This week’s top three summaries: R v Lawlor, 2023 SCC 34: #mental illness & murder, R v Abreha, 2023 ABCA 357: jury #exhortation, and R v Rudder, 2023 ONCA 864: third party #suspect.
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R v Lawlor, 2022 ONCA 645 – Dissent Upheld: 2023 SCC 34
[December 15, 2023] Mental Illness short of NCRMD affecting Intent for Murder [Dissent of Nordheimer J.A. upheld by Rowe, Martin, Kasirer, O’Bonsawin and Moreau JJ.]
AUTHOR’S NOTE: Mental illness is capable of reducing the culpability for homicide from murder to manslaughter separate and apart from its ability to contribute to an NCRMD finding. Due to this legal possibility, a trial judge has an obligation to instruct a jury in a homicide case about how this could occur when mental illness is part of the fabric of a case. They have to relate the facts of the case to the possible partial defence. Even where the evidence is “limited” as noted in the Majority reasons at the ONCA, the obligation remains. Here, the failure to of the trial judge to instruct on this topic explicitly caused a new trial after the matter progressed to the SCC.
van Rensburg J.A.:
A. OVERVIEW
[1] The appellant was convicted by a judge and jury of the first-degree murder of Mark McCreadie. Mr. McCreadie, the appellant, and a third man had engaged in a sexual encounter during the evening of April 9, 2014, in Victoria Park in Kitchener, near a spot frequented by men looking for casual sexual encounters with other men. Mr. McCreadie’s body was discovered on April 10, 2014, in the same area of Victoria Park. He had a stab wound around the abdomen, and his cause of death was determined to be external neck compression.
[2] In the weeks prior to Mr. McCreadie’s death the appellant had made several statements about harming gay men, which included references to having thoughts of strangulation and to having a knife, tape, and rope in his car. Two days after Mr. McCreadie’s body was found, the appellant admitted himself into the psychiatric ward of Grand River Hospital in Kitchener. In the hospital, the appellant told a friend that he had killed a man in Victoria Park and that he had used a knife and a rope. He later called the police, who interviewed him. The appellant told the police that he had been drinking and abusing his medication. He explained that he had been blacking out, had thought about harming gay men, and that he had been “cruising” around Victoria Park looking for gay men to harm. He told police he remembered having a sexual encounter with two men and that he had wrapped his scarf around the neck of one of them for erotic purposes. He remembered that that man left the park but he could not remember what happened to the second man. He asked police to find out if he had caused the death of the man in the park. The appellant was charged with first-degree murder.
Nordheimer J.A. (dissenting):
[116] I have read the reasons of my colleague. I do not agree with her conclusion that the failures in the trial judge’s instructions to the jury did not undermine the verdict reached. In my view, the trial judge’s errors in two respects, cumulatively if not separately, did not provide the jury with the necessary instructions to render a safe verdict. I would allow the appeal, set aside the conviction, and order a new trial.
[117] My colleague has set out the background facts. It is unnecessary for me to repeat all of them, but it is important to repeat those that go directly to what I say are the two significant errors in the jury instructions.
[118] The two errors that I identify are:
(i) The failure of the trial judge to instruct the jury regarding the relevance and use of the evidence relating to the appellant’s state of mind including both his mental condition and his level of intoxication.
(ii) The failure of the trial judge to provide a limiting instruction on the use that could be made of the appellant’s after-the-fact conduct [PJM Note: SCC upheld Majority on this Ground]
I. MENTAL STATE
[119] There were two central issues to be determined in this trial. One was the identity of the person who killed the victim. The other was the mental intent of the person who caused the death. The evidence of the appellant’s mental state was directly relevant to the latter and yet the trial judge failed to mention this evidence in his instructions to the jury on the element of intent.
[120] The appellant had been under psychiatric care for at least 12 years. He had a mental health support worker at the time, who gave evidence at the trial. She said that just over five weeks before the homicide, the appellant attempted suicide, by taking an overdose of psychiatric medication combined with alcohol. He was treated in the intensive care unit of a hospital and then remained in hospital for six days.
[121] The hospital psychiatrist, who assessed the appellant, did not believe that the appellant required admission to the psychiatric ward. He recommended that the appellant continue his treatment with his existing out-patient psychiatrist. The appellant was also prescribed certain medication.
[122] Before the appellant left the hospital, however, he said something to a social worker that prompted the hospital psychiatrist to revisit the appellant. In this meeting, the appellant admitted having past thoughts of harming homosexual men with knives, but the appellant told the psychiatrist that he had no plans to act on such thoughts.
[123] Additional information, on this point, came from a friend of the appellant who gave evidence that, in mid-March 2014, about a month before the homicide, the appellant was very distressed and upset. He needed a lot of support. The appellant told his friend that he had been sexually assaulted the year before and was having a difficult time coping with it. The friend also said that, on April 4, 2014, five days before the homicide, the appellant was upset and very agitated. The appellant told his friend that he had considered strangling one of the men he had had a sexual encounter with, in the same park where the homicide occurred, but had changed his mind.
[124] On April 9, 2014, the day of the homicide, the appellant met with his mental health support worker. The appellant was very upset. He had discovered that he was going to lose his job and with it, his health insurance, which covered the costs of his mental health treatments. The appellant told the worker that he was feeling suicidal.
[125] The following events then occur later on April 9, 2014:
(i) At around 5:30 p.m., the appellant bought some beer.
(ii) At 8:52 p.m., he called his real estate agent and said he might have to sell his house because he had lost his job. The real estate agent said that the appellant sounded “stressed”.
(iii) At 11:24 p.m., the appellant went to a bar.
(iv) At 1:21 a.m. (April 10, 2014), the appellant was in a 7-Eleven convenience store. Security surveillance video shows the appellant unsteady on his feet.
(v) At 2:15 a.m., the appellant walked into the emergency room at a hospital and said he had overdosed on his medications. He told a nurse that he had taken a number of pills and that he was “a mess”.
[126] The hospital psychiatrist (the same psychiatrist who had seen the appellant in midMarch) thought that the appellant should be admitted to hospital. However, once the appellant learned of the proposed treatment plan, he left the hospital against medical advice.
