COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Sharpe and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
And
Kolumbus Saw Moo
Appellant
David E. Harris, for the appellant
Christine Tier, for the respondent
Heard: May 26, 2009
On appeal from conviction of second degree murder entered by Justice Albert J. Roy of the Superior Court of Justice, sitting with a jury at Ottawa, Ontario, on January 30, 2004, and from the parole ineligibility order of 12 years imposed by Justice Roy on March 16, 2004.
Watt J.A.
1Kolumbus Saw Moo and his wife, Deena Naw, argued constantly about money and where Ms. Naw’s parents should live. Ms. Naw wanted to buy a new home, a bigger place where her parents, she and Moo could live together. Moo thought otherwise. Moo didn’t like his wife’s father and wanted no part of any shared accommodation, much less going into debt to purchase it.
2Despite their differences, Moo and Naw went house hunting on September 8, 2001. During preparations for their evening meal, the couple re-invigorated their long-standing acrimony over where Ms. Naw’s parents should live. Moo picked up a four and one-half pound mortar in which he had been grinding chili peppers, then hit his wife at least twice over the head with it. The force of the blows shattered Ms. Naw’s skull and caused her irreversible brain damage. She died later in hospital.
3The jury convicted Moo (the appellant) of second degree murder, the offence with which he was charged. The appellant claimed that his crime was manslaughter, not murder. He says that his conviction is flawed and a new trial should be directed for two reasons:
i. the trial judge misdirected the jury in responding to their question about the definition of murder in s. 229(a)(ii) of the Criminal Code and, in particular, about the meaning of recklessness; and
ii. the trial judge erred in admitting several ante-mortem statements of the deceased into evidence as exceptions to the hearsay rule and the rule that generally bars prosecution evidence of an accused’s bad character.
4For the reasons that follow, I would not give effect to either complaint and would dismiss the appeal from conviction. The appellant abandoned his appeal against the period of parole ineligibility fixed by the trial judge. I would dismiss that appeal as abandoned.
THE FACTS
5A brief overview of the essential features of the evidence will suffice at the beginning with greater detail summoned as the circumstances of a specific ground of appeal commands it.
1. The Principals and their Relationship
6The appellant and deceased, both political refugees from Burma, met shortly after the deceased arrived in Canada in 1994. The couple married in 1997. As devout “Karen” Christians, their social life revolved around their church.
7Conflicts about money dominated the couple’s relationship. The appellant worked part-time, attended community college and wanted to save money for his later years. The deceased worked several jobs so that she could send money to her family in refugee camps in Burma. The appellant resented the financial assistance his wife provided to her family.
2. The Arrival of the Deceased’s Parents
8The deceased convinced her church to sponsor her parents to come to Canada. Both parents, who were in their 70s, arrived in Canada on November 30, 2000. They immediately joined the appellant and the deceased in a two bedroom apartment that the couple rented.
3. The Appellant and the Deceased’s Parents
9It didn’t take long for the appellant to cultivate an intense dislike for the deceased’s father. He considered his father-in-law’s demands for newspapers, extra cable channels and improved internet service to be excessive and beyond the couple’s limited financial means.
10The deceased wanted her parents to live with her and the appellant, preferably in larger premises than they then occupied. The appellant would not abide his in-law’s occupation of the same premises – he wanted them out and living on their own, elsewhere.
4. The Summer Ultimatum
11During the summer of 2001, the appellant delivered an ultimatum to his wife. She could remain with him or she could move elsewhere to live with her parents. When the couple’s lease expired on November 30, 2001, the deceased’s parents would have to find another place to live. And if the deceased left the appellant, he would kill her.
12The deceased was in a quandary. She wanted to follow the dictates of her culture and have her parents, her husband and herself live together. She could not afford to support her parents in separate housing. She was convinced that her parents, whose sponsorship agreement was to end at the same time as the couple’s apartment lease, couldn’t manage on their own. Neither parent had any income. Both were old. Both had health problems. Neither was fluent in English.
13The deceased sought assistance from her church and its ministers to resolve her dilemma.
5. House Hunting
14On August 29, 2001, the appellant and the deceased gave notice to their landlord that they intended to vacate their leased apartment when their lease expired on November 30, 2001. On September 8, 2001, the couple went house hunting. In the late afternoon, they found a place they both liked and resolved to speak to their bankers about arranging financing for their prospective purchase.
6. The Argument
15Shortly after their return home, however, the appellant and deceased resumed their argument over where the deceased’s parents would live after the couple’s current lease expired. Neither ceded any ground to the other. It was in the course of this argument that the appellant struck his wife’s head with at least two very forceful blows of the mortar.
7. The 911 Call
16Shortly before 6:00 p.m. on September 8, 2001, the appellant called 911. He explained to the operator that he had made a mistake, a very, very big mistake. He had hit his wife very, very hard with something that was very, very heavy. At least three times the appellant told the 911 operator – “I tried to kill my wife now”.
