COURT OF APPEAL FOR ONTARIO
Doherty, Feldman and Brown JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Thomas Dupe
Appellant
Philip Campbell, for the appellant
Roger A. Pinnock, for the respondent
Heard: June 21, 2016
On appeal from the conviction entered by Justice Michael R. Dambrot of the Superior Court of Justice, sitting with a jury, on May 13, 2011.
I
OVERVIEW
1The appellant and Denna Smith lived next to each other in a rooming house in downtown Toronto. Both regularly used crack cocaine, often together. On June 29, 2007, the appellant stabbed Ms. Smith several times. Two of the wounds pierced her heart and proved fatal. The appellant, still armed with the knife, rushed toward Myles Groulx, a friend of Ms. Smith, and chased him down the hall towards Ms. Smith’s room. Mr. Groulx managed to get through the door and barricaded himself inside the room. The appellant entered the room, but left without harming Mr. Groulx. The police arrived shortly afterward. They found the appellant on the roof with the knife. He told the police, “I lost it and stabbed her … I hope she will be okay.”
2The appellant was charged with the first degree murder of Ms. Smith and the attempted murder of Mr. Groulx. At the outset of the trial, the appellant entered a guilty plea to the included offence of manslaughter. The Crown refused to accept the plea and the trial proceeded.
3The jury acquitted the appellant on the charge of first degree murder, but convicted him on the included offence of second degree murder. The jury acquitted the appellant on the attempted murder charge. The trial judge imposed a sentence of life imprisonment without eligibility for parole for 14 years.
4The appellant appeals his conviction only. The Crown does not appeal the acquittals on the first degree murder charge and the attempted murder charge.
5There are three grounds of appeal:1
Did the trial judge err in admitting hearsay evidence in support of the Crown’s contention that Ms. Smith’s death was motivated by the appellant’s anger and jealousy?
Did the trial judge err in limiting the scope of the surrebuttal evidence called by the defence in answer to the Crown’s reply evidence?
Did the trial judge err in failing to leave the defence of provocation with the jury?
6I would allow the appeal on the first ground. I would hold that the Crown did not demonstrate that some of the hearsay evidence relied on by the Crown was sufficiently reliable to justify its admission under the principled exception to the rule against the admissibility of hearsay evidence. The improperly admitted hearsay evidence was an important feature of the Crown’s case as it related to the appellant’s alleged animus toward Ms. Smith. That animus was, in turn, central to the Crown’s case on the issue of intent. It cannot be said that the verdict would necessarily have been the same had the evidence been excluded. The appellant is entitled to a new trial on the charge of second degree murder.
II
The Positions at Trial
7The appellant testified at trial and admitted that he stabbed and killed Ms. Smith, although he professed to have no recollection of doing so. The defence argued that the Crown had failed to prove that the appellant had the intent required for murder under s. 229 of the Criminal Code, R.S.C., 1985, c. C-46, or alternatively that if the Crown had proved murder, the Crown had not proved that the murder was planned and deliberate. The defence also argued that the trial judge should put the defence of provocation to the jury. He declined to do so.
8The Crown’s case in support of the murder allegation included the following:
evidence of Mr. Groulx, who testified that he saw the appellant stab Ms. Smith;
evidence of the interactions of the appellant with Ms. Smith and Mr. Groulx on the day of and shortly before the homicide;
evidence that the appellant and Ms. Smith often argued primarily because the appellant believed that Ms. Smith would use the appellant’s money to purchase cocaine and not give the appellant his share of the cocaine;
evidence that the appellant had a sexual/romantic interest in Ms. Smith, but that she wanted no part of that kind of relationship with the appellant; and
evidence that the appellant became jealous when Ms. Smith partied with other men and that he was angry and jealous when Ms. Smith was partying with Mr. Groulx on the day she died.
9The defence relied on the following:
evidence that the appellant consumed a great deal of alcohol and cocaine on the day of the homicide;
the appellant’s history of mental disorder, drug addiction and alcoholism;
evidence that the appellant was not taking his prescribed medication;
evidence that the appellant suffered from a sleep disorder;
evidence that the appellant was aroused suddenly from a deep sleep immediately before he attacked Ms. Smith; and
the psychiatric evidence of Dr. Julian Gojer.
10The Crown also led evidence in reply from Dr. Lisa Ramshaw to refute the opinion that had been advanced for the defence by Dr. Gojer.
