R v Malley, 2017 ABCA 186
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[54] The accused may call evidence to suggest some other person (either known or unknown) committed the offence: McMillan; Grandinetti; Grant. As with inadequate investigation, third party suspect is not a defence in the usual sense, but rather, an argument that the Crown has not met its burden of proof. The trier of fact must consider whether, on the totality of the evidence, the possible involvement of a third party suspect leaves them with a reasonable doubt about the accused’s guilt: R v Khan, 2011 BCCA 382 at para 91, 89 CR (6th) 321.
[55] As with any evidence adduced in a criminal trial, evidence of a possible third party suspect must comply with the basic rules of admissibility. The evidence must be relevant, material, and not barred by any exclusionary rule. As stated by Watt JA in R v Tomlinson, 2014 ONCA 158 at para 72, 307 CCC (3d) 36: “The proponent does not get a free ride through the admissibility thicket upon mere announcement of ‘third party suspect’.”
[56] Where the defence alleges that a known third party suspect committed the offence, there must be a “sufficient connection between the third party and the crime” to justify admitting this evidence: Grandinetti at para 47. The accused must point to some evidence tending to connect the third party with the commission of the offence: McMillan at 757. Evidence of a third party’s means, motive, or opportunity to commit the offence often establishes the requisite nexus: Grant at para 24. If there is no evidence to establish such a connection, however, the third party evidence is neither logically relevant nor probative, and is therefore inadmissible. Although the accused may rely upon circumstantial evidence to establish the connection, inferences arising from the evidence must be reasonable, not speculative: Grandinetti at para 47; Tomlinson at para 74.
[57] Similarly, for evidence of an unknown third party suspect to be admissible, there must be some nexus between the unknown third party and the offence charged: Grant at para 28. This nexus usually arises from similarities between the offence charged and another crime that the accused could not possibly have committed: Grant at para 27.
[58] In Grant, Karakatsanis J described the general framework for deciding the admissibility of third party suspect evidence:
The trial judge plays a fundamentally important role as evidentiary gatekeeper, tasked with preserving both the right of the accused to make full answer and defence and the integrity of the trial process. To fulfill this mandate, the trial judge engages in a limited weighing of the evidence to ensure that the jury only considers evidence (1) that is relevant to a fact in issue, including an available defence; and (2) whose probative value is not substantially outweighed by its prejudicial effects. These inquiries often overlap. ...
The trial judge must determine whether the evidence is logically relevant to an available defence ― one that can be put to the jury. The air of reality test requires the trial judge, taking the proposed evidence at its greatest strength, to determine whether the record would contain “a sufficient factual foundation for a properly instructed jury to give effect to the defence”.
The trial judge must also assess and balance the extent of the probative value and prejudicial effects of the evidence in accordance with Seaboyer. ...
(Grant at paras 44-46, citations omitted)
[59] Grant describes two stages of the admissibility inquiry. First, the trial judge must be satisfied that the third party suspect evidence is logically relevant. Second, even if the third party suspect evidence has some logical relevance, the trial judge must consider whether the prejudicial effect of the evidence substantially outweighs its probative value.
(a) First Stage: Logical Relevance of Third Party Suspect Evidence
[60] Evidence is relevant when, as a matter of logic and human experience, it makes the existence (or absence) of a material fact more (or less) likely: R v J-LJ, 2000 SCC 51 at para 47, [2000] 2 SCR 600; Grant at para 18.
[61] Relevance is not a high threshold: R v Abbey, 2009 ONCA 624 at para 82, 68 CR (6th) 201; R v Candir, 2009 ONCA 915 at para 48, 250 CCC (3d) 139. It is enough that the evidence sought to be admitted “has a logical tendency to contribute to a finding about that material fact”: D.M. Paccioco & L. Steusser, The Law of Evidence, 7th ed (Toronto: Irwin Law, 2015) at 32.
[62] This does not mean evidence is relevant no matter how tenuous its logical connection to a material issue, however. Where an inference said to arise from the evidence is “speculative or unreasonable,” the evidence is irrelevant: R v White, 2011 SCC 13 at para 168, [2011] 1 SCR 433; Paccioco & Steusser at 29-30. Some chains of reasoning are simply too weak to justify admitting the evidence. To decide whether evidence is logically relevant, the trial just must assess “the strength of the inferential link between the evidence in question and the fact sought to be established”: White at para 168.
[63] There may be direct evidence of a third party perpetrator: R v Murphy, 2012 ONCA 573, 292 CCC (3d) 122. More often, evidence of a third party perpetrator is circumstantial. Circumstantial evidence may support more than one possible inference, and circumstantial evidence is relevant so long as the inference it advances is reasonably available from the evidence: R v Luciano, 2011 ONCA 89 at para 242, 267 CCC (3d) 16.
[64] When determining whether evidence of a third party suspect is logically relevant, the trial judge must consider how that evidence is relevant to the “defence” of a third party perpetrator. If the third party suspect evidence is simply too speculative to possibly leave the jury with a reasonable doubt about whether a third party committed the offence – even when viewed in the light most favourable to the accused – then there is no air of reality to third party suspect as a “defence.” The evidence is logically irrelevant. Any inference that a third party committed the offence would be speculative, as Abella J explained in Grandinetti:
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 may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation.
The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence. If there is an insufficient connection, the defence of third party involvement will lack the requisite air of reality.
(Grandinetti at paras 47-48)
[65] If the third party suspect evidence goes beyond speculation and conjecture, the evidence is logically relevant.
(b) Second Stage: Weighing of Probative Value against Prejudicial Effect
[66] Logical relevance does not guarantee that evidence is admissible. Even if evidence is relevant, the trial judge may exclude Crown evidence on the basis that its prejudicial effect outweighs it probative value. There is a higher threshold for excluding defence evidence. Canadian courts have been reluctant to limit the defence’s right to call evidence on the basic premise that:
The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on being able to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution.
(Seaboyer at para 34)
As a result, in the case of defence evidence, “the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law”: Seaboyer at para 43 (emphasis added).
[67] Therefore, even if there is an air of reality to the third party suspect evidence, the trial judge may exclude this evidence where its prejudicial effects substantially outweigh its probative value: Grant at paras 30, 37. When the third party suspect evidence overcomes the relatively low hurdle of logical relevance, the trial judge still goes on to consider its probative value: Grant at para 38.
[68] Determining the probative value of the evidence may require the trial judge to engage in some threshold weighing of its quality and reliability: Grant at para 44; R v Hart, 2014 SCC 52, at paras 94-98, [2014] 2 SCR 544. The trial judge does not make findings of fact, resolve credibility issues, or decide how much weight to give the evidence: Grant at para 46. The trial judge only assesses whether the evidence is worthy of being heard by the jury, not whether the evidence should be accepted or acted upon by the jury: Hart at para 98; Abbey at para 89.
[69] The trial judge then balances the evidence’s probative value against its prejudicial effects. The most common prejudicial effects of third party suspect evidence are its “impact on the complexity, focus, and length of the trial process”: Grant at para 61. If the prejudicial effects of the third party suspect evidence substantially outweigh its probative value, the trial judge may exclude the evidence, even if it has some logical relevance.