8. The Cause of Death
17The deceased died from cranial cerebral injury. She suffered multiple skull fractures caused by the repeated application of significant force. The emergency room physician described the deceased’s head injuries as the most severe he had ever seen, and likened them to injuries caused by a person falling from a considerable height. A neurosurgeon characterized the deceased’s injuries as eggshell fractures, likely caused by repeated blows. The examining pathologist concluded that the deceased had been struck at least twice, but more likely four times.
9. The Appellant’s Version
18After his arrest and discussions with his lawyer, the appellant spoke with investigators twice. On both occasions, the interview was recorded and later transcribed. The first interview occurred before the deceased died, but after the appellant had been charged with attempted murder. The second interview took place after the deceased had died and the appellant had been charged with second degree murder.
19In the first interview, the appellant explained that he and the deceased had arrived home at their apartment at about 5:00 p.m. on September 8, 2001. They had looked at several houses in their search for a new place to live after their apartment lease expired. As preparations for supper began, the appellant wanted to speak to his wife in the living room about their future. He explained to her that they had to save money to ensure their future security and reproached her, to no avail, for the sums she had lavished on her parents. Those expenditures, which the appellant regarded as extravagant, were constant irritants in their marriage.
20The appellant also complained to investigators about his mother-in-law and father-in-law. The chief fault of the deceased’s mother was that she talked too much. The appellant’s father-in-law was a different story: he insisted on more newspapers, fuller television and expanded internet service so that he could keep track of events in Burma. After one argument, the appellant’s father-in-law decamped, indicating that he would not return unless the deceased divorced the appellant. For his part, the appellant told his wife, in the clearest of terms, that he would not live in the same place as her parents after their lease and the period of her parents’ sponsorship ended in November, 2001.
21The appellant recalled that, as he was pounding the chilies for supper, “I began shock and I can’t control my anger”. He got mad and pounded his wife twice on the head with the mortar. He probably had both hands on the mortar when he hit the deceased, but he couldn’t be sure because he was so angry with her. Despite their constant arguments over finances, the appellant claimed that he had never hit his wife on any prior occasion.
22After the appellant hit his wife, he thought, “Oh God. I do mistake.”, then called the police.
23During his second police interview, after he had been charged with second degree murder, the appellant described the attack as an assault. He did not try “to kill her exactly”, and sought forgiveness for what he had done. At the end of the second interview, the appellant acknowledged that he had told the police the truth during his first interview.
THE GROUNDS OF APPEAL
24The appellant advances two discrete grounds of appeal against his conviction.
25The first allegation of error has to do with the trial judge’s response to a question submitted by the jury during their deliberations. The jury wanted clarification on the state of mind required to prove murder under s. 229(a)(ii) of the Criminal Code, including a definition of “reckless”. The essence of the complaint is that the definition of “reckless” the trial judge provided to the jury, drawn from R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570, was wrong, thus leaving it open to the jury to convict the appellant of murder on the basis of a fault element less demanding than the law requires.
26The second complaint concerns the reception of several ante-mortem statements made by the deceased to or in the presence of others who testified as prosecution witnesses. The reception of this evidence, according to the appellant, offended not only the hearsay rule, but also the prohibition against the prosecution introducing evidence of an accused’s bad character.
ANALYSIS
The First Ground: Alleged Misdirection on the Fault Element in Murder under s. 229(a)(ii)
1. The Charge to the Jury
27In the main charge, the trial judge instructed the jury on the definition of murder contained in both paragraphs of s. 229(a). During these instructions, he explained to the jury how they could determine the appellant’s state of mind at the time he unlawfully killed his wife. The trial judge also set out the positions of the parties on the fault element required to make an unlawful killing murder, and related the essential features of the evidence to that fault element and the parties’ positions.
28The appellant does not, for that matter could not, complain about the adequacy and correctness of the main charge on the fault element in murder and the manner in which the jury could determine it.
2. The Objections to the Charge
29The only objection to the charge that is material to this ground of appeal came from the prosecutor who expressed a different concern about the instruction on recklessness. She wanted the trial judge to clarify the relationship between the recklessness component of s. 229(a)(ii) and the evidence that the appellant called 911 after hitting his wife over the head with the mortar. The prosecutor reminded the trial judge of the contemporaneity requirement articulated in R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146 and sought a further instruction to make it clear that calling 911 in the circumstances did not mean that the prosecution had failed to prove that the appellant was reckless whether his wife lived or died.
30Trial counsel for the appellant, who was not Mr. Harris, opposed the prosecutor’s request. Such an instruction, he said, was unnecessary because the jury would not link the 911 call to the recklessness constituent in s. 229(a)(ii).
31The trial judge did not recall the jury for further instructions on this issue.
3. The Jury’s Question and the Submissions of Counsel
32Shortly after noon on the second day of their deliberations, the jury sent this question to the trial judge:
“We, the Jury, would like clarification on the wording of the second clause of state of mind for murder 2 and a definition of the word ‘reckless’. And can we get the exact wording of the state of mind for murder 2.”
