R. v. Salomonie, 2015 NUCJ 5

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Salomonie , 2015 NUCJ 05 Date: 20150123 Docket: 08-11-318-1 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Jeffrey Salomonie ________________________________________________________________________ Before: The Honourable Mr. Justice Sharkey Counsel (Crown): D. Garson Counsel (Accused): J. Morton Location Heard: Iqaluit, Nunavut Date Heard: January 14, 2015 Matters: Third Party Suspect Evidence voir dire REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication : By court order made under section 648(1) of the Criminal Code : “After permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict .” [Special Notice: This publication ban extends as follows: To the subject of the voir dire itself, (for greater clarity: to the issue before the court); to the evidence heard and exhibits filed in the voir dire; and to the submissions of counsel during the voir dire] Publication ban lifted as of 04/05/2016 at the direction of the authoring justice.

Anonymized Judgment Disclaimer : This judgment has been has been anonymized at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. Table of Contents REASONS FOR JUDGMENT . 1 I. INTRODUCTION .. 4 II. THE APPLICATION .. 4 A. Procedural history & evidential basis of the application .. 4 B. The law of third party suspects . 6 II. EVIDENCE .. 9 A. Third Party Evidence . 9 III. THE POSITIONS OF THE PARTIES .. 14 B. The respondent Crown .. 15 IV. ANALYSIS .. 16 A. Important obiter dicta . 16

B. Ruling on the Morton Position (Revised) 18 C. The Crown’s right of rebuttal 19 V. CONCLUSION .. 20 I. INTRODUCTION [ 1 ] The accused [ Salomonie ] is charged with First Degree Murder in relation to the death of Daisy Curley [ Daisy ]. [ 2 ] His jury trial is scheduled to start approximately 2 weeks from today – on February, 2 2015. II. THE APPLICATION A. Procedural history & evidential basis of the application [ 3 ] On January 8, 2015, counsel for Salomonie filed an application to call or lead so-called third party suspect evidence before the jury.

Counsel filed a factum ( Memorandum Re: Third Party suspects ), as well as a brief of law ( Law Re: Third Party Suspects ). [ 4 ] No witnesses were subpoenaed and no witness statements were provided to the Court. [ 5 ] In response, on January 9th, the Crown filed a factum ( Written Argument of the Applicant ), as well as a book of authorities containing a few of the leading cases in this area of the law. [ 6 ] I heard the application on January 15, 2015. [ 7 ] In this case, the proposed third party suspect is a woman named XY [name has been anonymized to protect this person’s identity as no charges have been laid]. [ 8 ] The applicant wants to call witnesses from the community who will testify that XY told them things (or that they heard her say things) which prove she had a violent disposition (and exhibited violent intentions) generally, and, more importantly, specifically, towards the deceased victim. [ 9 ] The applicant also wants to enter statements which XY made to the police as part of their investigation into Daisy’s death.

It is not in dispute that XY was a suspect (or at least a ‘person of interest’) at some point during the early stages of the investigation.

Nor is it in dispute that the statements referenced by counsel are, indeed, what XY said to the police when she was questioned. [ 10 ] Defence Counsel says that the statements which XY made to the police establish a previous close relationship between herself and Daisy, as well as continued contact between the two of them proximate to Daisy’s death. [ 11 ] Defence Counsel suggests that the statements, together with the testimony of the witnesses that XY supposedly spoke to, are sufficient to meet the test of admissibility respecting third party suspect evidence.

[ 12 ] Ideally, this application should have proceeded months ago. Ideally as well, applications of this nature should proceed – as the case authorities illustrate – by way of viva voce evidence. [ 13 ] In the normal course, the applicant is expected to produce witnesses to provide evidence about the third party suspect in order that the Court can assess the reliability and relevancy of the testimony (albeit within a limited threshold admissibility standard).

Indeed, where the proposed witnesses are not known to the Crown (for example, as never having emerged during the police investigation), the case requiring them to testify (and face cross-examination) is all the more imperative. [ 14 ] Alternatively, in the absence of live testimony, the applicant should at least file copies of the proposed witness testimony (as exhibits to the factum). Indeed, this may be an appropriate procedure where, as in this case, the proposed witnesses are known to the Crown (i.e., their statements were actually taken by the police during the course of the investigation).

