



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Murphy, 2012
    ONCA 573

DATE: 20120905

DOCKET: C52369

Laskin, Rosenberg and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Murphy

Appellant

Dirk Derstine and Mariya Yakusheva, for the appellant

Rick Visca, for the respondent

Heard: April 23, 2012

On appeal from the convictions entered on January 14,
    2010 by Justice Guy P. DiTomaso of the Superior Court of Justice, sitting with
    a jury.

Laskin J.A.:

A.

introduction

[1]

After a two-week jury trial, the appellant, Andrew Murphy, was convicted
    of unlawful possession and storage of a loaded handgun, possession of cocaine,
    and possession of cocaine and ecstasy for the purpose of trafficking.  He was
    sentenced to six years and five months in jail, less 52 months credit for
    pre-sentence custody.  He appealed his convictions.

[2]

At the conclusion of oral argument, we advised counsel that the appeal
    was allowed, the convictions were set aside, and a new trial was ordered, with
    reasons to follow.  These are the reasons.

[3]

Mr. Murphy advanced numerous grounds of appeal.  I will deal only with
    his first and main ground as it is decisive of the appeal.  He submits that the
    trial judge erred in law in refusing to allow the defence to call a witness who
    was expected to admit culpability for the offences charged.  I agree with this
    submission.

B.

background facts

(a)

How the charges arose

[4]

The police obtained a warrant and conducted a search of an apartment
    unit in a rooming house in Orillia.
[1]
The police entered the apartment early one morning, using a battering ram to
    get inside.  When they entered, they found the appellant and two others.  The
    appellant was standing on the main floor; the other two individuals were
    huddled in the loft area of the apartment.

[5]

The police seized a variety of controlled substances, a loaded handgun,
    a replica handgun, drug paraphernalia and $1,250 in cash.

(b)

The Crowns theory

[6]

The Crowns theory was that the appellant had knowledge of and control
    over the handgun, cocaine and ecstasy found in the main area of the apartment. 
    The two individuals in the loft area were merely drug users.  The Crowns
    evidence included expert evidence from a police officer that the quantity of
    narcotics and the presence of the implements of the drug trade suggested
    possession of the narcotics for the purpose of trafficking.

[7]

The trial judge also ruled that the police officer could give opinion
    evidence about the behaviour of drug traffickers in relation to the storage of drugs
    and drug paraphernalia and about the connection between loaded handguns and
    drug trafficking.  One of the appellants grounds of appeal was that the trial
    judge erred in allowing the officer to give this expert evidence about the
    behavioural traits of drug traffickers and about the relationship between drugs
    and guns.  As it is unnecessary to deal with this ground of appeal, I express
    no opinion on whether this aspect of the trial judges ruling was correct.

(c)

The defence

[8]

The appellant did not testify.  However, he sought the right to call
    Alvin MacLellan as a witness.  MacLellan was expected to testify that the gun
    and narcotics found in the apartment belonged to him, not the appellant.

[9]

The trial judge required defence counsel to bring an application for the
    admission of third party or alternate suspect evidence.  He then ruled that the
    defence could not call MacLellan.  According to the trial judge, his proposed
    evidence was inadmissible because there is no evidence linking the third party
    suspect to the crime.  This ruling is the subject of my reasons.

C.

the trial judge erred in law in refusing to
    permit the defence to call maclellan

(a)

How the issue arose

[10]

MacLellans
    name initially surfaced during defence counsels cross-examination of the
    Crowns first witness, a police officer.  She asked the officer whether he had
    arrested MacLellan for trafficking in drugs.  When asked to justify this line
    of cross-examination, defence counsel said that she considered MacLellan to be
    possibly an alternate suspect but said that she wanted to further consider
    the matter.  She agreed that the trial judge should instruct the jury to
    disregard her questions concerning MacLellan and he did so.

[11]

Defence
    counsel then determined that she wished to keep open the possibility of calling
    MacLellan to testify.  The trial judge directed her to bring a formal
    application for the admissibility of this evidence.  Defence counsel objected
    to doing so.  She maintained that the evidence that I may choose to call in
    defence is presumptively admissible and therefore not subject to a third party
    suspect.  However, because the trial judge had directed her to do so, she
    brought an application framed as an alternate suspect application.  She filed a
    brief affidavit by Anitra Stevens, a secretarial and administrative assistant
    in her office, and one page of a police officers notebook, which referred to
    MacLellans arrival at the apartment after the police had conducted their
    search.  The material part of Stevenss affidavit stated:

I am advised by a member of the firm that they have spoken to
    Alwin MacLellan who will say that on August 27, 2007 a number of the illegal
    articles which form the subject matter of charges in the indictment belonged to
    and were in the sole possession of this witness.

[12]

During
    argument on the application, defence counsel summarized what she expected
    MacLellan to say and what her position was on the admissibility of his
    evidence:

The evidence at issue is an admission by a Mr. MacClelland that
    he was in possession of the illegal articles for which Mr. Andrew Murphy stands
    charged.  Thats the evidence at issue.  In my respectful submission, the
    defence is not seeking to tender any hearsay evidence.  The defence is not
    seeking to tender any propensity based evidence.  Defence is not seeking to
    tender any evidence based on motive.

