Ontario Superior Court of Justice
Between:
Her Majesty the Queen
and
[REDACTED]
J. Scutt,
Esq.
S. Lee, Ms
-- for the Crown
M.
McLachlan, Esq.
M.
Friedberg, Esq. -- for the Accused
Released: September 25, 2002
Archibald, J.
Ruling
THE COURT:
The defence has brought an application to tender hearsay evidence of an alleged
suicide attempt on the part of Mr. [REDACTED]. At its highest, the evidence could
possibly support the proposition that the deceased and her mother discovered
Mr. [REDACTED] in the basement of their house approximately one month before the
murder trying to hang himself when he was standing on a chair with a noose around
his neck. The deceased and the grandmother assisted Mr. [REDACTED] down from that
chair. After further discussion took place between the deceased and Mr. [REDACTED],
that particular crisis seems to have abated.
Ms. Pugliese
has testified before me and at the preliminary inquiry. She was a very close
friend of the deceased and confidante of the deceased. According to her
evidence, the deceased told her about this incident and indicated that the
cause of the alleged suicide attempt was both Mr. [REDACTED]'s depression over
losing his job, and also because she had asked him to leave the
house.
At another
point in her interview with the police (p. 68 of Exhibit A) Ms. Pugliese
indicated that the action on the part of Mr. [REDACTED] was "because he needed
some attention or people to feel sorry for him." The defence has submitted
that the evidence of this alleged suicide attempt is relevant for two purposes:
1. to show that the relationship was unstable
and filled with problems beyond the regular vicissitudes of a marital
relationship;
2. to show that the third party was mentally or
emotionally unstable at the time and, therefore, could have killed the
deceased.
Mr.
McLachlan has submitted that the suicide attempt is an act of violence and,
therefore, the jury should be entitled to consider that evidence in terms of
whether Mr. [REDACTED] suffered from emotional instability which could have led to
the killing of his spouse. The first purpose which is to show the instability
of the relationship may have some relevance for the defence in order to
underline the proposition that Mr. [REDACTED] could have been the perpetrator of the
murder. The suicide attempt may lend some probative value to the defence's assertion
that the relationship was troubled and that the third party, therefore, had a
motive to kill the deceased.
In my view,
however, there is ample additional direct and admissible hearsay evidence that
I am allowing in at trial to make the same point that the relationship was
turbulent and that there was a great deal of acrimony which existed between Mr.
[REDACTED] and the deceased. There are many other pieces of direct and admissible
hearsay evidence to make that same point in a compelling
fashion.
Although I concede that the alleged suicide attempt may, to some small degree,
add to that point, in my view, the point can be well made with other evidence.
The second
purpose that Mr. McLachlan wishes to tender this evidence is to show that the
third party was either mentally and emotionally unstable to the point that he
could have committed this murder. In other words, if he could have committed an
act of violence towards himself, he could have easily committed an act of
violence towards the deceased. In my view, it is too big a
leap of
logic to say that because Mr. [REDACTED] was emotionally unstable at the time of
the murder, that he, therefore, may have killed his common-law wife.
There is no
logical link that I can find in the evidence to support the proposition that
because Mr. [REDACTED] may have been emotionally unstable, he, therefore, committed
the murder of his wife.
If evidence
had existed, for example, that the deceased or the grandmother had heard Mr. [REDACTED],
at the time of the alleged suicide attempt, state, "I would also like to
kill my wife as well as myself," or, "I would have preferred to have
killed my wife but she wasn't available", there may have been a link
between the attempt and the murder. Without that kind of linkage the
evidence of
the alleged suicide attempt is unrooted and unanchored to anything that could
support the proposition that Mr. [REDACTED] was the perpetrator of the murder, as
opposed to Mr. [REDACTED].
There is
also a real danger in permitting the introduction of evidence. I have already
conceded that it may have minor probative value on the issue of the nature of
the disintegrating relationship of Mr. [REDACTED] and his common-law spouse.
The Supreme
Court of Canada in the decision of Winko v. British Columbia (1999), 135 C.C.C.
(3d) 129, has recognized that there are still stereotypical notions that
surround the issue of mental illness in our society.
