R. v. Riley

R. v. Riley Court Supreme Court Date 2022-08-10 Citation 2022 NSSC 225 Docket 502058 Judge/Registrar/Adjudicator Arnold, Joshua M. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: R. v. Riley, 2022 NSSC 225 Date: 20220810 Docket: 502058 Registry: Halifax Between: Her Majesty the Queen v. Randy Desmond Riley DECISION ON THIRD-PARTY SUSPECT Judge: The Honourable Justice Joshua Arnold Heard: April 19 and 20, 2022, in Halifax, Nova Scotia Counsel: Peter Craig, Q.C., and Stephen Anstey, for the Crown Trevor McGuigan and Keiisha Pillai, for Randy Riley Overview [1] Chad Smith was shot and killed while delivering a pizza. Randy Riley and Nathan Johnson were each charged with first-degree murder, pursuant to s. 235 of the Criminal Code, and unauthorized possession of a firearm, pursuant to s. 92(1). [2] Both accused applied successfully for severance (2014 NSSC 462). Mr. Johnson’s trial went first. The Crown theory was that Mr. Riley shot Chad Smith and that Mr. Johnson was a party to the murder by helping Mr. Riley plan the murder, luring Mr. Smith to the area where he was shot, and then helping Mr. Riley dispose of the gun and other evidence. Mr. Johnson was convicted by a jury of first-degree murder and his conviction was upheld on appeal (2017 NSCA 64). [3] The Crown then called Mr. Johnson to testify at Mr. Riley’s first trial. Mr. Johnson testified that Mr. Riley had been dropped off at his girlfriend’s house by Paul Smith on Trinity Avenue prior to the shooting. Mr. Johnson said he procured the gun by himself, lured Mr. Smith to the location, and intentionally shot Mr. Smith (without intending to kill him). He said Mr. Riley was not present, nor did he have anything to do with the shooting. Mr. Riley was convicted by a jury of second-degree murder and unlawful possession of a firearm. His appeal to the Nova Scotia Court of Appeal was denied (2019 NSCA 94), but he appealed to the Supreme Court of Canada and a re-trial was ordered (2020 SCC 31). [4] The Crown will not be calling Mr. Johnson as a witness at Mr. Riley’s re-trial. Mr. Riley has given notice that he could potentially call Mr. Johnson as a witness in his defence, and is requesting that, if he does so, the defence of third-party suspect be put to the jury. Mr. Riley says that the transcript of the testimony of Mr. Johnson at the first trial forms a sufficient foundation to establish an air of reality for the defence of third-party suspect. The Crown says the defence should be required to call Mr. Johnson in advance of trial on a voir dire to determine whether he is maintaining his previous testimony. Therefore, while the law regarding third-party suspect evidence is settled, the parties do not agree on the procedure to determine whether Mr. Johnson should be permitted to testify. Facts [5] The parties filed the following materials on this application: • The defence brief, filed on July 9, 2021, which included the trial transcript of Nathan Johnson’s testimony on April 3 and 9, 2018. • The Crown brief, filed on July 22, 2021, which included the transcript of Nathan Johnson’s voir dire testimony during trial on April 4, 2018. [6] The background to this application is succinctly summarized in the defence brief: Procedural History 6. Chad Donald Smith was killed on October 23, 2010. Randy Riley and Nathan Johnson were arrested and charged on July 24, 2013. The two were originally jointly charged. The Crown alleged that they committed the planned and deliberate murder together. The Defence made a successful severance application in 2014 (R v. Johnson and Riley, 2014 NSSC 462, Tab 2). 7. Mr. Johnson was tried first and convicted of fist-degree [sic] murder by a jury on December 4th, 2015. He appealed his conviction, which was dismissed by our Court of Appeal on June 6th, 2017, (R v. Johnson, 2017 NSCA 64, Tab 3). 8. Mr. Riley’s trial commenced March 26, 2018. On April 16, 2018, the jury acquitted Mr. Riley of first-degree murder, but found him guilty of second-degree murder and unlawful possession o a firearm. Mr. Riley appealed his conviction. On December 5, 2019, Beveridge JA upheld the conviction, dismissing the appeal for a majority of the Court. Scanlan JA, in dissent, would have ordered a new trial on both charges (R v. Riley, 2019 NSCA 94, Tab 4). Mr. Riley appealed to the Supreme Court of Canada. By Judgment on November 5, 2020, the Court allowed the Appeal for the reasons of Scanlan JA and ordered a new trial (R v. Riley, 2020 SCC 31, Tab 5). The Anticipated Evidence 9. On October 23, 2010, at approximately 9:26 p.m. police responded to an emergency call on Joseph Young Street, in the Highfield Park area of Dartmouth. They arrived at the scene in under a minute. Police officers located the body of Donald Chad Smith (hereafter Chad Smith) in the exterior front entryway to apartment No. 3 at 15 Joseph Young Street. He had been shot once in the right upper chest/armpit/bicep area. He was deceased by the time police arrived. 