[127] I have repeated this evidence because it demonstrates that there were serious issues with the mental state of the appellant before, and around, the time of the homicide. Yet none of this evidence was mentioned by the trial judge in relation to the state of the appellant’s mental health when he came to instruct the jury on the element of intent. Indeed, the only evidence that the trial judge mentioned on that element was the appellant’s consumption of alcohol and prescription medication. On that point, the trial judge said simply:
To decide whether the Crown has proven beyond a reasonable doubt that Derrick Lawlor had one of the intents for murder, you should take into account the evidence about his consumption of alcohol and drugs, along with the rest of the evidence that sheds light on his state of mind at the time the offence was allegedly committed. [PJM Emphasis]
[128] As I have said, the trial judge does not mention any of the considerable evidence that was before the jury regarding the appellant’s mental health, and the perilous state it was in at the time of the homicide. He did not do so notwithstanding that this evidence was of more significance to the issue of intent than was the evidence about the appellant’s alcohol consumption. And intent was a critical issue in this case. Mental health evidence is important to the issue of intent for the reasons enunciated by Trotter J.A. in R. v. Spence, 2017 ONCA 619, 353 C.C.C. (3d) 446, at para. 49:
[E]vidence of mental illness is capable of undermining the mental element for murder in s. 229(a) (thereby reducing liability from second degree murder to manslaughter). It may also undermine the added mental elements of planning and deliberation in s. 231(2): see More v. The Queen, [1963] S.C.R. 522, at pp. 533-535; and McMartin v. The Queen, [1964] S.C.R. 484, at pp. 493-495.
[129] In my view, it is not sufficient, in response to this concern, to say that the mental health evidence was before the jury and that they would have considered it. There is no reason to assume that would have happened. The jury was told to follow the trial judge’s instructions on the law, as every jury is. When a trial judge does not mention a body of evidence, when relating other evidence on an issue as important as one of the elements of the offence, there is every prospect that a jury would conclude that the mental health evidence was not relevant to that issue. After all, the jury would rationalize that, if that evidence had been of importance to the issue, the trial judge would have mentioned it, as he did other evidence. Further, the catch-all boilerplate statement that the jury should take into account “the rest of the evidence that sheds light on his state of mind at the time” is insufficient to override that logical conclusion or to bring the importance of this evidence to the jury’s attention in their consideration of this element of the offence. [PJM Emphasis]
[130] The failure of the trial judge to relate this evidence to the element of intent was an error. It is contrary to the advice given by Moldaver J. in R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438. While my colleague cites the decision in her reasons, she fails to emphasize the central point that Moldaver J. made when he said, at para. 65:
In the end, what is critical is that the jury be made to understand, in clear terms, that in assessing the specific intent required for murder, it should consider the whole of the evidence that could realistically bear on the accused’s mental state at the time of the alleged offence. The trial judge should alert the jury to the pertinent evidence. How detailed that recitation should be will generally be a matter for the trial judge, in the exercise of his or her discretion. [Emphasis added].
[131] Whatever may be the parameters of the trial judge’s discretion regarding the details of the evidence to be provided, they do not extend to not mentioning the evidence at all.
[132] The failure of the trial judge to relate this evidence to the element of intent meant that the jury was not properly equipped to consider that element and whether it constituted the unlawful act of manslaughter or murder. It is also a factor that would have gone to the jury’s consideration of whether, if they concluded it was murder, the murder was a planned and deliberate one. The trial judge does not mention this evidence in his instructions on that element of the offence either.
[134] My colleague attempts to avoid the effect of these missing elements in the jury instructions in a number of ways. First, she downplays the mental health evidence by characterizing it as “limited”. I do not know of any principle that excuses a trial judge from mentioning evidence that is relevant to an element of the offence charged just because the evidence is not as strong as it might have been. As my colleague acknowledges, there is no requirement for an expert opinion on this issue: Spence, at para. 45; R. v. Reeves, 2017 BCCA 97, 352 C.C.C. (3d) 66, at para. 17. The jury had heard from a number of witnesses who had direct knowledge of the appellant’s mental health challenges, including from a hospital psychiatrist. It was important evidence that should have been expressly drawn to the jury’s attention.
[136] In any event, the failure of defence counsel to seek a specific instruction is not fatal to this ground of appeal given its importance, both to the issue of intent and the issue of planning and deliberation. As Doherty J.A. said in R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, at para. 97, leave to appeal to S.C.C. refused, 32050 (September 6, 2007):
There was no objection by counsel for the appellant at trial. The failure to object can inform this court’s assessment of the adequacy of a trial judge’s instruction, especially where the appellant relies on non-direction. However, as I am satisfied that it was essential to a fair trial that the trial judge relate the evidence to the issue of planning and deliberation, counsel’s failure to object is no answer to this ground of appeal.
R v Abreha, 2023 ABCA 357
[December 12, 2023] Exhortation of a Jury [Majority Reasons of Bernette Ho and William T. de Wit JJ.A]
AUTHOR’S NOTE: When a jury comes to a judge indicating they are deadlocked and unable to come to a unanimous verdict, it is important that the judge not then place their thumb on the scales by encouraging one side to cave to the other. While this decision does not discuss it, there is extensive research on the issue of jury decision making that suggests majorities regularly pressure minorities to change their vote on the basis of nothing more than peer pressure. This fact makes the principles described herein all the more important. The minority should not be targeted to change their views in the exhortation delivered by the Court. If this occurs, this decision reviews the principles that determine if a new trial is warranted on this basis alone.
Standard of Review
[5] Whether an exhortation misdirected a jury is a question of law reviewable on a standard of correctness: R v Walton, 2022 ABCA 276 at paras 87-88; R v Abdullahi, 2023 SCC 19 at paras 35-37, 40, 54-56.
Ground 2 – Improper Exhortation
Introduction
[10] The jury trial began on April 4, 2022. In the morning of April 6, 2022, the last Crown witness gave evidence and both the Crown and defence gave their closing arguments. On April 7, 2022, the trial judge charged the jury and the jury retired to begin deliberations at approximately 10:58 a.m. and continued to deliberate until 8:30 p.m. On April 8, 2022, the jury resumed deliberating in the morning and around noon, the jury chairperson sent an envelope to the trial judge with a note that indicated: “We, the jury, cannot deliberate to reach a unanimous decision”.
[11] …Both the Crown and defence suggested to the trial judge that the jury should be discharged. Instead, the trial judge gave an exhortation to the jury wherein, amongst other things, he specifically told the minority to reconsider their position and that they should remember that they may be wrong and if they could bring themselves to a different view and concur with the majority, they should do so. At approximately 6:00 p.m., the jury came back with a guilty verdict.
