambling and speaking “in tongues”. It is not known what was shown, if anything. It is not known who the “them” are. The “them” could have been the police, the firefighters, or ambulance personnel, for example. It is not known who, if anyone, he was directing the comment to, whether it was to Derozario or someone else. This is a three word sentence, capable of multiple meanings and multiple interpretations. Even granting the statement an interpretation most favourable to the Crown, it is not a comment about a single person—Zrdalic—the pronoun used is the collective “them”. In other words, the statement is not, “I showed her”, it is “I showed them”. Who is the “them”? It could hardly be Williams and Broadhead, who Wallace had no issues with. As well, it is not known with any certainty whether Zrdalic, Williams, and Broadhead were even back at the residence when the comment was made.

2. Constable Sherri Meismer

Constable Meismer was part of the response from Windsor Police Service (“WPS”), and was a first to arrive at the scene, with her partner. She described the scene as “pandemonium”, with police cruisers, fire trucks, in full action with emergency lights sirens all in action. She was alerted by WFD personnel to Wallace’s bizarre behavior, and placed him under arrest. She described Wallace as “speaking in tongues” and as being largely unintelligible. She also seized three lighters from him and located a spent fire extinguisher. Cst Meismer also took the initial statement from Zrdalic, and as such—as is discussed later—her observations related to Zrdalic’s sobriety are of importance.

Cst Meismer initially drew the conclusion that Zrdalic was “slightly intoxicated”. At trial, Cst Meismer testified that Zrdalic was not intoxicated, and did not show signs of intoxication. This was in direct contradiction to her evidence at the Preliminary Hearing, where she testified that Zrdalic was “somewhat intoxicated”, that Zrdalic was slurring her words, and had difficulty walking. She attempted to explain away and qualify this—although she had never spoken to Zrdalic previously—by speculating that maybe Zrdalic’s first language was not English and that she may have had difficulty walking around fire hoses. Neither of these two points was canvassed by the Crown when Zrdalic testified in chief.

The specific sections of the PH transcript that were put to Cst Meismer are as follows:

Q: Okay, and did this exchange that you had with Renaila, do you know where you made this assessment regarding her, her sobriety and whether she could offer something to the investigation? Was that done when Renaila was in the cruiser or?
A: I spoke with her briefly outside of my vehicle.
Q: Okay.
A: Most of the time was spent outside of our police vehicle…
Q: Okay.
A: …with the exception for the purpose of taking a statement inside our vehicle, so I spoke with her briefly outside, and the statement was taken inside our car.
Q: Okay, and in terms of making an assessment as to her sobriety, did you specifically ask her whether she had consumed alcohol?
A: Ah, I’m not sure. I can’t remember if that question was specifically put to her, but I do recall asking, I do recall asking her how she had come to this address and she had indicated that she had been brought there by friends.
Q: I appreciate that, but you said that you had her, and you formed an opinion, just a lay opinion but an opinion nonetheless, that, that she had, she had, she was somewhat impaired.
A: Um-hm.
Q: And was that opinion that you had informed by a response to a question that you asked her as to whether or not she had been drinking.
A: It was, there was [sic] several other indicators of impairment. Like I said, there were some slurred speech but there were some walking with assistance. There was some odour of alcohol on her breath, and her admitting previous alcohol consumption.

Preliminary Hearing, January 8, 2009, p. 144-145

It should be noted as well, that when Zrdalic was giving her initial statement to the police in the rear of Cst Meismer’s cruiser, she was in the company of another witness, Kathy Broadhead.

3. Joseph Desbiens

Mr. Desbiens lived across the street directly to the south of 790 Bruce Avenue. He was one of the first individuals to observe the fire. He noticed while he was standing on his porch, across the street.

Mr. Desbiens described the fire as “small”, 1 – 1 ½’ tall to 3’ wide and that it was coming from the corner area of the couch. He went inside his house to call 911. When he came back outside, he noticed that the size of the fire had increased. He saw a black man on the second floor of the house. He yelled at him to “get the fuck out of the house”. He later saw a black man running out of the house with a fire extinguisher. He knew that this man was not Lamont Rhue, who he knew lived there and was black. He saw this man spraying the fire extinguisher around, but not on, the fire. As the size of the fire had increased significantly, Desbiens did not believe that the small, kitchen-type fire extinguisher would have been effective in suppressing the fire.

4. Aura Huezo

Ms. Huezo was also one of the first to observe the fire. She was driving north down Bruce Street and observed a “small bonfire” at the house. In her rearview mirror, she could see a man in a green shirt with a fire extinguisher at the residence.

5. Crystal Butler

Ms. Butler testified she was traveling in a vehicle north on Bruce Avenue at the time of the fire. She was by herself. She saw a fire on a porch; it looked like a garbage can was on fire. She noted the flames were 2’ high. She called 911. She went back to her friend’s house and called her. She told the friend there was a fire on her street. She went to the corner where the fire was. It was larger at that point. She saw some girls. They were hysterical, they were crying. She saw a man spraying a fire extinguisher, he was spraying it randomly. The girls were screaming and crying. She testified that the same person she saw spraying the fire extinguisher was arrested.

Although none of Desbiens, Huezo or Butler was able to identify the person with the fire extinguisher, a consideration of their evidence leads to only one rational conclusion, namely that the person with the fire extinguisher who exited the building at or around the time the fire started was Frank Wallace. A black gentleman was seen in the apartment by Desbiens in the area of Wallace’s apartment. Desbiens identified a black man leaving the second floor of the residence during the fire and spraying a fire extinguisher. Ms. Huezo observed a black man wearing a green shirt with a fire extinguisher. Wallace’s clothing, including a green shirt, were marked as Exhibit 69 in these proceedings. Ms. Butler observed the man with the fire extinguisher being arrested. No other persons were known to be arrested at the fire scene. There were no other persons seen either leaving the residence during the fire, or using a fire extinguisher. The location and layout of Wallace’s apartment also supports this conclusion.

6. Renaila Zrdalic

As indicated earlier, Zrdalic had traveled from London to Windsor that weekend to meet with Williams and enjoy a weekend in Windsor. She traveled with her friend and so-called “mom”, Kathy Broadhead.

Zradlic admitted that she had been smoking marijuana and consuming alcohol. She was a regular marijuana smoker. She first started smoking marijuana before she left London, but generally smoked marijuana throughout the day.

After arriving at Williams’ apartment, which is located in the Wyandotte/Bruce intersection, she left with Broadhead and Williams to go to a nearby liquor store and purchase some alcohol. A 26 oz bottle of vodka was obtained. Zrdalic’s intention was essentially to party, and she admitted that she was prepared to go to the riverside to drink the vodka in public.

As indicated, the three ended up at Wallace’s apartment after meeting Wallace on the street. While there, the three (Wallace, Zrdalic, Broadhead) drank the alcohol and consumed marijuana. She testified in chief that she had three drinks.

While generally everyone was having a good time, Zrdalic felt Wallace was “hitting” on her and this made her feel uneasy. She was also worried about her young son, who was in London with his grandparents. She went to the bathroom in Wallace’s apartment and cried because she missed her son. She had previously been overcome with emotion to the point were she cried while at Williams’ apartment, again about her son. She ultimately had an intention of wanting to leave the apartment, although she had been there for approximately three hours.

Zrdalic testified that over the course of the evening Wallace had told her he loved her and he wanted to be with her. She told him that, he didn’t even know her, so how could he love her. Zrdalic testified that when she went to the bathroom and “Ruby” (a nickname for Wallace, also “Rudy”) followed her in there and fondled her vagina, buttocks and breasts. She told him to stop. She testified she was “screaming and yelling” at Wallace, telling him to stop.

Zrdalic ultimately left the apartment and sat on couch on porch, waiting for Broadhead and Williams. According to Zrdalic, the couch was “facing out”, that is, facing towards the street. This is not consistent with the known facts. She testified while on the couch, she had a cigarette, then Williams and Broadhead came downstairs and joined her. Zrdalic testified at this point she was “still crying”. She asked Broadhead and Williams, presumably with respect to Wallace having touched her: “You guys didn’t hear me screaming, yelling for you?” They told her “No, we didn’t hear nothing.”

According to Zrdalic, the three left the residence and walked “a couple of houses down” Bruce Avenue. She stated it was possibly four houses down the street. She realized she had left her sweater behind. She went back and saw a fire at the house. She heard the sirens. This timeframe was, according to her, two minutes. She saw Wallace walking down the street, walking towards them but on the other side of the street (this would have been across the street on the west side). She did not see anything in Wallace’s hands.

Zrdalic could not believe her sweater was there, and the couch was on fire. She was concerned about a picture of her son that was in her sweater pocket. She was overcome with emotion—she sat down on the curb and “started bawling”. Broadhead and Williams asked her if she was okay but she did not answer them. She testified that Wallace said “I put the couch on fire because I wouldn’t be with him”. According to her, she said nothing to him when he said that to her. The police arrived after he said that. Later, she saw Lamont Rhue on the sidewalk after the police came.

7. Analysis of Zrdalic’s Evidence

As stated earlier, the defence submission is that the evidence of Zrdalic is both unreliable and is not credible. The evidence that supports these conclusions arises from the following:

i) Zrdalic’s alcohol consumption;

ii) Zradlic’s marijuana consumption;

iii) Zrdalic’s possible crack cocaine consumption;

iv) Zrdalic’s contradictory evidence and her emotional state.

i) Alcohol Consumption

Zrdalic admitted that between herself, Broadhead and Wallace, they consumed an entire 26 oz bottle of vodka. She mixed the vodka with coke, but also did straight shots. She had an intention that evening of wanting to party and to have a good time. On her own admission, she was “drunk”. Williams testified in her opinion Zrdalic was drunk. Broadhead testified “we were all drunk”, with the exception of Williams. Lamont Rhue testified that he met up with Zrdalic and her companions at or near Williams’ apartment (Bruce and Wyandotte), on his evidence he believed that Zrdalic was “spun”, i.e. intoxicated. Cst. Meismer was of the opinion Zrdalic showed some signs of intoxication.

ii) Marijuana Consumption

There is no doubt that during the course of the evening, Zrdalic smoked marijuana. What is not fully known is where and how much.

It is important to note that Zrdalic denied having consumed drugs to Cst Meismer when she was questioned at the scene. It was clear to Cst Meimser that these an she made that inquiry of Zrdalic when Zrdalic was being questioned at the scene, as the following passage from the Preliminary Hearing indicates, which was accepted by Cst Meimer at trial:

Q: Did you make any inquiries of her as to whether or not she had consumed drugs?
A: She did offer that, she offered that the, the, ah, she indicated that she, there was alcohol consumption but not drug consumption.
Q: But not drug consumption?
A: Yes.
Q: Okay.
A: She specifically indicated that.
Q: She specifically told you, you have a recollection of that?
A: I do.
Q: All right. Did—was the focus on drugs generically or drugs illicit or do you have a recollection of that?
A: It was—she was speaking, from what I can recall she was speaking of illicit drug consumption.
Q: Oh, she was, and, and she was indicating to you that she had not?
A: She had not.