III
The Relationship between the Appellant and Ms. Smith
11The Crown argued that on the evening of Ms. Smith’s death, the appellant was angry with her and jealous because she had rejected him in favour of Mr. Groulx. On the Crown’s theory, the appellant’s anger grew during the evening and finally, around midnight, he attacked and murdered Ms. Smith in the hallway between their rooms. He then chased Mr. Groulx, attempting to kill him as well. The Crown sought to lead evidence of the nature of the relationship between the appellant and Ms. Smith to support its theory of the case. Although the defence did not challenge the admissibility of much of that evidence, it did maintain that some of the evidence proffered by the Crown was inadmissible hearsay. Before turning to the contested hearsay evidence, I will briefly review the other evidence relevant to the Crown’s theory that the appellant’s anger and jealousy led him to murder Ms. Smith.
12The appellant and Ms. Smith lived in the same rooming house for about two years. They were both crack cocaine addicts. They often drank and smoked cocaine together. The appellant considered Ms. Smith a friend. They helped and supported each other.
13Several witnesses testified that although the appellant and Ms. Smith were friendly and spent time together, they often argued, sometimes very loudly. The arguments followed a typical pattern. The appellant would show up at Ms. Smith’s door angry because he believed Ms. Smith had cheated him. He had given her money to purchase cocaine for the two of them, but she had either not given him his fair share of the cocaine, or had not given him any of the cocaine, but instead had shared it with others. The arguments would get very loud with Ms. Smith insisting that the appellant could not come into her room and the appellant crying and banging on Ms. Smith’s door. The same pattern would recur the next month when the appellant received his monthly disability cheque and had money to buy cocaine.
14The landlord of the rooming house the appellant and Ms. Smith lived in testified that Ms. Smith complained about the appellant constantly yelling at her door and kicking it. The landlord spoke to the appellant, who promised that he would stop bothering Ms. Smith. Inevitably, however, the appellant would end up back at Ms. Smith’s door arguing loudly with her.
15In his evidence, the appellant agreed that he would give money to Ms. Smith to purchase cocaine and sometimes end up receiving less cocaine than he should have from Ms. Smith. He would complain to Ms. Smith and they would argue, usually at her door. Nonetheless, the appellant testified that he continued to give Ms. Smith money for cocaine. He also testified that he sometimes ended up crying at her door. According to the appellant, he was crying because he was drunk and when he was drunk he sometimes became sad.
16Donna Farmer lived with Ms. Smith for a time. She described the appellant and Ms. Smith as friends who saw each other almost every day. She said they often argued. Ms. Farmer believed that the appellant had a sexual or romantic interest in Ms. Smith. Ms. Smith made it clear to Ms. Farmer that she had no such interest in the appellant. Ms. Smith told Ms. Farmer that the appellant was always bothering her and that “he wanted to get laid”. Ms. Smith also described the appellant as harmless.
17The appellant testified that at one time he had a sexual interest in Ms. Smith. He insisted, however, that when she told him she was not interested in having sex with him, he no longer had a sexual interest in Ms. Smith but remained her friend.
18The appellant sometimes complained to the landlord about Ms. Smith having men in her room. He testified that he complained not out of any sense of jealousy, but because of the noise. Other residents in the rooming house also complained for the same reason.
19The appellant testified that on one occasion, he learned that Ms. Smith and Elsworth Pointer, another resident in the rooming house, had sex in the appellant’s room without his permission. The appellant became very angry when he found them. He grabbed each by the shirt. He testified that he became angry with Mr. Pointer and Ms. Smith because they were sneaking around on him and using his room without his permission. He was not angry because Ms. Smith was having sex with Mr. Pointer. The appellant testified that Ms. Smith had sex with many men.
20Mr. Groulx met Ms. Smith two or three weeks before her death. They were partying and smoking cocaine together on June 28 and June 29. Mr. Groulx first met the appellant outside of the rooming house on June 29. He saw the appellant on three occasions during the evening of the 29th, once in the appellant’s apartment, and twice in Ms. Smith’s apartment.
21On one of the appellant’s visits to Ms. Smith’s apartment, he asked Mr. Groulx who he was and why he was in the apartment. Mr. Groulx told him that he was a friend of Ms. Smith and that they were partying. Ms. Smith became angry and told the appellant it was none of his business why Mr. Groulx was in the apartment. Ms. Smith gave the appellant a piece of cocaine, but would not allow him to smoke the cocaine in her apartment with her and Mr. Groulx. The appellant left. He was upset.
22Mr. Groulx testified that the appellant returned to Ms. Smith’s apartment about one-half an hour before her death. Ms. Smith would not let the appellant into her room. He could see Mr. Groulx standing in Ms. Smith’s room. The appellant left. He was angry.
23The appellant also described encounters with Ms. Smith and Mr. Groulx on the evening of her death. He testified that he was angry with Mr. Groulx because Mr. Groulx took something from his apartment. He also agreed that he was very upset later in the evening, but claimed that it was because of his cocaine consumption and mental state and not because he was angry or jealous that Ms. Smith was partying with Mr. Groulx and wanted no part of the appellant.
