Her Majesty the Queen v. Foreman [Indexed as: R. v. Foreman]

62 O.R. (3d) 204

[2002] O.J. No. 4332

Docket No. C32712

Court of Appeal for Ontario

Doherty, Austin and Armstrong JJ.A.

November 15, 2002

*Application for leave to appeal to the Supreme Court of Canada dismissed September 18, 2003 (Gonthier, Major and Arbour JJ.).

Criminal law -- Evidence -- Hearsay -- Accused convicted of first degree murder of his ex-girlfriend -- Trial judge permitting Crown to [page205] lead evidence of two statements made by victim to friends shortly before her death to effect that accused was phoning her regularly and had made threatening statement -- Statements admitted as evidence of victim's state of mind and as evidence that accused had threatened victim -- Accused's appeal dismissed -- Trial judge should have addressed admissibility of statement allegedly made by accused to victim separately from admissibility of statements made by victim to friends -- Failure to do so not harmful -- Admissions are admitted without any necessity/reliability analysis -- Had trial judge given separate consideration to admissibility of alleged statement made by accused to victim he would have concluded that hearsay rule posed no obstruction to admissibility of that statement -- Trial judge did not err in finding that statements made by victim to friends were sufficiently reliable to warrant admissibility -- Trial judge should not have told jury hearsay statement admitted because it was reliable -- Brief reference in otherwise model charge regarding hearsay statements -- No prejudice to accused -- Appeal dismissed.

The accused was charged with the first degree murder of his ex-girlfriend. He was upset over their break-up. On the day before the homicide, he purchased a sawed-off shotgun and ammunition. On the day of the homicide, the accused went to visit the victim. She told him that she did not love him. He went to his car, retrieved the loaded shotgun, returned to the victim's apartment and confined the victim and her roommate. He fired the gun at the victim and continued firing until the gun was empty. He did not deny firing the gun, but claimed that the first shot was discharged by accident and the subsequent shots were fired without any intention to kill. He denied making any threats to the deceased but two of her longtime friends testified that the deceased told them that the accused had threatened her. The Crown at trial sought to adduce two statements made by the victim to friends shortly before her death that the accused was phoning her and threatening her and told her"If I can't have you no one will." The trial judge treated the statements as hearsay but found that the statements were sufficiently reliable to warrant their admissibility. The statements were admitted as evidence of the victim's state of mind and as evidence that the accused had threatened her. The accused was convicted of first degree murder. He appealed.

Held, the appeal should be dismissed.

The accused argued the deceased's state of mind was irrelevant because he testified that she had rejected his attempts at reconciliation and that her rejection precipitated the homicide. The victim's state of mind was material. Evidence that she was afraid of the accused and wanted no part of any relationship with him on the day of her death offered support for the contention that she declined to return to the relationship with the accused. If the jury found as a fact that she refused to return to the accused, that finding could assist in establishing motive. The trial judge also admitted the statements as evidence that the accused had in fact threatened the victim. If the jury was satisfied that the threats were made, they could infer motive and intent from those threats without any inquiry into the victim's state of mind.

The Crown offered the statements as evidence that the accused actually uttered the threats attributed to him by the victim in her statements to her friends. Given that purpose, the admissibility of the statement allegedly made by the accused to the victim should have been addressed separately and in addition to the admissibility of the statement made by the victim to her friends. However, the trial judge's failure to do so did no harm. It was beyond dispute that had the [page206] victim lived or had a third party overheard the alleged threats by the accused, the victim or that third party could have testified that the accused threatened the victim. The evidence would have been admissible as an admission offered by the Crown to prove motive and, therefore, intent. Admissions, which in the broad sense refer to any statement made by a litigant and tendered as evidence at trial by the opposing party, are admitted without any necessity/reliability analysis. Had the trial judge given separate consideration to the admissibility of the alleged statement made by the accused to the victim, he would have concluded that the hearsay rule posed no obstruction to the admissibility of that statement. The real hearsay problem arose because the victim, the person to whom the threat was allegedly made, was not available to testify at trial. The crucial question was whether the circumstances in which the victim made the statements to her friends provided sufficient indicia of trustworthiness to permit the friends to tell the jury what the victim had said, even though the victim was unavailable for cross-examination. The inquiry conducted by the trial judge was directed at that very question. He decided, relying primarily on the absence of any motive to fabricate, that the out-of-court statement was sufficiently reliable to warrant its admissibility. The absence of a motive to fabricate is an important consideration. The circumstances surrounding the making of the statement which potentially contributed to its reliability went largely unchallenged. Those circumstances were such as to permit the trial judge to conclude that the reliability threshold had been crossed. He did not err in admitting the statement as evidence that the accused had threatened the victim.