Preliminary Hearing, January 8, 2009, p. 145-147

Zrdalic initially testified she had only smoked marijuana at Rudy’s apartment. She denied she had smoked marijuana earlier that day, in London, before leaving for Windsor.

She admitted that she told the truth at the preliminary hearing. Her evidence at the preliminary hearing on this point was as follows:

Q: All right. Well let’s back up a little bit before you left to go on the car ride. Did you, did you have a couple of tokes too?
A: No.
Q: What’s that?
A: No.
Q: No? Or earlier that day, did you smoke?
A: Ah, in the morning I did.
Q: Okay. This is back in London, right?
A: Yes.
Q: All right, so when did you, what did, what did you have a couple of tokes when you got up?
A: Yes.
Q: All right, and a couple of tokes throughout the day?
A: Around 2:00 pm.
Q: Around 2:00 pm?
A: Yes.
Q: All right, and I mean, you did say that you smoke marijuana every day?
A: Yes.

Preliminary Hearing, January 9, 2009, p 50-51

Zrdalic further she denied smoking marijuana outside of Shirlene William’s apartment, contrary to her evidence at the Preliminary Hearing:

Q: You smoked a joint, you’ve been drinking vodka, and then you smoke some marijuana out of a pipe.
A: Yeah. I really don’t get high off marijuana.
Q: No?
A: No.
Q: Well…
A: ‘Cause I smoke it every day.
Q: Oh, you smoke it every day.
A: Yeah.
Q: Oh, okay, so did you smoke earlier that day, before you got to that apartment?
A: Um, a little bit, yes.
Q: Okay. Where did you smoke that?
A: Um, outside of Sharlene’s building.

Preliminary Hearing, January 8, 2009, p.48-49

Zrdalic testified at trial that although she smoked marijuana at Rudy’s apartment, this was on the porch, not in the apartment. This again was contradicted by her sworn evidence at the preliminary hearing.

Zrdalic further testified that she did not smoke marijuana out of a pipe. Again, this is contrary to her evidence at the PH

Q: All right. I’m going to suggest to you, you did smoke something out of a pipe. You smoked some marijuana out of a pipe.
A: Marijuana, but in, not in a crack pipe.
Q: Oh, okay.
A: I smoked it in a marijuana pipe.
Q: Okay. I thought you said that you smoked a joint.
A: Yeah.
Q: A joint is, is marijuana.
A: Yes.
Q: And the, we know what a joint is. It’s a rolled up marijuana cigarette, right?
A: Yes.
Q: All right, and what, what was it a good sized joint?
A: No. It was just like a little joint, a skinny joint.
Q: Just a skinny joint?
A: Yeah.
Q: Okay, and so you smoked that joint, and then you smoked some marijuana out of a pipe?
A: Yes.

Preliminary Hearing, January 8, 2009, p. 46-47

Zrdalic admitted that at that time in her life, she smoked marijuana every day, and that smoking marijuana had, for her, the effect of altering reality, of making sights and sounds appear different or heightened. Further, she admitted that she was experiencing those sensations that night.

iii) Crack Cocaine consumption

Zrdalic denied smoking crack cocaine, or smoking anything that “tasted weird”. She further denied that she knew what crack cocaine smelled like, or that she knew what the smell was like from being around friends of hers, when she was 16. All of these comments are contrary to her evidence under oath at the preliminary hearing:

Q: All right. When you smoke that, that pipe with marijuana in it, okay?
A: Yes.
Q: Do you remember that?
A: Yes.
Q: Do you remember complaining or saying to someone that…
A: It tasted weird.
Q: That it tasted weird.
A: It tasted weird.
Q: Okay. What tasted weird about it?
A: It just wasn’t like marijuana.
Q: Okay.
A: It had some other different tastes in it.
Q: All right, and you would know that because you are an experienced marijuana smoker?
A: I don’t smoke it every day all day.
Q: I understand that, but you know when something doesn’t, doesn’t have the marijuana taste to it, right?
A: Yes.
Q: All right, so this didn’t have the marijuana taste to it.
A: No.
Q: What type of taste did it have?
A: It just smelled weird.
Q: It, it smelled weird.
A: Yeah.
Q: …in what way did it smell weird? Did it smell…
A: It smelled like crack.
Q: It smelled like crack?
A: Or coke or whatever they, the white stuff, whatever. I don’t know.
Q: What that?
A: The crack.
Q: Yes.
A: I don’t know, man. Like…
Q: Do you know that for a fact, or is that what you think?
A: Like I’ve smelled crack before.
Q: Okay.
A: …when people used to smoke it like around me.
Q: All right.
A: My friends.
Q: Sure. Have you ever smoked crack yourself?
A: No, I haven’t.
Q: But you, you hang out with people that do?
A: I used to when I was like 16 years old.

Preliminary Hearing, January 8, 2009, p. 68-69

On December 10, 2008, Dennis Bannon, a private investigator employed by Lord Investigations (London), interviewed Ms. Zrdalic. The contents of that interview form an Agreed Statement of Facts that was marked as an Exhibit 91 in these proceedings. The report of the investigator states as follows:

At some point in the evening, she is not sure when, Mr. Wallace left the room to roll a joint. Ms. Zrdalic believes that Mr. Wallace put crack cocaine in the joint. He returned to the room, offered her the joint, which she accepted.

It should also be noted that Shirlene Williams believed that Zrdalic had been smoking crack cocaine.

iv) Contradictory Evidence and Emotional State

Even bearing in mind Ms. Zrdalic’s youth and lack of sophistication, there were numerous troubling inconsistencies in her evidence. These were not inconsistencies on minor points—they touch upon her state of mind, and her ability to perceive and recall the important events of this night.

For instance, Zrdalic testified at Trial she left the apartment first, and waited downstairs for the other two; this is contradicted by her Preliminary Hearing evidence where she stated the other two were downstairs first, waiting for her.

Further, she testified at Trial that at trial she smoked a cigarette while waiting on the porch/couch; at the Preliminary Hearing, she testified that although she had a cigarette, she did not light it.

I have referred above to other examples of contradictory evidence, namely: her evidence as to whether she knew what crack cocaine smelled like; whether or not she smoked something out of a pipe that smelled like crack cocaine; whether she smoked marijuana in Wallace’s apartment.

It should also be noted that she either lied or withheld information from Cst. Meismer as to whether she had been consuming illegal drugs; it was clear that she had been, but she denied it when asked directly by this police officer. Many other important aspects of her narrative were not revealed until cross-examination.

There are other factors that weigh against according this witness’ evidence the degree of certainty needed to found a criminal conviction. She admitted she was “careless with the truth”. During cross-examination, she frequently resorted to saying or claiming she did not remember. At one point, when defence counsel was cross-examining her on a prior inconsistent statement, she blurted out she did not remember, even though no question had been asked. This behavior leads to any number of alternative conclusions: she has a bad memory, she has a selective memory, or she is hiding behind the claim she does not remember, to frustrate the court’s search for the truth.

Further, Zrdalic that evening was emotionally distraught to the point of tears on at least three occasions: first, at Shirlene Williams apartment (before she had even met Wallace); second, at Wallace’s apartment in the bathroom; third, back at the Bruce Avenue apartment when the fire was on, where, on her own admission, she was “bawling”. Additionally, according to Lamont Rhue, she was “out of her mind” and was rolling on the ground by the bus stop when they were at Williams’ apartment after having left Wallace’s residence.

Additionally, Zrdalic’s version of events was contradicted by other witnesses. There were numerous contradictions between her evidence and that of Shirlene Williams, the one person at Wallace’s apartment who was sober. For example, Zrdalic denied touching, hugging or kissing Wallace, which was contrary to Williams’ evidence; and Zrdalic denied ever having gone to the back of the apartment, which again was contrary to Williams’ evidence.

Williams stated she witnessed Zrdalic and Wallace in the bedroom hugging and kissing one another, and that Zrdalic appeared to be enjoying herself. Zrdalic also testified she was screaming and yelling at Wallace to get away from her—that point was not corroborated by any other witness.

Finally, her evidence related to her leaving the apartment is contradicted by almost every other witness. Her evidence was she left and walked four houses down, thought she’d forgotten her sweater, then returned. She made no mention, in chief, of meeting Lamont Rhue in this time frame. She did not believe they went as far as Williams’ apartment, which is contrary to the evidence of Williams, Broadhead and Rhue. She testified that the process of leaving the apartment, walking, realizing she had forgotten her sweater, and then returning, took all of two minutes.

8. Analysis of Zrdalic’s Evidence – Wallace’s “Admission”

During her examination in chief, Zrdalic said Wallace approached her and told her he set her sweater on fire because she wouldn’t be with him. She was very brief in this part of her evidence.

In cross-examination, Zrdalic testified that she formed the opinion, on her way back to the fire scene, that Wallace had in some fashion set her sweater on fire. So as she was walking back to the apartment, where there clearly was a fire, she carried with her the thought that Wallace had set her sweater on fire. She admitted that she verbalized this opinion to Rhue, who challenged her on it.

The defence submits there ought to be some doubt that Wallace even said what Zrdalic purports. To accept this, one would have to look past her admitted drunkenness, her admitted marijuana consumption (which had the effect of altering reality for her), her probable consumption of crack cocaine, and her emotional state, and then be satisfied that Wallace said what she purports he said, over the din of sirens, in a situation described as “pandemonium” by one police officer, and which statement wasn’t corroborated by a single witness.

Even accepting Zrdalic’s version of events, in chief this witness left the impression that Wallace volunteered this statement to her. However, in cross-examination, she testified that she in fact accused Wallace of having set her sweater on fire. That she would make such a comment first is consistent with her mindset as it related to her sweater and what she believed Wallace had done to it while she was walking back to the Bruce Avenue residence.

Seen in this light, Wallace’s statement is hardly an admission at all–it is repeating back to Zrdalic what she said to him, what she accused him of. The balance of the “conversation”, if one can call it that, underscores just how ludicrous this is–Zrdalic, after Wallace repeats her allegation back to her, purportedly then tells her he did this “because you wouldn’t be with me”, and she engages in this banter by telling Wallace, “why would I be with you, I don‘t even know you”. All the while police, ambulance personnel, and firefighters are working a fully involved fire. She is more concerned about a sweater with a photograph in it, and why Wallace can’t be with her because he doesn’t know her, than a fully involved house fire right in front of her.