10. The Crown called 18 witnesses at Mr. Riley’s first trial, including police, experts, and civilians who contributed to relaying the narrative of events and the investigation. The entirety of the trial evidence will not be summarized in this brief, but only those aspects that will allow the Court to understand the nature of the evidence against Mr. Riley and to adjudicate the present issues. 11. With respect to the issue of who committed the murder, the evidence at the first trial only emanated from two Crown witnesses: Paul Smith and Nathan Johnson. 12. Paul Smith testified that on October 23, 2010, around 7:00 p.m., he received a phone call from his close friend, Mr. Riley, who was looking for a drive. Paul Smith drove to Mr. Riley’s girlfriend’s home on Trinity Avenue in the area of Highfield Park in Dartmouth. Mr. Riley was waiting outside with Nathan Johnson. Mr. Riley asked Paul Smith to drive to an apartment building in the Dartmouth area near the Mic Mac Hotel, about 15 minutes away. 13. According to Paul Smith’s trial testimony, Mr. Riley made various comments during that drive including that he had gotten into an altercation with someone “years prior”. Paul Smith testified that Mr. Riley told him that “years back him and this guy got into a fight or something and the guy ended up beating him up with like an object or something”. Paul Smith testified that Mr. Riley “knew where this guy was working and he was just going to deal with it and he had to get a gun or whatever so”. Paul Smith explained that Mr. Riley said, “just that he had to take care of it really”. 14. Paul Smith testified that they arrived at the apartment building and Mr. Riley exited the vehicle for approximately 5 minutes, and he and Nathan Johnson stayed behind. He described that when Mr. Riley returned it appeared that he was carrying something in his pants and was limping slightly. Paul Smith believed that Mr. Riley was carrying a gun, though he could not see what it actually was. He also testified that Mr. Riley was wearing a pair of “doctor gloves” and provided a second pair to Nathan Johnson in the back seat once he entered the vehicle. Paul Smith testified that Mr. Riley said that he was “just taking care of this tonight”. 15. Paul Smith described that he drove back to the Highfield Park area and dropped off both Mr. Riley and Mr. Johnson at the Highfield Park Bus Terminal. After that he went home. 16. Paul Smith testified that a day or two after the murder he spent time with Mr. Riley who remarked to Paul Smith that “It had to be done. He had to deal with it”. 17. Paul Smith further testified that, almost 3 years later, on July 23, 2013, police arrived unannounced at his home in Calgary, Alberta. According to Paul Smith, Cst. Steve Fairbairn spent approximately an hour with him and told him what the police knew had happened in the case, including that they suspected Mr. Riley for the murder, and that they wanted Paul Smith’s help. Cst. Fairbairn suggested that Paul Smith drove Mr. Riley and Mr. Johnson to get a gun on October 23, 2010, and that he could either be “a witness” or “an accused” in the homicide investigation. 18. Paul Smith declined to provide Cst. Fairbairn with any information during his first meeting. The next day, July 24, 2013, police arrested Paul Smith for Chad Smith’s murder. According to Paul Smith’s testimony, Cst. Fairbairn was waiting for him at the police station and reminded him that he could be “a witness” or “an accused”. Paul Smith testified at trial that he did not think he could remain silent lest he be charged with the murder. He provided police a videotaped statement. 19. At trial, a Vetrovec caution was provided in relation to Paul Smith’s evidence. 20. Paul Smith met with a private investigator hired by the Defence, Bruce Pitt-Payne, on February 15, 2020, and provided a sworn, cautioned, digital video statement regarding this case. Paul Smith’s new statement contains areas with significant differences from his trial testimony. For example, Paul Smith denied that Mr. Riley made any inculpatory remarks about targeting the victim on the drive to the apartment in Dartmouth. 21. In his statement, Paul Smith indicated that both Mr. Riley and Mr. Johnson left his vehicle when they arrived at the apartment building, not just Mr. Riley. He also stated that when Mr. Riley and Mr. Johnson returned to the vehicle, only Mr. Johnson was wearing gloves, not both of them. Paul Smith stated that upon Mr. Riley’s return from the apartment building, he did not see the applicant carrying anything, nor did he see Mr. Riley limping, nor did he see a bulge in the applicant’s pants which would suggest a gun or weapon. 21. Paul Smith also swore in his statement to the investigator, that contrary to his prior testimony, Mr. Riley did not make any incriminating admissions to him in the days following the shooting, and that he had made up this fact when providing his statement to police. 