33The prosecutor urged the trial judge to define recklessness for the jury in accordance with the definition provided by the Supreme Court of Canada in Sansregret, and reiterated her earlier request for an instruction that made it clear that the 911 call did not negate proof of the recklessness component of murder under s. 229(a)(ii). The prosecutor suggested that the confusion over recklessness was a direct result of the trial judge’s earlier failure to provide an instruction about the relationship between the 911 call and proof of recklessness.
34Trial counsel for the appellant agreed that the instruction on recklessness should provide the Sansregret definition, together with the wording of s. 229(a)(ii). Counsel repeated his opposition to any instruction about the relationship between the after-the-fact conduct of calling 911 and the recklessness requirement in s. 229(a)(ii).
4. The Judge’s Response
35When the jury returned to the courtroom, the trial judge read them the text of s. 229(a). He explained the meaning of “reckless” in these terms:
Reckless is he who seeks the risks and takes it anyway. Recklessness is found in the attitude of one who is aware there is danger that his conduct could bring about the result prohibited by criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risks and who takes the chance.
I think that is basically what we see with reckless, someone who does something and gives no consideration to the consequences or, you know, is completely – doesn’t care what the consequences are, So I hope that definition of reckless, as I have read to you in that case, will be of assistance to you.
36The trial judge then turned to the contemporaneity requirement as expressed in Cooper. He read paragraphs 34 and 35 of the decision in Cooper, which include this passage:
Thus the section requires the accused to intend to cause the gravest of bodily harm that is so dangerous and serious that he knows it is likely to result in death and to persist in that conduct despite the knowledge of the risk.
37The jury asked no further questions. They returned their verdict about five hours after their question had been answered.
5. The Positions of the Parties on Appeal
38The parties agree that the trial judge erred in the meaning he assigned to recklessness in the re-charge. Like others before him, and at the express urging of both counsel at trial (neither of whom were counsel on appeal), the trial judge explained recklessness as it had been defined in Sansregret. There, recklessness was described as the attitude of a person who, “aware that there is a danger that his conduct could bring about” the prohibited result, nevertheless persists despite the risk. Recklessness is the conduct of a person who sees the risk and takes the chance: Sansregret, at p. 233. In the fault element of murder in s. 229(a)(ii), the accused must foresee a likelihood of death flowing from the bodily harm she or he is intentionally causing the victim – foresight of a mere danger of death is not sufficient: Cooper, at p. 295; Czibulka, at para. 67.
39For the appellant, Mr. Harris emphasizes that the instruction challenged here was given in response to a question asked by the jury during the second day of their deliberations. They were entitled to a clear, correct, complete and comprehensive answer to their question. Instead, the judge provided a reply that contained an erroneous definition of recklessness, one far too generous to the prosecution and not nearly rigorous enough to satisfy the constitutional minimum fault requirement for murder.
40Mr. Harris submits that the error made in response to the jury’s question was sufficiently serious to require a new trial. Erroneous instructions given in response to a jury’s questions during deliberations cannot be resuscitated by correct instructions given earlier. The mere fact of the question itself demonstrates that the jurors did not understand the earlier instructions. The question here related to a subject emphasized by counsel in their jury addresses and of abiding importance in the context of the evidence adduced at trial. It is no answer to say that the alternative fault element captured by s. 229(a)(ii) was of no moment here in light of the evidence of repeated blows to a vital area with a heavy object and significant force. The jury obviously thought otherwise.
41Mr. Harris reminds that this was not an overwhelming case under s. 229(a)(i). The appellant’s act was spontaneous. Both counsel made s. 229(a)(ii) an important part of their jury addresses. The answer given was shortly followed by the verdict, thus demonstrating the influence of the erroneous instruction. Trial counsel’s failure to object cannot breathe life into a fatally defective instruction.
42For the respondent, Ms. Tier concedes that the trial judge was wrong in instructing the jurors on the Sansregret standard for recklessness, albeit he did so with the concurrence of both counsel at trial. But the error is harmless, she says, in the circumstances of this case.
43Ms. Tier characterizes this as a sandwich case: an erroneous instruction, admittedly the only expansive direction about recklessness, was sandwiched between several correct statements of the fault element in murder under s. 229(a)(ii). The jurors were not misled about this element of the prosecutor’s proof.
44The respondent says that the critical component in the fault element in s. 229(a)(ii) is the killer’s actual or subjective knowledge of the likelihood that death will follow from the bodily harm the killer intentionally inflicts. This component, which involves both actual intention and subjective knowledge, was always correctly put to the jury. Recklessness in s. 229(a)(ii) is an afterthought, especially in a case involving multiple blows to the head, with a heavy object, administered with significant force. This ground of appeal should fail.
6. The Governing Principles
45The fault element in the definition of murder in s. 229(a)(ii) consists of three components:
Intention (to cause bodily harm);
Knowledge (that the bodily harm will probably be fatal);
Recklessness (whether the victim dies or lives);
Subjective foresight of death is a constitutional requirement for the crime of murder: R. v. Martineau, 1990 80 (SCC), [1990] 2 S.C.R. 633, at p. 646.