Further, it is entirely likely that even if Wallace said what Zrdalic purports, that it was said in jest. Zrdalic admitted as much when she was interviewed by the police later. This excerpt from her police interview was put to her at trial and it was adopted by her:

RZ: Like I ran across the street where the police were and then that’s when they got him right there.

GG [Det. Glenn Gervais]: Okay. Where does he say the things that he says to you though about your sweater?

RZ: He was like: Oh I burnt uh your sweater because you won’t be with me. You don’t love me and I love you. I’m like: You don’t even know me. How can you love somebody you don’t even know them.

GG: Mmhmm.

RZ: First of all.

GG: And he’s like: Oh whatever then. Blah, blah, blah, blah. And like my kid’s picture was in that sweater. Like that’s the only thing that broke me down is that. I didn’t care about the sweater.

RZ: Did he say anything about the house being on fire?

GG: No. He said—oh he came out. He’s like: Oh, who, who set the house on fire? And he’s laughing. Like he has a giggle and like you can see it. And when he’s like: Oh wait. I did. I goes: Where’s my sweater? He’s like, Oh, it’s on the couch burning. Like whoa. Hold up. Like I couldn’t say nothing else. That’s it. And then I just went to go talk to the cops.

Renaila Zrdalic interview – page 30

Zrdalic also stated that when this dialogue was taking place, she was “hiding” behind Broadhead. Although Broadhead was generally a poor witness, she does not recall this at all.

9. Zrdalic’s Evidence—The “Flaming” Sweater

The most important aspect of this case relates to how this fire started. Even on that issue, the evidence of Zrdalic is totally inconsistent. Generally, her evidence suggests she left the apartment and came back, only to find the porch in flames. In cross-examination, she was drawn to a statement she made to the defence private investigator. She was quick to state she did not remember providing a statement to the investigator, although she did admit that various parts of her statement to the investigator were true (the name of her son, the school she went to, etc.). So it is reasonable to conclude that she met with the investigator as suggested to her by defence counsel.

In that meeting, her comments on what she observed when she returned to the house were as follows:

Mr. Wallace “chased her” downstairs and out of he building. She sat on the couch of the veranda of the residence to catch her breath. She set her sweater on the couch. It had a picture of her son Daniel in the pocket. Mr. Wallace came down stairs after her and chased her down the street. She decided to go back to get her sweater because it had her son’s photo in it. When she got back the house was on fire. Her sweater was on fire and was being waved around by Mr. Wallace. He said “this is what you get for not being with me.” She decided to back to Sharon’s residence when the EMS arrived. The police stopped her to inquire as to her well being. She wound up giving a statement to the police of the incident.

The significance of this statement cannot be highlighted enough—she told the investigator that she actually saw Wallace holding her burning sweater. This cannot be true, and it stands as the hallmark of a witness who is not only careless with the truth, but would say practically anything that comes to mind.

In conclusion, the defence submits that the evidence of Zrdalic ought to be rejected. At the time of the incident, she was intoxicated and emotionally unbalanced. Her evidence and statements show significant contradictions on important points. She has the ability to misrepresent the truth and on her own evidence she has a cavalier regard for the truth. Her evidence is inherently unreliable and is not credible.

It should also not be overlooked that Mr. Wallace is charged with sexually assaulting Ms. Zrdalic. The defence repeats and relies on the comments made here as it relates to her credibility and reliability in terms of whether her evidence can be accepted that Wallace sexually assaulted her. Important to this consideration is the evidence of Shirlene Williams, which places Zrdalic in Wallace’s bedroom and the two of them, Wallace and Zrdalic, engaged in kissing and hugging type behavior. Further, Zrdalic claimed to have yelled to attract the attention of the other two that Wallace was sexually assaulting her—neither Williams nor Broadhead confirmed that. On balance, the evidence on this count is insufficient to found a criminal conviction.

10. Shirlene Williams and Kathy Broadhead

Shirlene Williams was called by the Crown as part of its case in chief. As noted, she was an associate of Kathy Broadhead’s and met with Broadhead and Zrdalic the night of the fire. Although Kathy Broadhead was called by the defence, because her evidence and that of Williams is along similar lines, she is included here in this part of these written submissions. Broadhead, for her part, was intoxicated and had been consuming drugs that evening. She also suffered from a birth injury that inhibited her memory.

As of September 2009, Williams lived in an apartment at Bruce and Wyandotte, in the City of Windsor. She met with Broadhead and Zrdalic on the offence date. She had not met Zrdalic before this.

The three of them went to the liquor store by the bus depot (the liquor store on Church Street, downtown Windsor). Williams believed they purchased Bacardi Rum. They went up the street and met with Wallace, who was on his bike. Broadhead and Zrdalic started talking to him. She had seen Zrdalic drinking with Native people. Drinking was not permitted in her residence.

It was getting dark and they walked to Wallace’s apartment. They sat around Wallace’s apartment. There was another person there, she believed he was Native. Lamont Rhue attended Wallace’s apartment. He knocked on the door, but Wallace wouldn’t let him in.

The others were smoking marijuana. Wallace was smoking crack cocaine. Everything was all right. Zrdalic was complaining to her aunt—Broadhead. Renaila said she didn’t like the way Wallace was acting.

Williams testified she saw the two of them in the bedroom. They were hugging each other. Wallace was touching Zrdalic’s feet. Everyone was still getting on pretty well. She left a few minutes later.

Williams testified it was Zrdalic’s idea to leave. She didn’t want to be around Wallace. She thought it was around 10:00 when they left. They all left at the same time, she believed Broadhead left first, and she and Zrdalic followed behind in a line. Wallace was upstairs in his apartment.

They sat on the couch downstairs. The couch faced the front door. She and Zrdalic shared a cigarette. They sat there for a couple of minutes, then left. She didn’t see what happened to the cigarette. They were sitting on the couch for about 10 minutes. Lamont came to the porch, he lived on the 3rd Floor. Lamont was peeking out the front door.

They walked towards the river. It was a 5 minute walk. They sat at the bus stop on a little cement bench, at the intersection of Wyandotte and Bruce. She went in to her apartment. When she came back out, Lamont was there with the two girls (Zrdalic and Broadhead). Zrdalic and Lamont decided to go back. They had been at the bus stop area for 5 minutes, 10 minutes at the most. Zrdalic realized she had forgotten her sweater. They waited for her at the bus stop. Lamont was “halfway down”, he yelled there was a fire. Zrdalic was walking beside Lamont, he was riding his bike slow.

Williams testified she and Broadhead went back to the Bruce apartment. There was a fire on the couch, with 2’ flames – that was the area she could see, there were “boards” blocking her view. Zrdalic started crying about her sweater and her son’s picture in it. Lamont left when they got to the house. She saw “Ruby” (Wallace) coming out from his front door. He had a small fire extinguisher, he did nothing with it. He was talking to himself, she didn’t know what he was mumbling. She didn’t know if there was any interaction with them. She thinks Wallace tried to talk to Zrdalic. Zrdalic tried to walk away from him. She didn’t see him do anything else regarding Zrdalic. Wallace tried to spray the fire extinguisher on the girls. He tried to set a recycling bin on fire. His lighter didn’t work.

11. Lamont Rhue

Lamont Rhue also testified for the defence. He also resided at the Bruce Avenue apartment at the time of the fire. Rhue testified that on the night of the fire, he went to Rudy’s (Wallace’s) house. He was involved in obtaining crack cocaine—a 30 piece—for two men. He described one as white, 5’ 8”, 180 lbs. He testified one was “aggressive”. Rhue believed that they were “smoking”.

Rhue testified he was in his apartment and the doorbell was ringing a lot. He testified he and Wallace went down the stairs to investigate. The two men were threatening Wallace. One person used the “N” word.

Rhue testified he and Wallace went upstairs to Wallace’s apartment. Rhue had met a girl in Wallace’s kitchen—she knocked on his (Rhue’s) door. The girl went out on the porch. Wallace came out and he wanted her back inside while Rhue was in the hallway. Wallace wanted to try to get her back in the apartment. The girl’s mother and another native girl came out of Wallace’s apartment and joined her on the porch. Most or all of the time that they were on the front porch they were yelling Rhue’s name. Rhue waited a few minutes; he didn’t want to be bothered with them.

Rhue testified he waited about five minutes until they got from Elliott Street to Wyandotte Avenue. He testified he met them (the three women) at the corner. They started talking. Rhue testified the native girl (Williams) did not say much. The mother (Broadhead) said she was going to “sell her pussy” and make some money. The other girl (Zrdalic) was drunk and, according to Rhue, “out of her mind”. She fell on the ground laughing and giggling. Zrdalic was on the ground and she said “I forgot my sweater”. The native girl said “I think you left it on the couch”. Zrdalic wanted Rhue to go back with them. Everyone was intoxicated.

Rhue went down the street, back towards the Bruce Avenue apartment. He testified he saw flames. He walked out on the street and he said “that is my house”. He stood at the corner and heard fire trucks. The girl—Zrdalic–was on the ground. He said or thought, “hey, what’s wrong with this girl?”. Rhue testified Zrdalic was blaming Wallace for the fire: “She took out of her own mind that he burned her sweater”. She said that “he [Wallace] must have burned it up and started the fire”. Zrdalic said that to Rhue and to the other two women standing there as well. His response was, “what the hell.”

The three women took off and went down to the fire. Rhue didn’t want to be involved so he went the other way. He stood on the corner for 10 minutes and then he heard more fire trucks. He had a bicycle with him. He went back there. He said that one of the women came running up to him saying that “Rudy started the fire, Rudy raped her.” Zrdalic said to Rhue, “because I wouldn’t screw him, he burned the house”. Rhue said, “Hell no, she is blaming [Rudy] and she had seen the same thing I saw.”

It should be noted that Rhue has a fairly extensive criminal record. During cross-examination, Crown counsel pointed out inconsistencies in his evidence, particularly related to the timing of the two crack purchasers’ attendance at the Bruce Avenue residence. However, Rhue was not seriously challenged as it related to his interaction with Zrdalic, particularly as it related to her behavior and comments after she and the others left the residence, and as a point in fact, much of Rhue’s evidence on these points was corroborated by Zrdalic herself.

12. Evidence of Chris Wilder

Evidence was heard from Chris Wilder that he was responsible for setting the fire. Wilder testified that he and a friend, Darren McKay, set the Bruce Avenue apartment on fire. Wilder testified on December 7, 2009.

