Third party Suspect Evidence

Evidence that tends to show that a specific alternate party was the perpetrator of the crime is relevant to raise a reasonable doubt about the accused’s guilt. The evidence may be direct or circumstantial. 

Evidence that someone other than the accused committed the crime in question is admissible, provided that there is a sufficient connection between the third party and the crime: 

R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750 (C.A.), aff’d. 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824; R. v. Grandinetti, [2005] 1 S.C.R. 27, 2005 SCC 5 (CanLII), at para. 46.

The importance of establishing a sufficient connection with the crime was explained by Karakatsanis J. on behalf of the Supreme Court of Canada in R. v. Grant, [2015] 1 S.C.R. 475, 2015 SCC 9 (CanLII), at para 4: 

The integrity of the administration of justice requires that the proceedings stay focused on the indicted crime and not devolve into trials within a trial about matters that may not be sufficiently connected to the case.  Such tangents risk causing delays, confusion and distractions that undermine the trial’s truth-seeking function.  This risk is especially heightened where the defence seeks to introduce other alleged suspects or crimes into the trial.

Applicant must establish an air of reality

In order to succeed on an application of this type, the defence must show that there is some basis upon which a reasonable jury, properly instructed, could acquit on the evidence.

 R. v. Fontaine, 2004 SCC 27 (CanLII), [2004] 1 S.C.R. 702; Grandinetti, at para. 48. 

This evidential burden on the accused is often referred to as the requirement that there be an “air of reality” to the defence.

Fontaine, at para. 70; R. v. Cinous, [2002] S.C.R. 3, 2002 SCC 29 (CanLII), at para. 49. 

The evidence must meet the test of relevancy and must have sufficient probative value to justify its reception. In order to be relevant and probative, the evidence must connect the third person with the crime. If there is an insufficient connection between the third person and the crime, the evidence will lack the requisite air of reality.

R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 23 C.C.C. (2d) 160, aff’d 1977 CanLII 19 (SCC), [1977] 2 S.C.R.824, at pp. 167-168; R. v. Grandinetti, 2005 SCC 5 (CanLII), 191 C.C.C. (3d) 449, at paras. 46-48.     

In the absence of some nexus with the alleged offence, third party suspect evidence will constitute impermissible speculation.

Grant, at para. 28.

In deciding whether there is an air of reality to the defence, the trial judge must assume the truth of the evidence that is relied upon in support of it, leaving the reliability, credibility and weight of that evidence to be determined by the jury.

Fontaine, at para. 72.

The evidence may be direct or circumstantial.  Inferences based on the evidence may be drawn, but speculation is not permitted. The evidentiary burden on the accused is discharged if the defence shows that there is some evidence upon which a reasonable, properly instructed jury could acquit based on the proposed defence.

R. v. Grandinetti, at paras. 47-48; R. v. Fontaine, 2004 SCC 27 (CanLII), [2004] 1 S.C.R. 702, at para. 70.

Propensity Evidence

Mere evidence of propensity on the part of a third party is not enough to establish the required connection.  This point was made by Martin J.A. on behalf of the Court of Appeal in McMillan, at p. 758:

Obviously, unless a third party is connected with the crime under consideration by other circumstances, evidence of such person’s disposition to commit the offence is inadmissible on the ground of lack of probative value.

Motive & Opportunity      Evidence of a violent disposition or animus towards the deceased, standing alone, will not meet the required threshold.  However, if there is evidence that the third person had a motive to commit the crime or threatened the deceased and had the opportunity to carry out the crime, then the evidence of propensity may have probative value.

 R. v. Murphy, 2012 ONCA 573 (CanLII), at para. 21; R. v. Baltrusaitis (1996), 31 W.C.B. (2d) 184; R. v. McMillan, at p.168. 

Calling a Third Party Witness

Where an accused proposes to call direct evidence from a third party who is expected to admit culpability for the offences charged, this proposed evidence itself is sufficiently probative to establish an air of reality to the third party defence.  In other words, the proposed direct evidence of the third party represents the requisite nexus between that third party and the crime, and it is an error to require the accused to show more before allowing the third party witness to be called:

R. v. Murphy, at paras. 20-23. 

That the evidence is adduced on cross-examination does not circumvent the threshold test for admissibility

Questions that are specifically designed to suggest to the jury that a third party committed the crime must satisfy the legal test set out for the admissibility of third party suspect evidence. There is no distinction between the accused adducing such evidence as part of his case or eliciting evidence as part of cross examination.

R. v. Singh, 2014 ONSC 6512.