APPEAL from a conviction for first degree murder.

R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1, revg (1998), 123 Man. R. (2d) 292, 159 W.A.C. 292, [1998] 6 W.W.R. 710, 123 C.C.C. (3d) 145 (C.A.), consd Other cases referred to R. v. A. (S.) (1992), 11 O.R. (3d) 16, 76 C.C.C. (3d) 522, 17 C.R. (4th) 233 (C.A.); R. v. Evans, [1993] 3 S.C.R. 653, 108 D.L.R. (4th) 32, 158 N.R. 278, 85 C.C.C. (3d) 97, 25 C.R. (4th) 46; R. v. Fournier (2000), 2000 BCCA 140, 143 C.C.C. (3d) 341 (B.C.C.A.) [Leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 208, 261 N.R. 393n] (sub nom. R. v. Fournier (J.G.)); R. v. Gilling (1997), 34 O.R. (3d) 392, 117 C.C.C. (3d) 444 (C.A.); R. v. Jackson (1980), 57 C.C.C. (2d) 154 (Ont. C.A.); R. v. Johnson, [2002] O.J. No. 2365 (Quicklaw), 166 C.C.C. (3d) 44 (C.A.); R. v. Khan (2001), 2001 SCC 86, 160 C.C.C. (3d) 1 (S.C.C.); R. v. Kimberley (2001), 56 O.R. (3d) 18, 157 C.C.C. (3d) 129, 45 C.R. (5th) 273 (C.A.) [Leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 79]; R. v. Krugel (2000), 143 C.C.C. (3d) 367, 31 C.R. (5th) 314 (Ont. C.A.); R. v. Merz (1999), 46 O.R. (3d) 161, 140 C.C.C. (3d) 259, 30 C.R. (5th) 313 (C.A.) [Leave to appeal to S.C.C. refused (2000), 263 N.R. 391n]; R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.J.); R. v. Parent, 2001 SCC 30, [2001] 1 S.C.R. 761, 199 D.L.R. (4th) 622, 268 N.R. 372, 154 C.C.C. (3d) 1, 41 C.R. (5th) 199; R. v. Smith, [1992] 2 S.C.R. 915, 94 D.L.R. (4th) 590, 139 N.R. 323, 75 C.C.C. (3d) 257, 15 C.R. (4th) 133; R. v. Walker (2002), 2002 BCCA 89, 163 C.C.C. (3d) 29 (B.C.C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 229(a), 686(1)(b)(iii) Authorities referred to Sopinka J., S. Lederman and A. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) [page207]

Sharon E. Lavine, for appellant. Alexander Hrybinski, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: --

I

[1] The appellant was charged with the first degree murder of Joan Heimbecker, his former girlfriend. He admitted that he shot and killed Ms. Heimbecker and entered a guilty plea to the included offence of manslaughter. The Crown would not accept that plea and the trial proceeded on the first degree murder charge. There were two issues at trial: did the appellant have the necessary mens rea for murder, and if he did, was he guilty of first or second degree murder? The jury convicted of first degree murder and the appellant appeals.

[2] The grounds of appeal arise out of the trial judge's admission of two statements made by Ms. Heimbecker shortly before her death. The trial judge admitted the statements as evidence of Ms. Heimbecker's state of mind and as evidence that the appellant had threatened Ms. Heimbecker. The appellant contends that the statements were not admissible for either purpose and further, that if they were properly admitted, the trial judge's jury instruction concerning those statements was wrong in law.

[3] I would dismiss the appeal. The statements were properly admitted and there was no legal error in the jury instruction concerning those statements. Alternatively, if the statements should have been excluded or if the instruction was inadequate, I would apply the curative proviso and dismiss the appeal.