46The most prominent among the three components of the fault element in s. 229(a)(ii) is the intention to cause bodily harm of such a grave and serious nature that the person inflicting the harm, the accused, knows that the harm is likely to kill the victim. This combination of intention and subjective foresight of the likelihood of death renders the recklessness component in s. 229(a)(ii) almost an afterthought: R. v. Nygaard, 1989 6 (SCC), [1989] 2 S.C.R. 1074, at pp. 1087-1088.
47The recklessness component of the fault element in s. 229(a)(ii) does not exist in a vacuum as the only mental or fault element, rather works together with the intentional infliction of horrible bodily harm: Nygaard, at p. 1088. The variation in the degree of culpability as between the fault elements of ss. 229(a)(i) and 229(a)(ii) is too slight to warrant distinction: Nygaard, at pp. 1088-1089.
48The requirement in s. 229(a)(ii) that the fatal assault be carried out in a reckless way, in other words by heedlessly proceeding with the deadly assault well-knowing the obvious risks, adds nothing to the vital element of the intent to cause bodily harm that the killer knows is likely to cause death and yet persists in the assault: Nygaard, at p. 1088. Anyone who causes bodily harm that she or he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences that she or he knows are likely to happen: R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146, at pp. 154-155. In other words, such a person must, perforce, be reckless whether the victim lives or dies: Cooper, at p. 155.
49Several recent decisions of this court have considered the effect of erroneous instructions on various aspects of the fault element in s. 229(a)(ii).
50In R. v. Portillo (2003), 2003 5709 (ON CA), 176 C.C.C. (3d) 467 (Ont. C.A.), the trial judge defined recklessness as “if a person knows that the bodily harm that he is inflicting will likely cause death but goes ahead and inflicts it anyway, that person is reckless or heedless of the consequences”, and later as “careless as to the consequences or lacking in prudence or caution”. The court considered that the instructions accurately captured the meaning of recklessness, although the terms “careless” and “lacking in prudence” were better avoided: Portillo, at para. 59.
51In R. v. Czibulka (2004), 2004 22985 (ON CA), 189 C.C.C. (3d) 199 (Ont. C.A.), the trial judge described a person as reckless “if the person is aware that there is a danger that their conduct could bring about death from bodily harm”. The court considered that the use of “danger” rather than “likelihood” constituted an error: Czibulka, at para. 68.
52The instructions in Czibulka contained a second error – substitution of “bodily harm” for “death” in the phrase “he knows is likely to cause death” in s. 229(a)(ii). In other words, the Czibulka instructions contained errors in connection with two of the three components of the fault element in s. 229(a)(ii): knowledge and recklessness. The appeal was allowed on another ground (the wrongful admission of hearsay), thus the court was not required to examine the effect of the errors in the instructions on the fault element on the verdict rendered at trial.
53The trial judge in R. v. Latoski (2005), 2005 30697 (ON CA), 200 C.C.C. (3d) 361 (Ont. C.A.) also substituted “danger” for “likelihood” in discussing the knowledge and recklessness components in s. 229(a)(ii). The court considered the error in the context of the instructions on the fault element as a whole, and concluded that the jury’s attention had been properly focused on likely consequences: Latoski, at para. 18. Of importance in considering the effect of the misdirection were prior and subsequent correct recitations of the statutory language and trial counsel’s failure to object to the instructions. See also, R. v. Lessey (2006), 2006 11847 (ON CA), 208 C.C.C. (3d) 186 (Ont. C.A.), at paras. 11-12.
54In R. v. Patterson (2006), 2006 2609 (ON CA), 205 C.C.C. (3d) 171 (Ont. C.A.), the jury sought clarification of the “state of mind required for murder”. The trial judge and counsel thought that a definition of recklessness was required. The trial judge explained recklessness in these terms:
Now as to the word reckless, that I didn’t expand on but I will give you the meaning of that word now or express it in another way.
In effect, it means that Patterson saw the risk that Gomes could die from the injury but went ahead anyway and took the chance. That is the meaning of the word reckless. [Emphasis added.]
The jury convicted the appellant of murder one hour after this instruction had been given.
55In Patterson, as in Czibulka, the erroneous instruction was given in answer to a question posed by the jury well into their deliberations. The verdict followed shortly. The court in Patterson ordered a new trial, principally, if not entirely, on the basis that certain propensity evidence tendered by the defence had been wrongly excluded. It is not clear from Patterson whether, on its own, the flaw in the re-charge on recklessness would have required a new trial: Patterson, at para. 52.
56In R. v. MacDonald (2008), 2008 ONCA 572, 236 C.C.C. (3d) 269 (Ont. C.A.), the trial judge diluted the foresight requirement in assigning meaning to “reckless” in s. 229(a)(ii). The error, which substituted risk of death for likelihood of death, occurred in both the main charge and in the judge’s response to a jury question seeking clarification of the intent necessary for murder. Despite the error and its repetition in response to the jury’s question, the court was not prepared to conclude that what occurred had amounted to misdirection, much less to reversible misdirection: MacDonald, at para. 53. Of importance to the court in its assessment of the effect of the error were:
i. the redundance of recklessness in most circumstances to which s. 229(a)(ii) applies;
ii. the fact that the instruction on recklessness did not detract from instructions that described the Crown’s obligation to prove the accused’s knowledge of the likelihood that death would follow from the bodily harm inflicted;
iii. the terms of the question posed by the jury in connection with the fault element in murder;
iv. the several correct repetitions of the precise words of s. 229(a)(ii); and
v. the unlikelihood that the erroneous description of recklessness would obscure the clear, straightforward statutory language of s. 229(a)(ii).
