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Criminal - Third-Party Suspects. R. v. Rudder
In R. v. Rudder (Ont CA, 2023) the Court of Appeal considers the law of 'third party suspects':The Applicable Law
[58] The law relating to third party suspects ensures that evidence or arguments are not presented about the possibility that others, and not the accused, perpetrated a charged offence unless there is evidence that raises this possibility as a material issue in the case. It provides a threshold admissibility test by requiring the accused to point to evidence of a “sufficient connection” between the third party and the crime: R. v. J.M.W., 2020 ABCA 294, 391 C.C.C. (3d) 1, at para. 28, citing R. v. Malley, 2017 ABCA 186, 352 C.C.C. (3d) 1, at para. 56; Grandinetti, at para. 47. The sufficient connection test is essentially an air of reality test: Gauthier, at para. 41; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 20. To raise this air of reality, the accused must point to “some basis [in the evidence] upon which a reasonable jury, properly instructed, could acquit based on the claim of third party authorship”: R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 121, citing Grandinetti, at paras. 47-48; Hudson, at paras. 181, 182, 190. The role of this body of law is spent once this threshold test is met. Where this is so, the evidence is admissible, and the defence is a live issue in the case that must by determined by the trier of fact on the evidence as a whole: R. v. Ranglin, 2018 ONCA 1050, 370 C.C.C. (3d) 477 at para. 60; citing R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36 at para. 78; R. v. Murphy, 2012 ONCA 573, 292 C.C.C. (3d) 122.
[59] Like other air of reality inquiries, the threshold admissibility determination is to be made by assuming that the evidence most favourable to the accused is true: Grant, at para. 20. To be sure, the evidence must have sufficient probative value to justify its reception: Hudson, at para. 196. However, this probative value assessment is limited so that the trial judge does not perform the function of the trier of fact when assessing admissibility. Therefore, where there is direct evidence supporting a third party suspect’s possible perpetration, that will be enough; the sufficient connection test is met and it will be up to the trier of fact to determine whether that direct evidence raises a reasonable doubt: Murphy, at para. 22. Where the evidence relied upon to show the sufficient connection is circumstantial, the trial judge must inquire whether the inferences being relied upon are reasonable inferences that arise from the evidence, and not simply from speculation or conjecture: R. v. Fenton, 2019 ONCA 492, at para. 18; R. c. Sorella., 2022 QCCA 383, at paras. 86-87, leave to appeal refused, [2022] S.C.C.A. No. 155. If the evidence could support a reasonable inference that someone other than the accused may have committed the crime, the evidence has the probative value required to satisfy the sufficient connection test: Grandinetti, at para. 46, Abella J. quoting from R. v. McMillan, (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750 (C.A.) at p. 757, aff’d 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824.
[60] Trial judges do have a further limited residual discretion to exclude third party suspect evidence even where the sufficient connection test is met. However, since third party defence evidence implicates the constitutional right to make full answer and defence, it cannot be excluded on this basis unless “the potential prejudice [of its admission] to the trial process of admitting the evidence substantially outweighs its probative value” Hudson, at para. 193; citing Murphy, at para. 17; Grant, at para. 38. In this context, potential prejudice typically relates to reasoning prejudice, such as “the distraction of [the trier of fact] from their proper focus on the charge itself aggravated by the consumption of time”: Grant, at para. 39, citing R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 144.
[61] The “sufficient connection” test can therefore be stated as follows: Third party suspect evidence will be admissible where: (1) the accused presents or points to evidence on the record of a connection between a third party and the offence charged, that, if assumed to be true and interpreted in favour of the accused, could raise a reasonable doubt about the guilt of the accused; and (2) the trial judge has not determined that the probative value of that evidence is substantially outweighed by the risk of prejudice it presents. Where this test is met third party suspect evidence must be considered along with all of the other evidence in the case in determining whether the Crown has proved the guilt of the accused beyond a reasonable doubt.
Analysis
[62] The trial judge erred in finding that the law relating to third party suspects, including the “sufficient connection test”, was engaged by Mr. Rudder’s testimony that Laura, Brandy, and Mr. Brown also drove the BMW prior to the discovery of the handgun.[3]
[63] The Alberta Court of Appeal’s decision in J.M.W. is illustrative. As in this case, the Crown in J.M.W. sought to rely upon the control that the appellant had over the place where the contraband was discovered to establish his constructive possession. In J.M.W. that place was a computer on which child pornography was found. The appellant in J.M.W. sought to undercut the Crown’s reliance on his control with evidence that others also had control over the computer. The issue was raised at trial as to whether this evidence engaged the law relating to third party suspects. The Alberta Court of Appeal ruled explicitly that the appellant had not engaged this body of law by presenting evidence that others also used the computer: J.M.W., at para. 26.
[64] Gauthier is a similar case in which the Crown relied upon the control the accused had over a computer as proof of his knowledge and possession of the child pornography it contained. The trial judge erred by applying the law relating to third party suspects to evidence that Mr. Gauthier led that his roommate also had control over the computer.
[65] The correctness of these decisions can readily be seen, in my view, by recognizing that the law relating to third party suspects serves as a way of ensuring that proof offered by an accused person relating to the third party’s role is relevant to a material issue in the case. Where the Crown relies upon proof of control by the accused to establish that they are the one who had constructive possession, evidence that others also had control over the relevant place is already inherently material at the trial. There is no need for an accused person to raise this issue by satisfying the sufficient connection test. The trial judge therefore erred, in my view, by imposing the law relating to third party suspects on Mr. Rudder.
[66] Moreover, even if the significant connection test applied, I am satisfied that the trial judge erred in its application.
[67] First, as I have explained, the sufficient connection test is a threshold admissibility test that is to be conducted on the premise that the evidence is true, and without close examination of the ultimate probative value of the evidence. Where this standard is met, the significant connection test is spent, the third party suspect evidence is admissible, and it must be considered along with other evidence in determining whether the Crown has proved its case beyond a reasonable doubt. In this case, the trial judge found the third party suspects evidence to have an air of reality and held that Mr. Rudder was entitled to adduce the evidence and rely on the defence, but then he went on to find that “there is no sufficient connection between any of the purported other suspects identified by the defendant and the crime in issue.” These findings are inconsistent. Properly understood, if there was no sufficient connection between these alternative suspects and the crime charged, there could be no air of reality to the third party suspect defence. It is evident that the trial judge misapprehended the test.
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