Introduction
This memo examines the admissibility of three key pieces of evidence in the upcoming jury trial of Nick DeRose, charged with second-degree murder under section 235 of the Criminal Code. As an articling student assisting Saul Goodman in preparing the defence, the analysis focuses on the Law of Evidence, drawing from Canadian common law principles applicable in Ontario. The Crown’s case relies heavily on circumstantial evidence, including witness statements, forensic findings, and historical records, while the defence seeks to introduce exculpatory hearsay. The memo addresses: (1) the 2018 incident report as part of the Crown’s case; (2) the footwear impression evidence from expert Ted Beneke; and (3) the statement of paramedic Scott Guiterrez for the defence. Each item is evaluated for relevance, hearsay implications, expert qualifications, and potential prejudice, assuming the validity of footwear impression examination as a forensic discipline. The purpose is to identify arguments for exclusion or admission, highlighting limitations in the evidence base to strengthen DeRose’s position. This analysis is informed by established precedents, such as those on hearsay exceptions and expert testimony, while considering the tight budget constraints that prevent independent expert consultation.
Admissibility of the 2018 Incident Report
The November 14, 2018, incident report from Maplehurst Correctional Centre presents challenges as potential Crown evidence to establish prior animosity between DeRose and the victim, Colin Schuster. Prepared by correctional officer Marco Salvatore, the report documents a verbal altercation involving a racial slur and shouting, with no physical violence noted. Salvatore, now available to testify but lacking any recollection of the event, prepared the report hastily at the end of his shift in compliance with institutional regulations. This raises hearsay concerns, as the report is an out-of-court statement tendered for the truth of its contents, and Salvatore cannot provide firsthand testimony to verify details.
Under Canadian evidence law, hearsay is presumptively inadmissible due to risks of unreliability and the inability to cross-examine the declarant effectively (R v Khelawon, 2006). However, exceptions may apply, particularly for business records under section 30 of the Canada Evidence Act. This provision allows admission if the record was made in the usual and ordinary course of business, provided it is not prepared in contemplation of litigation. The incident report arguably fits this category, as it was a routine regulatory requirement, even if Salvatore viewed the event as trivial. Courts have admitted similar prison records where they serve administrative purposes, emphasizing the circumstantial guarantee of reliability from systematic documentation (Ares v Venner, 1970). Nevertheless, the defence could challenge this on grounds of necessity and reliability under the principled exception to hearsay (R v Bradshaw, 2017). Necessity arises because Salvatore has no memory, making the report the only source; however, reliability is questionable given the rushed preparation and lack of detail, which might not sufficiently assure accuracy.
Furthermore, the report’s probative value must be weighed against its prejudicial effect. It suggests motive through prior conflict, potentially biasing the jury against DeRose by portraying him as aggressive, especially with the racial slur reference. Yet, the altercation was minor and non-violent, occurring six years prior to the stabbing, which weakens its relevance to the murder charge. If admitted, the defence might argue for a limiting instruction to the jury, cautioning against overreliance on character evidence (R v Handy, 2002). In practice, such reports often face scrutiny when the preparer cannot recall events, as cross-examination becomes limited, potentially violating DeRose’s right to a fair trial under section 11(d) of the Charter. Overall, while the Crown may succeed in admission via the business records exception, the defence should motion to exclude it, highlighting its low probative weight and the availability of alternative evidence, such as prison records without the hearsay-laden narrative.
Admissibility of Ted Beneke’s Footwear Impression Evidence
Ted Beneke’s proposed testimony as a Crown expert on footwear impressions requires scrutiny under the framework for admitting expert evidence. Beneke, with 23 years of experience and prior qualifications in 23 Ontario trials, intends to opine that the crime scene shoeprint is consistent with the right Nike Pegasus running shoe (size 11) found in DeRose’s apartment, noting similarities in pattern, wear, and tear. He acknowledges dissimilarities attributable to artefacts but did not record them, relying on contemporaneous notes of 21 similarities, crime scene photographs, and the now-destroyed cast. DeRose wears size 11 shoes, adding circumstantial weight, though Beneke concedes thousands of similar shoes exist in Ontario, limiting distinctiveness.
The admissibility of expert evidence in Canada follows the four-part test from R v Mohan (1994): relevance, necessity in assisting the trier of fact, absence of any exclusionary rule, and a properly qualified expert. Firstly, relevance is evident, as the shoeprint links DeRose to the scene via his residence. Necessity arises because lay jurors lack expertise in microscopic pattern comparisons, making Beneke’s analysis essential for interpreting consistencies and wear patterns. No clear exclusionary rule applies, assuming the discipline’s validity as instructed. Beneke’s credentials—accreditation by the Canadian Identification Society and leadership in education—support his qualification, though his exclusive prosecution work might suggest bias, warranting defence cross-examination on impartiality (White Burgess Langille Inman v Abbott and Haliburton Co, 2015).