See also, R. v. Rybak (2008), 2008 ONCA 354, 233 C.C.C. (3d) 58 (Ont. C.A.), at paras. 126-133. Leave to appeal refused, (2009), 237 C.C.C. (3d) vi (S.C.C.).
57To round out this canvas of governing principles, it is helpful to recall that, although jury instructions must always be read as a whole, questions from the jury, which reveal that the jury, or at least one or more of its members, have encountered a specific problem during their deliberations, require clear, correct and comprehensive judicial response: R. v. S. (W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, at p. 528. As a general rule, errors made in responses to jury questions during deliberations cannot be saved by prior correct instructions in the main charge: S. (W.D.), at pp. 530-531. The greater the passage of time between the main charge and the jury question and judicial answer, the more imperative it is that the response be correct and comprehensive: S. (W.D), at p. 531.
7. The Principles Applied
58I would not give effect to this ground of appeal despite the fact that the misdirection occurred in a recharge in response to a question from the jury.
59Two features of the misdirection on the meaning of recklessness require that its impact be closely examined. The misdirection occurred in answer to a question submitted by the jury deep into their deliberations. And the answer given represented the only expansive discussion of the recklessness component in s. 229(a)(ii).
60Several countervailing factors are at work, however, to alleviate any prejudice that appears at first sight of the error.
61To begin, although the misdirection on recklessness occurred in response to a jury question, the misdirection was both preceded and, more importantly, followed by correct instructions on the fault element in s. 229(a)(ii). The misdirection, in other words, was wedged between two correct instructions. The last instruction the jurors heard was correct.
62In this case, the jury had a written copy of the main charge, which contained several references to the fault element in s. 229(a)(ii), all of them correct. They were not given a written copy of the response to their question. As a general rule, of course, the correctness of the original charge cannot be invoked to excuse errors made in a recharge on the point about which the jury has sought further instruction: S. (W.D.), at pp. 530-531. That said, however, this case differs from many in that the jurors had a written version of the original and correct instructions.
63Critical to any informed assessment of the effect of the misdirection on the determination of the appellant’s liability for murder is an appreciation of the precise role recklessness plays in the fault element in s. 229(a)(ii). As a constituent of the fault element in s. 229(a)(ii), recklessness has been described as “almost an afterthought”: Nygaard, at p. 435; Cooper, at p. 294. After all, to secure a conviction of murder under s. 229(a)(ii), the prosecutor must prove beyond a reasonable doubt that an accused intended to cause such serious bodily harm that the accused knew it would likely kill the victim. Anyone who intentionally causes bodily harm that he or she knows is likely to kill must, in the cold light of day, have a deliberate disregard for the fatal outcome that he or she knows is likely to follow. Said in another way, he or she must be reckless whether the victim dies or not: Cooper, at p. 294.
64Among the components of the fault element in s. 229(a)(ii), the most crucial is the intention to cause bodily harm that the perpetrator knows will likely kill, yet persists in the assault: Nygaard, at p. 435. Recklessness really adds nothing in its requirement that the fatal assault be carried out heedlessly in the face of actual knowledge of the obvious risks: Nygaard, at p. 435. An assessment of the impact of an error about the meaning to be assigned to recklessness must include a clear-eyed view of the role of recklessness in the fault element in s. 229(a)(ii).
65In this case, unlike for example in Czibulka, the instructions on the critical elements of intention and knowledge of the likelihood of death from the injuries inflicted are free of error: Czibulka, at paras. 62-70; Lessey, at para. 12. It follows that, to the extent any jurors grounded their finding of guilt on the definition of murder in s. 229(a)(ii), they must have been satisfied beyond a reasonable doubt that the appellant intentionally caused the deceased bodily harm that the appellant knew would likely cause her death. The instructions on these components, intention and foresight, were correct. In these circumstances, a conclusion that the appellant was reckless was inevitable.
66An informed assessment of the effect of any legal error on the verdict rendered also cannot take leave of the evidence adduced at trial. Context is critical. What may be fatal in one case may pale to little significance in another. After all, there is an essential step between legal error and appellate reversal – was there a substantial wrong or miscarriage of justice caused by this error, on this evidence, in this trial?
67In this case, the jury was properly and repeatedly instructed on the critical intention and knowledge components of the fault element in s. 229(a)(ii): the intention to cause bodily harm that the appellant knew would likely kill his wife. The single error was in an answer provided to a jury question on the recklessness component of the fault element in s. 229(a)(ii). A correct instruction followed. The appellant struck his wife over the head at least twice, more likely four times, with a four and one-half pound mortar he held in both hands and applied to her head with significant force. In these circumstances, the use of “danger” instead of “likelihood” in the definition of recklessness recedes to background noise.