The Exhortation
[13] As part of his exhortation, the trial judge stated the following:
If any of you finds yourself in a small minority and disposed to differ from the rest of the jurors, you should consider the matter carefully, weigh the reasons for and against your view and remember that you may be wrong. If, on doing so, you can honestly bring yourself to come to a different view and thus to concur with the view of the majority, you should do so. But if you cannot do so consistent with the oath that you have taken and you cannot bring the others around to your point of view, then it is your duty to differ, and for want of agreement there will be no verdict.
Governing Principles
[14] The main purpose of an exhortation to a deadlocked jury is to impress upon jurors the need to listen to each other and to be flexible with respect to their perception of the evidence that they may have developed. In R v Sims, 1992 CanLII 77 (SCC), [1992] 2 SCR 858, 1992 CarswellBC 468 at para 13, the Supreme Court of Canada stated:
The purpose of an exhortation is not to suggest to the jury that one view of the evidence may be preferable to another, or that this inference as opposed to that inference should be drawn from the evidence. To put it another way, the focus of the exhortation is the process of deliberation which is the genius of the jury system. An essential part of that process is listening to and considering the views of others.
[15] A trial judge will be in error if there is a reasonable possibility or real potential that statements made during an exhortation coerced the jury or interfered with a jury’s right to deliberate in complete freedom from extraneous considerations or pressures that could cause a juror to concur with the view that they did not truly hold. See: R v G(RM), 1996 CanLII 176 (SCC), [1996] 3 SCR 362, 1996 CarswellBC 2311 at para 50; R v Sims at para 25; R v Vivian, 2012 ONCA 324 at para 61. The test is not whether there was a reasonable probability of coercion or interference but a “reasonable possibility”. The consequence of unacceptable judicial interference with the complete independence of jurors – a suspect verdict – necessitates this high degree of risk aversion.
[16] …an appellate court must consider all the language used by the trial judge including what was said in the main charge and in the entire exhortation. The court should also consider the note received from the jury and any suggestion that the jury was of the belief that it was useless to continue. See G(RM) at para 50. Lastly, the time that elapsed between the exhortation and the verdict should also be considered as a very brief time may give a clear indication of coercion of the minority. See: R v JB,2019 ONCA 591 at paras 108-109.
Note Received from the Jury
[17] …The wording of the note to the trial judge from the jury was simple and direct: “We, the jury, cannot deliberate to reach a unanimous decision.” In some notes from the jury the wording might suggest that the jury members need some type of direction or help in coming to a decision, which suggests that the jurors continue to have a belief that they may reach a unanimous decision. In contrast, the wording of the note in this case simply stated that they cannot reach a unanimous decision.
[18] …Defence counsel further submitted that he was concerned that an exhortation at that point in time may encourage “the group to go after the person or persons who is holding out and that we may not end up with a just verdict”. Defence counsel suggested the jury should be released. The Crown agreed with defence counsel and stated that in her experience this was “far and away” the longest a jury had sat in a three-day trial. …
Length of Time Between the Exhortation and the Verdict
[20] After deliberating for close to 12 hours, the jury provided their note to the trial judge at approximately noon on April 8, 2022. The exhortation was given about 20 minutes later and the trial judge made comments regarding lunch for the jurors. It is unclear if the jurors began deliberations immediately after the exhortation or waited until after finishing their lunch. In any event, several hours passed before the jury returned with its verdict at 6:06 p.m.
[21] In G(RM) at paras 42-45, the Supreme Court stated that where a verdict is reached very shortly after an exhortation, in that case 15 minutes, it suggested that what was said in the exhortation induced some members of the jury to change their position. A very short interval further suggested that the change in position had not been made on the basis of the members of the jury reasoning together, but that some of the jurors had abandoned their honestly held view. In this case, the 4 to 5 hours does not raise such a suggestion, but it is difficult to assess how the dynamics of the jury may have been affected by an improper exhortation. Although a very short time between the exhortation and the verdict can be a significant factor in determining whether jurors have been affected by extraneous factors, a longer time period is considered to be a neutral factor.
Effect of Trial Judge’s Comments
[22] There can be no doubt that comments made by a trial judge to the jury will carry great influence. This is especially so in the circumstances of an exhortation where jurors are at an impasse and are seeking guidance. This is made clear in the Supreme Court’s decision in Sims, where that court stated at para 14:
Things are quite different with an exhortation to a deadlocked jury. Discussions have been underway, usually for some time. Those discussions have produced different points of view. One may presume that those holding one point of view have sought to persuade those holding different views of the rightness of their point of view, and vice versa. The dynamic of deliberations requires that the jurors work their differences out among themselves. It is a delicate dynamic, which can be upset by interjection of a judicial opinion on a matter of fact. A trial judge’s interjection is rendered more problematic by reason of the fact that his or her reasons are not divulged to the jurors, and thus are not subject to examination and challenge. In short, the judge’s opinion becomes part of the deliberative process, but in a way which runs counter to the assumption of examination and discussion which underlies the jury verdict.
[Emphasis added.]
In the same vein, the Supreme Court also stated in G(RM) at para 15:
If the process is subjected to unwarranted pressures, or to unnecessary distractions, the delicate reasoning process may be thwarted. The sole task of a jury is to reach a verdict based exclusively on the evidence presented. The sturdy independence of jurors may be overcome and unanimity compelled by a judge’s suggestion that irrelevant factors be considered or by the judge’s exerting unwarranted pressure. In those circumstances, the verdict may no longer be based on a reasoned approach to the evidence. It follows that the instructions given to an apparently deadlocked jury must be delicately balanced and carefully crafted. If they are not, the jury system as a bulwark of democracy will all too easily be breached. The importance and significance of the instructions or exhortation to an apparently deadlocked jury cannot be overemphasized. The jurors at this stage are tired, probably frustrated and certainly disgruntled. They have given so much of their time and laboured so hard with the difficult issues that they are entitled to a careful and balanced instruction.
[Emphasis added.]
The Majority and Minority Views of the Jury
[23] A trial judge should not give direct advice to the minority to carefully consider the position of the majority without a reciprocal instruction to the majority. In Simsat para 15, the Supreme Court stated that typically an accused’s fair trial interests would be prejudiced if the trial judge instructed the minority members to conform to the opinion of the majority. This did not occur in this case. However, in G(RM) the Supreme Court stated at paras 37, 40:
The trial judge instructed the jury that the minority might want to consider what the majority was saying. There is much to be said for the position that the mere suggestion that a juror should listen to fellow jurors may not be, in itself, improper. What is essential is that there should not be any suggestion that a juror should abandon his or her honestly held view in favor of the majority position. In Watson, supra, the English Court of Appeal specifically considered a unilateral direction given by a trial judge to those in the minority to listen to the majority. The Court, correctly in my view, concluded at p.3 that such a direction could well be construed as “an encouragement to the dissentient minority to fall in with the majority whilst continuing to disagree with their views”.