And:

Because the focus of the defence of the anticipated potential
    defence evidence is simply direct evidence that would be received from the
    party claiming ownership of the illegal articles.  In my respectful submission
    there is no rule of law that finds this type of evidence presumptively
    inadmissible.

(b)

The trial judges ruling

[13]

In
    reasons reported at 2010 ONSC 156, the trial judge ruled that the defence had
    not established a sufficient connection between MacLellans proposed testimony
    and the offences with which Murphy was charged:

[49]    I find that the defence has not satisfied the
    sufficient connection test set out in
R. v. McMillan
and
R. v.
    Grandinetti
.  The defence has not established a sufficient connection
    between the third party, Mr. MacLellan and the crimes with which Mr. Murphy has
    been charged.  Without this link, the third party evidence is neither relevant
    nor probative.  The evidence may be inferential, but the inferences must be
    reasonable, based on the evidence and not amount to speculation.

[14]

The
    trial judge gave no weight to Stevenss affidavit as he said it had no
    probative value:

[53]    The affidavit coming from Ms. Stevens is double-hearsay
    and not probative on any issue.  It does not indicate who spoke with Mr.
    MacLellan and when.  It gives no particulars in respect of what Mr. MacLellan
    will say regarding which of the illegal articles belong to him or were in his
    sole possession.  The best affidavit would have and should have come from Mr.
    MacLellan.  That affidavit was not forthcoming, notwithstanding the fact that
    the defence knew of Mr. MacLellans whereabouts.

[15]

In
    concluding his ruling, the trial judge reiterated the absence of any connection
    between MacLellan and the offences charged.

[60]    I conclude that there is no evidence linking the third
    party suspect to the crime in this case.  The sufficient connection test has
    not been satisfied as the proposed third party evidence is neither relevant nor
    probative.  There is nothing connecting Mr. MacLellan to the offences before
    the court.  The Applicant has failed to demonstrate a sufficient connection
    between the crimes alleged and Mr. MacLellan.  The proposed admission is not
    contemporaneous in time to the commission of the offence.  We are now dealing
    with Mr. MacLellans proposed admission some two-and-a-half years after the
    event.  There is no evidence linking Mr. MacLellan to 42 Nottawasaga Street,
    Apt. 13, Orillia.  There is no evidence that Mr. MacLellan possessed the
    drugs.  There is no evidence that Mr. MacLellan possessed the handgun.  There
    are no eyewitnesses.  There is no evidence Mr. MacLellan was located inside 42
    Nottawasaga Street, Orillia, on August 27, 2007.  There is no evidence Mr.
    MacLellan was located inside Apt. 13 at 42 Nottawasaga Street, Orillia, on
    August 27, 2007.  There is no evidence specifically identifying any of the
    generically described illegal items which Mr. MacLellan claims to either own
    or possess.

(c)

Discussion

[16]

The
    appellant submits that the trial judge erred in refusing to permit the defence
    to call MacLellan because he misapprehended the nature of his evidence and
    misapplied the test for its admission.  I generally agree with this
    submission.

[17]

The
    law governing the admissibility of defence evidence in a criminal trial is
    well-established.  In her majority reasons in
R. v. Seaboyer
, [1991] 2
    S.C.R. 577, at pp. 611-12, McLachlin J. wrote that Canadian courts have been
    reluctant to limit the defences right to call evidence.   She explained:

The Canadian cases cited above all pertain to evidence tendered
    by the Crown against the accused.  The question arises whether the same
    power to exclude exists with respect to defence evidence.  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.

These principles and procedures are familiar to all who
    practise in our criminal courts.  They are common sense rules based on
    basic notions of fairness, and as such properly lie at the heart of our trial
    process.  In short, they form part of the principles of fundamental
    justice enshrined in s. 7 of the
Charter
.  They may be
    circumscribed in some cases by other rules of evidence, but as will be
    discussed in more detail below, the circumstances where truly relevant and
    reliable evidence is excluded are few, particularly where the evidence goes to
    the defence.  In most cases, the exclusion of relevant evidence can be
    justified on the ground that the potential prejudice to the trial process of
    admitting the evidence clearly outweighs its value.

[18]

In
R. v. Clarke
,
(1998),
    18 C.R. (5th) 219 (Ont. C.A.), at para. 33, Rosenberg J.A. elaborated on the
    courts narrow power to exclude relevant defence evidence:

In
Seaboyer
, McLachlin J. clarified the test for
    exclusion of otherwise relevant evidence. She held, at p. 611, that the judge
    has the power to exclude relevant evidence tendered by the Crown on the basis
    simply that its prejudicial effect outweighs its probative value. The power to exclude
    relevant defence evidence, however, is narrower and constrained by the
    fundamental tenet that an innocent person not be convicted, a tenet which now
    has constitutional protection. As she said at p. 608, The right of the
    innocent not to be convicted is dependent on the right to present full answer
    and defence. This, in turn, depends on being able to call evidence necessary to
    establish a defence and to challenge the evidence called by the prosecution. 
    McLachlin J. held, at pp. 611-12, that defence evidence may be excluded where
    the prejudice substantially outweighs the value of the evidence. In the result,
    the circumstances where truly relevant and reliable evidence is excluded are
    few, particularly where the evidence goes to the defence (at p. 611).
    Exclusion of defence evidence can be justified only where the potential
    prejudice to the trial process of admitting the evidence clearly outweighs its
    value" (at pp. 611-12).