68It is of some interest that, on no previous occasion when the same error has occurred in final instructions, or in answer to a jury question, has this court ordered a new trial on this ground alone. Nor should it do so here.
69I would not give effect to this ground of appeal.
The Second Ground: Alleged Error in Reception of Hearsay Statements of Deceased Disclosing Appellant’s Bad Character
1. An Overview
70The prosecutor tendered the evidence of several witnesses to whom the deceased spoke before her death about the state of her marriage and the nature of her relationship with the appellant. Some of the evidence recounted prior events involving physically and emotionally abusive conduct by the appellant towards his wife.
71Proffer of this evidence implicated two exclusionary rules of the law of evidence: hearsay and character. For each proposed witness, the trial judge considered whether the reliability standard for the exceptional admission of hearsay had been met and whether the probative value of the proposed evidence exceeded its prejudicial effect. In some instances, the trial judge admitted the evidence. In other cases, the trial judge excluded it.
2. The Admitted Evidence
72The prosecutor tendered the evidence of the deceased’s ante-mortem statements for several purposes: to establish motive, intent and animus; to rebut the appellant’s claim that the killing was unintentional; and to challenge the appellant’s credibility, should he testify as a witness in his own defence.
73A brief summary of the basics of the evidence admitted by the trial judge is essential to a determination of the correctness of his rulings admitting it for use by the jury.
74The deceased was a devout Karen Christian. The church she regularly attended occupied a central role in her life. Not surprisingly perhaps, she spoke to two ministers of the church, Dempsey and Cooke, about a variety of subjects related to her marriage, the relationship with her husband, and the need to find alternate accommodation for her parents because of the appellant’s steadfast refusal to permit the parents to remain with them at the conclusion at their then current lease.
75The discussions with Reverend Dempsey occurred in July and September, 2001. The earlier conversations involved both the appellant and the deceased who sought advice from the minister about what to do about the deceased’s father who had left their home because he couldn’t get along with the appellant. The second discussion occurred in September, 2001, a few days before the appellant killed the deceased and did not include the appellant. The deceased sought Reverend Dempsey’s help in finding alternate accommodation for her parents.
76In June, 2001, the deceased spoke to Reverend Cooke about the state of her marriage, her disagreements with the appellant over money and the conflicts between the appellant and her parents. The deceased disclosed that the appellant had given her an ultimatum requiring her to choose between her parents and him when their lease expired.
77Marion Murch had known the deceased since 1997 and had maintained a relationship with her until at least April, 2001. Marital discord was a constant theme during their discussions in July, 2000, and April, 2001. The deceased complained of conflicts between her parents and the appellant. She also told Ms. Murch that the appellant forced sex on her and would kill her if she ever left the marriage.
78A week before she was killed, the deceased told her co-worker Mamoun Albaghjati, that the appellant had hit her on the head with his knuckle. Mr. Albaghjati saw and felt the bump, which he described as about the size of a marble.
79Kyu Kyu, the deceased’s aunt and confidante, was permitted to recount a conversation with her niece in July, 2001. The deceased described the many problems in her marriage and her conflicts with the appellant, including his ultimatum giving her three months to decide whether she wanted to live with her parents or to remain with him. The deceased continued to make the same complaints in three or four later telephone calls, the last only a few days before she died.
80The deceased’s mother, Shelle Tin, was allowed to give evidence of her conversation with the deceased on September 6, 2001, two days before the deceased died. The deceased recounted a fight she had had with the appellant about buying a house, their money problems and need for the deceased to sell her jewellery.
3. The Ruling of the Trial Judge
81The trial judge considered the evidence of each proposed witness separately. He first determined whether the prosecutor had established threshold reliability, the only requirement for admissibility under the principled exception to the hearsay rule that was in issue at trial. The trial judge placed particular emphasis on the contemporaneity of most of the deceased’s utterances, the fact that all were unprompted and that the deceased had no motive to lie about the subject-matter or to any recipient.
82After finding the requirement of reliability established, thus the hearsay objection satisfied, the trial judge turned to the balance between probative value and prejudicial effect. He concluded that the declarations had substantial probative value on the issues of motive, animus and intent, as well to elucidate the true nature of the marital relationship and to rebut any claim of unintentional killing advanced by the appellant. The prejudicial effect of the evidence was not sufficient to warrant exclusion.
4. The Position of the Parties on Appeal
83The appellant says that the trial judge erred in finding that the test of threshold reliability had been established in relation to the hearsay statements the judge admitted. The trial judge’s determination was conclusory, barren of analysis, his reliance on the absence of any motive to fabricate reflective of a failure to distinguish between absence of evidence of a motive to fabricate and evidence of an absence of motive to fabricate. The trial judge mistook the former, a neutral consideration, for the latter, a factor tending to establish threshold reliability.