It would still, of course, be open to the Court to require the attendance of any proposed witnesses at the voir dire. [ 15 ] In this case, counsel for the applicant simply incorporated portions (or snippets) of the proposed witnesses’ testimony into the factum (along with a reference to where the excerpt is found in the electronic disclosure provided by the Crown). [ 16 ] Accordingly, and during the hearing, I required counsel for the applicant to provide me with electronic copies of the various statements.

This has been done and I am now in receipt of such copies which also now form part of the record of the proceedings. [ 17 ] Having said all this, I should, however add that both Crown and Defence Counsel have laboured diligently in the last couple of months to get this matter before me prior to the upcoming trial. [ 18 ] In particular, the Crown had requested the Royal Canadian Mounted Police [RCMP] Major Crime Unit (whose resources are already stretched to the limit) to investigate the prospect of two or three other prospective alternate suspects. [ 19 ] I am told that the end result of that investigation means that this voir dire now concerns one, rather than three alternate suspects. [ 20 ] In addition, since both Crown and Defence Counsel are experienced and accomplished trial lawyers, they have been able, despite the procedural and evidential peculiarities to which I have alluded, to facilitate the hearing of the application in a seamless and timely fashion.

B. The law of third party suspects [ 21 ] There is no dispute between the parties respecting the law and I found their pleadings in this regard to be most helpful. [ 22 ] The law is fairly well settled.

Evidence that a person other than the accused committed the crime is referred to in the authorities, variously, as either ‘third party suspect evidence,’ or, ‘alternate suspect evidence.’ [ 23 ] The third party suspect evidence may be direct evidence, as was the case in R v Murphy , 2012 ONCA 573 , 292 CCC (3d) 122 [Murphy] , where the third party volunteered testimony that he, and not the accused, was the perpetrator of the crime. [ 24 ] The proposed alternate suspect evidence may also be circumstantial in nature, as the case in R v Grant , 2013 MBCA 95 , 302 CCC (3d) 491 [Grant] , where the prospective evidence was that the perpetrator of the crime was a third person who had committed a subsequent ‘signature’ crime – and at a time when the accused was in custody. [ 25 ] Murphy and Grant illustrate the danger to which Defence Counsel alluded during argument of not letting a jury hear this type of exculpatory evidence.

[26] Before, however, the Defence is permitted to lead such evidence before the jury it must be shown that there is an air of reality tothe proposition that someone other than the accused committed the crime. [27] In order for the proposed evidence to meet this threshold standard there is a requirement of a sufficient connection between thethird party and the crime. [28] Obviously, the Defence is not required to show prima facie proof that the third party committed the crime, but there must be aconnection between the third party and the crime.

For example, an animus on the part of the third party towards the victim of the crime(often evidenced by comments made by the third party) together with evidence of motive and/or opportunity. [29] The law is clear that evidence simply of a violent disposition on the part of the third party towards the victim of the crime is, byitself, not a sufficient connection to support or advance the alternate suspect proposition. [30] The law says that without this link the third party evidence is neither relevant nor probative.

The evidence may be inferential, butthe inferences must be reasonable, based on the evidence, and not amount to speculation. [31] The Defence must show some basis upon which a reasonable jury, properly instructed, could acquit based on the Defence, i.e., beleft with a reasonable doubt that it was the accused who committed the crime. [32] The authorities are clear that if there is an insufficient connection, the defence of third party involvement will lack an air of realityand, in turn, its prejudicial effect will substantially outweigh any probative value.

The integrity of the trial process would be underminedif the jury was left confused, i.e. if their fact finding role was “sidetracked” about the possible involvement of a third party with nosufficient connection to the crime. [33] And so, while the law is clear, the difficulty comes in determining this question of connectedness in the individual case.