22. At Mr. Riley’s first trial, the Crown subpoenaed and called Nathan Johnson. In his testimony Nathan Johnson explained that he and Mr. Riley grew up together. On the afternoon of October 23, 2010, he had been hanging out with Mr. Riley before Paul Smith picked them up to go to a card game. He described that the three of them went to play cards elsewhere in Dartmouth with another group of people before returning to the Highfield Park area. 23. Mr. Johnson testified that when the three men returned to the neighbourhood, Paul Smith dropped Mr. Riley off on Trinity Avenue where his girlfriend lived, and then dropped Mr. Johnson, alone, at the top of Highfield Park Drive. 24. Mr. Johnson testified that he went to the payphone to call “Jiggy”. According to Mr. Johnson “Jiggy” was the nickname of the deceased, Chad Smith. Mr. Johnson testified that he was a drug dealer at that time in his life and explained that he had known Chad Smith for a couple of weeks and had supplied drugs to him. Chad Smith had owed him money and had been “ducking” his calls. Mr. Johnson wanted to collect the debt and tried calling Mr. Smith’s personal phone, but no one answered. In a subsequent search of Chad Smith’s vehicle, police located a quantity of cannabis, baggies, a scale, and a loaded firearm. 25. According to Nathan Johnson, he knew Chad Smith worked as a pizza delivery driver. Mr. Johnson decided to call and place a fake pizza order, knowing that Chad Smith would deliver it. This would allow Mr. Johnson to confront him about his debt. Mr. Johnson testified that he made the call to the pizza shop and ordered the delivery to 15 Joseph Young Street. Mr. Johnson described that he would deal drugs in the Highfield Park area and had a shotgun which he stashed in the woods, for security, behind Joseph Young Street in Dartmouth – this is why he arranged to have a pizza delivered to that specific area. He explained that he had the gun when Chad Smith arrived at 15 Joseph Young Street to deliver the pizza. He approached Mr. Smith, put the barrel of the gun to his arm, and demanded his money. 26. Mr. Johnson described a short confrontation in which they both froze, Mr. Johnson started to put the gun down, and Mr. Smith turned as if to run. Nathan Johnson then fired the shotgun and explained that he intended to shoot the victim in the arm. 27. After the shooting, Mr. Johnson ran into the woods and hit [sic] the shotgun in an open drainpipe. He then ran to his aunt’s residence nearby and changed out of his muddy clothes. He called a friend and learned that someone had died on Joseph Young Street. 28. According to his testimony, Mr. Johnson then messaged his girlfriend, Kaitlin Fuller, to come pick him up. They returned to his residence in Halifax and spent the night there. He testified that he told Ms. Fuller “a cover story” to divert responsibility from himself. He testified that he added Randy’s name and Paul’s name and placed the blame on them for everything and described to Ms. Fuller that he was just there but had not committed the murder. He explained that he started a rumor about the murder to deflect blame from himself. 29. At trial, the Crown argued to the jury that Mr. Johnson should be disbelieved. They pointed to independent evidence that differed from aspects of his testimony, including the following: • Evidence concerning the cell towers used by Mr. Riley’s cell phone contradicted Mr. Johnson’s evidence as to he and Mr. Riley’s whereabouts the day of the murder; • Mr. Johnson testified that just prior to making the phoney [sic] call to Panada Pizza he called Chad Smith’s cell phone which he had memorized. However, evidence from the deceased cell phone records showed no such calls; and • Mr. Johnson testified that when he called Panada Pizza he first asked if “Jiggy” was working, which differed from the testimony David Bryant, the employee who took the call. [As appears in original] Third-party suspect evidence [7] In R. v. Grandinetti, [2005] 1 S.C.R. 27, Abella J., for the court, set out the requirements for an accused who wants to raise the defence of third-party suspect. Justice Abella explained, for the court: 46 Evidence of the potential involvement of a third party in the commission of an offence is admissible. In R. v. McMillan (1975), 7 O.R. (2d) 750 (C.A.), aff’d [1977] 2 S.C.R. 824, Martin J.A. stated the simple underlying premise to be: [I]t [is] self‑evident that if A is charged with the murder of X, then A is entitled, by way of defence, to adduce evidence to prove that B, not A, murdered X. [p. 757] However, as he explained, the evidence must be relevant and probative: Evidence directed to prove that the crime was committed by a third person, rather than the accused, must, of course, meet the test of relevancy and must have sufficient probative value to justify its reception. Consequently, the Courts have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value. [p. 757] 47 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. 