The manner in which Mr. Wilder came to testify is of some importance. He was in a 16 week residential treatment programme at the Brentwood Home for Recovering Alcoholics (“Brentwood”). A recovering drug addict, Mr. Wilder “came clean”, so to speak, and informed Brentwood staff that he had been involved in the setting of the fire on Bruce Avenue. He was advised to contact counsel, and he did so. Mr. Andrew Bradie, a senior criminal defence lawyer in Windsor, was contacted and took Mr. Wilder’s retainer.

It should be noted that there is no evidence of any association of the accused and Mr. Wilder. The two are not known to one another. There is no suggestion or any evidence to suggest any inference of collusion between Mr. Wallace and Mr. Wilder, nor of any inference of an improper motive for Mr. Wilder to come forward with his confession to the Bruce Avenue fire.

As indicated, it is known that Mr. Wilder contacted Mr. Bradie. Mr. Bradie provided an oral submission to the court (with Mr. Wilder’s consent) regarding his representation of Mr. Wilder—namely, that Mr. Wilder contacted him with a view to relieving himself of a “heavy burden”. Mr. Wilder provided Mr. Bradie with a statement detailing his involvement in the Bruce Avenue fire. Mr. Bradie, as his counsel, negotiated an arrangement with senior Crown counsel Mr. Walter Costa (who had carriage of this matter until September 2009), in which Mr. Wilder would provide a statement to the Windsor Police regarding his knowledge of the Bruce Avenue fire. In exchange, Mr. Wilder was granted prosecutorial immunity with respect to the Arson/Manslaughter, but he would potentially be open to a prosecution for Public Mischief or Perjury, depending on the circumstances of the case as it continued to unfold.

Mr. Wilder attended upon Windsor Police on August 27, 2009, and met with Det. Glenn Gervais. Wilder provided a sworn videotaped statement detailing his involvement in the Bruce Avenue fire.

At trial, Mr. Wilder testified on behalf of the defence. Mr. Wilder testified that at the time of the arson, he was a binge drug user, his drug of choice being crack cocaine. He would use crack cocaine with his then-friend, Darren McKay, whom he had known for ten years.

On the night of the arson, Wilder testified he was with McKay and they were using crack cocaine. The cocaine was obtained from the Bruce Avenue apartment—he and McKay traveled there together. McKay’s residence was on Caroline Street, within walking distance of the Bruce Avenue address. Wilder testified he had also consumed four to six beers. Wilder testified in cross-examination that when they went to get the drugs it was light out, it was “a little bit of light out”. He did not recall the actual time. At the Bruce Avenue address, McKay purchased some crack cocaine. The two and McKay’s girlfriend consumed the crack cocaine together and, when back at McKay’s residence, McKay was “frenzied” by being shorted on the purchase. McKay obtained a jerry-can of gasoline, and poured some into a pop bottle.

McKay told Wilder to bring the bottle with the gasoline with him. The two then returned to the Bruce Avenue apartment where Wilder reached over the railing and poured the gasoline onto a couch on the porch. Wilder testified he was not sure if he moved his arm back and forth, he said it was possible, he was not sure, he just poured it. McKay lit an object and threw it on the couch, igniting the gasoline. Wilder testified the reaction was a “little explosion–poof”. He said there were flames and a bit of heat. He said he was about ten feet from the porch when McKay did this. He testified the flame started big “because of the gas” but that it burnt down. He said the fire was “not as big when the gas burned off”. He said he saw flames, “probably like five feet from the top of the couch to the top of the flame”. He said the flames went down and that was when he left. Wilder’s observations of this accelerant based fire are corroborated to a certain extent by the evidence of CFS scientist Stuart Sagara, who gave evidence related to the combustible properties of gasoline.

Much was made of the fact that Wilder made no observations of smoke, however, neither did any of the other lay witnesses.

Wilder testified at the time he was under the influence of crack cocaine. He stated he stood there for 20 seconds, in disarray. In cross, he said that time estimate was probably incorrect. He testified it felt like forever—it was probably a matter of a couple of seconds. He observed McKay running southbound towards Caroline Street. He and McKay returned to McKay’s residence, and McKay told him not to mention a word of this to anyone—they were to “take it to the grave”.

Wilder testified that he returned to the fire scene later that evening. He testified it was partially light out. In cross, he said that was what he thought, but now he knows that it wasn’t light out, because of the time. He said he “had to” go back. He looked at the front of the house and it was on fire. He was, in his words, “blown away”. He told McKay what he had seen. McKay told him to “shut up, go to your grave with it”. They all went to bed; Wilder laid downstairs on the couch.

The next morning, he again went by the fire scene and later read news reports about the fire, and became concerned when he learned there was the possibility of serious injury to some of the occupants. Wilder broached these concerns with McKay, but got nowhere with them.

It should be noted that Wilder made mention of his involvement in the Bruce avenue fire to his employer, Mr. Ron Schiller, sometime in the spring of 2009. Mr. Wilder, who was employed as a labourer/home renovator, was working at a property nearby to the Bruce Avenue apartment. Ironically, the property was owned by Mr. David Postma, the owner of the Bruce Avenue residence. At that time, Mr. Postma attended at the site Wilder was working at, and, upon after being apprised to Mr. Postma’s name, Wilder told his employer that he had some involvement with the Bruce Avenue fire and that the police had the wrong guy. His employer told him he should report it to the police. Mr. Schiller was not called by the Crown to rebut Wilder’s evidence on this point. While this evidence was introduced primarily as part of the narrative, it also serves to rebut any argument advanced by the Crown that Wilder’s account of the Bruce Avenue fire was recently fabricated.

It should be noted that Wilder was completely cooperative with the police. He volunteered to the police to be the subject of a lie detector test. While those results would never be admissible in court, it is indicative of his ongoing cooperation with the police. The police never took him up on his offer. The taking of a lie detector test is not something the police can force upon an individual. And whatever the merit or lack of merit of such a test, it is known that the police requested of Darren McKay, Wilder’s accomplice, that he take a lie detector test, which he—on the advice of counsel—declined to do. No evidence was tendered by the Crown to rebut Wilder’s contention that he was anything but cooperative with the police, or that he had nothing to gain by coming forward other than to clear Wallace—who he did not know—and everything to lose, including the publishing of his name in the local newspaper and his prior conviction for sexual assault. Wilder stated to Crown counsel during his cross-examination: “Do you think I would come down here and say I did something when I didn’t. I thought about it. I am here in the middle of it to tell the truth. I told you what happened. The rest is in your hands. I am trying to make amends.”

It was suggested to Wilder that he his involvement in the Bruce Avenue fire was a dream. His response was: “It was pretty odd that I dreamt a house was on fire and it is on fire. I am here to tell you guys what I did. I have to make amends. There is an innocent man behind bars and a there is a family that lost their daughter. I want to make sure the right person is responsible.”

13. Wilder’s “Re-enactment” Video

It should be noted as well while addressing the Wilder/McKay issue, that Wilder continued his cooperation with the Windsor Police by attending at the crime scene and doing a re-enactment with them. This took place on November 17, 2009. Wilder was in the company of Det. Glenn Gervais and Det. Greg Loebach. Det. Loebach was the camera operator. Wilder identified Carolyn Postma as being present during this videotaped interview—he had seen her photograph in the Windsor Star in front of the property shortly after the fire.

In the middle of this police investigation, property owner David Postma (“Postma”) appeared at the Bruce Avenue apartment and confronted Wilder about the arson. During this “conversation” a technical problem arose and the visual component of the interview was disengaged, leaving only the audio. Wilder testified that he observed Windsor Police speaking on a cellphone prior to this point, and he believed they were in communication with Postma. The combination of these factors leads to the conclusion that Mr. Postma was invited by the police to attend at the property and confront Wilder. No explanation was offered in reply from Det. Gervais or Det. Loebach as to why or how Postma knew Wilder was at his property, and how coincidentally at the same time Postma appeared a technical “malfunction” was visited upon the investigation.

Mr. Postma attended at court during the trial and was asked to leave the courtroom during this portion of the evidence. He did not testify at this trial to rebut Mr. Wilder’s claim that his attendance at the residence during this part of the investigation was not accidental.

During this off-camera exchange, Postma wanted to know of Wilder why he set the house on fire. Wilder testified that Postma was “swarming around him” and he kept “trying to get in front of me”. Wilder responded, “I did not set the fire”, or words to that effect. Wilder stated that he was there to answer police questions, not his. In his evidence, Wilder was cross-examined on this point and explained he took it his statement to mean that McKay was the one who lit the flame that started the fire, not him.

The propriety of this type of investigative technique is questionable. The inference that it was deliberate is overwhelming. It can only be seen, at a minimum, as part of an effort to rattle Wilder. The whole effort in videotaping Wilder and taking him through his paces, so to speak, was aimed at getting as many details as possible from Wilder, with a view to discrediting him. Crown counsel in September 2009, before the re-enactment video but after Wilder’s initial police interview, communicated with the Fire Marshall about Wilder’s version of events and had passed along an opinion that it was “bull”. A copy of that email correspondence was marked as Exhibit 86 in these proceedings. Seen in this light the only purpose in obtaining this further videotaped statement from Wilder would be to use it to attack on Wilder’s credibility or reliability.

Alternatively, if it is suggested that this tactic was part of a search for the truth, it should be noted there was no evidence that Zrdalic and her witnesses were taken through their paces to find out what their timeline was in terms of their leaving the Bruce Avenue apartment, attending at Williams’ apartment, and then returning to Bruce Avenue. An accurate timeline would have been a critical piece of information for the Fire Marshall regarding his opinion and that a smoldering fire was not possible. What we were left with were the vague recollections of drunk, stoned or disinterested witnesses who could only give broad guesses on this important point.

On the other hand, the scrutiny accorded Wilder in this investigation was to the utmost degree. Wilder gave a sworn videotaped statement to Detective Gervais, he testified under oath at Wallace’s bail review, where he was cross examined by the Crown, he gave a further videotaped statement at the crime scene where he was essentially ambushed by David Postma, he had excerpts of his evidence forwarded to the Fire Marshall prefaced with editorial comment, and testified again at trial and was again cross examined. No wonder there were a few inconsistencies in his evidence. As Wilder testified: “There might be little errors with my words, I am not perfect. I am not a memorable guy. I am 100% sure of what happened.”

14. Crown Evidence in Reply – Darren McKay

McKay testified on his own behalf on December 18, 2009, and not surprisingly denied setting the fire with Wilder or anyone else. McKay testified at the time he was living at 595 Caroline Street, Windsor. He had known Wilder for 15 years. He testified that the day of the fire he was working with his cousins doing drywall. He did not see Wilder the day of the fire and he did not attend 790 Bruce that day. He testified that at that time in his life, he was addicted to oxycontins. He testified he was not a crack cocaine user. He testified he first used it “about six months ago” and he got sick.

