J. Marentette

In a pre‑trial ruling on the admissibility of hearsay evidence in a second degree murder prosecution, the Crown sought to admit various statements made by the deceased to acquaintances concerning the accused’s prior abusive conduct, the nature of the relationship, and her intentions shortly before her death.

Applying the principled approach to hearsay under R. v. Khelawon and R. v. Starr, the court considered necessity, reliability, relevance, and the balance between probative value and prejudicial effect.

Certain evidence, including statements reflecting the deceased’s intention to go to a shelter and evidence of a meeting in which the accused admitted prior assaults, was admitted as relevant to the relationship and the deceased’s state of mind.

Other statements and proposed testimony were excluded where they risked reasoning prejudice, lacked proximity or relevance, or were unnecessary given other admissible evidence.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg under s. 253(1)(b) of the Criminal Code.

The appeal challenged both the grounds for the breath demand and the adequacy of the right to counsel advice under s. 10(b) of the Charter.

While the court found sufficient grounds existed for the breath demand based on the officer’s observations and circumstances of the collision, it concluded that the informational component of the right to counsel was not satisfied after the accused twice indicated he did not understand his rights.

The officer failed to make reasonable efforts to ensure comprehension before proceeding.

The resulting Charter breach required exclusion of the breath sample evidence under s. 24(2).