…
In my view, it would be preferable for a trial judge to avoid putting the situation in confrontational terms of opposing sides. Rather the exhortation should appeal to the individual jurors to once again reason together. At the very least, if such a suggestion is made, it must state that both sides should listen to each other and consider the opinions of others. If that is not done, the jury may quite rightly assume that the trial judge is directing them that the majority opinion is right simply because it is the view of the majority and that the minority should no longer try to convert the majority to their point of view.
[Emphasis added.]
[24] In the latest version of David Watt, Watt’s Manual of Criminal Jury Instructions (Third Edition, 2023) at page 1309, the suggested wording of the exhortation to a deadlocked jury makes no mention of the minority or majority or that the minority may be wrong. In the “notes on use” section, it states that the exhortation process should not instruct jurors to consider carefully only the position of the majority not that of the minority.
The Principles Applied
[25] The exhortation of the trial judge in this case clearly focused on the minority and instructed them to reconsider the matter and to remember that they may be wrong. He then went on to instruct the minority that if they could bring themselves to come to a different view and concur with the majority they should do so. There was no reciprocal instruction to the majority to also consider the position of the minority and perhaps adopt the minority’s position.
[26] This portion of the exhortation offended the principle that describing deliberations in confrontational terms of opposing sides should be avoided. It also suggested to the minority that they may be wrong without equal comment that the majority may be wrong. This further offends the principle that the purpose of an exhortation is “not to suggest to the jury that one view of the evidence may be preferable to another”: Sims at para 13. As pointed out in R v Marks (2000), 2000 CanLII 4096 (ON CA), 48 OR (3d) 161, 2000 CarswellOnt 1343 (CA), where the trial judge gave an exhortation similar to that given in this case, the offending exhortation in G(RM) implicitly suggested to the jury that the minority was wrong. The exhortation in Marks and in this case expressly suggested that possibility.
[27] …. There is no doubt that the trial judge made many other comments that were proper.
[30] The wording in the exhortation itself states that the instructions are not to convince anyone to change their mind. However, a portion of the exhortation encourages the minority to come to a different view and concur with the majority if they can honestly do so. This is somewhat contradictory and may cause confusion with the jurors. The comments of the trial judge directed only at the minority may reasonably be viewed by them as an invitation to change their mind.
[32] Jury deliberations are private, and we cannot know for sure what effect the directions in an exhortation may have had upon members of the jury. This necessitates an objective assessment of the exhortation charge. However, the comments of the Supreme Court of Canada in Sims, that jury deliberations are a delicate dynamic which can be upset by the interjection of judicial opinion on a matter of fact, is equally applicable to this delicate dynamic being upset by judicial comments that the minority may be wrong and only focusing on the minority changing its mind. The delicate balance requires that extraneous factors, such as differentiating between the minority and majority positions and suggesting that the minority may be wrong, should not be introduced at all to the deliberation process. As stated in G(RM) at para 16, “[t]o suggest that a deadlocked jury . . . consider carefully only the position of the majority and not the minority, introduces pressures and factors which are completely irrelevant to their duties as jurors and are therefore inappropriate in an exhortation”.
[33] As stated in R v Vivian at para 61, “The question to be asked is not whether the words used by the trial judge actually affected the juror’s decision” or probably affect the decision but whether it was reasonably possible that the inappropriate words affect the decision. In our view, it is reasonably possible that the identification of the minority and majority, with the minority possibly being wrong, affected the verdict in this case.
Conclusion
R v Rudder, 2023 ONCA 864
[December 29, 2023] Third Party Suspect [Reasons by Paciocco J.A. with B.W. Miller and I.V.B. Nordheimer JJ.A. concurring]
AUTHOR’S NOTE: The air of reality test for third party suspect evidence to be tendered by the Defence has a tendency to become a reversal of the onus of proof when applied inappropriately. This decision reminds us that in possession-based offences, the Crown’s onus include dispelling the possibility of possession by other parties. No third party suspect application is necessary in most of these circumstances. However, even where an application is required, this test functions much the same as a air of reality test: the defence case is taken at its highest, the test remains whether a jury could possibly acquit if properly instructed on this evidence. This is not a high threshold and serves primarily to streamline cases where such evidence is extremely weak. In possession cases, its improper use very quickly reverses the onus of proof on the accused to show that the other persons were more connected than the accused. This reverses the onus because an accused can be found not guilty on the basis of a lack of evidence or doubt arising from such a lack of evidence. The Crown has an onus to sufficiently exclude the possibility of possession by others.
[1] Korey Rudder was convicted of five firearm and nine breach offences after a loaded handgun and ammunition were found secreted under the front seat of a black BMW SUV (the “BMW”) that he had been driving the night prior to his arrest. The trial judge based the convictions on a constructive possession finding. Given that the handgun was not in plain view in the BMW and there was no direct or circumstantial evidence establishing Mr. Rudder’s knowledge of the handgun, proof of constructive possession required an inference of Mr. Rudder’s knowledge of the handgun to be drawn from the control he exercised over the BMW, and from his post-offence conduct in lying to the police about his connection to the BMW. For the following reasons, I am persuaded that the trial judge materially misapprehended evidence relating to each of those issues and erred by failing to respect a factual admission made by the Crown. The trial judge also erred by misapplying the “sufficient connection test”, which is used to determine whether “third party suspect” evidence is admissible. In my view, these errors affected his evaluation of whether the Crown had proved constructive possession beyond a reasonable doubt. I would therefore allow Mr. Rudder’s appeal, quash his convictions, and order a new trial.
MATERIAL FACTS
[2] Trial evidence showed that on July 12, 2020, at approximately 7:00 p.m., police received information from a 911 call relating to the unlawful possession of a handgun by Mr. Rudder at a condominium building. This information was narrated during the trial to explain the investigation that followed, but the trial judge concluded appropriately that the information provided by the caller could not be relied upon as proof of Mr. Rudder’s guilt.
[3] As a result of the information received, police attended the building and reviewed live and recorded security footage. Using the security footage, they identified Mr. Rudder, earlier that day, exiting a particular condominium unit, and leaving the building parkade in the BMW that would become the suspect vehicle. Police received information that this unit was a short-term rental unit, that had been leased for the two-and-one-half weeks prior to July 12, 2020, not by Mr. Rudder.