48 The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence: R. v. Fontaine, [2004] 1 S.C.R. 702, 2004 SCC 27, at para. 70. If there is an insufficient connection, the defence of third party involvement will lack the requisite air of reality: R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29. 49 The trial judge correctly formulated the legal test for admitting third party evidence: The cases establish that an accused may adduce evidence tending to show that a third person committed the offence. The disposition of a third person to commit the offence is probative and admissible provided that there is other evidence tending to connect the third person with the commission of the offence. (Ruling (voir dire), Appellant’s Record, at p. 64) [8] Randy Riley wants to call evidence of a known third-party suspect directly from that suspect, Nathan Johnson. Mr. Johnson was convicted of first-degree murder in the shooting death of Chad Smith. As noted above, although he did not testify at his own trial, Mr. Johnson testified as a Crown witness at Mr. Riley’s first trial and confessed to shooting Mr. Smith. He testified that Mr. Riley was not involved in planning the shooting in any way and was not present when the shooting occurred. [9] Therefore, Mr. Riley wants to call direct evidence from another person taking full responsibility for the crimes charged. That person has already testified under oath about this crime. In R. v. Murphy, 2012 ONCA 573, [2012] O.J. No. 4086 (Ont. C.A.), Laskin J.A. stated for the panel, including Rosenberg and Watt J.A.: 17 The law governing the admissibility of defence evidence in a criminal trial is well-established. In her majority reasons in R. v. Seaboyer, [1991] 2 S.C.R. 577, at pp. 611-12, McLachlin J. wrote that Canadian courts have been reluctant to limit the defence's right to call evidence. She explained: The Canadian cases cited above all pertain to evidence tendered by the Crown against the accused. The question arises whether the same power to exclude exists with respect to defence evidence. Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law. These principles and procedures are familiar to all who practise in our criminal courts. They are common sense rules based on basic notions of fairness, and as such properly lie at the heart of our trial process. In short, they form part of the principles of fundamental justice enshrined in s. 7 of the Charter. They may be circumscribed in some cases by other rules of evidence, but as will be discussed in more detail below, the circumstances where truly relevant and reliable evidence is excluded are few, particularly where the evidence goes to the defence. In most cases, the exclusion of relevant evidence can be justified on the ground that the potential prejudice to the trial process of admitting the evidence clearly outweighs its value. 18 In R. v. Clarke, (1998), 18 C.R. (5th) 219 (Ont. C.A.), at para. 33, Rosenberg J.A. elaborated on the court's narrow power to exclude relevant defence evidence: In Seaboyer, McLachlin J. clarified the test for exclusion of otherwise relevant evidence. She held, at p. 611, that the judge has the power to exclude relevant evidence tendered by the Crown on the basis simply that its prejudicial effect outweighs its probative value. The power to exclude relevant defence evidence, however, is narrower and constrained by the fundamental tenet that an innocent person not be convicted, a tenet which now has constitutional protection. As she said at p. 608, "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 evidence necessary to establish a defence and to challenge the evidence called by the prosecution." McLachlin J. held, at pp. 611-12, that defence evidence may be excluded where the prejudice substantially outweighs the value of the evidence. In the result, "the circumstances where truly relevant and reliable evidence is excluded are few, particularly where the evidence goes to the defence" (at p. 611). Exclusion of defence evidence can be justified only where the "potential prejudice to the trial process of admitting the evidence clearly outweighs its value" (at pp. 611-12). 