W. Adam Schultz

In a murder prosecution, the Crown sought admission of two out-of-court statements made by the deceased shortly before her death.

One statement was overheard during a telephone conversation between the deceased and the accused, while the second was a contemporaneous explanation given by the deceased to her mother immediately after the call.

The court held that the telephone statements were admissible under the state of mind exception to the hearsay rule to demonstrate the deceased’s attitude toward sexual contact with the accused.

The second statement, tendered for the truth of its contents, satisfied the principled hearsay exception because necessity was established by the declarant’s death and threshold reliability was supported by corroborating evidence and contemporaneity.

The probative value of the statements outweighed potential prejudice, and concerns about propensity reasoning did not justify exclusion.

The accused, charged with first degree murder, sought to exclude statements made to undercover officers during transport and to a detective during an interview.

He argued the statements were involuntary because police provided cigarettes as an inducement and failed to provide his prescribed anti-anxiety and anti-psychotic medication, breaching his section 7 Charter rights.

The court found the statements were voluntary, as the accused was in control and the circumstances were not oppressive.

The court also found no section 7 breach, as there was no causal connection between the lack of medication and the accused's decision to speak or his subsequent suicide attempt.

The motion to exclude the evidence was denied.