[4] Detective Constable Jiri, who was stationed outside the building, subsequently identified Mr. Rudder operating the BMW, entering the underground parking lot at approximately 8:47 p.m. Police obtained a search warrant for the unit and the BMW, which was executed on the unit at 2:57 a.m. on July 13, 2020.
[6] Surveillance photos admitted into evidence showed Mr. Rudder was wearing a satchel when he entered the unit. A similar satchel, found in the unit,1 proved to contain a garage door fob for the building’s underground parking lot and a key fob to the BMW on the same keychain. The police used the key fob to execute the search warrant on the BMW. During their search the police discovered a loaded handgun and ammunition inside of a sock that had been pushed under the driver’s seat. The sock containing the handgun was not in plain view. No documents were found in the vehicle linking Mr. Rudder to ownership or rental of the BMW and there was no forensic evidence linking him to the handgun.
[7] ….Detective Constable Ghazarian confirmed that no-one used the BMW between 8:47 p.m. when Mr. Rudder was observed exiting the BMW and the search of the vehicle….
….Video footage admitted into evidence also confirmed that he operated the BMW on at least three occasions that same day: (1) arriving in the underground parking lot in the BMW at approximately 3:07 a.m.; (2) departing the underground parking lot in the BMW at approximately 7:00 a.m., and returning in the BMW a short time later; and (3) departing the underground parking lot in the BMW at 2:46 p.m. On two of those occasions, Mr. Rudder was accompanied by an unidentified female passenger.
[8] Detective Constable Ghazarian testified that he did not know from his review of the security footage whether the BMW was used by anyone else at other times on July 12, 2020. He was asked specifically in cross-examination whether he could say whether a female used the vehicle between 7:30 a.m. and 7:30 p.m. that day. Detective Constable Ghazarian said he did not know. He could not recall whether he observed anyone else leave the unit that day, as he was focused on Mr. Rudder. Detective Constable Ghazarian also testified that he had no idea if Mr. Rudder or any other person used the BMW on July 11, 2020, or previously.
[9] ….Detective Constable Ghazarian subsequently testified that the BMW was not registered to Mr. Rudder, without identifying the owner. When the trial judge raised concerns about this testimony, evidently because of its hearsay nature, the parties let the trial judge know that they had no issue with the information being presented in this fashion.
[11] Mr. Rudder testified in his own defence. He admitted that he used the BMW but denied knowledge of the handgun. He testified that three other persons also drove the BMW. He said that “Laura”, a woman he was having a sexual relationship with and who was renting the apartment unit where he was arrested, used the vehicle. He also testified that the BMW belonged to or was rented by Andrew Brown, a friend of Laura. Mr. Rudder said Mr. Brown used the car on July 10 and 11, 2020, moving it on at least two occasions. Mr. Rudder testified that Mr. Brown could move the BMW without asking him or Laura for the key fob because Mr. Brown had a second key fob. And he testified that another woman he was also in a relationship with named “Brandy” (whom he later described as “Brandy Stennet”) used the BMW on July 11 and 12, 2020, and that Brandy dropped him off at “105 West Lodge” on July 12, 2020, at approximately 10:30 a.m., bringing the vehicle back “like three o’clock in the afternoon”. Mr. Rudder provided only sparse details about these three individuals, but he testified that Brandy had become upset with him during this period after learning about his relationship with Laura.
[12] After Mr. Rudder completed his evidence in chief, the Crown argued that Mr. Rudder’s testimony had engaged the law relating to third party suspects by testifying about the three other users of the vehicle, and that he failed to meet the legal requirements set out in R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27 before doing so. The Crown requested an adjournment to prepare a response to Mr. Rudder’s claims, commenting that it may choose to investigate. Defence counsel disputed the suggestion that this evidence engaged the law relating to third party suspects, but ultimately consented to the adjournment. The trial was adjourned for a week to permit the Crown time to respond to the evidence Mr. Rudder had presented about other drivers.
Closing Submissions
[15] Defence counsel’s position in closing submissions was that the law relating to third party suspects was not engaged and that the Crown had failed to prove Mr. Rudder’s knowledge of the firearm beyond a reasonable doubt, particularly given the evidence that others had access to the BMW at the relevant time. Defence counsel also advanced the argument that the evidence about Brandy’s opportunity to plant the firearm, and her anger with Mr. Rudder, presented a plausible scenario for why she may have planted the handgun.
[17] Once again during closing submissions, the Crown submitted that the law relating to evidence of third party suspects was engaged by Mr. Rudder’s testimony about Andrew Brown, Laura and Brandy Stennet. The Crown argued that, as a matter of law, Mr. Rudder could not rely on their access to the vehicle in attempting to raise a reasonable doubt because he had not presented an air of reality to the suggestion that they were connected to the crime, as Grandinetti requires. The Crown noted, in particular, that Mr. Rudder had not provided evidence of motive, opportunity or propensity for any of the three, with the possible exception of motive relating to Brandy Stennet’s alleged animus. The Crown also argued that the evidence, including Mr. Rudder’s dishonest attempt to distance himself from the BMW, established Mr. Rudder’s knowledge beyond a reasonable doubt.
The Decision
[21] When the trial judge released his decision, he found Mr. Rudder guilty of all charges based on a finding of constructive possession.
(1) The “Other Suspects” Ruling
[22] The trial judge began his ruling by analyzing the “Other Suspects” evidence, under that heading. He ruled that the law relating to third party suspects was engaged, saying, “I find that the defendant’s testimony, particularly his testimony as it concerned Brandy, engaged consideration of the body of law known as ‘other suspects’”. The trial judge used this body of law to analyse the evidence not only relating to Brandy, but to all three of the other persons who Mr. Rudder testified had driven the BMW, namely, Brandy, Laura and Mr. Brown.
[23] In the course of his ruling, the trial judge said, “I am satisfied that the defendant’s viva voce evidence addresses the prerequisites for admission” and that the defence was “available”. The trial judge then said that he attributed “no weight” to this evidence, finding, “[t]here is no sufficient nexus between any of the other suspects and the crime at issue – possession of the loaded firearm.”
[24] The trial judge then elaborated. He said he rejected Mr. Rudder’s evidence “about the BMW vehicle arrangements”. In coming to that conclusion, he began by noting, “[t]here was no evidence at trial concerning the ownership of the vehicle….