24Mr. Groulx testified that about one-half an hour after the appellant’s last visit to Ms. Smith’s room, she left to feed another resident’s cat. About 15 seconds later, Mr. Groulx heard a scream. He ran to the door and looked out. Ms. Smith was lying on the floor in the hall and the appellant was standing almost on top of her holding a knife. Mr. Groulx could see a great deal of blood. He screamed at the appellant. The appellant looked at Mr. Groulx, smirked, said nothing and plunged the knife into Ms. Smith’s chest.
25The appellant testified that sometime after he went to bed, he awoke to see a shadow passing back and forth in the hall in front of his door. The appellant was nervous and agitated. He thought someone was trying to get into his room to rob him. He got up and armed himself with a knife. He opened the door. He saw a lady in a long black gown with dark hair and he saw Mr. Groulx with a board in his hand. He chased Mr. Groulx into Ms. Smith’s apartment. The appellant was standing over Mr. Groulx with a knife when he suddenly thought “what the fuck am I doing?” He turned and walked out of the apartment. As the appellant left Ms. Smith’s apartment, he saw a great deal of blood in the hallway. He did not recall stabbing Ms. Smith.
IV
The Challenged Hearsay Evidence
26At trial, the Crown sought a ruling on the admissibility of various hearsay statements, most of which consisted of utterances made by Ms. Smith to various people. The trial judge was asked to rule on the statements based on the transcript of the evidence from the preliminary inquiry, Mr. Groulx’s statement to the police and the evidence of Detective Sergeant Browne. The trial judge admitted the evidence. On appeal, the appellant challenges the trial judge’s ruling as it pertains to statements allegedly made by Ms. Smith to Mr. Groulx on the day of her death and statements made by Mr. Pointer to the police a few days after Ms. Smith’s death.
(i) Ms. Smith’s statements to Mr. Groulx
27Mr. Groulx testified that he and Ms. Smith were partying in her room on June 28. The party continued the next day. Sometime in the afternoon of June 29, they went outside and happened to meet the appellant. Mr. Groulx did not know the appellant, but it was clear to him that the appellant and Ms. Smith knew each other.
28Ms. Smith did not introduce Mr. Groulx to the appellant. Mr. Groulx and Ms. Smith returned to her building. As they were walking up the steps to her room, Ms. Smith began to talk about her relationship with the appellant. Ms. Smith told Mr. Groulx that the appellant had asked her out on a couple of occasions, but she was not interested. He then “stalked her and … had beaten her”. Mr. Groulx asked why she talked to the appellant and Ms. Smith indicated she did not have much choice as she lived down the hall from him and had to live there as it was hard to find a place that she could afford. Ms. Smith seemed upset when she was talking about the appellant.
29On the voir dire, the Crown also led evidence of a statement made by Mr. Groulx to the police in which he reported that Ms. Smith had told him that the appellant had never made any advances towards her, but that he was “just obsessed with her, like nuts”.
(ii) Mr. Pointer’s statement to the police
30Detective Sergeant Browne interviewed Mr. Pointer on July 2, 2007 as part of the investigation into Ms. Smith’s death. Mr. Pointer told him that he lived in the building and that he had known the appellant and Ms. Smith for about three years. Mr. Pointer described the appellant as being “possessive with [Ms. Smith]” and “jealous if [Ms. Smith] spoke to other men”. Detective Sergeant Browne also testified that Mr. Pointer recalled a specific conversation with Ms. Smith about a week before her death. She told Mr. Pointer that the appellant, who was angry, had come into her room and thrown her VCR at the wall.
31Detective Sergeant Browne acknowledged on cross-examination that Mr. Pointer’s belief that Mr. Dupe was possessive “could have come from anywhere”. Detective Sergeant Browne suspected that Mr. Pointer got that information from Ms. Smith but he did not know.
32Mr. Pointer died before the trial.
(iii) The trial judge’s ruling (R. v. Dupe, 2010 ONSC 6423)
33The trial judge characterized both Ms. Smith’s statement to Mr. Groulx and Mr. Pointer’s statement to the police as hearsay. He considered their admissibility under the necessity/reliability criteria governing admissibility under the principled exception to the rule excluding hearsay evidence.
34The necessity criterion was clearly met. Ms. Smith and Mr. Pointer were deceased at the time of trial.
35The trial judge concluded that Ms. Smith’s statement to Mr. Groulx met the threshold reliability requirement. He held, at para. 47:
In my view, Ms. Smith’s statements were made spontaneously and without prompting to a person she was apparently attracted to and with whom she was prepared to spend time and share drugs, without any motive to lie. In my view, it was perfectly natural for her to have truthfully shared her problems with Mr. Groulx. The possibility that the reliability of her statements was affected by her ingestion of drugs is more than offset by the consistency of her statements with other evidence, some of which is not summarized in this ruling. While not everything that Mr. Groulx said is confirmed by other extrinsic evidence, it must be remembered that the essential core of the statement is that the relationship between the accused and the deceased was acrimonious. Such evidence has been held to be highly relevant because it may afford evidence of the accused’s animus or intention to act against the victim. [Citation omitted.]