19 Within this framework, the defence has always been permitted to call or adduce evidence that some other person committed the crime with which the accused has been charged. However, before this third party or alternate suspect evidence can be admitted, the accused bears the burden of showing that the proposed evidence has "some nexus with the alleged offence". Without the nexus, the evidence would lack probative value. In R. v. McMillan, (1975), 7 O.R. (2d) 750 (C.A.), at p. 758, Martin J.A. explained the test for the admission for the alternate or third party suspect evidence and its rationale: It follows that evidence of the disposition of a third person to commit the crime in question, like other circumstantial evidence, is admissible, if relevant, to prove that the crime was committed by the third person. Where the character is that of a third person, not a party to the cause, the reasons of policy (noted ante, subsection 64) for exclusion seem to disappear or become inconsiderable; hence, if there is any relevancy in the fact of character, i.e. if some act is involved upon the probability of which a moral trait can throw light, the character may well be received. (Wigmore at p. 488.) Obviously, unless the third person 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. For example, if A is charged with murdering X, in the absence of some nexus with the alleged offence, evidence that B has a propensity or disposition for violence, by itself, is inadmissible to prove B is the murderer because standing alone it has no probative value with respect to the probability of B having committed 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 motive to 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, and is accordingly admissible. The Supreme Court of Canada affirmed this test in R. v. Grandinetti, 2005 SCC 5, at paras. 46-48. 20 This is the test the trial judge applied in dismissing Murphy's application to call MacLellan as a witness. The trial judge held that Murphy had not made out a sufficient nexus between MacLellan's proposed evidence and the offences. In so holding, he misapplied the test in McMillan. 21 Both McMillan and Grandinetti deal with the defence's ability to call circumstantial evidence pointing to another person's culpability for the crime - be it evidence of propensity or motive or opportunity. Without the sort of connections the trial judge found to be absent, this kind of circumstantial evidence would likely not have any probative value. 22 However, Murphy was not seeking to call circumstantial evidence pointing to another suspect. He was seeking the right to call direct evidence from another person, who was expected to take responsibility for these crimes. Why, I ask rhetorically, should he not have been permitted to call MacLellan to say, "It is I, not Murphy, who owns the gun and the narcotics the police seized"? Obviously, it would be for the jury to decide whether to accept that evidence or whether it at least raised a reasonable doubt about Murphy's guilt. On its face, however, the proposed evidence was sufficiently probative and relevant that the defence should not have been precluded from calling it. 23 It seems to me that the trial judge misapprehended the nature of the proposed evidence and, therefore, at para. 60 of his reasons, erred by requiring Murphy to show other circumstances connecting MacLellan to the offences charged. 24 I accept the Crown's submission that the requirement to show some nexus or connection between the third party and the offences applies whether the proposed evidence is direct or circumstantial or a combination of both. In all cases, the connection gives the proposed evidence its probative value: see Watt J.A. in R. v. Candir, 2009 ONCA 915, at paras. 131-132. 25 However, where the defence proposes to call direct evidence from another person taking responsibility for the crimes charged, that proposed evidence itself constitutes a sufficient nexus or connection. Nothing more need be shown and no formal application is necessary. To impose an additional burden on the defence, as the trial judge did, would be at odds with the passages in Seaboyer and Clarke emphasising the very narrow restrictions on the defence's right to call evidence. [Emphasis added] [10] In R. v. Grant, [2015] 1 S.C.R. 475, Karakatsanis J., for the court, discussed the defence of third-party suspect when the third-party is unknown or unidentified. Of course, in Mr. Riley’s case the third-party suspect is clearly known and identified. Justice Karakatsanis reviewed the general principles governing defences, and went on to comment on the distinction between known and unknown third-party suspect evidence: B. The Known Third Party Suspect Test Does Not Provide the Proper Template for Determining the Relevance of Unknown Third Party Suspect Evidence [24] In order for evidence relating to a known third party suspect to have any probative value, the evidence must show a sufficient connection between the third person and the crime for which the accused is charged (Grandinetti, at para. 47; McMillan v. The Queen, [1977] 2 S.C.R. 824). The defence points to such evidence to raise a reasonable doubt that someone else committed the crime in question. Evidence that this third person had the motive, the means, or the propensity to commit the crime will often establish this sufficient connection. … [11] The court went on to hold that the admissibility test for Crown-led similar fact evidence did not apply