II

[4] The appellant and Ms. Heimbecker became romantically involved about nine months before her death. By early February, approximately ten weeks before her death, Ms. Heimbecker no longer wanted to be in a relationship. She told the appellant that she did not need anybody in her life at that time as she was very busy with her university studies. The appellant was upset and did not want the relationship to end. By his own admission, he phoned Ms. Heimbecker about three or four times a week for several weeks following the break-up in February. Eventually, she told him that she was seeing someone else. The appellant was [page208] angry and again, by his own admission, became abusive during several of the telephone calls. He called Ms. Heimbecker a "slut" and told her that he hoped she would "rot in hell".

[5] The appellant denied that he ever threatened Ms. Heimbecker. Two longtime friends of Ms. Heimbecker, however, testified that she told them she was threatened by the appellant. This evidence is the subject of the arguments made on behalf of the appellant in this court and will be set out in more detail below.

[6] The day before the homicide, the appellant rented a car and drove to Toronto from Kitchener. He purchased a 12 gauge sawed-off shotgun and ammunition from an unknown person in the Parkdale area of Toronto. This was the weapon used to kill Ms. Heimbecker. The appellant said it was just a coincidence that he purchased the sawed-off shotgun the day before the homicide. According to him, he had intended to buy a gun for some time, as he needed it for protection and to gain respect at the various after-hours clubs he frequented.

[7] On the day before the homicide, the appellant also delivered a letter to another former girlfriend. In the letter he wrote "I'm just writing to say goodbye since this is probabl[y] the last time you will ever hear from me. I'm almost 90 [per cent] positive I won't be back."

[8] On the afternoon of the homicide, the appellant spoke with a friend. He had slept very little in the preceding two days and had been drinking. According to his friend, he looked terrible. The appellant told his friend that he was thinking of going to the deceased's apartment with gifts that he had purchased for her.

[9] The appellant drove from Kitchener to Hamilton to see the deceased in the early evening of March 30th. He gave her no advance notice of his visit. He took the loaded sawed-off shotgun and the presents he had purchased for her with him. Before leaving for Ms. Heimbecker's apartment, the appellant packed personal clothing, toiletries and some photographs in two duffle bags. He also withdrew $400 from his bank account.

[10] The appellant arrived at the apartment at about 8:30 p.m. He spoke to Ms. Heimbecker on the intercom and asked her to go out with him. She refused but told him he could come up to the apartment. He went up leaving the presents and the loaded sawed-off shotgun in the car.

[11] Ms. Heimbecker was in the apartment with one of her roommates, Nicola Hodges. The appellant spoke with her for ten or 15 minutes. He left and Ms. Heimbecker followed him out into the hallway. The appellant again asked Ms. Heimbecker to go out with him. She refused and made it very clear that she did not love him and had never loved him. The appellant said he became very angry and was "in shock". [page209]

[12] The appellant left the apartment, went to the car, retrieved the loaded shotgun and returned to the apartment. He gained entry on the pretext that he was looking for his car keys. As he pretended to be searching through a chair for his keys, the appellant turned and pointed the shotgun at Ms. Heimbecker saying "Now you're going to have to listen to me." The appellant forced Ms. Heimbecker and Ms. Hodges towards a corner of the living room. He then locked and chained the door.

[13] After locking the door, the appellant disappeared into the bedroom area of the apartment for several moments before returning to where Ms. Heimbecker and Ms. Hodges were standing. He told Ms. Heimbecker to sit on the sofa and repeatedly asked her about her current boyfriend and whether they were sleeping together. The appellant told Ms. Hodges to move away from Ms. Heimbecker and to sit in a chair. Ms. Heimbecker attempted to calm the appellant down and suggested that he let Ms. Hodges go. The appellant assured Ms. Heimbecker that he would not hurt Ms. Hodges. Ms. Hodges testified that he also said to Ms. Heimbecker:

You've made me suffer for the past two months. I'm going to make you suffer.

[14] The appellant repeatedly asked Ms. Heimbecker how long she had been sleeping with her new boyfriend. She would not answer, but finally said "three to four weeks".