[25] The trial judge then addressed Laura specifically as an alternative suspect. He found the evidence relating to Laura to be “exceedingly sparse” and ruled, “[t]here is simply no nexus between Laura and the possession of the loaded firearm even if there is some evidence of her access to the BMW.” He described the suggestion of Laura as another suspect as “subjective speculation” that is “not relevant and or probative of the issue of knowledge possession and control of the firearm”.
[26] The trial judge then said of Brandy, “there is no objective evidence supporting the existence of a person named ‘Brandy’ associated with this case” and “no sufficient nexus” between her and the possession of a loaded firearm. The trial judge went on to reject Mr. Rudder’s testimony about Brandy’s access to the BMW, observing that his claim that Brandy drove him to 105 West Lodge on July 12, 2020 was contradicted by the security videos in the parking lot from that date, 2 and he commented that Mr. Rudder’s testimony about Brandy’s “implied motive” was unsupported by other evidence.
[27] When the trial judge turned his attention to Mr. Brown as an alternative suspect he said: “I do not accept the defendant’s evidence about Andrew Brown. Even if I assumed the evidence to be true, there is nothing substantive to support a nexus between Andrew Brown and the crime of possessing a loaded firearm”….
[29] And he said:
Fifth, the defendant was arrested in possession of the key fob for the BMW and the garage door fob for entry. While the defendant testified that Andrew Brown had the other car fob, and asserted that Andrew Brown could independently use the vehicle, he did not testify as to how Andrew Brown did this without the garage fob.
[30] The trial judge concluded that it would be rank speculation to find that Mr. Brown had his own fob. He then said of the third party suspect evidence relating to Mr. Brown, “[h]ad the Defendant adduced this record on a pre-trial application I would have dismissed the application. There is no nexus between Andrew Brown and the crime of possessing a loaded firearm.”
[31] The trial judge then returned to the credibility of the third party suspect evidence generally and said, “I find no probative value in the evidentiary record adduced in support of other suspects for several reasons.” He went on to say, “there is not a hair of admissible evidence supporting the existence of any of the persons identified by the defendant” (emphasis added)….
[32] The trial judge concluded his “Other Suspect” analysis by recognizing that “where an other suspect defence is advanced at trial, the trial judge must assess whether on the entire evidentiary record at trial, the possible involvement of the other suspect raises a reasonable doubt”. He said that this can be done “by showing the connection between the other suspect and the crime in issue”. He said, “[t]here is no sufficient connection between any of the purported other suspects identified by the defendant and the crime in issue. Even assuming the evidence to be true, it does not establish anything more than access to the BMW vehicle.” The trial judge noted there was no evidence of their involvement in criminality or motive, and no direct or circumstantial evidence of the other suspects placing a firearm in the BMW.
[35] The trial judge went on to note that only Mr. Rudder was seen operating the BMW proximate in time to the discovery of the loaded firearm, and Mr. Rudder had a key fob and a garage fob. The trial judge referred to the absence of detail about the circumstances in which Mr. Rudder would be permitted to access the BMW, a valuable item, including the absence of evidence about why Brandy would have….
[36] The trial judge then focused on Mr. Rudder’s lie about his links to the BMW, finding that this evidence “demonstrated that [Mr. Rudder’s] first impulse was to lie and disassociate himself from the BMW”. The trial judge interpreted Mr. Rudder as having offered three explanations for doing so: “he wanted to speak to his lawyer, he did not possess a driver’s licence, and he was on bail conditions.” The trial judge then analyzed these explanations separately, rejecting each of them….
[37] The trial judge then turned to the last leg of W.(D.) and whether the other suspect evidence invited plausible inferences inconsistent with guilt, and he cautioned himself not to let his other suspect analysis reverse the burden of proof, citing R. v. Gauthier , 2021 ONCA 216, 403 C.C.C. (3d) 69. The trial judge said of the law relating to third party suspects, “considering the issue again, this time through the lens of W.(D.) and Villaroman , I am not in a state of reasonable doubt”….
ISSUES
[39] The issues Mr. Rudder raised on appeal can be described as follows:
A. Did the trial judge materially misapprehend the evidence that the car was a rental vehicle rented by Mr. Brown and/or Mr. Rudder’s explanation for his lie to the police?
B. Did the trial judge misapply the law relating to third party suspects?
C. Did the trial judge err in his Villaroman analysis, including by only considering the exculpatory inferences that arose from the appellant’s testimony?
[40] I am persuaded that the trial judge erred in each of these respects….
ANALYSIS
A. DID THE TRIAL JUDGE MATERIALLY MISAPPREHEND THE EVIDENCE THAT THE BMW WAS A RENTAL VEHICLE RENTED BY MR. BROWN AND/OR MR. RUDDER’S EXPLANATION FOR HIS LIE TO THE POLICE?
[42] I am persuaded that the trial judge misapprehended the evidence or record before him.
[43] First, the trial judge proceeded on the basis that there was “no evidence” as to the ownership of the BMW, or whether it was rented, and no evidence of another person associated with the vehicle. This is plainly wrong, and a mistake as to the substance of the evidence. Mr. Rudder gave direct testimony on each of these facts. I appreciate that the trial judge ultimately chose not to believe Mr. Rudder’s testimony, but that does not change the fact that it was an error for him to have found that there was “no evidence” on these issues, in the face of Mr. Rudder’s testimony. As I will note below, the trial judge relied on the absence of evidence on these issues as a reason for disbelieving Mr. Rudder.
[44] Second, the trial judge committed a related error of law by failing to accept that Mr. Brown existed, that the BMW was a rental vehicle, and that Mr. Brown was the person who rented the BMW. In my view, these facts were formally admitted by the Crown during the trial, and when formal admissions of fact have been made, as matter of law, a trial judge is obliged to accept those facts. He committed an error of law in failing to do so. I will explain.