McKay testified he was contacted by the police in September 2009 as a witness to something. He gave a videotaped statement to Det. Gervais that was not under oath. McKay told Det. Gervais he had not seen Wilder since a year ago. He said he wanted to find Wilder and “kick the shit out of him”. McKay testified he told Det. Gervais he never had a problem with crack cocaine until about a half a year ago. McKay said he was “self-medicating” with “oxy’s”, meaning oxycontins. Methadone was prescribed for him. He said he was working, drywalling 12 hours a day. He would go home, sleep, and then back to work.

McKay testified he knew about the fire. He read about it. He knew about it a couple of days later. He didn’t know which house it was—it was around the corner. During that time, he was working from “sun up to sun down”. He was asked if he knew where he was when the fire took place—he said he was either home in bed or at work during the day. He testified he would go home and lay down and pass out. Around the time of the fire, he was working six days a week.

When Det. Gervais told him he was involved in setting a house on fire, he said it “floored him”. He told his wife/girlfriend Margaret Berlasty—she was with him at the police station. He told his wife about the contents of the interview with Det. Gervais. He was upset. He did not mention in his interview with Det. Gervais that he was working 12 hour days—he had to think about what he was doing. He called his cousins to remind them.

He suggested that Wilder had a motive to incriminate him in the fire—namely, that he had seen to it that Wilder was fired from his landscaping job, and that Wilder had stolen Christmas money from McKay’s girlfriend, Margaret Berlasty. McKay agreed that he never reported the stolen money to the police. He made one phone call to Wilder’s boss and that was all he could do. He had no interest in getting the police involved.

15. Crown Evidence in Reply — Margaret Berlasty

Berlasty testified in reply and also corroborated McKay’s “alibi”, if it can be termed that. She knew that the police had contacted McKay in late August 2009. McKay’s videotaped and unsworn statement was given to the police on September 2, 2009. Berlasty testified that she accompanied McKay to the station where he was questioned about his potential involvement in the Bruce Avenue fire. However, she made no effort to contact Windsor Police to let them know they were investigating the wrong man.

Similarly, no complaint was ever raised about Wilder supposedly having stolen their Christmas money. No evidence was tendered to support McKay’s claim that Wilder was fired at McKay’s behest. The person who was in the best position to corroborate this claim of McKay was Mr. Schiller, who was not called to give evidence in this trial.

16. Evidence of the Fire Marshall, Keith O’Leary

The court heard evidence from Fire Marshall Keith O’Leary, who was qualified to give opinion evidence on the issue of the origin and cause of the fire. He had prepared a report on this issue, which was marked as Exhibit 71 in these proceedings. The Fire Marshall testified both in chief and in reply.

17. The Fire Marshall’s Report — Summary

The Fire Marshall’s conclusions as it related to the Bruce Avenue fire were as follows:

* There was a single origin for the fire, being outside the structure at the southwest corner of the porch;

* The fuel load was a full sized cushioned couch in that location on the wood porch;

* There was no naturally occurring ignition source at that location;

* An open flame was introduced to the couch shortly before the alarm was called;

* Through an intentional human act, combustible material present (cushion couch material) was introduced to the area of origin (clothing) which was ignited by means of an open flame to cause the fire.

The Fire Marshall in his report “rejected” the possibility of a cigarette-initiated fire:

“The hypothesis that included the accidental ignition by way of an improperly discarded cigarette was rejected based on the following. The sifting of fire debris in the area of origin as well as the remaining sections of the porch revealed no smoker’s material present” (3.2.2)

Similarly, the Fire Marshall in his Report discounted the possibility of an accelerant-based fire because:

The Centre for Forensic Sciences results were negative for any liquid accelerant. However, in this case no liquid accelerant was required to initiate the fire because sustained fire growth would have continued after an open flame was applied for sufficient time to commence the chain reaction process, given the nature of the fuel load present (full sized cushion couch).” (3.2.2, sub 2).

In considering all of the information made available to him, the Fire Marshall was ultimately of the opinion that the “most probable” hypothesis was that set forth in his conclusions, namely “an intentional human act involving the introduction of the combustible material of the couch to the area of origin (clothing) which was ignited by means of an open flame to cause the fire” (Trial, December 8, 2009, p 37).

18. Fire Marshall’s Evidence – Human Actor Responsible for Arson by Introducing Burning Object to Couch

The theory of the police and the Crown is that Wallace set Zrdalic’s sweater on fire that set the couch on fire. Many of the foundational facts upon which the Fire Marshall sought to base his opinion were not established. Numerous uncertainties in the underlying facts have previously been discussed in these submissions, particularly those emanating from Ms. Zrdalic.

The Fire Marshall testified he did not undertake any first hand interviews of any witnesses, although in his report he talks freely that his conclusions were based in part on information received “from the independent witnesses to the case” (Report, Part 5, Conclusion). He did not believe it was necessary for him to interview anyone—he was content to rely on the information that the police provided him and in fact was of the view that the police were the “foremost authority in determining credibility”:

Q: We sort of went through this in your examination in-chief and in cross-examination, where we talked about, you know, the dangers in relying on lay witnesses.
A: Yes, sir.
Q: And, you know, those dangers are as present as they are related to this accelerated fire as they are related to other issues related to people who consume drugs, this type of thing?
A: Well, eye witnesses are accepted criteria for forming an opinion, based on 921.
Q: That’s right, but doesn’t 921 use the word credible in that assessment?
A: It does, and the police are the foremost authority in determining credibility.
Q: All right. So if the police have the view that someone’s credible, you share that opinion?
A: Yes, sir.
Q: You don’t engage in any independent analysis or any focus yourself on that determination? The police tell you, that’s good enough for you?
A: If the police are investigating at the risk of introducing a false memory I would not seek to then independently interview those witnesses.
Q: Well, sir, you never even looked at the actual witness statements themselves?
A: Not till after the preliminary inquiry, that’s correct.
Q: So you formulated your opinion based on what the police have told you pretty much, right?
A: In terms of where it was significant, the opinion, yes, sir.

December 8, 2009, Transcript p 19 – 20

One piece of information that was given him was that the police had a man in custody charged with arson. This was found in his report. It was a piece of information that had the effect of shifting his opinion to a finding there was a deliberately set fire. During his cross-examination in reply, the Fire Marshall essentially admitted as much:

Q: Can I ask you sir, why is that important that the police did something?
A: Because they had investigated the cause of this fire, and determined that criminal charges were appropriate.
Q: So that fact that the police arrested somebody factors into your opinion related to the isolation of the ignition source, is that correct?
A: It is a known fact, sir.

Trial, December 8, 2009, p 35

19. Shifting Source Information Provided to the Fire Marshall

A significant point of concern in this case relates to different information the Fire Marshall was operating from as it related to the Zrdalic line of inquiry—namely that there was credible evidence that Zrdalic had witnessed the commencement of the fire.

The Fire Marshall, in his Report, operated from the assumption that this was the case:

The police investigation confirmed that Person 5 had observed Person 3 with a flaming article of clothing. Person 3 then placed the flaming article of clothing on the couch located in the southwest corner of the porch. This information resulted in an arrest with criminal charges.

It is known that Person 5 was Renaila Zrdalic. No evidence was heard from her that she observed such conduct.

The Fire Marshall testified later that in fact this information (that Zrdalic had seen the “flaming article of clothing” being placed on the couch) was not even true, or at a minimum it was no longer believed to be true by the police. The revised belief was that someone was told that the fire was deliberately set. When this belief was formulated, and why the previous belief was held was rejected, was not explained in the course of this trial. The Fire Marshall was cross-examined on these points in his reply evidence:

Q: So, and I’m not particularly criticizing…your job is not to conduct a police investigation. Your job is to investigate a fire?
A: That is correct.
Q: And, you know, you generally accept what the police tell you at face value?
A: There’s no reason for them to lie, sir. And I may add that it was consistent with all the known facts in accordance with 921.
Q: Do you remember testifying earlier that you essentially held an opinion that the fire was caused by a person holding a flaming object, like a sweater. Do you remember that?
A: Yes, sir.
Q: And you got that information from the police, didn’t you?
A: Yes, sir.
Q: And you later discarded that hypothesis didn’t you?
A: Once the police confirmed that was not correct information, yes.
Q: Okay. So when the police tell you that they think that someone was carrying a burning object, you accept that, right?
A: Yes, sir.
Q: And then when the police later tell you, no there wasn’t a burning object, you accept that?
A: Yes, sir, and then factor that into my opinion.
Q: The fact of the matter is, sir, is you accept what the police tell you at face value. You don’t undertake any investigation. You don’t ask to look at any witness statements or do anything, right?
A: I accept what the fire department says initially as well, followed up by statements eventually.
Q: I wasn’t asking about the fire department. I was asking about the police.
A: I apologize. It was an example.
Q: My question remains.
A: Yes, sir.

Trial, December 8, 2009, p 21 – 22

These aspects of the case are troublesome.

First, it serves to inform Zrdalic’s testimony. Somewhere buried in the mass of information regarding this investigation is the suggestion that Zrdalic claimed to someone that she in fact saw Wallace with a burning article of clothing. That was not in her evidence. When the question was put to her in cross-examination that she said the same thing to an investigator, she said she did not remember.

Second, it is this piece of information which purports to be a link between Wallace and the start of the fire. The Fire Marshall relies on this erroneous information as the cornerstone to his opinion. Seen this way, the Fire Marshall’s “probable hypothesis” and elimination of other potential causes in his Report is nothing more than a restating of the police and Crown theory of the case:

MR LIDDLE: Okay. Let’s start from the top. It started off you—this happened when you went there that day, right?
A: Yes.
Q: Your initial investigation. You had information that someone said there was a flaming article of clothing that was thrown on the couch.
A: That’s correct.
Q: Okay. And, you know, to use the vernacular, you ran with that information, right?
A: No. That was included in the information during the course of the scene examination.
Q: Well, you didn’t question it, correct?
A: No, that’s correct.
Q: All right, so at a later point in time, some time, was it before or after the preliminary hearing, can you tell us?
A: Sorry, which….
Q: This information about the flaming article of clothing being taken off the slate, to use my terminology. His Honour asked you about that. I’m trying to pinpoint when you got this information.
A: I don’t recall.
Q: Can you even say if it was before or after the preliminary hearing?
A: It was before my formal report was filed.
Q: And you had by that point excised that piece of information?
A: Yes, sir.
Q: That the flaming article of clothing was thrown on the couch, right?
A: All right. Then it would appear, at least on this exchange of emails around September 1, 2009, someone is providing you with information that a button and a zipper from the sweater were found in the couch remains?
A: That’s what that point says.
Q: All right. When you read that, did you say to yourself, you know what, that’s not the case at all? We eliminated this whole notion of the sweater before the preliminary hearing?
A: No, I could not say that.
Q: All right. Did it cause you any concern whatsoever?
A: Again, I am there to assist the police with this fire investigation. They are the driving force behind whether or not (a) suspects are identified, whether or not charges are filed.
Q: Right.
A: So they provide me with, in some cases, information that they may, they may not, sorry, they may not supply me with information that they believe—they will do that for whatever reason.
Q: Well, in this particular case you have no way of knowing, right?
A: Correct.

