In a recent criminal action, R. v. Goro (2017), the judge was required to rule on two pre-trial motions in connection with a cold-case investigation that led to a second-degree murder charge against the accused. The Crown brought a pre-trial application to admit evidence of several incidents where police investigated the accused but where there were no criminal charges laid. Similarly, the accused brought an application to admit evidence for several non-conviction incidents that involved a third-party suspect, Mr. LaForge.
The key issue before the court was whether the details of any of these occurrences, which did not result in convictions for the accused or the third-party suspect, should be admitted into evidence in the trial. The judge ruled that the details from neither of these incidents was admissible as evidence in the trial.
A 54-year-old Burlington man was fatally stabbed in April 1976 and Halton Police initially believed that the man was the victim of an assault within the gay community in Hamilton. In February 1988, a man anonymously phoned Hamilton police and confessed to the murder, and the man was later identified as Mr. LaForge. Mr. LaForge was arrested by Oakville police, but he recanted his previous confession and also passed a polygraph interview, which led police to release him unconditionally. Mr. LaForge then passed away, prior to this criminal action. Partly because his fingerprints were found in the victim’s apartment, the defendant, Mr. Goro, was arrested in 2013. Both Mr. Goro and Mr. LaForge had prior criminal convictions.
The law and arguments
Criminal allegations for which no conviction has been obtained, or which are not the subject of the charge, are generally referred to as ‘bad character evidence’ (as in R. v. J.A.T. (2012)). Bad character evidence pertaining to an accused is presumptively inadmissible, unless the Crown is able to establish an exception to the exclusionary rule. On the other hand, bad character evidence, when deemed relevant and not subject to an exclusionary rule, is typically admissible for persons other than the accused because only the accused’s freedom is at stake in a trial.
An exception to the rule against admissibility of bad character evidence against the accused may be permitted where: (1) there is evidence that is pertinent to an issue in the case; (2) the accused places their character in issue; and (3) the evidence in question is presented incidentally in a proper cross-examination of the accused with respect to their credibility.
Justice Fitzpatrick noted that the first step in deciding the motions was to assess whether the jury should be presented evidence of the details of incidents for the third-party suspect, Mr. LaForge, that did not result in any convictions or findings of guilt. If the answer is 'yes', then the judge would need to assess whether the Crown should be allowed, in response, to present evidence of similar information pertaining to the accused.
Justice Fitzpatrick referenced a standard that was set in R. v. Grandinetti, where it was held that a third party’s bad character evidence should not be admitted unless it is relevant. In the current case, the judge found sufficient other evidence connecting Mr. LaForge to the evidence and he held that the bad character evidence was therefore relevant.
A second consideration for whether the evidence should be rejected, is whether its prejudicial effect outweighs its probative value (i.e. its usefulness in proving the case). Mr. LaForge had multiple convictions for possession of a weapon, including incidents involving violence, which occurred around the time of the assault that was the subject of the trial, and the jury would be told about these incidents that resulted in a conviction. However, there were two occurrences that led to an assault charge but not to a conviction – one which allegedly involved Mr. LaForge pouring boiling water over another man and in another, Mr. LaForge was alleged to have chased a man with a pipe after being attacked by the man and three others. The accused alleged that the incident involving an assault of a male victim with boiling water occurred because Mr. LaForge's sexual advances were rejected, which Mr. Goro alleged occurred under similar circumstances as the presumed sexual assault that is the subject of the current trial.
Justice Fitzpatrick found that these non-conviction occurrences were simply unproven allegations and not determined as fact, and were further compounded by the fact that Mr. LaForge and no one else involved was available to answer the details of the charges. On this basis, and also considering the fact that the jury would be presented evidence of Mr. LaForge’s record of violent acts that resulted in actual criminal convictions, the judge concluded that the non-conviction occurrences had a minimal probative value and prejudice was significantly greater than the low probative value of the unproven allegations. Therefore, Justice Fitzpatrick ruled that the non-conviction occurrences involving the third-party suspect could not be admitted as evidence.
In the interests of providing the jury with a balanced view and given his finding on the inadmissibility of the evidence against Mr. LaForge, the judge held that he was not required to consider the Crown’s argument that the non-conviction occurrences involving the accused should be admitted. Justice Fitzpatrick concluded that, by presenting only the evidence of incidents resulting in criminal convictions, the jury will be given a fair and balanced picture of both the accused and the third-party suspect.
As noted by Justice Fitzpatrick, occurrences where a person has been detained or charged with a criminal offence, which do not lead to a conviction, are “nothing more than unproven allegations” and are of questionable reliability because they were not determined to be factual. As such, a defendant in a criminal trial has strong grounds to have such bad character evidence against them excluded.
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