[45] A “formal admission”, also known as a “judicial admission” is an agreement between the parties to litigation that a fact is true: R. v. Korski (C.T.), 2009 MBCA 37, 244 C.C.C. (3d) 452, at para. 121, quoting from S. Casey Hill, David M. Tanovich & Louis P. Strezos, eds, McWilliams’ Canadian Criminal Evidence, 4th ed., looseleaf (Aurora: The Cartwright Group Ltd., 2008) vol. 1, at p. 22-30. Unlike an informal admission – such as a confession made by an accused person outside of court – where a formal admission has been made it has the effect of withdrawing that fact from issue and dispensing with the need for proof of that fact: Korski, at paras. 121-122; see also R. v. Lo, 2020 ONCA 622, 152 O.R. 609, at para. 69. The Criminal Code, R.S.C., 1985, c. C-46 provides for some forms of formal admissions, including guilty pleas or formal admissions made by accused persons pursuant to s. 655of the Criminal Code: Lo, at para. 68. But these provisions are not exhaustive of the circumstances under which formal proof of an issue, “may be obviated by agreement of counsel”: R. v. Chang, 2002 BCCA 359, at para. 2, quoting from David Watt & Michelle Fuerst, Tremeear’s Criminal Code (Toronto: Carswell, 2002) at p. 1001; R. v. Picariello, [1923] 2 D.L.R. 706 (S.C.C.). The common law, which is not ousted by these provisions, also recognizes binding formal admissions, including admissions of fact by the Crown that favour the accused: R. v. Robertson, 2021 SKCA 125, 75 C.R. (7th) 378, at para. 19. Although such formal admissions are best made in “agreed statements of fact”, they need not be. The term “formal admission” is something of a misnomer because formal admissions need not be formalized in any technical sense. They can be made “by a statement of counsel during the course of litigation”: Rosenberg et al. v. Securtek Monitoring Solutions Inc., 2021 MBCA 100, 465 D.L.R. (4th) 201, at para. 59. In Robertson, for example, citing principles that had developed in parallel civil litigation authorities, Caldwell J.A. found that the Crown made an admission of fact, during oral argument on a blended voir dire, that was binding on the trial judge relating to the state of a police officer’s mind: Robertson, at paras. 15-18. And in R. c. St.-Pierre (1994), 97 C.C.C. (3d) 93 (Que. C.A.) it was found that a trial judge erred by disregarding an oral concession made by defence counsel that the substances the accused possessed were drugs, by ruling that the Crown had failed to prove this fact in evidence.
[46] Before a formal admission arises, the precise nature and scope of the agreed fact is “plainly to be stated on the record”: Chang, at para. 2, quoting from Tremeear’s Criminal Code, (Toronto: Carswell, 2002) at p. 1001. This does not mean that the parties must describe the formal admission as an admission. It is enough if it is evident, as a matter of substance, that the party against whom that fact operates intended to communicate that the fact is true: see Korski, at para. 125; R. v. Stennet, 2021 ONCA 258, 408 C.C.C. (3d) 141, at para. 56….
[47] In my view, it was clear and unambiguous that the Crown intentionally admitted during the proceedings that Mr. Brown existed, and that the BMW was a leased vehicle that Mr. Brown was renting….
[48] In my view, by telling the trial judge after having been given time to investigate the matter that “there is no reason to have any issue” with Mr. Rudder’s evidence that “Mr. Brown rented that car”, the Crown was expressly, intentionally, clearly, and unambiguously communicating to the trial judge that it accepted the truth of this evidence….
[49] To be clear, when a formal admission has been made, as it was here, a trial judge is free to interpret what the admission of fact means. “But that interpretive exercise cannot morph into an analysis of the veracity of the admission”: Campoux v. Jefremova, 2021 ONCA 92, at para. 34….
[56] I would allow these grounds of appeal.
B. DID THE TRIAL JUDGE MISAPPLY THE LAW RELATING TO THIRD PARTY SUSPECTS?
[57] The trial judge misapplied the law relating to third party suspects. As I will explain, in the circumstances of this case the trial judge should not have applied this body of law to the evidence about Laura, Brandy and Mr. Brown operating the vehicle, since it was not engaged by that evidence. Even had this body of law applied, the trial judge erred in assessing whether this body of law was satisfied. Specifically, he erred in using the sufficient connection test not only as a threshold inquiry but in assessing whether there was a reasonable doubt about Mr. Rudder’s guilt, and he committed a palpable and overriding error by rejecting this evidence based on its lack of connection to the crime.
[58] The law relating to third party suspects ensures that evidence or arguments are not presented about the possibility that others, and not the accused, perpetrated a charged offence unless there is evidence that raises this possibility as a material issue in the case. It provides a threshold admissibility test by requiring the accused to point to evidence of a “sufficient connection” between the third party and the crime: R. v. J.M.W., 2020 ABCA 294, 391 C.C.C. (3d) 1, at para. 28, citing R. v. Malley, 2017 ABCA 186, 352 C.C.C. (3d) 1, at para. 56; Grandinetti, at para. 47. The sufficient connection test is essentially an air of reality test: Gauthier, at para. 41; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 20. To raise this air of reality, the accused must point to “some basis [in the evidence] upon which a reasonable jury, properly instructed, could acquit based on the claim of third party authorship”: R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 121, citing Grandinetti, at paras. 47-48; Hudson, at paras. 181, 182, 190. The role of this body of law is spent once this threshold test is met. Where this is so, the evidence is admissible, and the defence is a live issue in the case that must by determined by the trier of fact on the evidence as a whole: R. v. Ranglin, 2018 ONCA 1050, 370 C.C.C. (3d) 477 at para. 60; citing R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36 at para. 78; R. v. Murphy, 2012 ONCA 573, 292 C.C.C. (3d) 122.
[59] Like other air of reality inquiries, the threshold admissibility determination is to be made by assuming that the evidence most favourable to the accused is true: Grant, at para. 20. To be sure, the evidence must have sufficient probative value to justify its reception: Hudson, at para. 196. However, this probative value assessment is limited so that the trial judge does not perform the function of the trier of fact when assessing admissibility. Therefore, where there is direct evidence supporting a third party suspect’s possible perpetration, that will be enough; the sufficient connection test is met and it will be up to the trier of fact to determine whether that direct evidence raises a reasonable doubt: Murphy, at para. 22. Where the evidence relied upon to show the sufficient connection is circumstantial, the trial judge must inquire whether the inferences being relied upon are reasonable inferences that arise from the evidence, and not simply from speculation or conjecture: R. v. Fenton, 2019 ONCA 492, at para. 18; R. c. Sorella., 2022 QCCA 383, at paras. 86-87, leave to appeal refused, [2022] S.C.C.A. No. 155. If the evidence could support a reasonable inference that someone other than the accused may have committed the crime, the evidence has the probative value required to satisfy the sufficient connection test: Grandinetti, at para. 46, Abella J. quoting from R. v. McMillan, (1975), 7 O.R. (2d) 750 (C.A.) at p. 757, aff’d [1977] 2 S.C.R. 824.