Trial, December 8, 2009, p 25-27

It should be noted, following the development in this case of Mr. Wilder coming forward, that the Fire Marshall was contacted with a view to commenting on Wilder’s statement. That correspondence was marked as Exhibit 86. Aside from an editorial opinion from Crown counsel to the Fire Marshall that Wilder’s statement was considered to be “bull”, there was an attached Appendix that contained additional information that a sweater zipper and a sweater button were found in the couch remains. The source of this information is not known. No evidence was heard on this point in the trial. Further, the Fire Marshall’s own report made no mention of sweater buttons at all, it only referenced a zipper in relation to a zipper from a couch, not a sweater, and he was at the scene when the couch debris was being sifted. This concern was canvassed in reply in the following passage:

Q: And then this item here, number three, button and zipper, it says, from sweater were found in couch remains.
A: That’s what it says.
Q: Now, is that from your fire investigation report….
A: No, sir.
Q: …and photos?
A: No, sir.
Q: Okay. So what do you make of that? I mean, this is information that is being provided to you from the Crown Attorney’s office with a view to you generating an opinion, right?
A: Yes, sir. It wasn’t entirely possible as the police had took those exhibits for further examination, but it had been confirmed somehow that those were in fact what those items were pertaining to. It was possible, but unconfirmed to me other than what you just read there.
Q: Okay. So someone passed along to you a note, I suppose, that there was a button and a zipper from a sweater that was found in the couch remains?
A: That’s what it says.
Q: In your opinion, to the extent you can comment on this, there’s no mention made anywhere of a button, correct?
A: In my report?
Q: Yes.
A: That’s correct.
Q: And in your report the only reference that you make to a zipper relates to cushions?
A: Possibly, yes, correct.
Q: There’s certainly no mention anywhere in your report about anything where a button is related to a sweater or where a zipper is related to a sweater?
A: That is correct.
Q: So what did you make of this when someone was sending you a note that says, fire investigation report and photos say button and zipper remains from sweater was found in the couch remains?
A: Coming from the Crown’s office, it was, as I said, possibly further evidence that had come forward, or been confirmed through police sources, unknown to me.
Q: Okay. So you went from initially thinking that there was a lit sweater, because you based that on information from the police, right?
A: Yes.
Q: Your rejected that opinion or fact I suppose at a later point in time because the police told you that, you know, that wasn’t accurate or whatever the case was?
A: It was corrected, therefore, removed.
THE COURT: How was it corrected?
A: The police confirmed that once formal interviews had taken place that that was not in fact the case.
THE COURT: Did they give you any information on that?
A: Other than…?
THE COURT: As to what interviews caused them to form that opinion?
A: Of the three females that were in attendance prior to the fire.
MR LIDDLE: When did you get that information?
A: Sorry, what information?
Q: The information about the no flaming article of clothing. When did it change from being a flaming article of clothing to being taken off the slate?
A: I cannot recall, sir.
THE COURT: Well, what did they say to you that did cause, or what information did they give you that did cause?
A: The information was then that one of them had been told that the fire had been set through the ignition of the sweater and placement on the couch.
THE COURT: I am sorry? One of them had been told what?
A: That one of these three females had been told that the sweater was ignited and then placed on the couch.
THE COURT: I do not know whether you are confused, but I certainly am.

Trial, December 8, 2009, p 23 – 25

In his Report, the Fire Marshall’s only reference to the couch remains was as follows: The southwest corner of the porch included the remains of a cushioned couch, evidenced by the charred wooden frame remains and the metal support springs and zippers remains (possibly for cushions) on the floor in that location. The foam padding and the material cover of the couch were completely consumed. As to the shifting information the Fire Marshall is receiving, it appears to him to be of little consequence:

Q: Sir, if you knew that, we’ve heard evidence in this case, as well as from a hypothetical perspective, you know, that no one ever saw anyone waving around a piece of lit clothing, does that cause you any concern?
A: No.
Q: No?
A: No, sir, because of the timeline that we’re dealing.
Q: Oh, the timeline?
A: Yes, sir.
Q: Okay. From people that have been smoking marijuana and consuming alcohol to the point of drunkenness. Do you consider those to be very reliable timelines?
A: That was not confirmed by myself, sir.
Q: Do you not feel, sir, that you have some form of a duty to sort of look into these things when you are putting your name to an important opinion?
A: I rely on the police, sir.

Trial, December 8, 2009, p. 38

On wonders, if the police were convinced that Wilder was responsible, could the Fire Marshall’s opinion would have supported that scenario? The accelerant was consumed in the fire. There was a “poof” and then the flames receded. When the couch material was alit, the flames grew in intensity. The NFPA 921 supports the notion that intoxicated persons do not respond to fires in a “typical” fashion. Wilder is under arrest.

20. No Inquiry Related to the Composition of the Couch, Couch Pillows, or Sweater

The investigation was focused on whether there was a deliberately set fire–one would think that some inquiry ought to have been made about the most important thing in this case, namely the physical constitution of the sweater, or the physical constitution of the couch or couch pillows. None was undertaken.

Zrdalic testified that the sweater was made out of wool—she was not sure on this point, but that was her first answer. The Fire Marshall knew from his own training the burn properties of various types of fabric. He admitted that of commonly found fabrics, that wool is among the most difficult to sustain an open flame. His own personal and professional experience supported this conclusion, and his curriculum vitae noted he had “hands-on” experience in this area, and in October 2002 he had training in demonstration burns of fabrics. His conclusion related to wool fabric was:

Open flame applied to 100% wool material with the material hard to ignite and flame burning slowly till self-extinguishment after 10 seconds

A further unknown factor, which militates against acceptance of the Zrdalic/sweater theory of the start of the fire, is that nothing is known about the composition of the covering of the couch, whether it was covered in wool, vinyl or even leather—this was raised by the Trial Judge and admitted by both counsel.

21. The Smoldering Fire

The Fire Marshall in his Report rejected the potential for a smoldering fire because the debris did not reveal any smoker’s material present (ashtrays) and that it was not consistent with the evidence of the witnesses. The Fire Marshall in his viva voce evidence did agree, though, that from a strict forensic perspective he could not rule out the possibility of a smoldering fire. A core temperature of a couch fire of 2,000° F would no doubt obliterate any evidence of smoker’s materials.

The Fire Marshall agreed that if he simply came upon the scene without any preconceived information about what may or may not have happened that he could not eliminate the possibility of a smoldering-initiated fire. The main reason he moved away from this possibility was based on timelines.

As has already been noted, the timelines in this matter as it relates to the Zrdalic group are wanting in specificity. The Fire Marshall did testify that the best forensic evidence was that a smoldering-type fire could take place within a 20 minute time frame. This was based on studies referenced in Kirk’s Fire Manual. Elaborating on the point, the Fire Marshall testified that although the polyurethane padding that is commonly found in much furniture would not ignite if presented with a burning cigarette, the important thing is what type of material covers the polyurethane: once that material generates an open flame, the polyurethane will react and a fire would ensue quickly.

The Fire Marshall discussed the timeline issue at the conclusion of his evidence, in this exchange with the Trial Justice:

THE COURT: No, I am saying that on the evidence so far those are the things I have got to think about.
A: My understanding is, based on the evidence as I know it, that the smoldering cigarette part was in part removed because of the timeframe that was identified by these witnesses in the fact that they left the couch, returned to the couch…
THE COURT: Yes, 20 minutes later or so.
A: My understanding was it was ten minutes.
THE COURT: Well….
A: The minimum…
THE COURT: It is anywhere from ten to 20 minutes or longer. Counsel will correct me if I am wrong. It is not absolutely nailed shut as to what it was. There are conflicting pieces of evidence, but it could have been for argument sake a minimum of 20 minutes, which if the cigarette was there would of course rule it in.
A: Statistically, yes, sir.

Trial, December 8, 2009, p 57

The Fire Marshall admitted the text, the NFPA 921 was the industry-accepted “Bible” for fire investigation. The NFPA cautions in strong terms against making a credible determination regarding the cause of a fire where there is no physical evidence (as here) of the ignition source:

When the origin of a fire is clearly defined, it may be possible to make a credible determination regarding the cause of the fire, even when there is no physical evidence of the ignition source identified after the fire. (Section 18.2.1)

The NFPA 921 is the leading text in fire investigation. The Fire Marshall incorporates passages from it in his Report. The language employed in the NFPA 921 is of tremendous significance: the NFPA 921 counsels against ruling out accidental causes, and cautions that a finding there was the application of an open flame is a finding that “may” be justified in “limited circumstances”. The full passage is as follows:

The ‘elimination of all accidental causes’ to reach a conclusion that a fire was incendiary is a finding that can rarely be justified scientifically, using only physical data. However, the elimination of all causes other than the application of an open flame is a finding that may be justified in limited circumstances, where the area of origin is clearly defined and all other potential heat sources at the origin can be examined and credibly eliminated.” (Section 18.2.5)

The Fire Marshall was fairly clear that a smoldering fire could develop within a timeline of as little as 20 minutes. Alternatively, it could take as long as three hours. He recognized numerous variables in this scenario—the location of a cigarette (whether or not in a crevice), the cover material of the couch (not known); the cover material of pillow cushions (not known); the seat cushion material of the couch (the Fire Marshall believed it was polyurethane foam, although this opinion was somewhat outside of his realm of expertise and this conclusion was not referenced in his report); the material of the pillow cushions (not known if cellulosic). Further variables include the age and condition of the couch, and its location on breezy outdoor porch. The Fire Marshall testified at one point that this was a “modern style” couch, although, again, this was arguably outside the scope of his expertise.

The Fire Marshall admitted there was little in the way of referable science related to “porch couch fires”, as it was put to him:

Q: You can’t point us in the direction of any learned articles, you know, that would address the issue of accelerants, that specific narrow area of accelerants on upholstered furniture?
A: Well, very little research, to the best of my knowledge, has been done on accelerated fires in furnishings.

Trial, December 8, 2009, p 47-48

The Fire Marshall also accepted as part of his opinion these passages from Kirk’s Fire Investigation, a respected reference source.