84Mr. Harris submits that the trial judge also erred in concluding that the probative value of this evidence, which revealed the appellant’s bad character, exceeded its prejudicial effect. The trial judge failed to identify, with any degree of specificity, the issue to which the evidence was directed. In most domestic homicide cases in which evidence like this is received, it is admitted to establish the commission of the killing by the accused. Not so here. Whether it was the appellant who killed his wife was not a live issue: he admitted it from the outset, in the 911 call.
85In the result, Mr. Harris contends, the trial judge over-valued the probative value of the ante-mortem declarations and failed to accurately gauge the prejudicial effect of the evidence, which was to put on display the general bad character of the appellant. The balancing should have occurred in the context of the character rule, not the hearsay rule as was the case here.
86For the respondent, Ms. Tier offers a contrary position. She says that the trial judge did identify the “live issue” in connection with his hearsay analysis. What was material here was the appellant’s state of mind at the time he unlawfully killed the deceased. Relevant to that state of mind were the contemporaneous ante-mortem statements of the deceased that disclosed the appellant’s animus and motive, as well showed the true nature of their relationship, thus rendering less likely an unlawful killing without murderous intent.
87Ms. Tier submits that the trial judge applied the correct test to determine threshold reliability, even without the benefit of more recent jurisprudence. His emphasis on the absence of a motive to lie on the part of the declarant, as well the contemporneity of the declarations with the declarant’s death, were at once proper factors in the reliability calculus and the chief challenges to threshold reliability. These were not the exclusive determinants and the others of which account was taken were proper and telling.
88Further, Ms. Tier continues, the prejudicial effect/probative value balance was performed properly, taking into account relevant factors including moral and reasoning prejudice. The balance as determined by the trial judge is entitled to deference.
5. The Governing Principles
89The deceased’s out-of-court statements tendered by the prosecutor to establish the truth of their contents were prima facie inadmissible because they contravened two exclusionary canons of the law of evidence. The first, which assumed paramount importance at trial, was the hearsay rule. The second, which occupied a less prominent position at trial, was the character rule.
90At trial, the prosecutor advanced her case for the exceptional admission of this hearsay on the principled basis, not on the ground that what was proposed qualified under an existing hearsay exception. The necessity test was met – the declarant was deceased. What remained for the trial judge to determine were two issues:
i. Were the proposed statements, or any of them, reliable?
ii. Did the probative value of any otherwise admissible hearsay exceed its prejudicial effect?
91The reliability requirement or criterion, an essential constituent of the principled approach to hearsay, attempts to ensure the reliability of the trial process: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 49. It does so by insisting that, to be admissible by exception to the general rule of exclusion, hearsay evidence must demonstrate a measure of reliability, which we term “threshold reliability”, before it can form part of the evidentiary basis for findings of fact.
92To satisfy this reliability requirement, hearsay evidence must be sufficiently reliable to overcome the dangers associated with it. In the case at hand, those dangers arise from the difficulty or inability to test the evidence before the trier of fact: the declarant was not available for cross-examination before the trier of fact. And so it is that we must look to the circumstances in which the declarations were made to see whether they can serve as a surrogate for the traditional means of testing reliability, contemporaneous cross-examination. In some instances, the circumstances in which a declaration came about may render it sufficiently reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process: Khelawon, at para. 49.
93It should scarcely surprise that the principled approach to the exceptional admission of hearsay disavows any closed list of factors to be applied to determine whether the circumstances in which a hearsay statement came about meet the reliability requirement in an individual case. While the inquiry in circumstances like those here has as its primary focus, the circumstances surrounding the making of the statement, its borders are not so restrictive: Khelawon, at para. 100.
94In the end, the inquiry into reliability is at once functional and case-specific, not formulaic or subject to a priori rules. In each case, the focus of the inquiry into reliability is on the particular dangers raised by the hearsay evidence tendered for reception, and on those attributes or circumstances relied upon by the proponent to overcome those dangers: Khelawon, at para. 93; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 54.
95Satisfaction of the necessity and reliability requirements of the principled approach to hearsay removes the hearsay rule as a barrier to admissibility, but does not guarantee that the hearsay statements will be admitted. Trial fairness may encompass factors beyond the narrow inquiry into necessity and reliability mandated by the principled approach to the admissibility of hearsay. Despite satisfaction of these two criteria, a trial judge has a discretion to exclude otherwise admissible hearsay evidence where its probative value is outweighed by its prejudicial effect: Khelawon, at para. 49.
96The second admissibility rule that the appellant invokes looks to the substance of the hearsay declarations, in particular their disclosure of the appellant’s bad character. The character rule generally prohibits the use of character evidence as circumstantial proof of conduct: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31. This exclusionary rule equally bars evidence of similar acts or extrinsic misconduct to support an inference that an accused has the propensity or disposition, in other words, character, to do the type of acts charged and, accordingly, is guilty of the offence: Handy, at para. 31. We establish guilt by proof of conduct, not by proof of character.
97Despite this general rule excluding character evidence as circumstantial proof of guilt, we recognize that, sometimes, evidence of prior misconduct, which tends to show bad character, may be so highly relevant and cogent that its probative value in the search for the truth outweighs any potential for misuse: Handy, at para. 41. Thus, we permit admission of this evidence by exception where its probative value exceeds its prejudicial effect.