[60] Trial judges do have a further limited residual discretion to exclude third party suspect evidence even where the sufficient connection test is met. However, since third party defence evidence implicates the constitutional right to make full answer and defence, it cannot be excluded on this basis unless “the potential prejudice [of its admission] to the trial process of admitting the evidence substantially outweighs its probative value” Hudson, at para. 193; citing Murphy, at para. 17; Grant, at para. 38. In this context, potential prejudice typically relates to reasoning prejudice, such as “the distraction of [the trier of fact] from their proper focus on the charge itself aggravated by the consumption of time”: Grant, at para. 39, citing R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 144.
[61] The “sufficient connection” test can therefore be stated as follows: Third party suspect evidence will be admissible where: (1) the accused presents or points to evidence on the record of a connection between a third party and the offence charged, that, if assumed to be true and interpreted in favour of the accused, could raise a reasonable doubt about the guilt of the accused; and (2) the trial judge has not determined that the probative value of that evidence is substantially outweighed by the risk of prejudice it presents. Where this test is met third party suspect evidence must be considered along with all of the other evidence in the case in determining whether the Crown has proved the guilt of the accused beyond a reasonable doubt.
Analysis
[62] The trial judge erred in finding that the law relating to third party suspects, including the “sufficient connection test”, was engaged by Mr. Rudder’s testimony that Laura, Brandy, and Mr. Brown also drove the BMW prior to the discovery of the handgun. 3
[63] The Alberta Court of Appeal’s decision in J.M.W. is illustrative. As in this case, the Crown in J.M.W. sought to rely upon the control that the appellant had over the place where the contraband was discovered to establish his constructive possession. In J.M.W. that place was a computer on which child pornography was found. The appellant in J.M.W. sought to undercut the Crown’s reliance on his control with evidence that others also had control over the computer. The issue was raised at trial as to whether this evidence engaged the law relating to third party suspects. The Alberta Court of Appeal ruled explicitly that the appellant had not engaged this body of law by presenting evidence that others also used the computer: J.M.W., at para. 26.
[65] The correctness of these decisions can readily be seen, in my view, by recognizing that the law relating to third party suspects serves as a way of ensuring that proof offered by an accused person relating to the third party’s role is relevant to a material issue in the case. Where the Crown relies upon proof of control by the accused to establish that they are the one who had constructive possession, evidence that others also had control over the relevant place is already inherently material at the trial. There is no need for an accused person to raise this issue by satisfying the sufficient connection test. The trial judge therefore erred, in my view, by imposing the law relating to third party suspects on Mr. Rudder.
[66] Moreover, even if the significant connection test applied, I am satisfied that the trial judge erred in its application.
[67] First, as I have explained, the sufficient connection test is a threshold admissibility test that is to be conducted on the premise that the evidence is true, and without close examination of the ultimate probative value of the evidence. Where this standard is met, the significant connection test is spent, the third party suspect evidence is admissible, and it must be considered along with other evidence in determining whether the Crown has proved its case beyond a reasonable doubt. In this case, the trial judge found the third party suspects evidence to have an air of reality and held that Mr. Rudder was entitled to adduce the evidence and rely on the defence, but then he went on to find that “there is no sufficient connection between any of the purported other suspects identified by the defendant and the crime in issue.” These findings are inconsistent. Properly understood, if there was no sufficient connection between these alternative suspects and the crime charged, there could be no air of reality to the third party suspect defence. It is evident that the trial judge misapprehended the test.
[68] More importantly, the trial judge based his finding that there was no sufficient connection on an evaluation of the credibility and ultimate probative value of the underlying evidence, considerations that have no place when applying the significant connection test. I appreciate that in a judge alone trial, the trial judge, as trier of fact, would be required to evaluate the probative value and credibility of the third party suspect evidence after admitting it, but the trial judge’s method of proceeding by examining the probative value of this evidence through the lens of the significant connection test was not harmless, even leaving aside the misapprehension of evidence and other issues I have identified.
[70] Moreover, the trial judge reasoned unfairly in this regard. Not only did the Crown proceed on the basis that Mr. Rudder’s control over the BMW was incriminating evidence connecting him to the crime of the possession of the handgun, but the trial judge himself relied on Mr. Rudder’s control of the BMW as critical incriminating evidence connecting Mr. Rudder to the crime. It is difficult to see how proof of Mr. Rudder’s control over the BMW is sufficiently connected to the crime to serve as probative, incriminating evidence, yet evidence of control by others of the same BMW would not sufficiently connect them to the crime to be available as defence evidence.
[71] I am also of the view that the trial judge’s mode of proceeding by examining the probative value of the other suspect’s evidence in isolation before considering whether the Crown established Mr. Rudder’s guilt beyond a reasonable doubt affected his reasonable doubt evaluation. A similar outcome occurred in Gauthier, after the trial judge in that case unnecessarily applied the significant connection test before going on to consider whether the Crown had proved its case beyond a reasonable doubt. In Gauthier, Harvison Young J.A. found that the unwarranted application of the law relating to third party suspects “set the stage for the risk of an improper shifting of the burden of proof to the accused”: Gauthier, at para. 41. It did so in this case, as well. Although the trial judge cautioned himself not to permit the application of the law of third party suspects to reverse the onus of proof, his reasoning did so. The trial judge’s evaluation of the sufficiency of the connection is replete with references to things that Mr. Rudder had failed to show, and comments about the absence of evidence. For example, even though Mr. Rudder provided direct testimony about Mr. Brown’s existence, his status as the renter, his use of the vehicle, his possession of a key fob to the BMW, and about the use of the BMW by Laura and Brandy, claims the Crown never challenged in cross-examination, the trial judge expressed doubt about whether these individuals even existed because Mr. Rudder presented no confirming evidence. And the trial judge chose to disbelieve Mr. Rudder’s evidence about Mr. Brown’s use of the vehicle because he had not presented evidence explaining how Mr. Brown could have accessed the vehicle in the garage. In my view, the trial judge effectively reversed the burden of proof because of an expectation that it was for Mr. Rudder to prove his claims that others drove the BMW.
CONCLUSION
[73] I would allow Mr. Rudder’s appeal, notwithstanding the “in the alternative” reasoning the trial judge engaged in on the assumption that the third party suspect evidence was available, and notwithstanding the credibility evaluations the trial judge undertook. There are simply too many deficiencies in the manner in which the analysis was undertaken, including the credibility analysis and the apparent reversal of the burden of proof, to do anything other than set aside the convictions.
[74] Since I am not persuaded that verdicts of guilty were not available on this trial record had it been evaluated correctly, a substituted verdict of acquittal is not appropriate. I would order a new trial.
Released: December 29, 2023 “B.W.M.”
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