[15] About ten minutes after the appellant had first confined Ms. Heimbecker and Ms. Hodges, Ms. Mathur, another roommate, arrived at the apartment door. As she attempted to open the door, the appellant ran over, grabbed Ms. Mathur's keys and slammed the door closed, leaving Ms. Mathur in the hall. Ms. Hodges sensed that the situation was now becoming very urgent. A few seconds later, a shot was fired. Several seconds later, five more shots were fired in rapid succession. The first shot missed Ms. Heimbecker. Four of the remaining five struck her. The appellant was standing about seven to 12 feet away from Ms. Heimbecker when he fired the gun. The gun had to be racked with a forward and backward hand motion before each shot. The appellant continued firing until the gun was empty.

[16] The appellant testified that the first shot discharged by accident. There was expert evidence that in addition to racking the gun before each shot, considerable pressure on the trigger was required to discharge the weapon. The appellant said that after the shotgun discharged accidentally, he became very angry and "just snapped". He fired the gun five more times. The firearms expert testified that the appellant made 15 deliberate actions in "racking" the shotgun in order to fire the five remaining [page210] shells. The appellant said "I kept on firing until the last shot, but I knew it was too late."

[17] The first shot that struck Ms. Heimbecker (the second shot fired) hit her in the left knee and abdomen while she was sitting in a chair with her legs up in a defensive position. The last shot that struck Ms. Heimbecker hit her on the left side of the head, neck and face while she was lying on the floor after having moved or fallen off the chair.

[18] According to a neighbour who arrived at the scene immediately after the shots were fired, the appellant opened the door, smiled at the neighbour and walked nonchalantly out of the apartment. He went to his car, drove away, discarded an overcoat, a shirt, a vest, some rubber gloves and a box of 12 gauge shotgun shells in a dumpster and drove to the United States. He surrendered himself to the authorities in the United States about two weeks later.

[19] It was the position of the Crown that the appellant never got over his break-up with Ms. Heimbecker. He became increasingly angry towards her in the weeks following the break-up, especially after he learned that she had a new boyfriend. He eventually decided that he would make one last attempt to rekindle their relationship. If Ms. Heimbecker refused, he would kill her. In furtherance of this plan, he went to Ms. Heimbecker's apartment carrying both presents and a loaded sawed-off shotgun. After Ms. Heimbecker made it abundantly clear that she wanted no part of the appellant, he went to his car, retrieved the shotgun, and after holding Ms. Heimbecker and her roommate captive for some time, shot and killed Ms. Heimbecker. The Crown contended that the appellant's conduct demonstrated his intention to murder Ms. Heimbecker and that the murder was first degree either because it was planned and deliberate, or because it occurred during the course of a forcible confinement.

[20] The appellant's position was that he was guilty of manslaughter. He contended that he had no intention to do any harm to Ms. Heimbecker when he went to her apartment. After she rejected him, he became angry and wanted to frighten her. The first shot was fired accidentally and the subsequent shots were fired without any intention to kill. The defence maintained that the appellant was in a state of rage, fuelled by sleep deprivation and the consumption of alcohol, and acted without any intention or purpose when he repeatedly fired the shotgun at Ms. Heimbecker from close range.

III

[21] The Crown sought to lead evidence of certain statements made by Ms. Heimbecker to Paul Litt and his niece, Becky Litt. [page211] After a voir dire, the trial judge ruled that the statements were admissible.

[22] Paul Litt was Ms. Heimbecker's boyfriend until about 18 months before her death. They remained good friends and spoke on the phone regularly. Mr. Litt knew that the appellant and Ms. Heimbecker had been going out together and he knew that she had ended the relationship. Mr. Litt testified that a few days before Ms. Heimbecker's death he spoke with her on the telephone. She said that she was worried as the appellant had been phoning her regularly and threatening her. The appellant had said"If I can't have you, nobody will." Mr. Litt and Ms. Heimbecker discussed the possibility of going to the police.

[23] Becky Litt was also a very good friend of Ms. Heimbecker. They spoke often on the telephone and saw each other regularly on the McMaster campus. Ms. Litt testified that Ms. Heimbecker telephoned her on the night she died. Ms. Heimbecker said that the appellant had been calling her regularly, arguing with her and demanding to know who she was "sleeping with". Ms. Heimbecker said that the appellant had threatened her. She was afraid and asked Ms. Litt whether she thought the appellant would do anything to her.