36The trial judge ruled that Mr. Pointer’s statement to Detective Sergeant Browne was also admissible hearsay. The trial judge recognized that Mr. Pointer’s statement describing the appellant as possessive and jealous had evidentiary value only insofar as it was the product of Mr. Pointer’s firsthand observations of that relationship. The trial judge addressed that issue, at para. 53:
But Detective Browne believed that Mr. Pointer was speaking from personal knowledge, and it would be open to the jury to reach the same conclusion having regard to the fact that Mr. Pointer did not say otherwise, and had been Mr. Dupe’s neighbour for several years in a seven unit apartment building where everyone helped each other out and knew each other’s business. I am of the view that Mr. Pointer’s reliability is sufficient to be admissible.
37The trial judge then considered Mr. Pointer’s statement that Ms. Smith told him the appellant threw her VCR at the wall in anger. In holding that Mr. Pointer’s statement was sufficiently reliable to warrant its admissibility, the trial judge concluded, at para. 54, that:
It was a statement made to a long-standing neighbour in circumstances where she had no motive to lie and which is consistent with other extrinsic evidence.
38The trial judge completed his analysis of the hearsay evidence by weighing the probative value of that evidence against its prejudicial effect. He determined that the evidence logically and properly supported an inference of an existence of animus or motive for the appellant to do harm to Ms. Smith and that it did not carry any significant risk of moral or reasoning prejudice.
(iv) Ms. Smith’s statement to Mr. Groulx should not have been admitted
39Before explaining why Ms. Smith’s alleged statement to Mr. Groulx was inadmissible, I will address one preliminary evidentiary issue. The hearsay evidence adduced before the jury differed in one material respect from the evidence considered by the trial judge on the voir dire. On the voir dire, the Crown relied on a statement made by Mr. Groulx to the police in which he indicated that Ms. Smith told him that the appellant was obsessed with her. At trial, Mr. Groulx testified that Ms. Smith made that statement to him.
40On the voir dire record, the maker of the out-of-court statement that the appellant was obsessed with Ms. Smith was Mr. Groulx and not Ms. Smith. I have serious doubts about the admissibility under the principled exception to the hearsay rule of Mr. Groulx’s statement to the police as evidence of the truth of what Ms. Smith is alleged to have said to Mr. Groulx. Those concerns do not apply to Mr. Groulx’s trial evidence and specifically his testimony that Ms. Smith told him that the appellant was obsessed with her. I will address the admissibility of Ms. Smith’s alleged statements on the basis of Mr. Groulx’s trial evidence.
41Ms. Smith’s alleged statement to Mr. Groulx was an out-of-court statement offered by the Crown to prove the truth of its contents. The Crown argued that the evidence was admissible to show that the appellant had previously assaulted Ms. Smith, stalked Ms. Smith and was obsessed with Ms. Smith. The statement was hearsay: see R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 35-36.
42Ms. Smith’s statement, if admissible for its truth, was clearly relevant to the case for the Crown. The Crown argued that if the jury accepted the contents of Ms. Smith’s statement to Mr. Groulx as true, that evidence in combination with other evidence described an acrimonious and violent relationship between Ms. Smith and the appellant. On the Crown’s theory, the existence of that kind of relationship afforded evidence of the appellant’s animus toward Ms. Smith on the day he killed her. That animus, in turn, constituted evidence that the appellant had the intention required for murder under s. 229 at the time he killed Ms. Smith: see R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 63.
43There is no suggestion that Ms. Smith’s statement to Mr. Groulx falls within any of the traditional exceptions to the rule against hearsay evidence. Her statement is presumptively inadmissible. The onus falls on the Crown to establish admissibility under the necessity/reliability criteria of the principled exception to the rule against hearsay: see Khelawon,at paras. 42, 59. Only reliability is in issue here.
44Hearsay evidence is presumptively inadmissible primarily because, absent contemporaneous cross-examination of the declarant, the party against whom the evidence is offered cannot effectively test the reliability and veracity of the out-of-court statement. Hearsay evidence is excluded both to protect the integrity of the truth seeking function of the trial and to preserve the fairness of the trial: see Khelawon, at paras. 48, 63; and R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 77.