[19]

Within
    this framework, the defence has always been permitted to call or adduce
    evidence that some other person committed the crime with which the accused has
    been charged.  However, before this third party or alternate suspect evidence
    can be admitted, the accused bears the burden of showing that the proposed evidence
    has some nexus with the alleged offence.  Without the nexus, the evidence
    would lack probative value.  In
R. v. McMillan,
(1975), 7 O.R. (2d)
    750 (C.A.), at p. 758, Martin J.A. explained the test for the admission for the
    alternate or third party suspect evidence and its rationale:

It follows that evidence of the disposition of a third person
    to commit the crime in question, like other circumstantial evidence, is
    admissible, if relevant, to prove that the crime was committed by the third
    person.

Where the character is that of a third person, not a party
    to the cause, the reasons of policy (noted ante, subsection 64) for exclusion
    seem to disappear or become inconsiderable; hence, if there is any relevancy in
    the fact of character, i.e. if some act is involved upon the probability of
    which a moral trait can throw light, the character may well be received. (Wigmore
    at p. 488.)

Obviously, unless the third person is connected with the crime
    under consideration by other circumstances, evidence of such persons
    disposition to commit the offence is inadmissible on the ground of lack of
    probative value.  For example, if A is charged with murdering X, in the absence
    of some nexus with the alleged offence, evidence that B has a propensity or
    disposition for violence, by itself, is inadmissible to prove B is the murderer
    because standing alone it has no probative value with respect to the
    probability of B having committed the offence.  If, however, it is proved that
    A, B and X all lived in the same house when X was killed, and that B had a
    motive to kill X, then evidence that B had a propensity for violence may have
    probative value on the issue whether B, and not A, killed X, and is accordingly
    admissible.

The Supreme Court of Canada affirmed this test in
R.
    v. Grandinetti
, 2005 SCC 5, at paras. 46-48.

[20]

This
    is the test the trial judge applied in dismissing Murphys application to call
    MacLellan as a witness.  The trial judge held that Murphy had not made out a
    sufficient nexus between MacLellans proposed evidence and the offences.  In so
    holding, he misapplied the test in
McMillan
.

[21]

Both
McMillan
and
Grandinetti
deal with the defences ability to
    call circumstantial evidence pointing to another persons culpability for the
    crime  be it evidence of propensity or motive or opportunity.  Without the
    sort of connections the trial judge found to be absent, this kind of
    circumstantial evidence would likely not have any probative value.

[22]

However,
    Murphy was not seeking to call circumstantial evidence pointing to another
    suspect.  He was seeking the right to call direct evidence from another person,
    who was expected to take responsibility for these crimes.  Why, I ask
    rhetorically, should he not have been permitted to call MacLellan to say, It
    is I, not Murphy, who owns the gun and the narcotics the police seized? 
    Obviously, it would be for the jury to decide whether to accept that evidence
    or whether it at least raised a reasonable doubt about Murphys guilt.  On its
    face, however, the proposed evidence was sufficiently probative and relevant
    that the defence should not have been precluded from calling it.

[23]

It
    seems to me that the trial judge misapprehended the nature of the proposed
    evidence and, therefore, at para. 60 of his reasons, erred by requiring Murphy
    to show other circumstances connecting MacLellan to the offences charged.

[24]

I
    accept the Crowns submission that the requirement to show some nexus or
    connection between the third party and the offences applies whether the
    proposed evidence is direct or circumstantial or a combination of both.  In all
    cases, the connection gives the proposed evidence its probative value: see Watt
    J.A. in
R. v. Candir
, 2009 ONCA 915, at paras. 131-132.

[25]

However,
    where the defence proposes to call direct evidence from another person taking
    responsibility for the crimes charged, that proposed evidence itself
    constitutes a sufficient nexus or connection.  Nothing more need be shown and
    no formal application is necessary.  To impose an additional burden on the
    defence, as the trial judge did, would be at odds with the passages in
Seaboyer
and
Clarke
emphasising the very narrow restrictions on the defences
    right to call evidence.

D.

conclusion

[26]

The
    appeal is allowed, the convictions are set aside, and a new trial is ordered.

Released:
Sept. 5, 2012                                         John
    Laskin J.A.

JL                                                                     I
    agree M. Rosenberg J.A.

I
    agree David Watt J.A.





[1]
Apartment 13 at 42 Nottawasaga Street.