Today’s furniture is markedly improved in its resistance to the most common type of accidental ignition—a dropped cigarette.  The trade of is much worse—resistance (read: virtually none) to flaming sources.  Once alight, such furnishings can be completely involved in 3-5 minutes and be reduced to a charred frame in 10 minutes, while producing very high temperatures. 

The defence submits that the possibility of a smoldering fire cannot be eliminated. It is, of course, impossible for the defence to assert that it certainly did happen. The timeline suggested by the Fire Marshall is that this type of smoldering fire could take as long as three hours to turn to flame, or as little as 20 minutes. That is a fairly wide time-frame. It is known that there were other people aside from Wallace, Zrdalic, Broadhead and Williams in the house, including Lamont Rhue, two men that Rhue saw at or around the front porch and who got into an argument with Wallace. Shirlene Williams testified there was another man, not Rhue, who was also in Wallace’s apartment when they arrived. It is known that Zrdalic smoked a cigarette on the porch while she was waiting for the others to leave Wallace’s apartment. Williams may also have smoked a cigarette.

The nature of an accident is, obviously, something that is unplanned. It is something that the actor probably doesn’t even know he has caused, let alone admit. So the fact the defence can’t produce a witness to say he is responsible for negligently starting this fire should come as no surprise. The important consideration is that from a strict scientific perspective, is that an accidental cause cannot be ruled out in this case.

22. The Accelerant Based Fire

In the same way the Fire Marshall began his assessment of a smoldering fire as initially being “rejected” to become “statistically possible”, he also modified his opinion related to an accelerant based fire. In his Report, he states that “…the negative results of the Centre of Forensic Sciences analysis was not a factor in this case”. True, it was not a factor in establishing the presence of an accelerant, however, because no accelerant traces were found, does not lead to the conclusion that they never existed. Stuart Sagara’s evidence was clear in confirming that an accelerant could have been consumed in the fire. The Fire Marshall agreed with that proposition, and accepted and adopted the following passage from Kirk’s Fire Investigation, a respected text in the field of fire investigation:

The intensity of such [furniture] fires can obliterate traces of ignition sources and induce the speed of spread and kind of damage once thought possible only for accelerated fires, and make the recovery and identification of possible accelerant traces very difficult. 

Again, from a strict forensic perspective, the Fire Marshall could not eliminate the possibility that an accelerant was used in this fire:

Q: Now, you are, I don’t think it’s not a secret, you’re familiar with the contents of the CFS report regarding accelerants, you’ve had a chance to read that, correct?
A: Yes, sir.
Q: All right. Separate and apart from that, and apart from chemical analysis of scene samples, is there anything in your own examination to suggest an accelerant of a chemical nature was used in this fire?
A: No, sir. I could not eliminate it totally, other than the fact that the fire was consistently spread across the wood planks in the area underneath the couch, whereas normally an accelerant of the type you are providing, would cause the fire to drop to floor level at a greater rate of speed, and potentially more involved, hence more consumption of floor planks.

Trial, December 8, 2009, p 11-12

It was known to the Fire Marshall that gasoline-type accelerants find their way into cracks and crevices of floorboards. No effort was made to collect the floorboards in this case, because at the time it wasn’t considered relevant—the police had a suspect in custody and there was an eyewitness to the starting of the fire.

The Fire Marshall also testified that although he made certain observations of the fire scene, he could not state whether or not anyone was looking for a 500ml plastic bottle:

THE COURT: All right. Mr. O’Leary, I have got some questions for you. Mr. O’Leary, my understanding is that you arrived at the scene about 6:00 am in the morning.
A: That’s correct.
THE COURT: And that you made certain observations?
A: Yes, sir.
THE COURT: And the Fire Department and the Police Department were still there?
A: Yes, sir.
THE COURT: And I take it that hoses were all over the place?
A: Yes sir.
THE COURT: Equipment was all over the place?
A: Sorry, I missed that.
THE COURT: Pardon?
A: Hoses were all over the place and what was next?
THE COURT: Equipment was all over the place?
A: Yes, sir.
THE COURT: And no one was specifically looking for a 500 ml plastic bottle I take it? That was not something people were looking for at the time?
A: I could not say that, sir.
THE COURT: Okay. In any event, none was found?
A: That is correct.
THE COURT: None was referred to?
A: That is correct.

Trial, December 8, 2009, p 55-56

With regard to the various potential causes of the fire, the Fire Marshall’s final comments were as follows:

THE COURT: Okay. Did you at any time ever rule out the flaming garment?
A: It was not possible to eliminate that.
THE COURT: Okay. So the best you can say is may or may not have been, is that true?
A: It was more possible, probable…
THE COURT: More probable
A: Than the gasoline.
THE COURT: Okay.

Trial, December 8, 2009, p 64

23. Fire-Related Human Behavior

The Fire Marshall agreed, in his capacity as an expert, that there existed a burgeoning social science related to the study of fire-related human behavior. Referencing again the NFPA 921, the Fire Marshall agreed with the following comment from that text:

10.3.1.2 Cognitive Comprehension Limitations
Cognitive comprehension limitations, which may affect an individual’s ability to recognize and react appropriately to the hazards presented by a fire or explosion incident, include age (as it relates to mental comprehension), level of rest, alcohol use, drug use (legal or illegal), developmental disabilities, mental illness, and inhalation of smoke and gases. These cognitive limitations are more likely to affect and individual’s ability to accurately assess the hazards presented by a fire or explosion.

Turning to the facts of this case, it is known that Zrdalic, Broadhead and Wallace had been consuming alcohol and illegal drugs. It is known that Wallace consumed crack cocaine and it is likely that Zrdalic also consumed crack cocaine. It is also known that Wilder consumed crack cocaine. It is against this backdrop that their behavior and reaction to the fire ought to be judged.

24. CONCLUSION

The defence submits that the charges against Mr. Wallace ought to be dismissed. The underlying evidence from the lay witnesses called to support the theory that Wallace deliberately or recklessly set this fire has been shown to be unreliable and not credible. The possibility that the fire was the product of an accident can not be ruled out. The evidence of Chris Wilder that he was responsible for the fire is capable of raising a reasonable doubt as to the guilt of Franklyn Wallace.

Respectfully submitted this 8th day of March, 2010, at Windsor, Ontario.

_____________________
John Liddle
Barrister
691 Ouellette Avenue
Windsor, ON
N9A 4J4

Tel: 519-255-1140
Fax: 519-255-9888

Counsel to Frank Wallace

To: Mr. Scott Pratt
Office of the Crown Attorney
200 Chatham Street East
Windsor, Ontario
N9A 6V3

And to: The Clerk of this Honourable Court

APPENDIX “A”

INHERENT DANGEROUSNESS IN RELYING ON A PART OF A STATEMENT

In R v Ferris (1994), CANLii 5267 (Alta.C.A.), the Alberta Court of Appeal considered whether the trial judge was correct in permitting a portion of a conversation to be admitted into evidence. The accused had been arrested for murder and requested to make a long distance call his father. The call could only be made from the homicide office within the detachment. The officer who took the accused there heard the accused say during the call “…I killed David…”. The officer stated that it was not his intent to hear any part of the accused’s conversation and that he did not hear what was said before and after those three words. The Crown did not call the father in the course of the voir dire, and the accused did not testify.

The court ruled that the trial judge erred in permitting the statement to be adduced into evidence:

To be relevant, the evidence must be probative of some fact in issue. Words do not become admissible merely because they are uttered out of the mouth of the accused. It is for the party tendering the evidence to prove the connection between he evidence tendered and the fact. In some cases the words may be relevant to the issue of credibility, but that is not the case here. There may be cases where the utterance of a single word (such as a code word) would go to prove the accused’s knowledge of an important fact. The onus rests on the party tendering the evidence to prove the connection between the evidence offered and the fact. In this case, the only possible relevance of these words is if they could be found to constitute an admission by the accused that he killed David. They are being tendered as proof of their contents. The issue here is not whether the officer is telling the truth, that the accused uttered these words, but whether any meaning can be put on the words. Are they an admission? Certainly if they are, they are relevant and highly probative. While the jury ultimately makes the decision, the trial judge must determine whether there is evidence on which they could so decide.

R v Ferris, at para. 15

The facts of this case are unique in that there exists no circumstances or context from which the true meaning of the words can be inferred. It is uncontradicted that the words were part of an utterance only, and that other words passed both before and after those words. It is uncontradicted that the words could have come at the beginning of a sentence, or at the end, such as ‘They think I killed David’, or ‘They think I killed David, but I didn’t’. His father could have asked him what the police think he did and he could have replied ‘I killed David’. Those utterances do not prove any fact in issue and are not an admission of guilt. Indeed, on the basis of the uncontradicted evidence, the possibility of statements with the words ‘….I killed David…” contain therein are numerous. There is no way of determining the meaning of thought to be attributed to the words. A trial judge could not ascertain, nor could the jury, the meaning of the words.

R v Ferris, at para. 17

Where one party seeks to tender an admission of the other party into evidence, he must introduce all of the statement, and not just the portion which favours the party tendering. As was stated in Capital Trust Company v. Fowler (1921), 64 DLR 289 (Ont.C.A.) at 292:

The law seems quite settled that, if an admission is used by one party, it must be used in its entirety, that is, everything must be read that is necessary to the understanding and appreciation of the meaning and extent of the admission.

As mentioned above, the testimony of Sgt. Schmidt makes it clear that the words ‘I killed David’, on there own, are not enough to allow for the proper understanding and appreciation of the meaning of the statement. It is essential that the jury receive the complete utterance so that the meaning can be ascertained. Further, this is not a case where the recipient of the call testified as to the meaning of the statement. Normally in admission cases, the accused is afforded the safeguard or cross-examining the recipient of the information as to the true meaning of the words without being forced to testify.

R v Ferris, para’s 23 – 24

The Ferris decision was affirmed by the Supreme Court of Canada and was recently reconsidered by the Ontario Court of Appeal in R v Hunter (2001), CANLii 5637 (OCA). There, the Crown sought to call a Mr. Dicecco who overheard the accused speaking to his lawyer in an open area at the Toronto Old City Hall Courthouse. Mr. Dicecco heard part of conversation, namely that of the accused stating: “I had a gun, but I didn’t point it”. On a voir dire, both the accused and his counsel, Mr. Rusonik, denied ever saying that. The appellant was convicted.

On appeal, the decision is Ferris was revisited and endorsed. Justice Goudge wrote:

In my view, Sopinka J’s reasoning [in Ferris] is anchored in the important role that context can play in giving meaning to spoken words. Where an overheard utterance is known to have a verbal context, but that context is itself unknown, it may be impossible to know the meaning of the overheard words or to otherwise conclude that those words represent a complete thought regardless of context. Even if the overheard words can be said to have any relevance, where their meaning is speculative and their probative value therefore tenuous yet their prejudicial effect substantial, the overheard words should be excluded.