45The principled exception to the rule excluding hearsay evidence recognizes that some hearsay is sufficiently reliable to warrant its admissibility and consideration by the trier of fact even though the declarant of the statement was not subject to cross-examination when the statement was made. The case law identifies two lines of inquiry relevant to the assessment of the reliability of hearsay evidence. The first line of inquiry asks whether there are sufficient other means available to test the reliability of the hearsay statement so as to render unnecessary the requirement of contemporaneous cross-examination of the declarant. For example, the availability of the declarant for meaningful cross-examination at trial can go a long way to providing an adequate substitute for contemporaneous cross-examination of the declarant: Khelawon, at paras. 63, 76; and R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283, at paras. 22-28.
46The second line of inquiry looks to determine whether the circumstances in which the hearsay statement was made provide sufficient comfort of its truth to justify its consideration by the trier of fact despite the absence of contemporaneous cross-examination of the declarant. Records made in the usual and ordinary course of business provide a good example of inherently trustworthy hearsay declarations. In determining whether hearsay is sufficiently inherently trustworthy to warrant its admission, the court may consider not only the circumstances surrounding the making of the statement but other evidence properly before the trier of fact supporting or undermining the accuracy of the out-of-court statement: see Khelawon, at paras. 4, 56-63; R. v. Blackman 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 35; Couture, at para. 80; Devine, at para. 22; and R. v. S.S., 2008 ONCA 140, (2008) 232 C.C.C. (3d) 158, at paras. 24-25.
47The two lines of inquiry described above are not mutually exclusive, but are considered together in assessing the reliability of hearsay evidence for the purposes of determining its admissibility: see Blackman, at para. 35. There is, however, one important distinction between the two inquiries. If the hearsay evidence is said to be reliable because there are other suitable substitutes for contemporaneous cross-examination, the truth of the contents of the hearsay statement is irrelevant to the reliability inquiry: see Couture, at para. 87. If, however, the evidence is said to be sufficiently reliable because of the circumstances in which it was made or the other evidence before the trier of fact, the reliability assessment requires a consideration of the truth of the hearsay statement. The court will admit the hearsay statement only if satisfied that the circumstances provide sufficient confidence of the truth of the statement to justify admitting the statement even though it will go largely, if not entirely, untested. As explained in Couture, at para. 99:
Because there are no adequate substitutes for testing the evidence on the facts of this case, there must be some compelling feature about the statement that commands sufficient trust in its truth and accuracy to warrant its admission regardless.
48In this case, there were no alternative means available to test the reliability of the contents of Ms. Smith’s alleged statement to Mr. Groulx. She has never been and can never be cross-examined on the statement. Ms. Smith was not under oath or any equivalent when she made the statement and there was no record of any kind made of her statement.
49What were the “compelling” features of Ms. Smith’s statement that allowed the court to place “sufficient trust in its truth” to admit the statement despite the inability to test its reliability and veracity? The trial judge referred to two: the absence of any motive on Ms. Smith’s part to lie to Mr. Groulx about her relationship with the appellant and extrinsic evidence tending to confirm her description of the nature of her relationship with the appellant.
50I appreciate that the trial judge’s ruling on the admissibility of hearsay evidence is owed deference by this court: see Blackman, at para. 36. However, deference ends if the trial judge materially misapprehends evidence that is central to his ultimate assessment of the reliability of the hearsay statement. With respect, the trial judge fell into that error.
51The trial judge’s finding that Ms. Smith had no motive to lie to Mr. Groulx about the nature of her relationship with the appellant was based on the trial judge’s finding that Ms. Smith’s statement to Mr. Groulx was spontaneous and the trial judge’s description of the relationship between Ms. Smith and Mr. Groulx as one which would engender candour and honesty between the two. Neither feature of the evidence can support an inference of an absence of any motive to lie.
52Ms. Smith’s statement was spontaneous in the sense that she volunteered the information about her relationship with the appellant and Mr. Groulx. Spontaneity will in some circumstances provide a badge of reliability: see e.g. R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531. In my view, however, the sparse evidence adduced in this case permits no inference supporting reliability from the mere fact that it was Ms. Smith who raised the topic of her relationship with the appellant. I can see no connection between the fact that Ms. Smith initiated the discussion about her relationship with the appellant and the reliability of what she said about that relationship.
53Similarly, I see no connection between the nature of Ms. Smith’s relationship with Mr. Groulx and the presence or absence of any motive she may have had to misrepresent the nature of her relationship with the appellant when speaking to Mr. Groulx. Ms. Smith and Mr. Groulx had known each other for a couple of weeks. They had a casual relationship that revolved around the consumption of crack cocaine. Nothing in the nature of that relationship suggested any likelihood that Ms. Smith would be candid with Mr. Groulx about anything. A person in Ms. Smith’s position might well lie to her new “boyfriend” to make it appear as though she had other men who were very interested in her. Equally, a person in Ms. Smith’s position might take advantage of her new friendship to honestly unburden herself about a difficult ongoing relationship she had with another man. There is nothing in the relationship which makes one more likely than the other.
