R. v. Appleton, 2024 ONCA 329
[101] The place to begin understanding the third party suspect rule is to recognize that it is not an affirmative defence, but instead, a denial that the Crown has proved one of the elements of a charged offence – identity – beyond a reasonable doubt. When a jury acquits on a third party suspect defence it is therefore doing no more than recognizing that the Crown has failed to prove the identity of the person who committed the offence: R. v. Ranglin, 2018 ONCA 1050, 370 C.C.C. (3d) 477, at paras. 59-60.
[102] In this important respect, a third party suspect defence is not like a “reverse onus defence”, such as the mental disorder, automatism, or extreme automatism defences, where the accused must put entirely new elements into issue and prove them on the balance of probabilities: see e.g., R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 54. Nor is a third party suspect defence like an “ordinary affirmative defence”, such as self-defence, duress, or necessity, where the accused injects new issues of mixed-law and fact into a trial relating to whether their otherwise criminal conduct was justified or should be excused: Fontaine, at para. 55, citing R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 57. The issue the third party suspect defence addresses – identity – is already a matter for consideration and a matter for the Crown to prove.
[103] As always, the determination of whether the Crown has met its burden is determined on evidence. Since it can undercut the Crown’s ability to prove that the accused has committed the actus reus, “evidence of the potential involvement of a third party in the commission of an offence is admissible”: R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 46. To be clear, relevant evidence about the potential involvement of a third party in the commission of the offence is “admissible” in both senses of the term: (1) relevant evidence of the potential involvement of a third party in the commission of an offence can be presented to the trier of fact during the trial if it has not already been led; and (2) it is “admissible” for the accused to use evidence that has already been admitted for another purpose in order to support a third party suspect defence, if that evidence is relevant to the third party suspect defence.
[104] Significantly, the ultimate question of whether the Crown has proved its case beyond a reasonable doubt is a question for the jury in a jury trial, not the judge administering the third party suspect rule. The third party suspect rule is therefore no more than a threshold “admissibility” inquiry designed to determine whether the third party suspect defence warrants consideration by the jury: R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475; R v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 121, citing Grandinetti, at paras. 47-48. Where the admissibility test is met, the fortunes of the third party suspect defence must be determined by the trier of fact on the evidence as a whole: R. v. Rudder, 2023 ONCA 864, 169 O.R. (3d) 561, at para. 58, citing Ranglin, at para 60. There is a well-recognized risk that, if misapplied, the third party suspect rule can cause an improper shifting of the burden of proof to the accused: R. v. Gauthier, 2021 ONCA 216, 403 C.C.C. (3d) 69, at para. 41. This error is to be guarded against.
[105] The following proposition, which I described in Rudder, at para. 61, captures the third party suspect rule:
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.
[106] In Grant, at para. 21, Karakatsanis J., for the court, described these two components of the rule as the “air of reality test” and the “Seaboyer admissibility test”, and she directed that they “remain two distinct inquiries.” This is sensible, for the two inquires perform different functions.
[107] The first of these inquiries, the “air of reality test”, is used by the trial judge in order to perform their “gate-keeping” role: Grant, at para. 21. It demands that before a third party suspect defence will be on the table for consideration, there must be relevant evidence capable of providing “some basis upon which a reasonable jury, properly instructed, could acquit based on the claim of third party authorship”: Spackman, at para. 121, citing Grandinetti, at paras. 47-48 and Fontaine, at para. 70; R. v. J.M.W., 2020 ABCA 294, 391 C.C.C.(3d) 1, at para. 28.
[108] I described the mechanics of this “air of reality” inquiry in Rudder, at para. 59. Instead of rephrasing the same points I will reproduce what I said in its entirety:
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: [R. v. Hudson, 2021 ONCA 772, 158 O.R. (3d) 589], 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: [R. v. Murphy, 2012 ONCA 573, 292 C.C.C. (3d) 122], 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. v. 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.
[109] The second inquiry, the “Seaboyer admissibility test”, operates where the “air of reality test” has been met: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577. It provides trial judges with a limited discretion to exclude third party suspect evidence even where the defence has an air of reality. Unlike the “air of reality test”, which examines whether there is a basis for putting the third party suspect evidence “on the table” for consideration, the “Seaboyer admissibility test” offers a tightly limited discretion to take that defence off of the table if it is not worth considering. To exercise it, the trial judge must be satisfied that the probative value of the evidence is substantially outweighed by the risk of prejudice it presents: R. v. Hudson, 2021 ONCA 722, 158 O.R. (3d) 589, at para. 193; Grant, at para. 19. Where the third party suspect is linked to the charged offence by reason of having committed other offences, particularly highly similar offences, it may be given undue weight, distracting the trier of fact: Grant, at para. 39. Where the third party suspect evidence does not link the third party to other criminal activity or discreditable conduct, as in this case, other forms of “reasoning” prejudice may arise. “Reasoning prejudice” includes the “distraction of the trier of fact from their proper focus on the offence charged by the introduction of evidence of other incidents that consume undue time”: R. v. Ansari, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 108, leave to appeal refused, [2015] S.C.C.A. No. 487.
[110] In Grant, at para. 21, Karakatsanis J. recognized that in some cases, a third party suspect application will not be required to resolve whether these threshold standards have been met. Although she was speaking in the context of an unknown third party suspect allegedly linked to the charged offence because of their commission of a highly similar crime on another occasion, it is evident that her comments also apply in cases such as this, where the alternate suspect is one of the known players in the factual scenario surrounding the offence. Specifically, she said, “where the defence evidence relates to the facts underlying the offence charged, the logical relevance and the admissibility of the evidence will be obvious” but “where the evidence refers to a factual matrix beyond the offence charged, its relevance to a fact in issue or an available defence may be less clear. In such circumstances, the gate-keeping role of the trial judge may require her to determine whether the evidence is logically relevant and connected to a defence that has an air of reality.” Put otherwise, the trial judge need not perform their gate keeping role of examining the logical relevance and connectedness of third party suspect evidence when those components are obvious.
[111] It follows, in my view, that if the potential involvement of the third party suspect is already on the table given the nature of the Crown case, there is no need for a third party suspect application. In this case, for example, the Crown theory was that there were only two individuals involved in the physical confrontation with the McComb brothers, Mr. Appleton and SHG, and that one or the other of these men was the stabber. In effect, the Crown addressed, as part of its case, whether SHG was an alternate suspect in the stabbing. Appropriately, the trial judge did not require a third party suspect application to permit Mr. Appleton to lead evidence and argue that SHG and not Mr. Appleton may have been the stabber.
[112] By way of further example, if the Crown relies in a possession case on an accused person’s exclusive control over the item allegedly possessed, the accused does not require a third party suspect application to present evidence showing that other specific persons linked to the events may have had control over the item at the relevant time: Rudder, at para. 65; Gauthier, at para. 36 The Crown has already made this an issue given the exclusive control theory it has presented.
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