R v Hunter, par. 19

Moreover, the court ruled that in this case the admission of the overheard statement resulted in a substantial wrong or a miscarriage of justice:

The Crown argued that even if the overheard utterance was admitted in error, it resulted in no substantial wrong or miscarriage of justice. I do not agree. The Crown characterized this evidence as very critical. Moreover, in the appellant’s first trial where the one significant difference appears to be that this evidence was not called by the Crown, the result was a deadlocked jury and a mistrial. I do not think it can be said that without this evidence the verdict would necessarily have been the same.

R v Hunter, par. 23

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Searching for the “Heard About Guy”

Who is the Heard About Guy?

It is known that the Heard About Guy just got out of jail.

The Heard About Guy is the guy who, your client tells you, just finished off a case that was exactly like his. The client heard about this guy from someone reliable. The Heard About Guy was the beneficiary of extreme good fortune, you are advised, in that his case was identical to the one you are struggling with this very moment, with this very client. Not only were the facts of both cases the same, but the Heard About Guy was roughly the same age, had the same background, and generally the same criminal record as this client. An amazingly fortuitous coincidence!

The Heard About Guy received an incredible deal—clearly the product of good lawyering. The stars were aligned for the Heard About Guy, so it seems. Rather than the 90 days jail the prosecutor is asking for your poor client, the Heard About Guy—whose case was identical in all significant respects did not go to jail, not even for a day.

Your challenge, of course, is to match the deal the Heard About Guy got. The devil is in the details, as the saying goes, so you begin an inquiry with your client in the lovely confines of the cell block.

What was the name of the Heard About Guy? Please give me that simple information–we can order a transcript of the proceedings and easily convince the prosecutor of the unreasonableness of her position. A new, revised deal would clearly be in the offing—you’ll be out of here in no time….. What’s that? You are sorry to report you don’t know his name? Egads! The guys on the other range knew him only as Buddy.

This is only a minor setback…pray tell, who was the lawyer for the Heard About Guy? The Windsor bar is small—we’ll find the lawyer and surely he will give us all the information needed to track down this gem of a case. The lawyer will easily remember his great success. Say what? You are not sure of the lawyer’s name. Rats!

Well, there is more than one way to skin a cat. When did the Heard About Guy go to court? Who was the judge? Any scrap of information would help—it will be so easy from there. This cannot be! With regrets, you must advise that this information is not known. You can confirm, however, that it was very recent, and in this jurisdiction.

Things are getting a little desperate…the final approach: Where is the Heard About Guy now? Any address or number will do. I will seek him out! If he is not home, I will leave my card in the door with a note to call me right away! If he frequents a local bar, I will go there personally and buy him a beer! Dang! You have been lead to believe he has left town—“fucked off” in your words, with no forwarding address! A cell number, written on a scrap of paper, was lost. Of all the rotten luck!

Wait—almost forgot! Your reliable source—identify this person and we’ll take it from there. Don’t tell me! He’s gone too! Shipped out, skipped bail, traveling under a false name, avoiding detection. This is madness!

Rest assured, this bizarre dialogue is repeated from lawyer to client the world over, usually ending with a mutual rumination over opportunities lost and cruel ironies.

The Heard About Guy is a bugaboo, a phantom, a figment of the imagination—like the Loch Ness Monster, often spoken about, but rarely spotted. Sadly, I cannot disprove the existence of the Heard About Guy any more than I can disprove the existence of unicorns in the woods of Essex County. Therein lies the rub, although I am reasonably sure my clients don’t think I am so stupid to believe that some anonymous Joe got the deal of a century right in my back yard without me knowing about it.

I doubt strongly that any of my clients actually believe of his existence, although none would admit that our search for this alien being is a charade. The client, I suspect, wants to measure my commitment to him and to his case. The Heard About Guy at least represents a crude form of Hope, not to be dismissed lightly.

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Who owns the peace?

Who owns “the peace”? You, me, the cops, or John Lennon?

I felt sorry for my many friends who live in Toronto, who during the last week of June 2010 had to endure the spectacle of the G-20 Summit Conference in their city, which no doubt caused a massive disruption to their lives and the city’s commerce, aside from costing the taxpayers of Canada over $1 billion in costs associated with security for hosting the event.

Of course wherever our world leaders congregate to do whatever it is they do at these conferences, protestors are right behind them, doing whatever it is they do to draw attention to issues worthy of social change. In the case of the G-20 Summit, some protesters protested quietly, others protested loudly. Some people who may or may not have been protestors smashed windows and set a car on fire. Without determining who was responsible and for what reasons, this behaviour not surprisingly triggered a serious response from the police and resulted in approximately 1,000 arrests, and the virtual suspension of civil rights during this period. Adding fuel to the fire was the Ontario government’s enacting of a regulation pursuant to the Public Works Protection Act, which made a sizeable chunk of downtown Toronto a “no-fly zone” for protestors and public alike.

There continues, to this day, an ongoing debate about the propriety of the police conduct, and whether they overstepped their bounds. However, until proven wrong, the right of the police to maintain the peace as they see it is a power firmly entrenched in both our history and our criminal law.

Canada wasn’t even a legal country until 1867, when our British rulers determined we were mature enough to handle most of our own affairs. Our repatriation from England came under the British North America Act, the title of which could only serve as a constant reminder of our debt to our foreign overlords. In that statute, the Brits essentially told us how to organize a country, and delegated issues related to criminal law to the domain of the federal government. Arising from this was the very first Criminal code of Canada, enacted in 1892. As a literary document, the criminal code has as its core themes the notion of respect for public order and for peace, all underlined by loyalty to The Queen and those who serve her. And to make sure we remember who is (notionally) in charge here, our laws do not become laws until they receive “royal assent” and the blessing of the Queen’s representative in Canada, the Governor General.

So under Canadian criminal law if it alleged you screwed up, it is you against The Queen. Most people would not want those odds. There are many ways that you can piss off the Queen. On the most serious level, you could engage in sedition, piratical acts, mutinies, or you could commit the offence of “alarming” the Queen. On a less serious level, you can unimpress Her Majesty by robbing, assaulting or ripping off her loyal subjects. Serious business, yes, but the one thing Her Majesty wants is what we all want: peace. The notion of “the peace” permeates the criminal code and is one of its core values. Obviously it is a fairly serious criminal wrong to riot in the streets; it is also criminal wrong to simply cause a disturbance, by shouting, singing or swearing in a public place. And although causing a disturbance may be one of the least serious offences in the Criminal Code, an even less serious criminal wrong is committed when a person commits a breach of the peace. In fact, breaching the peace is so incredibly non-serious that it does not even result in a criminal charge—what it does, though, is create in the police a power of arrest and detention. Of the 1,000 arrests at the G-20, over 70% were for breaching the peace, an offence so low on the totem pole of offences it doesn’t even warrant an appearance before a judge.

The constabulary that work for Her Majesty have a special name—you might think their name is the police. Wrong. Their name is “peace officers”. The phrase “police officer” rarely appears in our criminal code, rather the more expansive term “peace officer’ is used. While all cops are peace officers, so are jail guards, customs officers, mayors, reeves and even pilots. Our laws are enforced by peace officers, not police officers. Punch a cop in the head, and you will be charged with “assaulting a peace officer”. Lie to a cop, and you will be charged with “obstructing a peace officer”. It hardly seems surprising that the core job of a peace officer is, well, maintaining the peace, a peace that shines like a beacon from Her Majesty through to the lowliest of her subjects.

Civil unrest is directed at that sovereign peace. A disturbance is created.  Attention is paid.  For some, it may be a badge of honour to be arrested as part of a protest, to cause a servant of Her Majesty to put pen to paper and note, for the record, that all is not well in the kingdom.

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A note on “random” roadside breath tests…

In June 2009, the House of Commons Justice Committee released a report recommending an amendment to the Criminal Code which would allow police to conduct random breath tests for drunk drivers. The word “random” has a nice ring—it is only your unlucky lot in life, your misfortune, your bad timing, an awful coincidence or a sad irony, for you to get pulled over for a quick check-up on whether you had zero, one, two or multiple highballs before running down to the store for bread and milk.

On the face of it, the majority of Canadians probably think this is a good idea—drunk drivers who kill and injure others, and themselves, are a menace that a mature society should not tolerate.

Currently, the law in Canada allows for a roadside breath test only if a police officer has “reasonable grounds to suspect a person has alcohol or a drug in their body”, and that the person has recently or is currently operating a vehicle. Fail that test, and the officer is empowered to take you “downtown” for a test using a more scientifically reliable breathalyzer machine. The reasonable grounds for the suspicion typically arise from a combination of alcohol on the breath, fumbling for insurance and ownership cards, mumbling bumbling speech, the driver’s admission of having consumed some booze, and some aberrant driving.

Well all that is likely to change.

The key wording in the law as it now stands is “reasonable grounds”. Reasonableness, in law, contemplates a police officer has both a subjective and objective belief that a person has alcohol in his body. Police officers, being suspicious by nature, typically have the subjective belief; the objective belief, though, is not measured against what they think, it is measured against what a reasonable person would think—a hypothetical reasonable person who is apprised of the same information. So the law creates a standard against which the officer’s opinion is to be measured.

The change contemplated would eliminate that standard.

By now, most Canadians are familiar with the notion of RIDE programs that surface every winter holiday season, where every driver is stopped and given the once over by the men and women in blue.  Our courts have determined that these indescriminate programs–although an exception to the rule–are justified in a free and democratic society.   Most people consider getting stopped to be the bad luck of the draw—whatever your route was, you along with everyone else driving down Main Street is subject to the same scrutiny. Most people accept the randomness of this, which, depending on how you look at it, is at least equally unfair to everyone. The Minister of Justice could be in the car ahead of you, and the Chief of Police could be in the car behind you.  Each of the three of us is going to get checked out. Our odds are the same. That’s fair.

What isn’t fair is calling something “random” when it isn’t random at all.  Randomness is bingo, craps, blackjack. The bingo caller, the croupier and the dealer don’t play favourites. My bad luck is your good luck—but at least going in I know you and I have an equal chance. The opposite of randomness is arbitrariness, and that is what this proposal contemplates. Will the drivers of Lincoln Town Cars on Sunday afternoons be pulled over as often as drivers of Mustangs on Friday evenings? Can we be satisfied that the Minister of Justice and the Chief of Police have the same odds as you and I of being subject to a roadside breath demand? If we can’t say that’s the case, then we should stop trying to fool the Canadian public by calling something “random” when it isn’t random at all.

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