Thequestion boils down to what, factually, in the individual case amounts to, or is sufficient evidence (enough evidence) of a nexus betweenthe third party and the crime? [34] In the leading case of R v McMillan, (1975) (ON CA), 7 OR (2nd) 750 (CA), 23 CCC (2d) 160 (as cited in R vMcMillan, (SCC), [1977] 2 SCR 824, 33 CCC (2d) 360; and further affirmed with approval in R v Grandinetti, 2005SCC 5, 191 CCC (3d) 449, at paras 46-48), Martin, J.A. postulated as follows: Obviously, unless the third person is connected with the crime under consideration by other circumstances, evidence of such person'sdisposition to commit the offence is inadmissible on the grounds of lack of probative value.

For example, if A is charged with murderingX, in the absence of some nexus with the alleged offence, evidence that B has a propensity or disposition for violence, by itself, isinadmissible to prove B is the murderer because standing alone it has no probative value with respect to the probability of B havingcommitted the offence.

If, however, it is proved that A, B and X all lived in the same house when X was killed, and that B had a motiveto kill X, then evidence that B had a propensity for violence, may have probative value on the issue whether B, and not A, killed X, andis accordingly admissible. [35] During our in court discussions, and following on this dicta of Martin J.A., I raised another possible hypothetical with counsel: Suppose, for example that a deceased female victim is found in her home, dead (having been stabbed, and lying in a pool of blood); herlive-in boyfriend is found in the apartment by police; a neighbor having called the police after hearing some screaming some 5 to 10minutes before the police got to the scene and busted down the door; the police see that the boyfriend is standing near the telephone, andholding a bloody knife; his defence is that he had just arrived home, literally moments before the police busted in, and found the victimlying on the ground with a knife in her chest; he says that he pulled the knife from her body (hoping it might do some good); he says then

ran to the phone to call 911, when suddenly, the police rushed in.

The boyfriend is charged with murder, and at his trial wants to lead evidence that the victim’s estranged husband (who lives about 5 blocks away) has been leaving message’s on the victim’s answering machine, as well as telling people at his place of employ, things to the effect that if ‘She doesn’t stop taking me to Court she’s gonna pay big time! …I’ll put an end to her foolishness, for good!.” [ 36 ] Although I stand to be corrected, my recollection of our in-court discussions was that both Crown and Defence Counsel agreed that such a scenario might well meet the third party suspect evidential threshold standard requiring a nexus (motive, opportunity, and disposition) between the estranged husband and the murder. [ 37 ] Again, the question respecting nexus is always (as counsel has articulated) ‘how much evidence is enough in a given case.’ II.

EVIDENCE A. Third Party Evidence [ 38 ] Counsel has categorized the proposed evidence as follows: (

a) specific incidents of violence or aggression on the part of XY; (

b) character evidence respecting XY; (

c) XY-Daisy Relationship Evidence ; and, (

d) the XY interrogation by police evidence. [ 39 ] I pause to note that there is no dispute that ‘inculpatory’ statements made by a third party suspect to another person are admissible into evidence as a hearsay exception, based on the notion that they are statements against interest.

Indeed, this is the basis that inculpatory statements by accused persons are admissible. [ 40 ] In fairness, however, if the testimony of the witness is admitted into evidence, the accused may be ‘stuck’ with any exculpatory debris which the third party suspect disclosed to the witness. [ 41 ] In this case, counsel asks that the following evidence be considered as third party suspect or alternate suspect evidence. (i).

The DG testimony [ 42 ] As a prelude to this testimony, I note that the Indictment alleges that Daisy died (was murdered) on or about May 20, 2009. [ 43 ] DG gave two police witness statements - one on May 29, 2009, and another on May 30, 2009. [ 44 ] The statements are identical excepting the date involved - in his second statement, DG clarifies and corrects the date that he saw XY and Daisy together at the Iqaluit Royal Canadian Legion [Legion] .

He is sure it was Friday May 15, 2009 (and not Friday May 22nd, as he originally thought during his first police interview). [ 45 ] DG said that he was sober and got to the Legion around 10:30pm, got a Diet Coke , and was looking for a place to sit down. Space was scarce and he eventually agreed to play pool with XY. It was clear that XY was very drunk, loud, and boisterous (obnoxious).

[ 46 ] XY was in the company of an Inuk male in his 50s or 60s. This fellow was drunk as well.