to evidence led by the defence of similar acts of a non-accused, and that the Seaboyer test governed the admissibility of unknown third-party suspect evidence: [36] To conclude, the balance of probabilities test governing the admissibility of similar fact evidence does not apply to unknown third party suspect evidence proffered by the accused. The similarity of the acts goes to the relevance of the evidence, but imposing the onus of the Handy test on the accused is neither consistent with the presumption of innocence nor necessary to protect the accused from moral prejudice. Any reasoning prejudice or risks to the integrity of the trial process engaged by this evidence are better addressed directly within the Seaboyer framework. … [39] Second, the Seaboyer test is concerned with the potential prejudicial effects of the evidence. Unknown third party suspect evidence, like Crown-led similar fact evidence, poses a particular risk of reasoning prejudice. Introducing evidence of other crimes that are sufficiently similar to the crime charged may risk “the distraction of members of the jury from their proper focus on the charge itself aggravated by the consumption of time” (Handy, at para. 144). [40] However, these significant prejudicial effects must nonetheless be evaluated in accordance with the fundamental principles governing criminal proceedings. In giving constitutional protection to the accused’s rights to make full answer and defence and to be presumed innocent until proven guilty, we must accept a certain amount of complexity, length, and distraction from the Crown’s case as a necessary concession to the actualization of those rights. (See, for example, Scheidell, at para. 65, per Abrahamson C.J., dissenting in the result.) [41] Contrary to the Crown’s submissions, applying Seaboyer does not “mak[e] the test for admissibility turn on whether or not the third party is named” (A.F., at para. 44). Known third party suspect evidence is already subject to the Seaboyer admissibility test: do the prejudicial effects substantially outweigh the probative value?...Indeed, defence-led evidence is generally subject to Seaboyer…Thus, while the principles in Seaboyer will always apply, they play out differently in different situations. [42] As this discussion demonstrates, many of the concerns animating the specific tests governing the admissibility of known third party suspect and similar fact evidence are also addressed in the Seaboyer analysis. In all cases, the evidence must be beyond mere speculation and conjecture. The value of the evidence must be balanced against the risks posed to the integrity of the trial when a party seeks to expand the ambit of the trial to individuals or events not directly related to the crime indicted.[Emphasis added] Positions of the parties [12] The Crown emphasizes that there is an evidentiary requirement on an accused who wants to call evidence of a third-party suspect. Therefore, despite the fact that the Crown called Mr. Johnson as their witness at the first trial, and despite the availability of transcripts of Mr. Johnson’s testimony at Mr. Riley’s first trial, the Crown says the court must hold a voir dire, requiring Mr. Johnson to re-state his evidence on direct examination, providing the Crown with an opportunity to cross-examine him, prior to trial. The Crown says the prior trial testimony of Mr. Johnson from Mr. Riley’s first trial is insufficient for the following reasons: [25] In the case at bar, the Crown submits that the aforementioned “normal course” is how the voir dire should proceed. While the defence has provided a copy of Mr. Johnson’s prior trial testimony, as other witnesses in this case make clear, what a witness has said years prior may or may not be their testimony on a subsequent date. Your Lordship cannot properly evaluate the constituent admissibility elements for this evidence prior to it being put before the jury solely based on Mr. Johnson’s prior testimony at the Accused’s first trial. [26] In addition, Mr. Johnson in prior testimony has expressed at worst, animus, and at best, callous disregard for the Accused: Q: So notwithstanding that your appeal in the Court of Appeal was dismissed in July of 2017 and Randy Riley was your good friend, you never spoke to anyone after that to say that Randy Riley was not guilty of first degree murder… A: Not until… Q: Is that correct? A: Not until yesterday. Q: Why is that? A: I just…I don’t, I really didn’t care, to be honest. Q: You didn’t… A: Fuck ‘em. […] Q: You didn’t care that Mr. Riley was in custody for the last nine months? A: It didn’t really…Like, we, we’re only friends. [27] Mr. Johnson’s current position re: sole responsibility for the murder of Chad Smith is unknown, and in light of these comments, gives ample reason for the Court to hear the proposed evidence to confirm that it will be as claimed by the Accused. [Emphasis added] [13] In