98In prosecutions for domestic homicide, evidence is frequently admitted to elucidate the nature of the relationship between the accused and the deceased. This evidence, which often discloses misconduct other than that charged, not only demonstrates the nature of the relationship between the parties, but also may afford evidence of motive and animus relevant to establish the identity of the deceased’s killer and the state of mind with which the killing was done: R. v. Chapman (2006), 204 C.C.C. (3d) 449 (Ont. C.A.), at para. 27; R. v. Cudjoe 2009 ONCA 543, at para. 64; R. v. Van Osselaer (2002), 2002 BCCA 464, 167 C.C.C. (3d) 225 (B.C. C.A.), at para. 23, leave to appeal refused (2003), 313 N.R. 199n (S.C.C. ).
99Evidence of extrinsic misconduct comes with baggage – moral prejudice (the potential stigma of “bad personhood”) and reasoning prejudice (including potential confusion and distraction of the jury from the actual crime charged): Handy, at para. 100.
100Where evidence of extrinsic misconduct is admitted, one antidote to ensure that prejudice does not substitute for proof are mid-trial and final cautions that educate jurors about the permitted and prohibited use of the evidence. This general rule does not apply, however, where the extrinsic misconduct evidence is offered to demonstrate motive or animus towards the victim in a prosecution for unlawful homicide: R. v. Jackson (1980), 1980 2945 (ON CA), 57 C.C.C. (2d) 154 (Ont. C.A.), at pp. 168-169; R. v. Merz (1999), 1999 1647 (ON CA), 140 C.C.C. (3d) 259 (Ont. C.A.), at para. 59; R. v. Pasqualino (2008), 2008 ONCA 554, 233 C.C.C. (3d) 319 (Ont. C.A.), at paras. 65-68.
101Appellate deference is due to the decisions of trial judges determining that hearsay evidence meets the test of threshold reliability and that the probative value of evidence, whether hearsay or extrinsic misconduct, exceeds its prejudicial effect: R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 81 and 132; R. v. S. (S.) (2008), 2008 ONCA 140, 232 C.C.C. (3d) 158 (Ont. C.A.).
6. The Principles Applied
102I would not interfere with the trial judge’s determination that the ante-mortem statements of the deceased met the reliability threshold, thus were not excluded by the hearsay rule. Nor would I interfere with the trial judge’s conclusion that the probative value of this evidence exceeded its prejudicial effect.
103Although his ruling preceded the decisions in Khelawon, Couture and Blackman, the trial judge’s approach is faithful to their mandate. He examined the circumstances surrounding each statement to determine whether those circumstances provided sufficient comfort in their truth and accuracy to warrant their admission.
104The deceased’s statements to the two ministers of the church she attended were made for the purpose of obtaining advice about how to resolve a family crisis. They, like the others, were spontaneous outpourings of the declarant, not answers given to leading questions or as a result of any improper influence by the recipient. The statements were not made during or in contemplation of any legal proceedings and were confined by the trial judge to discussions within a reasonable time before the deceased’s death. None were under oath or its equivalent nor recorded in whole or in part by the recipient.
105The evidence adduced is unrevealing of any motive on the deceased’s part to lie in her statements to others. In many respects, the appellant’s own statement to investigators contains much of what the deceased said to others.
106The deceased’s ante-mortem statements to others were relevant and material. They tended to show the true nature of the relationship between the appellant and deceased, casting it in a different light than as described by the appellant. These statements reveal animus and motive on the part of the appellant, thus bearing on the issue of whether his unlawful killing of the deceased was murder or manslaughter.
107An assessment and balancing of probative value and prejudicial effect was required to determine whether otherwise admissible hearsay should be excluded and otherwise inadmissible evidence of extrinsic misconduct (embedded in otherwise admissible hearsay) should be admitted. To some, this commingling of exclusionary rules may warrant two discrete inquiries because the onus may not fall on the same party in each. That said, there is no basis upon which to interfere with the trial judge’s conclusion that the balance fell in favour of admission.
108While moral and reasoning prejudice is inherent in any evidence of extrinsic misconduct, its influence may vary significantly from one case to the next, depending, in part at least, on the nature and extent of the misconduct. Here, the extrinsic misconduct paled by comparison to the conduct charged. In some instances, it reflected more badly on others, for example, the deceased’s father, than on the appellant. The sting of any prejudice was largely alleviated by the limiting instructions given by the trial judge forbidding propensity reasoning, instructions that were more favourable than those to which the appellant was entitled.
109This ground of appeal fails.
CONCLUSION
110For these reasons, I would dismiss the appeal from conviction. The appeal from the period of parole ineligibility imposed by the trial judge was abandoned by Mr. Harris in his factum and oral argument. I would dismiss that appeal as an abandoned appeal.
RELEASED: September 11, 2009 “DOC”
“David Watt J.A.”
“I agree Dennis O’Connor A.C.J.O.”
“I agree Robert J. Sharpe J.A.”
