The law of third party suspects in Canada.
Recently, our firm was faced with the issue or raising an alternative suspect in the course of defending our client. Contrary to common sense, the law does not permit a lawyer to simply place blame on another person without having some sort of evidentiary foundation.
The need for an air of reality to the defence.
On reflection, this prohibition makes sense and is consistent with a basic tenet that that no defence may be left with a judge or jury to consider, unless it has an “air or reality” to it. See: R. v. Cinous (2002), 162 C.C.C. (3d) 129 (S.C.C.); and R. v. Fontaine (2004), 183 C.C.C. (3d) 1 (S.C.C.).
What this means in simple terms is that it is improper to present a defence that it would be improper for a judge or jury to even consider. For example, if a person wished to raise a defence that an alleged victim “did not say no” in response to violent non-consensual intercourse, this would be improper to even consider as this is not a defence in law. Another example may be there a person wishes to present to the jury that they acted in self defence in a murder trial, yet the accused did not testify about why they felt their life was threatened and there was no other evidence to make such an inference. In short, there must be some degree of evidence that would support reasonable inferences towards the defence presented. The same requirement of an “air of reality” applies to “third party suspect” applications.
The test for introducing the if one of relevancy.
Provided there is an air of reality to the defence, the canonical case of R. v. McMillan (1975), 23 C.C.C. (2d) 160 (Ont.C.A.), aff’d, (1977) 33 C.C.C. (2d) 360 (S.C.C.) makes it clear that an accused is entitled to raise a third party as alternative to their own culpability. In assessing whether such an air of reality exists, the evidentiary test of relevancy must be established. This means that there must be some evidence connecting the third party and the crime. Also see R. v. Grandinetti, (2005) 191 C.C.C. (3d) 449, at paras. 46-48.
This “connection” or “nexus” will be assessed on a case by case basis. However, there must be more than simply animosity or propensity for violence of the third party will justify its admission alone. See R. v. Gandinetti, supra.
The evidence does not need to be direct evidence. Just as in any criminal case, facts may be sufficiently proven by circumstantial evidence that supports reasonable inferences. Like the test applied for committing an accused to stand trial at a preliminary hearing, there must be “some evidence a jury, acting reasonable and properly instructed could come to the conclusion asserted”, i.e., that the third party suspect is responsible and not the accused. When making such an assessment the inferences requested must be taken at their highest – it is a question of reasonableness, and not an evaluation of likelihoods.
Is there any other unfair prejudice in raising the defence? Is there prejudice if it is not raised?
When assessing admission on the test of relevancy, the Court must also be mindful of the distractive potential in presenting a third party as a suspect. This is particularly so if that third party is not available for examination or investigation. In essence, the Court must also ask whether the prejudicial effect of presenting the defence outweighs the probative value in doing so.
However (and this is something that if often overlooked in the relevant case law and defence applications) when assessing whether defence evidence ought to be excluded on a probative/prejudice scale, the prejudicial effect must substantially outweigh the probative value. See R. v. Seaboyer,