DG believes the fellow’s name began with a “J” and thought it might be ‘Jonah,’ or ‘Joanassie’ (“ something like that” ). [ 47 ] Both XY and this male companion were tossed out of the Legion for drunk and obnoxious behavior (the male may have been tossed out first, separate from XY - it is not clear from DG’s statement). [ 48 ] However, before the Legion staff tossed XY out, DG describes the following incident: He was playing pool with XY; Daisy entered the Legion and said ‘hi’ to DG; DG and Daisy then exchanged brief friendly hellos; XY also spoke in a derogatory fashion to Daisy, calling her a “bitch.” [ 49 ] XY then spoke to DG about Daisy in further derogatory fashion (the details of which are not particularly important). [ 50 ] Finally, DG says XY said words to the effect (loudly and referencing Daisy), “…I hate that fucking bitch…me and him (the older fellow accompanying XY) are gonna beat the shit out of her later...

I wouldn’t mind fucking kill her, I wouldn’t mind to put my hand on her throat and fucking strangle her to death.” [ 51 ] In terms of the precise words XY used, DG gave differing versions in his statement which change only the grammar, but not the substance of what he says he heard XY say. [ 52 ] For example, in lieu of the phraseology “I wouldn’t mind killing her, I wouldn’t mind to put my hand, etc.,” DG says XY used other phraseology and said, “I want to kill that bitch, I want to put my hands around her throat and fuckin’ strangle her.” [ 53 ] After making these comments (which the bouncers, according to DG, obviously heard as well), XY then ran to the restroom to avoid being thrown out, but it did not work and she was ejected. [ 54 ] DG says that this night, May 15, 2009, was the last time he saw Daisy. (ii).

The “Party Testimony” [ 55 ] There was a party. Supposedly XY ordered “everyone” out of a room so she could be alone with Daisy and then subsequently choked or threatened Daisy. None, however, of the so-called witnesses to this event actually saw anything; instead, they ‘heard about it’ from other individuals. [ 56 ] Around the same time as this party incident, counsel has noted another incident of assaultive behavior on XY’s part – involving a male, but not Daisy. (iii). The “Prophesy” testimony [ 57 ] In fairness to counsel, the categorization is my own, but I do not feel far off the mark.

Indeed, Defence Counsel seemed to adopt it as well. [ 58 ] Four women gave police witness statements. [ 59 ] They told police that around the time of Daisy’s death, XY told them she sensed the pending death of one to three women.

[ 60 ] In addition, one of the women who gave statements to the police said that XY gave some further descriptive prophetic detail. (iv). The “Body” testimony [ 61 ] Two people gave police witness statements. The first person said that during a drinking party XY said she saw Daisy’s body. The second person said she heard about what XY said at this drinking party from somebody else . (v).

The “General Reputation” testimony & the related “Tales of Specific Incidents” testimony [ 62 ] The main import of this evidence is that XY has a reputation for being aggressive and, at times, violent. [ 63 ] There are at least a dozen people who gave statements to the police who are prepared to support this proposition.

Some of these people talked about their impressions of XY (her general reputation for aggressiveness); other people talked of specific instances where XY supposedly threatened to do something violent to them or to one of their friends or family members (but not to Daisy), or where XY supposedly did something violent along these same lines (i.e., involving victims other than Daisy) which may have resulted (or did result) in criminal charges against XY. [ 64 ] It is sufficient to provide a snapshot respecting some of this proposed testimony. [ 65 ] Various people describe XY as “a psycho”, and “crazy”, that “she can be mean”; other people say that “she has been kicked out of parties for mouthing off”, and that “she gets angry and sometimes throws things off shelves”; there is a person who says that “XY is rowdy when she gets drunk”, and another who says that XY is a “jealous person.” [ 66 ] More specifically, there is a person who says she keeps her distance from XY because XY “had approached (her) with a knife.” There is one person in particular who says XY “has threatened to kill her, and said she could get away with it”, and that “XY threatened to stab her mother.” This person says she has complained to the police about this with the result that XY was charged. [ 67 ] There are three people who claim to have had (or whose relatives have had) a violent altercation with XY in late May of 2009. (vi).