54Rosenberg J.A. described the relevance of motive to fabricate to the reliability of hearsay evidence in R. v. Czibulka (2004), 2004 CanLII 22985 (ON CA), 189 C.C.C. (3d) 199, at para. 43 (Ont. C.A.), leave to appeal to S.C.C. refused, [2005] 1 S.C.R. xiv:
It seems to me the record will disclose some variation on three scenarios where the Crown seeks to tender a hearsay statement under the Khan/Smith model of the principled approach. First, the Crown may be able to show that the declarant had no known motive to fabricate the hearsay story to this witness about this accused…Conversely, the circumstances may be such that either because of direct evidence or logical inference it is apparent that the declarant did have a motive to fabricate this story…Or, the case may be one where there is simply no evidence and no logical inference that the declarant had no motive to lie. In the last scenario, motive is in effect a neutral consideration. [Italics in original; underlining added.]
55I would place this evidence in the third scenario described by my late colleague. The evidence permits neither an inference of motive to lie nor an inference of no motive to lie and, as such, cannot assist the Crown in demonstrating the reliability of Ms. Smith’s statement.
56The trial judge also materially misapprehended the evidence when he described Ms. Smith’s description of her relationship with the appellant as consistent with the other evidence describing that relationship. The other evidence did not give one description of the relationship but rather gave different descriptions. That evidence described a relationship that was turbulent, both friendly and acrimonious at times, but not physically violent.2 Ms. Smith’s alleged statement to Mr. Groulx, if accepted for its truth, supported the inference that the appellant had previously assaulted and stalked Ms. Smith. Without cross-examination, the jury could be left to speculate about the nature and number of prior assaults and stalking incidents. If Ms. Smith’s statement was accepted as true, the jury could infer a significantly higher level of violence in the relationship between Ms. Smith and the appellant than suggested by the other evidence. If the jury took that view of Ms. Smith’s statement, it fueled the Crown’s theory that the appellant’s animus explained the killing.
57The other evidence available to the jury describing the relationship between Ms. Smith and the appellant did not make Ms. Smith’s statement to Mr. Groulx more reliable, but rather revealed the inherent ambiguities in that statement. Ambiguities connote unreliability absent an opportunity to cross-examine: see e.g. R. v. Baldree, 2013 SCC 25, [2013] 2 S.C.R. 520, at paras. 31-32. To take one example, Ms. Smith told Mr. Groulx that she was “stalked” by the appellant. Her statement is devoid of any detail or context that would provide any insight into her meaning. When she spoke of being “stalked”, was she referring to the appellant’s repeated appearances at her door to complain about being cheated by Ms. Smith, or was she referring to some more menacing conduct that would typically be associated with stalking? The difference between those two scenarios could be very important when assessing the Crown’s claim that the appellant’s animus toward Ms. Smith precipitated the killing. Without cross-examination, there could be no way of knowing what Ms. Smith meant when she said that the appellant “stalked” her. These and other ambiguities speak against the admissibility of Ms. Smith’s statement to Mr. Groulx. The statement should have been excluded.
58The curative proviso cannot be applied to the improper admission of Ms. Smith’s statement to Mr. Groulx. The appellant’s state of mind was the only live issue at trial. The alleged animus between Ms. Smith and the appellant on the day she was killed was central to the Crown’s case that the appellant had the intent required by s. 229 of the Criminal Code. Ms. Smith’s statements that the appellant had assaulted and stalked her, if accepted as true by the jury, provided potentially strong evidence to support the Crown’s case on intent. No doubt, there was other cogent evidence of intent, including certain statements made to the police by the appellant. However, it cannot be said that the jury’s verdict would necessarily have been the same had they not been told that they could accept Ms. Smith’s statement to Mr. Groulx that the appellant had assaulted and stalked her as true.
(v) Mr. Pointer’s statement to the police should not have been admitted
59My conclusion that the statement by Ms. Smith to Mr. Groulx should have been excluded and that its improper admission may have affected the result is enough to require the ordering of a new trial. I will, however, address the admissibility of Mr. Pointer’s statement to the police. As outlined above, there were two components to that statement. Mr. Pointer offered his opinion as to the nature of the relationship between the appellant and Ms. Smith, and Mr. Pointer told Detective Sergeant Browne that Ms. Smith had told him about an incident in which the appellant threw her VCR at the wall.