[24] The trial judge admitted the evidence of the statements made by Ms. Heimbecker to the Litts. He treated the statements as hearsay, and after referring to the requirements of reliability and necessity as explained in R. v. Smith, [1992] 2 S.C.R. 915, 75 C.C.C. (3d) 257, held that the statements were sufficiently reliable to warrant their admissibility. In reaching that conclusion, he emphasized the absence of any motive for Ms. Heimbecker to lie to the Litts when she told them that the appellant had threatened her.

[25] In describing the relevance of the utterances, the trial judge said:

. . . The utterances of Joan Heimbecker made to her longtime good friends, Paul and Becky, are relevant and reliable to show the state of mind of the deceased as a result of the statements, and conduct of the accused towards her and hence, to show a possible motive for the killing and the ultimate issue of intent.

(Emphasis added)

IV

[26] Counsel for the appellant skilfully advanced four submissions. She submitted that:

(a) Insofar as the statements were evidence of Ms. Heimbecker's state of mind, they were inadmissible because her state of mind was not material to the charge. [page212]

(b) The trial judge erred in holding that evidence of Ms. Heimbecker's state of mind could afford evidence of the appellant's state of mind.

(c) Insofar as the statements were admitted as evidence that the appellant threatened Ms. Heimbecker, they were "double hearsay" and inadmissible under the principled approach described in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 147 C.C.C. (3d) 449.

(d) If the statements were properly admitted, the trial judge erred in telling the jury that the statements were admitted because they were "considered reliable".

(a) Was Ms. Heimbecker's State of Mind Material?

[27] Counsel's first submission rests on the unchallengeable assertion that evidence which is not material to a fact in issue is inadmissible. Counsel accepts that the statements made to the Litts afforded evidence of Ms. Heimbecker's state of mind at the time she made those statements, but contends that her state of mind was not a fact in issue or relevant to a fact in issue.

[28] I do not accept this submission. The statement made to the Litts, both in express terms and by inference, provided evidence that Ms. Heimbecker was afraid of the appellant and wanted no part of any relationship with him at the time of her death. It was the Crown's theory that the appellant desperately wanted to reunite with Ms. Heimbecker and decided to murder her if she would not resume her prior relationship with him. The Crown contended that he followed through with that plan when Ms. Heimbecker rejected his advances on the evening of March 30th. Evidence that Ms. Heimbecker was afraid of the appellant and wanted no part of any relationship with him on the day of her death offered support for the contention that she declined to return to the relationship with the appellant. If the jury found as a fact that Ms. Heimbecker refused to return to the appellant, that finding could assist in establishing motive: R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.J.) at pp. 338-40. Motive was relevant to intent, the crucial fact in issue: R. v. Krugel (2000), 143 C.C.C. (3d) 367, 31 C.R. (5th) 314 (Ont. C.A.) at p. 391 C.C.C.

[29] The appellant's guilty plea to the included offence of manslaughter, his testimony in which he admitted that Ms. Heimbecker rejected his attempts at reconciliation, and that the rejection precipitated the homicide, does not render evidence of her state of mind irrelevant. Relevance depends on logic and [page213] human experience, not on the position of the parties. While it is true that if a fact is admitted and if evidence tendered to prove that fact has any prejudicial potential, a trial judge may properly exclude the evidence, that was not the situation in this case. When the evidence was proffered there was no clear admission from the appellant that Ms. Heimbecker had rejected his attempts at reconciliation and that this rejection had led him to retrieve the gun and confine Ms. Heimbecker. In any event, insofar as this evidence went to prove Ms. Heimbecker's state of mind, it had no potential to prejudice the appellant in that it was consistent with the appellant's own testimony as to her state of mind. The potential prejudice, and also the significant probative value of the evidence, flowed from its admission to prove that the appellant had in fact threatened Ms. Heimbecker. That issue was very much in dispute throughout the trial.

(b) Was Ms. Heimbecker's State of Mind Probative of the Appellant's State of Mind?

[30] The second submission set out above was not pressed in oral argument. It can be disposed of quickly. Motive refers to an accused's state of mind. As outlined above, the deceased's state of mind was one link in a chain of reasoning which could lead to a finding that the appellant had a motive to kill Ms. Heimbecker. In that way, evidence of Ms. Heimbecker's state of mind had an indirect connection to the appellant's state of mind. There was, however, a much more direct evidentiary connection drawn by the trial judge. He did not only admit the statements as evidence of Ms. Heimbecker's state of mind, but also admitted the statements as evidence that the appellant had in fact threatened Ms. Heimbecker. If the jury was satisfied that the threats were made, they could infer motive and intent from those threats without any inquiry into Ms. Heimbecker's state of mind: R. v. Walker (2002), 2002 BCCA 89, 163 C.C.C. (3d) 29 (B.C.C.A.) at pp. 43-48; R. v. Fournier (2000), 2000 BCCA 140, 143 C.C.C. (3d) 341 (B.C.C.A.) at pp. 346-47, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 208.