The “XY-Daisy relationship” evidence [ 68 ] The nature of the relationship between XY and Daisy comes from two sources. [ 69 ] First, there is the testimony of people who have an opinion about it (based on what they have heard, or based on seeing XY and Daisy together). [ 70 ] The second source respecting the relationship between XY and Daisy is what XY told the police about it when she was questioned (or, as counsel puts it “interrogated”). [ 71 ] XY was questioned twice. Once on Sunday May 24, 2009 (hours after the discovery of Daisy’s body), and a second time on May 30, 2009.

This second interview lasted about one and one-half (1 ½) hours.

[ 72 ] I have read both interviews and in addition the Investigator’s

summary of the second interview prepared by Constable [Cst.] Frey. [ 73 ] During the May 30, 2009, interview XY said that she had, at one time, a close personal relationship with Daisy, but she said this was some ten years ago. [ 74 ] XY said the last time she saw Daisy was on Mother’s Day (which would be May 10, 2009). XY said the last time she drank with Daisy was in mid-March 2009; she also said she stayed overnight in the same house with Daisy in March 2009. According to XY, it was also around mid-March 2009, that she last spoke with Daisy via telephone.

XY also said she remembered being over at Daisy’s house in mid-January 2009 (after Daisy’s grandfather had passed away). [ 75 ] XY denied killing Daisy or having anything to do with her death. She also agreed to provide (and did provide) a DNA sample to police for analysis. III. THE POSITIONS OF THE PARTIES A.

The Applicant & the “Morton position (Revised) [ 76 ] During the in-court discussion, Defence Counsel narrowed his focus respecting which particular evidence, at the end of the day, he sought to have admitted under the rubric of third party suspect evidence. [ 77 ] Defence Counsel made it clear that he requests a ruling only with respect to the “DG Testimony” together with the “XY-Daisy Relationship Evidence” contained in XY’s statements to the police. [ 78 ] Defence Counsel does not suggest, however, that the other ‘categories’ of evidence be simply thrown out the window. [ 79 ] Rather, if understand correctly, Defence Counsel suggests that the Court might be “informed” by the remaining categories in assessing whether the DG and the XY-Daisy (police statement) Relationship Evidence has traction in terms of the threshold standard to be met – to show, for example, that the comments supposedly made to DG are not viewed within a context of some ‘random follie.’ [ 80 ] I do not think that I can do this, i.e., take the other categories of evidence into account in assessing the DG and the XY-Daisy (police statement) Relationship Evidence. [ 81 ] This is quite simply because in the event that I admit any third party suspect evidence, the jury will only see the end product – they will not be able to inform themselves about the weight to be given to the third party suspect evidence based on other evidence which they have not heard. [ 82 ] However, leaving this academic dilemma aside, I will make a ruling as requested by counsel, with respect only to the ‘Morton Position (Revised)’, namely in relation to the DG Testimony combined with the XY-Daisy (police statement) Relationship Evidence . [ 83 ] I think it necessary, however, for the benefit of both parties, to comment in obiter (and very briefly) respecting the remaining evidence pleaded.

[ 84 ] The substance of the Morton Position (Revised) is straight forward.

Counsel says the proposed third party suspect evidence shows a sufficient nexus with Daisy’s murder, namely: opportunity, animus, and motive. [ 85 ] Counsel’s argument is essentially as follows: (1) there is no issue that XY was in Iqaluit at the time Daisy died; (2) their close relationship may have become less so over the years, but nonetheless continued (was ongoing) proximate in time to when Daisy died; (3) the comments XY made in front of or to DG are capable of being interpreted to show that XY was jealous of Daisy’s relationships with other people – so much so that she was motivated to kill Daisy. [ 86 ] Mr.

Morton suggests that if a reasonable jury, properly instructed, were to hear the DG Testimony together with the XY-Daisy (police statement) Relationship Evidence , then they may well conclude that a reasonable doubt exists respecting the guilt of the accused. B. The respondent Crown [ 87 ] The Crown’s position is that the proposed evidence - the DG testimony and the XY-Daisy (police statement) Relationship Evidence - simply lacks the evidential traction required to even meet the threshold standard of admissibility under the third party suspect rule. [ 88 ] In particular, Mr.