its brief, the Crown explains what it says constitutes an appropriate evidentiary foundation in this situation: [15] While the Accused has “agreed to forgo” a hearing as to whether a voir dire is required, frankly, the Crown is unclear as to what this means and it does not appear that this point has been conceded. As a result, the Crown wishes to address this issue. As put pithily by Watt JA when stating the evidentiary foundation necessary to put the defence in play, he stated, “[t]he proponent does not get a free ride through the admissibility thicket upon mere announcement of ‘third party suspect’”. … [20] Watt JA’s decision in Tomlinson, which post-dates Murphy, addresses a similar situation to the case at bar; an accused raising both alibi and third party suspect evidence through the evidence of other witnesses. His earlier cited comment makes clear that despite the Seaboyer restrictions on how evidence called by an Accused can be limited, there remains a role for the Court as a gatekeeper to ensure only “relevant, material, and admissible” evidence is presented before the trier of fact. In the absence of a voir dire in which the proposed evidence is heard, there is no opportunity for Your Lordship to make this necessary assessment. … [23] Also supporting the Crown’s position on the procedure to be used, and post-dating Murphy, Sharkey J (as he then was) of the Nunavut Court of Justice – in the context of a third party suspect voir dire held in advance of a murder trial – stated: 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. 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. (emphasis added) [14] Mr. Riley says that Mr. Johnson’s prior testimony, as recorded in the trial transcripts, is more than adequate to support the defence application to call third-party suspect evidence. There is a clear nexus between Mr. Johnson and the crimes for which Mr. Riley is charged. Mr. Johnson testified on these exact issues as a Crown witness at Mr. Riley’s first trial. The Crown says the defence proposal to rely on the testimony of Mr. Johnson from the first trial of Mr. Riley is not enough: [28] Moreover, it is not sufficient for the Accused to point to the successful prosecution of Mr. Johnson for the murder of Chad Smith to support the admissibility of his evidence. The theory of the Crown presented at Mr. Johnson’s trial was that he aided the Accused in killing Chad Smith; the mere fact of that conviction does not provide the Accused with a third party suspect defence. [29] The Accused further relies on R v Fenton for the proposition that the evidence of third party suspects is presumptively admissible. Presumptively admissible or not, a voir dire is required for its evaluation. [30] Interestingly, Fenton involved evidence of both a known third party suspect (Mr. Safranko) and unknown third party suspects (unidentified males). No application was made for the admission of any of the third party evidence, and the Crown sought a mistrial due to irremediable prejudice. The defence took the position that no application was required. [31] The Court rejected the defence position and unequivocally ruled that an application was required and should have been brought “as early as possible to ensure that disruption of the trial is kept to a minimum”. The Court did, however, hold that compliance with the Criminal Proceedings Rules regarding the need for 30 days notice was required in that instance for this type of application, as they are often heard during the trial. This is the Court’s holding most pertinent to the present case. With respect to remedy, upon consideration of the relevant factors relating to the mistrial application, the Court concluded that some of the evidence was admissible and that any prejudice to the Crown could be ameliorated without resorting to a mistrial. [15] Mr. Riley points out that any witness on a re-trial could potentially change their evidence as compared to the first trial. He says the fact that Mr. Johnson testified about exactly the same issues at the first trial provides sufficient foundation to allow Mr. Johnson to be called to provide evidence of a third-party suspect (himself) at the re-trial. No additional viva voce evidence is required to make sure Mr. Johnson’s evidence will be consistent with his testimony at the first trial. Analysis [16] To reiterate, Nathan Johnson was originally charged together with Randy Riley with the murder of Chad Smith. Following a successful application for severance, Mr. Johnson’s trial went first. He was convicted of first-degree murder and the conviction was upheld on appeal. The Crown chose to call Mr. Johnson as a witness at Mr. Riley’s first trial for the same offences. Mr. Johnson testified on behalf of the Crown, under oath, and was subjected to cross-examination. He testified that he alone shot and killed Chad Smith. He said that Randy Riley had been dropped off at his