R. v. Rudder, 2023 ONCA 864

what you need to know

- There is a common law formal admission that withdraws a fact from issue and dispenses with the need for proof of that fact. This common law power is broader than the formal admissions provision housed in s. 655 of the Criminal Code.

- Helpful refresher on the law of third party suspects (see paras. 58-61)

BACKGROUND

Korey Rudder was convicted of five firearm and nine breach offences after a loaded handgun and ammunition were found secreted under the front seat of a black BMW that he had been driving the night prior to his arrest. The trial judge based the convictions on a constructive possession finding. Given that the handgun was not in plain view in the BMW and there was no direct or circumstantial evidence establishing Mr. Rudder’s knowledge of the handgun, proof of constructive possession required an inference of Mr. Rudder’s knowledge of the handgun to be drawn from the control he exercised over the BMW, and from his post-offence conduct in lying to the police about his connection to the BMW.

Mr. Rudder testified in his own defence. He admitted he used the BMW in question but denied any knowledge of the handgun. He testified that three other persons also drove the BMW including a woman he was having an intimate relationship with and who was renting the apartment unit where he was arrested; Andrew Brown, a friend of that woman; and Brandi, another woman he was having a relationship with.

ISSUES ON APPEAL

(1) Did the trial judge misapply the law of third party suspects?

(2) Did the trial judge materially misapprehend the evidence that the BMW was a rental vehicle rented by Mr. Brown and/or Mr. Rudder’s explanation for his lie to the police?

Holding - Appeal allowed, convictions quashed, new trial ordered.

THIRD PARTY SUSPECTS

Trial Judge’s Ruling

The trial judge ruled that the law relating to third party suspects was engaged, saying, “I find that the defendant’s testimony, particularly his testimony as it concerned Brandy, engaged consideration of the body of law known as ‘other suspects’”. The trial judge used this body of law to analyse the evidence not only relating to Brandy, but to all three of the other persons who Mr. Rudder testified had driven the BMW, namely, Brandy, Laura and Mr. Brown.

In the course of his ruling, the trial judge said, “I am satisfied that the defendant’s viva voce evidence addresses the prerequisites for admission” and that the defence was “available”. The trial judge then said that he attributed “no weight” to this evidence, finding, “[t]here is no sufficient nexus between any of the other suspects and the crime at issue – possession of the loaded firearm.” In coming to that conclusion, he began by noting, “[t]here was no evidence at trial concerning the ownership of the vehicle. There was no evidence at trial concerning whether the vehicle was rented, leased, or owned.”

The trial judge commented on the credibility of the third party suspect evidence generally and said, “I find no probative value in the evidentiary record adduced in support of other suspects for several reasons.” He went on to say, “there is not a hair of admissible evidence supporting the existence of any of the persons identified by the defendant.”

The trial judge concluded his “Other Suspect” analysis by recognizing that “where an other suspect defence is advanced at trial, the trial judge must assess whether on the entire evidentiary record at trial, the possible involvement of the other suspect raises a reasonable doubt”. He said that this can be done “by showing the connection between the other suspect and the crime in issue”. He said, “[t]here is no sufficient connection between any of the purported other suspects identified by the defendant and the crime in issue. Even assuming the evidence to be true, it does not establish anything more than access to the BMW vehicle.” The trial judge noted there was no evidence of their involvement in criminality or motive, and no direct or circumstantial evidence of the other suspects placing a firearm in the BMW.

The Law of Third Party Suspects

The law relating to third party suspects ensures that evidence or arguments are not presented about the possibility that others, and not the accused, perpetrated a charged offence unless there is evidence that raises this possibility as a material issue in the case. It provides a threshold admissibility test by requiring the accused to point to evidence of a “sufficient connection” between the third party and the crime. The sufficient connection test is essentially an air of reality test. To raise this air of reality, the accused must point to “some basis [in the evidence] upon which a reasonable jury, properly instructed, could acquit based on the claim of third party authorship”. The role of this body of law is spent once this threshold test is met. Where this is so, the evidence is admissible, and the defence is a live issue in the case that must by determined by the trier of fact on the evidence as a whole.

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. To be sure, the evidence must have sufficient probative value to justify its reception. 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. 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.

The “sufficient connection” test can therefore be stated as follows: 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. Where this test is met third party suspect evidence must be considered along with all of the other evidence in the case in determining whether the Crown has proved the guilt of the accused beyond a reasonable doubt.

The trial judge misapplied the law relating to third party suspects. As I will explain, in the circumstances of this case the trial judge should not have applied this body of law to the evidence about Laura, Brandy and Mr. Brown operating the vehicle, since it was not engaged by that evidence. Even had this body of law applied, the trial judge erred in assessing whether this body of law was satisfied. Specifically, he erred in using the sufficient connection test not only as a threshold inquiry but in assessing whether there was a reasonable doubt about Mr. Rudder’s guilt, and he committed a palpable and overriding error by rejecting this evidence based on its lack of connection to the crime.

MISapprehension of evidence & FORMAL ADMISSIONS

“A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence.”: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538. Some misapprehensions of evidence will arise from errors of law. Where misapprehensions of evidence do not give rise to errors of law, which they generally do not, they will not ground a successful appeal unless “those errors play an essential part in the reasoning process resulting in a conviction”.

First, the trial judge proceeded on the basis that there was “no evidence” as to the ownership of the BMW, or whether it was rented, and no evidence of another person associated with the vehicle. This is plainly wrong, and a mistake as to the substance of the evidence. Mr. Rudder gave direct testimony on each of these facts.

Second, the trial judge committed a related error of law by failing to accept that Mr. Brown existed, that the BMW was a rental vehicle, and that Mr. Brown was the person who rented the BMW. In my view, these facts were formally admitted by the Crown during the trial, and when formal admissions of fact have been made, as matter of law, a trial judge is obliged to accept those facts.

A “formal admission”, also known as a “judicial admission” is an agreement between the parties to litigation that a fact is true. Unlike an informal admission – such as a confession made by an accused person outside of court - where a formal admission has been made it has the effect of withdrawing that fact from issue and dispensing with the need for proof of that fact.

The Criminal Code provides for some forms of formal admissions, including guilty pleas or formal admissions made pursuant to s. 655 of the Criminal Code. These provisions, however, are not exhaustive.

The common law, which is not ousted by these provisions, also recognizes binding formal decisions, including admissions of fact by the Crown that favour accused. Although these admissions are best made in “agreed statements of fact”, they do not need to be. A “formal” admission simply refers to a statement of admission made by counsel during the course of litigation.

In this case, it was clear from the Crown’s language that the Crown intentionally admitted that Mr. Brown existed and that the BMW was a leased vehicle that Mr. Brown was renting.

To be clear, however, when a formal admission has been made, as it was here, a trial judge is free to interpret what the admission of fact means. “But that interpretive exercise cannot morph into an analysis of the veracity of the admission”. The rule that a trial judge is bound when a formal admission of fact has been made is an important one, not only from the point of view of the efficient resolution of cases, but also as a matter of justice. Where a formal admission of fact has been made, parties will rely upon it in making decisions about how to present their case and can therefore be prejudiced if the admission is not accepted. Moreover, a trial judge is not aware of what is in counsels’ briefs, and by rejecting a formal admission, may be proceeding on a factual basis the parties agree to be inaccurate.