McLachlin,
J., as she then was, in dealing with the constitutionality of the mental
disorder provisions of the Criminal Code, made the following point at page 153
of her decision:
"Part
XX.1 thus recognizes that, contrary to the stereotypical notions that some may
still harbour, the mentally ill are not inherently dangerous. The mentally ill
have long been subject to negative stereotyping and social prejudice in our
society based on an assumption of dangerousness."
She then
quotes from a number of decisions and refers to the Law Reform Commission of
Canada as follows:
"In
1975, the Law Reform Commission of Canada recognized that these negative
stereotypes of the mentally ill had found their way into the criminal justice
system:"
Although I
well appreciate that the Law Reform Commission's pronouncement in 1975 is more
than a generation old, the recognition by the Chief Justice of Canada that
stereotypes still prevail gives this Court pause for concern.
The test
that I must consider has been set out in R. v. Potvin, [1989] 1 S.C.R. 525 per
La Forest, J. (Dickson C.J. concurring) as follows: "...the rule [is] that
the trial judge may exclude admissible evidence if its prejudicial effect
substantially outweighs its probative value;" (p. 531).
That test
was adopted by the Supreme Court of Canada per McLachlin, J. for the majority
in R. v. Seaboyer, [1991] 2 S.C.R. 577.
It follows
from Seaboyer and Potvin that the prejudice must substantially outweigh the
value of the evidence before a judge can exclude admissible evidence that is
relevant to a defence allowed by law. I have previously ruled that the defence
is in a position to call direct and other previously determined to be
admissible hearsay evidence to support the proposition that Mr. [REDACTED] may have
committed the murder as opposed to Mr. [REDACTED].
In my view,
allowing this further evidence before the jury would cause substantial
prejudice to the Crown. It could be used by the jury to fuel already prevalent
stereotypes about the mentally ill and their propensity for violence.
Although
there may be, as I have already said, some minor relevance to the suicide
attempt for the defence, in my view, the potential for the jury to use this
evidence for improper purposes is extremely high.
A direction
from this Court to the jury concerning the limited purposes upon which they
could use this evidence would not suffice to correct the improper image that
could easily be created by this evidence.
Considering
all of the other evidence available to the defence that I have previously ruled
to be admissible to show that the relationship was troubled and acrimonious, I
do not believe that there is any significant prejudice to the defence if this
evidence is not permitted to be entered. The
proper
balancing in this case leads me to the conclusion that the prejudice in tendering
this evidence would substantially outweigh the value of the evidence and that,
therefore, it should be excluded.
There are
two other points that I wish to address. In my view, the evidence by itself is
ambiguous in its interpretation. It is not clear to me that the only conclusion
to be drawn from the evidence is that Mr. [REDACTED] attempted to commit suicide. I
reach that conclusion based upon the comments made by Ms Pugliese that Mr.
[REDACTED] was attempting to "draw some attention to
himself or
for people to feel sorry for himself." (p. 68)
The evidence
is sufficiently ambiguous as to what Mr. [REDACTED] was intending to do at the time
that, on that basis alone, it could also be excluded. This is not a question of
fact to be assessed by the trier of fact. It is an issue of threshold
reliability.
I make that
observation, although in terms of making this decision, I have decided this
application on the issue of substantial prejudice to the Crown.
This ruling
should also be clear that I am not precluding the defence from cross-examining
the third party on this issue. The defence is only precluded from leading
evidence in the defence case to rebut the position of Mr. [REDACTED], if Mr.
[REDACTED], in cross-examination, denies having tried to commit suicide.
Mr.
McLachlan is not, however, able to cross-examine Mr. [REDACTED] to the effect that
Ms Pugliese had discussed this matter with the deceased, and whether Ms
Pugliese's viewpoint garnered from the deceased was that Mr. [REDACTED] attempted
to commit suicide.
Conclusion:
I am
satisfied on the basis of the totality of the evidence that there is no logical
or practical link to connect the alleged suicide attempt to the commission of
the murder. I have reached the conclusion that the prejudicial value of this
evidence would substantially outweigh the probative
value of the
evidence.