girlfriend’s house by Paul Smith prior to the shooting and had nothing to do with the murder. Nonetheless, the jury convicted Mr. Riley of second-degree murder, and by inference, rejected Mr. Johnson’s testimony. The Nova Scotia Court of Appeal upheld the conviction, but the Supreme Court of Canada ordered a re-trial. The transcripts of Mr. Johnson’s first trial testimony are available and have been filed on this application. There is clearly a significant, and sufficient, nexus between Nathan Johnson and the crimes charged. [17] The transcripts of Mr. Johnson’s testimony on this very issue at the first trial are more than sufficient to provide a foundation for the defence application to call him to provide third-party suspect evidence at the re-trial. Again, the main thrust of the Crown’s argument is that Mr. Johnson should be required to testify at a pre-trial voir dire, and be subject to cross-examination, because another witness, Paul Smith, has recanted his evidence against Mr. Riley. The Crown says this change to Paul Smith’s evidence underscores the possibility that Mr. Johnson has also changed his tune. As noted above, the Crown said in their brief (referring to Paul Smith’s recanting to the private investigator): While the defence has provided a copy of Mr. Johnson’s prior trial testimony, as other witnesses in this case make clear, what a witness has said years prior may or may not be their testimony on a subsequent date. Your Lordship cannot properly evaluate the constituent admissibility elements for this evidence prior to it being put before the jury solely based on Mr. Johnson’s prior testimony at the Accused’s first trial. [18] The Crown has not provided any authority for this position. Nor have they provided any foundation to support their supposition that Mr. Johnson’s evidence will be different at the re-trial. What if there was a concern that Mr. Johnson might change his evidence after the voir dire proposed by the Crown? Would we potentially embark on an infinite series of these pre-trial exploratory voir dires? Clearly, the answer is no. The fact that Paul Smith has provided a statement to a private investigator recanting his previous testimony does not impact Mr. Johnson’s previous testimony. Again, the Crown has not identified any specific reason to believe Mr. Johnson’s evidence might have changed. [19] Frankly, the Crown’s position on this application appears to be really nothing more than a thinly veiled attempt to take a crack at cross-examining Mr. Johnson prior to trial. This likelihood is highlighted by the lack of authority provided by the Crown to support their proposed procedure. As quasi-ministers of justice, the Crown has obligations to the court that differ from other litigants as was noted by Rand J. in Boucher v The Queen, [1955] S.C.R. 16, at 23-24: It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion 'of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. [20] Similarly, in R. v. McNeil, 2009 SCC 3, at paragraph 49, the court reiterated that “The Crown is not an ordinary litigant. As a minister of justice, the Crown’s undivided loyalty is to the proper administration of justice.” Conclusion [21] The transcripts from Mr. Johnson’s testimony at Mr. Riley’s first trial, wherein he claimed sole responsibility for the shooting of Chad Smith, have been filed by Mr. Riley on this application. The Crown does not dispute their accuracy. Mr. Riley is charged with second-degree murder in the shooting of Chad Smith, the same offence for which Mr. Johnson was convicted of first-degree murder. Clearly, in this case there is ample evidence to show a nexus between Nathan Johnson and the shooting of Chad Smith. [22] On the facts of this case, no additional voir dire is required to have Mr. Johnson testify, in order for Mr. Riley to call Mr. Johnson at the re-trial to provide third-party suspect evidence. If the defence chooses to call him at the re-trial, Mr. Johnson will be testifying about his own actions and observations. The transcripts from the first trial provide sufficient foundation to allow Mr. Johnson to testify about the defence of third-party suspect. In his previous testimony, as a witness for the Crown, Mr. Johnson confessed to shooting Chad Smith without any assistance or participation from Mr. Riley. Like any other witness, it is always possible that Mr. Johnson might deviate from his previous testimony. Like any defence witness, the Crown might destroy his evidence on cross-examination at trial. Ultimately, it will be up to the jury to determine what weight to give to Mr. Johnson’s evidence. [23] If Mr. Riley elects to call evidence at the re-trial, based on Mr. Johnson’s evidence as detailed in the transcripts from the first trial, Mr. Johnson will be permitted to testify regarding the defence of third-party suspect without the need to testify on a pre-trial voir dire in advance of trial. Arnold, J.