Alternative Suspect Evidence

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General Principles

Generally, the accused is permitted to adduce evidence tending to establish someone else as the culprit of the offence for the purpose of raising a reasonable doubt of their own responsibility.[1]

When considering alternative suspect evidence (also referred to as third party evidence), it is not for the trier-of-fact to determine if the alternate suspecte is the culprit. Only whether the "possible involvement of a third party raises a reasonable doubt" about the guilt of the accused.[2]

  1. R v McMillan (1975), 23 CCC (2d) 160 (C.A.), affd 1977 CanLII 19 (SCC), [1977] 2 SCR 824 per Martin J.A. at p. 757
    R v Grandinetti, 2005 SCC 5 (CanLII), [2005] 1 SCR 27, at para 46
    This is sometimes known as "Third Party Suspect" or "Alternate Suspect" evidence
  2. R v Khan, 2011 BCCA 382 (CanLII), 282 CCC (3d) 396, at para 91
    R v Tomlinson, 2014 ONCA 158 (CanLII) at para 78

Raising the Defence

This type of evidence can only be raised where there is sufficient evidence to connect a third-party to the offence. This will turn on the question of sufficient relevancy and probative value. The alternative suspect must have sufficient provable connection to the offence and cannot simply be speculative.[1] The evidence cannot simply be evidence of propensity or suggestive of a hypothetical motive.[2] However, a specific propensity to commit a particular offence can be sufficient.[3]

The evidence must nevertheless still comply with regular rules of evidence.[4] This includes the requirement that the evidence be relevant and admissible on the issue of identity[5] and establish "sufficient" connection between the third-party and the offence.[6]

Air of Reality
Before the evidence can be considered, the accused must show that there is an air of reality to the defence of another suspect. There must be a basis upon which a properly instructed jury could acquit.[7]

It is considered essential that the alternative suspect evidence have sufficient connection with the offence as "evidence of opportunity".[8] Merely, providing disposition or motive evidence will not be sufficient to be admissible.[9] As the regular rules dictate, charged offences cannot be used to infer disposition.[10]

  1. e.g. R v Grandinetti, 2005 SCC 5 (CanLII), [2005] 1 SCR 27
    R v Labbe, 2001 BCCA 653 (CanLII), (2001), 159 CCC (3d) 529 (BCCA)
  2. e.g. R v Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 SCR 129
    R v Shchavinsky, 2000 CanLII 16877 (ON CA) (2001) 148 CCC (3d) 400 (ONCA)
    R v Aprile 2007 QCCA 1041 (CanLII)
  3. R v Vanezis, 2006 CanLII 37954 (ON CA), (2006) 213 CCC (3d) 499 (ONCA)
  4. R v Tomlinson, 2014 ONCA 158 (CanLII), at para 72
    R v Williams, 1985 CanLII 113 (ON CA), (1985), 18 CCC (3d) 356 (Ont. C.A.), at p. 366, leave refused
  5. Tomlinson, supra at para 73
    McMillan (1975), 23 CCC (2d) 160 (C.A.), affd 1977 CanLII 19 (SCC), [1977] 2 SCR 824 per Martin J.A., at p. 757
    Grandinett, supra, at para 46
  6. Tomlinson, supra at para 74
    Grandinetti, supra, at para 47
    R v Spackman, 2012 ONCA 905 (CanLII), 295 CCC (3d) 177, at para 121
  7. R v Fontaine, 2004 SCC 27 (CanLII), [2004] 1 SCR 702, at para 70
  8. Tomlinson at para 75
  9. Thomlinson, supra at para 75
    Grandinetti, supra at para 48
  10. Tomlinson, supra at para 77
    See also Character Evidence

Rebuttal Evidence

When raising alternate suspect evidence, the Crown is permitted to present reply evidence that it would not otherwise be allowed to adduce. Where evidence of an alternative suspect is raised, there is a risk that the trier of fact would be left with the wrong impression about the insufficiency of the investigation. Accordingly, the Crown will be permitted to lead evidence on the investigative process that includes hearsay and bad character evidence of the accused.[1]

  1. R v Dhillon (2002), 2002 CanLII 41540 (ON CA), 166 CCC (3d) 262 (ONCA) at p. 277

Form of Evidence

Disposition Evidence
The presentation of alternative suspect evidence of disposition may be established by way of expert disposition evidence[1] or by propensity evidence from a prior criminal record.[2]

Evidence of the accused's prior record and the circumstances surrounding them will only be available in limited circumstances.[3]

  1. e.g. see R v McMillan (1975), 23 CCC (2d) 160 (C.A.), affd 1977 CanLII 19 (SCC), [1977] 2 SCR 824 per Martin J.A.
  2. Tomlinson at para 76
    R v Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 SCR 129, at p. 141
    R v Dorfer, 2011 SCC 50 (CanLII), 2011 SCC 50, [2011] 3 SCR 366, at para 1
  3. e.g. R v Paul, 2004 CanLII 26339 (ON SC)

Inadequate Police Investigation

Alternate suspect evidence can include evidence that the police inadequately investigated alternate suspects or that they had "tunnel vision" and failed to pursue important lines of inquiry.[1]

This is not a formal defence since there is no obligation or burden on the Crown to prove the police conducted a proper investigation.[2] For this reason the defence cannot engage in speculation by suggesting that if they had investigated the case differently they might have turned upon exclupatory evidence.[3] The trier-of-fact must focus on the quality of evidence not the quality of the investigation.[4]

If the accused is advancing an argument of inadequate police investigation, a voir dire should be held on the admissibility of the evidence.[5] It is best practices that this voir dire be held before the empanelling of a jury.[6] The voir dire should also produce "a clear ruling to define the parameters and limits on this type of evidence and to ensure that the evidence will be led in an orderly manner that is fair to both sides".[7]

Rebuttal Evidence
Where the accused advances evidence of inadequate police investigation, the Crown must be permitted to rebut the allegations.[8] It is for this reason that this type of defence is considered "risky" as it will open the scope of permissible Crown evidence.[9] The Crown may be permitted to include "investigative hearsay" and opinion evidence from police.[10]

Rebuttal evidence must "relate to the aspects of the invetigation the accused has impugned.[11] It cannot be used solely for the purpose of "sullying the accused character".[12]

The judge can also exclude the rebuttal evidence where the rebuttal evidence exceeds its probative valiue.[13]

Prejudicial Effect of Alternate Suspect Evidence
The judges must be cautious that tunnel vision defence may derail the trial by moving it into "blind alleys or introduce side issues that may prove irrelevant to the central issue of guilt or innocence".[14]

  1. R v Malley, 2017 ABCA 186 (CanLII), par. 49
  2. Malley at para 53
  3. Malley, ibid. at para 53
  4. Malley, ibid. at para 53
  5. R v Dhillon (2002), 2002 CanLII 41540 (ON CA), 166 CCC (3d) 262 (Ont. C.A.) at para 51
  6. R v Spackman, 2009 CanLII 37920 (ON SC)
  7. R v Mallory (2007), 2007 ONCA 46 (CanLII), 217 CCC (3d) 266 (Ont. C.A.), at para 88
  8. Dhillon, supra at para 46
    R v Candir, 2009 ONCA 915 (CanLI) at para 145
  9. Mallory, supra at para 87
  10. Mallory at para 87
    Malley, supra at para 51
  11. Malley, supra at para 52
  12. Dhillon, supra at para 46
    Mallory, supra at para 98
  13. Dhillon, supra at para 46
    Candir, supra at para 146
  14. R v Van, 2009 SCC 22 (CanLII) at para 46

See Also