Garson points out that a key element, namely ‘opportunity’, is simply missing. The Crown suggests that the fact XY was in Iqaluit at the time of the killing is hardly sufficient evidence of opportunity to commit a crime. [ 89 ] The Crown does not suggest that proof of XY’s physical presence in Daisy’s house near the time of the killing is required, but the Crown does say that something more than simply ‘being in the same town’ should be required if the applicant is to meet the threshold standard of admissibility. [ 90 ] Further, Mr.

Garson notes the dated nature of the close relationship between XY and Daisy – it ended, according to XY, in 2001, some eight years before the murder. [ 91 ] The Crown notes that despite the several discrepancies about when XY and Daisy were in contact prior to Daisy’s death, it appears that the most credible conclusion is that they were last together in April 2009 – a month or so before the murder. [ 92 ] Finally, the Crown suggests that given the weakness (or nonexistence) of the opportunity evidence, and the lack of any real on- going relationship after 2001, the DG testimony shows only a violent disposition (on XY’s part) towards Daisy which, sitting alone, is not enough under the law to meet the alternate suspect test. [ 93 ] At the end of the day, the Crown says that there is a very real prospect that the jury would simply be confused as to why the proposed evidence is before them for consideration. [ 94 ] Accordingly, the Crown argues that the proposed third party suspect evidence be excluded.

IV. ANALYSIS A. Important obiter dicta

[ 95 ] Before dealing with the Morton Position (Revised) evidence, again, the DG Testimony together with the XY-Daisy (police statement) Relationship Evidence , I will briefly visit, in obiter , the other evidence pleaded as admissible under the rubric of third party or alternate suspect evidence. (i).The party evidence [ 96 ] I agree with the Crown that this evidence is unreliable as hearsay, so that even at the threshold level it fails to meet the test of admissibility. Accordingly, respecting third party suspect evidence, this “party evidence” is out . (ii).

The “Prophesy” testimony [ 97 ] None of this testimony, on its face, is probative respecting XY’s propensity to commit any crime. So, without a full voir dire (and viva voce evidence) to explore the fuller context of the testimony (which I am not prepared to conduct at this late date), this evidence fails to meet the test of admissibility. Accordingly, respecting third party suspect evidence, this “prophesy testimony” is out . (iii).

The “Body” testimony [ 98 ] The testimony of the witness who supposedly overheard XY’s comment about seeing Daisy’s body is inherently unreliable given XY’s drunken state at the time. So without a full voir dire (and viva voce evidence) to address this troubling aspect (which I am not prepared to conduct at this late date), this testimony fails to meet the test of admissibility. [ 99 ] The testimony of the second prospective witness is inherently unreliable as hearsay. [ 100 ] Accordingly, respecting third party suspect evidence, this “body testimony” is out . (iv).

The “General Reputation” testimony & the “Related Tales of Specific Incidents” testimony [ 101 ] All of this testimony is simply a general character slag. It would send the jury on an excursion to consider ‘what kind of a person XY is.’ [ 102 ] This testimony is not inadmissible as third party suspect evidence because it shows a propensity for violence.

Rather, it is inadmissible under the third party suspect rule because that is all it shows, and no more. [ 103 ] Nor is there the slightest connection, among all this ‘character chatter’ about XY, to either Daisy or her murder. [ 104 ] Accordingly, respecting third party suspect evidence, this “General Reputation” testimony and the “Related Tales of Specific Incidents” testimony is out . (v). The XY-Daisy relationship evidence [ 105 ] Since XY ‘admits’ to a previous close relationship with Daisy, testimony of other people about the nature of the relationship is not probative.

Respecting third party suspect evidence, this testimony is not admissible. It is out .

[ 106 ] What may be probative, despite the fact XY says the close relationship is dated (ending around 2001), is what other people have to say about continued contact between the two of them in the month or so before Daisy was killed. [ 107 ] This continued contact, however, is contained mainly in XY’s second police statement of May 30, 2009. [ 108 ] Accordingly, and since Defence Counsel has narrowly focused his application and seeks only the admission of the police interrogations (together with the DG Testimony), I rule that testimony of what other people have to say about contact between XY and Daisy is not admissible under the rubric of third party suspect testimony.

It is out . B.