60Mr. Pointer’s evidence that the appellant was possessive of Ms. Smith and jealous of her activities with other men amounted to an opinion as to the nature of the relationship between Ms. Smith and the appellant. Had Mr. Pointer been available to testify, he could have offered his opinion of the nature of the relationship only if that opinion was based on personal knowledge of the facts underpinning it: see R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at pp. 836-37. That opinion, when offered by way of an out-of-court statement allegedly made by Mr. Pointer, must meet the same precondition to admissibility: see Couture, at para. 75.
61There was no evidence on the voir dire of the basis for Mr. Pointer’s opinion about the nature of the relationship between Ms. Smith and the appellant. Detective Sergeant Browne’s assumption about the basis for that opinion was not evidence. Absent that evidence, Mr. Pointer’s opinion about the nature of the relationship between the appellant and Ms. Smith was inadmissible apart entirely from its hearsay character. To put the same point somewhat differently, regardless of whether the evidence was hearsay, it had no probative value absent evidence of the basis upon which Mr. Pointer’s opinion about the relationship was formed. The mere fact that Mr. Pointer and Ms. Smith were friendly neighbours did not permit the inference that what Mr. Pointer said about the relationship between the appellant and Ms. Smith was based on his personal observations as opposed to what others may have told him.
62The second part of Mr. Pointer’s statement to the police did involve a statement allegedly made to him by Ms. Smith. Its admissibility hinges on the same reliability inquiry outlined in my analysis of the admissibility of Ms. Smith’s statement to Mr. Groulx.
63There is little, if anything, to commend the inherent reliability of Ms. Smith’s statement to Mr. Pointer. Neither the declarant (Ms. Smith), nor the person to whom the statement was made (Mr. Pointer) are available for cross-examination. While it may be arguable that the fact that Mr. Pointer made the statement to the police in the course of an investigation of the death of his friend lends some reliability to Mr. Pointer’s assertion that Ms. Smith told him about the VCR incident, it does nothing to address the more important question of the reliability of what Ms. Smith said to Mr. Pointer.
64The trial judge found that Ms. Smith’s statement to Mr. Pointer was reliable because “she had no motive to lie”. There was no basis for this finding. As with Ms. Smith’s statements to Mr. Groulx, the circumstances did not permit any inference as to the existence or non-existence of a motive to lie. Their relationship – they had been neighbours for three years – could not reasonably justify the inference that Ms. Smith had no motive to lie to Mr. Pointer about the VCR incident.
65Neither Mr. Pointer’s opinion about the nature of the relationship between the appellant and Ms. Smith, nor his evidence about Ms. Smith’s statement concerning the VCR qualified as admissible hearsay under the principled exception to the rule against hearsay evidence. Like the improperly admitted hearsay evidence from Mr. Groulx, this evidence supported the Crown’s case on the issue of animus.
66The improper admission of Mr. Pointer’s statement to the police may or may not have amounted to reversible error on its own. However, its improper admission serves to exacerbate the prejudice suffered by the appellant through the improper admission of Ms. Smith’s statement to Mr. Groulx.
V
the other grounds of appeal
(i) The ruling on the scope of surrebuttal evidence
67The defence called Dr. Gojer, a psychiatrist. He testified about the appellant’s psychiatric condition and offered an opinion as to his state of mind when he stabbed Ms. Smith. The Crown called Dr. Ramshaw in reply. The defence sought to recall Dr. Gojer in surrebuttal.
68The defence outlined some 14 issues (some closely related) on which it proposed to question Dr. Gojer. The trial judge allowed surrebuttal evidence on four of the issues. On appeal, the appellant submits that the trial judge should have allowed surrebuttal on an additional four issues.
69As I would order a new trial on the hearsay ground, and there is no prospect that the admissibility of the proposed surrebuttal evidence from Dr. Gojer could become an issue on the retrial, I do not propose to examine the ruling at length. The trial judge understood that he had the discretion to permit surrebuttal evidence. He considered the relevance of the proposed surrebuttal testimony and whether the appellant had had a full opportunity to address the issues which were the subject of the proposed surrebuttal with Dr. Gojer when Dr. Gojer testified as part of the defence: see D. Watt, Watt’s Manual of Criminal Evidence, 2016 ed. (Toronto: Thompson Reuters Canada, 2016), at para. 23.01.
70I see no error in principle in the trial judge’s exercise of his discretion. He carefully reviewed the evidentiary record. Nor did he act unreasonably in drawing the surrebuttal line where he did. Some judges, having decided that some surrebuttal evidence was appropriate, may have allowed more leeway in the evidence to be called than did the trial judge. It is not, however, the role of this court to micromanage the decisions made by the trial judge in the exercise of his power to manage the conduct of the trial.
71The trial judge’s ruling did not deny the appellant the opportunity to fully and fairly present his defence and, specifically, the evidence of Dr. Gojer as it might assist his defence.
