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 suspect is the culprit. Only whether the "possible involvement of a third party raises a reasonable doubt" about the guilt of the accused.[2]

AS evidence can only be adduced if there is "significant connection" between the third party and the crime.[3]

Factors

The assessment of admissibility balances probative value against prejudicial effect. The court should consider factors including:[4]

  1. The danger the evidence will arouse the jury’s emotions of prejudice, hostility or sympathy;
  2. The danger the evidence and any evidence responding to it will unduly distract the jury from the main issue in the case;
  3. The likelihood the evidence will consume an undue amount of time;
  4. The danger of unfair surprise to the opposing party who could not reasonably anticipate the issue and prepare a response to it; and
  5. The danger that the evidence will be presented in such a way that usurps the function of the jury.
Excluding Defence Evidence

The power to exclude defence evidence is "narrower and constrained by the fundamental tenant that an innocent person not be convicted".[5]

  1. ↑ R v McMillan, 1975 CanLII 43 (ON CA), 23 CCC (2d) 160 (CA), affd 1977 CanLII 19 (SCC), [1977] 2 SCR 824, per Martin JA, at p. 757 ("Evidence directed to prove that the crime was committed by a third person, rather than the accused, must, of course, meet the test of relevancy and must have sufficient probative value to justify its reception. Consequently, the Courts have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value.")
    R v Grandinetti, 2005 SCC 5 (CanLII), [2005] 1 SCR 27, per Abella J, 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, per Frankel JA, at para 91
    R v Tomlinson, 2014 ONCA 158 (CanLII), per Watt JA, at para 78
  3. ↑ Grandinetti, supra, at paras 47, 48 ("The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third party evidence is neither relevant nor probative. ... The evidence becomes relevant and probative if there is a significant connection between the third party and the crime.")
  4. ↑ R v Clarke, 1998 CanLII 14604 (ON CA), [1998] OJ No 3521, per Rosenberg JA, at paras 34 to 35
  5. ↑ Clarke, ibid., at para 33 ("The right of the innocent not to be convicted is dependent upon 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.")

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 a 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, per Abella J
    R v Labbe, 2001 BCCA 653 (CanLII), 159 CCC (3d) 529 (BCCA), per Low JA
  2. ↑ e.g. R v Arcangioli, 1994 CanLII 107 (SCC), per Major J
    R v Shchavinsky, 2000 CanLII 16877 (ON CA), 148 CCC (3d) 400 (ONCA), per MacPherson JA
    R v Aprile, 2007 QCCA 1041 (CanLII), per curiam
  3. ↑ R v Vanezis, 2006 CanLII 37954 (ON CA), 213 CCC (3d) 499 (ONCA), per Moldaver JA
  4. ↑ R v Tomlinson, 2014 ONCA 158 (CanLII), per Watt JA, at para 72
    R v Williams, 1985 CanLII 113 (ON CA), 18 CCC (3d) 356, per Martin JA, at p. 366, leave refused
  5. ↑ Tomlinson, supra, at para 73
    R v McMillan, [1], (1975), 23 CCC (2d) 160 (CA), per Martin JA, affd 1977 CanLII 19 (SCC), [1977] 2 SCR 824, per Martin JA, 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, per Watt JA, at para 121
  7. ↑ R v Fontaine, 2004 SCC 27 (CanLII), per Fish J, at para 70
  8. ↑ Tomlinson, supra, 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 CanLII 41540 (ON CA), 166 CCC (3d) 262 (ONCA), per Laskin and Goudge JJA, 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 CanLII 43 (ON CA), 23 CCC (2d) 160 (CA), per Martin JA, affd 1977 CanLII 19 (SCC), [1977] 2 SCR 824, per Spence J
  2. ↑ Tomlinson, supra, at para 76
    R v Arcangioli, 1994 CanLII 107 (SCC), per Major J, at p. 141
    R v Dorfer, 2011 SCC 50 (CanLII), per McLachlin CJ, at para 1
  3. ↑ e.g. R v Paul, 2004 CanLII 26339 (ON SC), per Trafford J

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), per Veldhuis JA, at para 49
  2. ↑ Malley, ibid., at para 53
  3. ↑ Malley, ibid., at para 53
  4. ↑ Malley, ibid., at para 53
  5. ↑ R v Dhillon, 2002 CanLII 41540 (ON CA), 166 CCC (3d) 262, per Laskin and Goudge JJA, at para 51
  6. ↑ R v Spackman, 2009 CanLII 37920 (ON SC), per Trafford J
  7. ↑ R v Mallory, 2007 ONCA 46 (CanLII), 217 CCC (3d) 266, per curiam, at para 88
  8. ↑ Dhillon, supra, at para 46
    R v Candir, 2009 ONCA 915 (CanLI), per Watt JA, at para 145
  9. ↑ Mallory, supra, at para 87
  10. ↑ Mallory, supra, 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), per LeBel J, at para 46

See Also

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