Ruling on the Morton Position (Revised) [ 109 ] The DG Testimony is reliable and detailed and what XY allegedly said is disturbing, particularly because it is so proximate in time to Daisy’s death. [ 110 ] This, together with what appears, by XY’s own admission, to be habitual ongoing contact between herself and Daisy up to and within a relatively short time before Daisy’s death, supports the proposition that XY is a credible third party or alternate suspect. [ 111 ] It may be that XY’s comments to DG were nothing more than an empty drunken rant – and something beyond her memory in the light of morning.

It may be as well that the continued contact between XY and Daisy after 2001 is simply just that, namely, mere contact with no overtone of any type of continuing friendship or relationship at all. [ 112 ] These, however, are matters which, in my view, may be properly left to the jury to consider.

I do not consider that the probative value of this evidence is substantially outweighed by the prospect of any prejudicial effect upon the integrity of the trial process. [ 113 ] I think the jury will be quite capable, in assessing this evidence, of separating the ‘wheat from the chaff’ and of processing the discreet issue which the evidence raises without being sidetracked in the slightest from adjudicating the ultimate question before them – namely, whether the Crown has proved the case against the accused. [ 114 ] Accordingly, I am persuaded that the DG Testimony together with the entire content of XY’s two statements to the police (which include the relationship and contact between herself and Daisy) meet the threshold standard of admissibility respecting third party or alternate suspects, and may be considered by the jury should the Defence decide to lead this evidence.

C. The Crown’s right of rebuttal [ 115 ] The law allows the Crown the right to rebut any third party or alternate suspect evidence. [ 116 ] In this case, there is the prospect that XY will be called to testify (and presumably deny that she committed any crime) and there was discussion during the hearing as to which party (Crown or Defence) might call her as a witness. There is, however, no need for me (at this stage) to address this. [ 117 ] I do, however, wish to address another matter.

As the hearing came to a close, Crown counsel raised an important point – namely, the extent to which the Crown may lead police evidence to rebut the proposition that XY is a credible suspect. [ 118 ] Following Crown counsel’s query, there was some brief discussion concerning this question.

Accordingly, I think it fair to provide counsel with some of my preliminary views on the matter. [ 119 ] Generally, and in cases where the Defence leads evidence to allege ‘tunnel vision’ on the part of the police, it is clear that the Crown’s right to rebut this notion through police testimony about the details of their investigation is fairly wide.

[ 120 ] In this case, the Defence does not allege tunnel vision on the part of the police.

The Defence position is simply (as counsel articulated during the hearing) that the third party suspect evidence may leave the jury with a reasonable doubt about the guilt of the accused. [ 121 ] The police question many people in the early stages of an investigation and may well have reason to be suspicious about whether a certain individual had motive or reason to commit the crime. [ 122 ] And, as a routine matter, the police might confront such a person with the proposition that they did, in fact, commit the crime – in order simply to see how the person reacts. [ 123 ] In police jargon, such potential ‘suspects’ are often referred to as ‘persons of interest’. [ 124 ] Accordingly, if such a person is put forth by the Defence as an alternate suspect, then it may be that the Crown may call rebuttal testimony from the police to illustrate how things work in the early stages of a major investigation. [ 125 ] Further, and with the obvious exception of prejudicial hearsay, it may be that the police may testify about how and why they considered this alternate suspect not worthy of any further attention and shifted their focus away from such a person and, eventually, towards the accused. [ 126 ] Such evidence might, for example, include police testimony concerning their reconsideration of something the accused had said to them at an earlier stage in the investigation, as well as newly emerging civilian testimony, or forensic evidence.

V. CONCLUSION [ 127 ] In this case, the precise nature of any such prospective rebuttal evidence is something which will need to be dealt with at trial. [ 128 ] However, I reiterate my thanks to counsel for addressing this issue. It may save valuable trial time if the parties consider their respective positions concerning the ambit of rebuttal testimony at an early stage. [ 129 ] Finally, I would be remiss if I did not acknowledge the efforts and advocacy of both Crown and Defence Counsel in the conduct of this voir dire . Dated at the City of Iqaluit this 23rd day of January, 2015

___________________ Justice N. Sharkey Nunavut Court of Justice