(ii) The refusal to leave the defence of provocation
72At trial, the defence maintained that the Crown had failed to prove beyond a reasonable doubt that the appellant had either of the intents required for murder under s. 229 of the Criminal Code. There was no other defence advanced. Specifically, the defence of provocation as defined in s. 232 of the Criminal Code was not put forward. That defence assumes the existence of the required intention for murder and creates a partial defence for those who kill with that intention.
73In submissions before the trial judge delivered his final instructions to the jury, counsel for the defence took the position that the evidence gave rise to the defence of provocation and that the trial judge was obliged to put the defence to the jury. The trial judge rejected that submission and did not leave the defence of provocation with the jury. He later gave reasons for his refusal to leave the defence: R. v. Dupe, 2011 ONSC 3316, 94 W.C.B. (2d) 714.
74In his reasons, the trial judge correctly observed that he was required to put provocation to the jury if the evidence, considered in its totality, gave “an air of reality” to that defence even though the defence had not been advanced at trial (at para. 24). The trial judge also identified the essential “elements” of the provocation defence by framing four questions, at para. 29:
Is there evidence of a wrongful act or insult?
Is there evidence that the wrongful act would deprive an ordinary person of self-control?
Is there evidence that the wrongful act actually deprived the accused of his self-control?
Is there evidence that the accused reacted to the wrongful act quickly and before there was time for his passion to cool?
75The defence was only available if the jury, on a reasonable view of the entirety of evidence, could have a doubt on each of the factual findings implicit in the four questions posed by the trial judge. He concluded that there was some evidence upon which a jury could have a doubt on the first question. The appellant testified that Mr. Groulx came at him with a board, although on the appellant’s evidence, it is unclear whether this happened after or before the appellant had killed Ms. Smith. On a generous reading, Mr. Groulx’s actions could constitute a “wrongful act or insult” for the purposes of the provocation defence (at para. 31). The trial judge went on to hold that there was no evidentiary basis upon which the jury could have a doubt in respect of the facts underlying any of the other three elements of the provocation defence (at paras. 37-55). Accordingly, he declined to leave the defence with the jury.
76Nothing in the appellant’s testimony suggested he acted under provocation as defined in s. 232 of the Criminal Code when he killed Ms. Smith. The expert evidence called by the defence claimed that the appellant did not have the capacity to form the intent required for murder. That evidence contradicts a provocation defence which presumes the intent required for murder. There can, however, be an “air of reality” to a provocation defence even when that defence runs inconsistent with the position advanced in the defence evidence at trial: see R. v. Buzizi, 2013 SCC 27, [2013] 2 S.C.R. 248; and R. v. Gill, 2009 ONCA 124, 241 C.C.C. (3d) 1, at paras. 18-21. The position of the defence is, however, part of the context in which the “air of reality” test should be applied to the totality of the trial evidence: see R. v. Faid, 1983 CanLII 136 (SCC), [1983] 1 S.C.R. 265, at pp. 278-79; and R. v.Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 53.
77In support of the claim that provocation should have been left with the jury, counsel relies heavily on the appellant’s statement to the police after he killed Ms. Smith. The appellant told the police that he “lost it”. Counsel combines this utterance with the appellant’s trial evidence that Mr. Groulx approached him holding a piece of wood over his head to produce a wrongful act (Mr. Groulx’s conduct) and a loss of control by the appellant (the appellant’s statement to the police). However, nothing in the evidence is capable of connecting any loss of control by the appellant to Mr. Groulx’s alleged misconduct.
78Counsel’s argument focuses on individual pieces of evidence considered in isolation. The availability of the defence of provocation requires an examination of the totality of the evidence in the context of the entire trial. It is not enough that a minute parsing of the evidence reveals bits and pieces of evidence that are consistent with some aspects of the provocation defence: see Cinous, at paras. 47-61; and R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at para. 21.
79As explained in R. v. Thibert, 1996 CanLII 249 (SCC), [1996] 1 S.C.R. 37, at para. 33, a trial judge’s decision not to leave a defence with a jury is entitled to some deference on appeal. The trial judge’s careful analysis of the evidence and the governing legal principles fully support his conclusion that there was no air of reality to the defence of provocation. I would not interfere with his ruling.
VI
conclusion
80For the reasons set out above, I would allow the appeal and direct a new trial on the charge of second degree murder.
Released: “DD” “SEP 02 2016”
“Doherty J.A.”
I agree K. Feldman J.A.”
“I agree David Brown J.A.”
Footnotes
- Counsel in oral argument abandoned a fourth ground of appeal relating to the “Vetrovec” instruction to the jury.
- The appellant, in his evidence, admitted to grabbing Ms. Smith by the shirt on one occasion (supra, para. 19). The trial judge was of course unaware of that evidence when he ruled on the admissibility of the hearsay evidence.