However, probative value versus prejudice is critical. The evidence is circumstantial and not conclusive, as Beneke cannot exclude other shoes, and the cast’s destruction hinders verification, relying on notes and partial photographs. This could undermine reliability, inviting arguments under R v Truscott (2007) that incomplete forensic records reduce weight. The defence might contend the testimony risks misleading the jury by implying stronger linkage than exists, especially with unrecorded dissimilarities. Arguably, this tilts towards exclusion if prejudice outweighs probity, particularly in a jury trial where technical details may confuse (R v J.-L.J., 2000). Therefore, while likely admissible under Mohan, the defence should seek to limit its scope, perhaps through voir dire, emphasizing the non-unique nature of the shoe and evidential gaps to mitigate impact.
Admissibility of Scott Guiterrez’s Statement
For the defence, the October 24, 2024, statement of deceased paramedic Scott Guiterrez, recorded in P.C. Kline’s notes, offers potentially exculpatory evidence. Guiterrez described an unidentified man—fitting Greg Hollister’s profile but not DeRose’s—standing beside Schuster, muttering words suggesting self-defence: “I hope you can fix him, even though he got what he deserved. I was only defending myself.” Guiterrez was uncertain of exact phrasing but confident in the gist, noting the man’s calm demeanor. With Guiterrez deceased and Hollister denying the remark, the statement is hearsay, but Kline’s fresh recollection allows authentication.
Hearsay admissibility for defence evidence often invokes the principled exception, requiring necessity and threshold reliability (R v Khelawon, 2006). Necessity is clear due to Guiterrez’s death, with no alternative sources. Reliability stems from contemporaneous recording by Kline, a police officer, shortly after the incident, providing circumstantial assurances. The statement was spontaneous, not elicited under pressure, and Guiterrez, focused on medical duties, had no motive to fabricate. Courts have admitted similar res gestae statements where proximity to events enhances trustworthiness (R v Nurse, 2019). Moreover, as defence evidence implicating Hollister and suggesting an alternative perpetrator, it supports DeRose’s fair trial rights, potentially warranting admission despite hearsay rules (R v Seaboyer, 1991).
Critically, the statement’s vagueness—”pretty confident” in the gist—might challenge reliability, but Kline’s testimony can bolster it. Prejudice to the Crown is minimal, as it introduces reasonable doubt without directly harming prosecution witnesses. If excluded, the defence could argue Charter infringement, though typically, hearsay rules apply equally. Generally, this evidence appears admissible under the principled approach, strengthening the case by redirecting suspicion to Hollister, whose credibility is already questionable given his inconsistent statements and plea deal.
Conclusion
In summary, the 2018 incident report faces hurdles as hearsay with limited reliability, likely admissible as a business record but vulnerable to exclusion motions due to prejudice. Beneke’s expert evidence satisfies Mohan criteria yet risks overstatement given evidential limitations, meriting defence challenges to its weight. Guiterrez’s statement, conversely, benefits from necessity and reliability for defence purposes, offering a strong admissibility case. These analyses reveal gaps in the Crown’s evidence, such as incomplete records and non-conclusive forensics, while bolstering defence strategies. Implications for the trial include potential jury instructions on circumstantial evidence and the need for careful cross-examination to highlight uncertainties. Ultimately, advocating exclusion or limitation of Crown items, alongside admission of the defence statement, could enhance DeRose’s prospects, underscoring the evidence law’s role in ensuring fairness.
References
- Ares v Venner [1970] SCR 608, Supreme Court of Canada.
- R v Bradshaw [2017] 1 SCR 865, Supreme Court of Canada.
- R v Handy [2002] 2 SCR 908, Supreme Court of Canada.
- R v J.-L.J. [2000] 2 SCR 600, Supreme Court of Canada.
- R v Khelawon [2006] 2 SCR 787, Supreme Court of Canada.
- R v Mohan [1994] 2 SCR 9, Supreme Court of Canada.
- R v Nurse 2019 ONCA 260, Ontario Court of Appeal.
- R v Seaboyer [1991] 2 SCR 577, Supreme Court of Canada.
- R v Truscott 2007 ONCA 575, Ontario Court of Appeal.
- White Burgess Langille Inman v Abbott and Haliburton Co [2015] 2 SCR 182, Supreme Court of Canada.