(c) Was the Evidence Inadmissible "Double" Hearsay?

[31] The third submission was the main argument advanced on the appeal. It relates only to the admissibility of the statements as evidence that the appellant actually threatened Ms. Heimbecker. This was by far the more important purpose for which the evidence was received. Counsel for the appellant submitted that the Litts' evidence that Ms. Heimbecker said the appellant threatened her was "double hearsay" in that it involved first, an [page214] alleged statement made by the appellant to Ms. Heimbecker ("If I can't have you, nobody will") and second, an alleged statement made by Ms. Heimbecker to the Litts ("the appellant said to me 'If I can't have you, no one will'"). Counsel submits that the trial judge failed to apply the principled approach to the admissibility of hearsay separately to each of the hearsay components of the statements tendered through the Litts.

[32] This argument is built on R. v. Starr, supra. In Starr, the Crown sought to adduce evidence of a statement made by the deceased to a girlfriend that he could not see her that night as he and the accused were going to "do an Autopac [insurance] scam". The Crown argued that the statement provided evidence that the deceased intended to be in the company of the accused later that evening and more significantly, evidence from which it could be inferred that the appellant was in fact with the deceased later that evening when the deceased was killed: R. v. Starr, supra, at p. 231 S.C.R., p. 517 C.C.C.

[33] Iacobucci J., for the majority, considered whether the statement was admissible under the established exception to the hearsay rule which permits hearsay evidence as evidence of the declarant's state of mind. He observed that where evidence is tendered under that exception, it is received to establish the declarant's state of mind and not to establish the state of mind or conduct of someone other than the declarant. It was in the context of this analysis of the state of mind exception that Iacobucci J. said at p. 234 S.C.R., p. 519 C.C.C.:

Second, there are very good reasons behind the rule against allowing statements of present intention to be used to prove the state of mind of someone other than the declarant. As noted above, the central concern with hearsay is the inability of the trier of fact to test the reliability of the declarant's assertion. When the statement is tendered to prove the intentions of a third party, this danger is multiplied. If a declarant makes a statement about the intentions of a third party, there are three possible bases for this statement: first, it could be based on a prior conversation with the accused; second, it could be based on a prior conversation with a fourth party, who indicated the third party's intentions to the declarant; or third, it could be based on pure speculation on the part of the declarant. Under the first scenario, the statement is double hearsay. Since each level of double hearsay must fall within an exception, or be admissible under the principled approach, the mere fact that the declarant is making a statement of present intention is insufficient to render it admissible. The second level of hearsay must also be admissible.

The other two scenarios also clearly require exclusion. If the statement about joint acts is based on a conversation with a fourth party, then the statement is triple hearsay, or worse. If, on the other hand, it is based on pure speculation, then it clearly is unreliable and does not fit within the rationale underlying the present intentions exception. [page215]

In conclusion then, a statement of intention cannot be admitted to prove the intentions of someone other than the declarant, unless a hearsay exception can be established for each level of hearsay. . . .

(Emphasis added)

[34] In the above passage and earlier in his reasons (R. v. Starr, supra, at p. 230 S.C.R., p. 516 C.C.C.), Iacobucci J. makes the important point that the admissibility of hearsay is tied to the purpose for which the evidence is tendered. The requirements for admissibility, whether under an established common law exception or under the principled approach, have to be examined in the context of the purpose for which the evidence is tendered. Hearsay evidence offered for one purpose may clear all admissibility hurdles, but the same evidence offered for a different purpose may not.

[35] In the case at bar, the Crown offered the statements as evidence that the appellant actually uttered the threats attributed to him by Ms. Heimbecker in her statements to the Litts. Given that purpose, the admissibility of the statement allegedly made by the appellant to Ms. Heimbecker should have been addressed separately and in addition to the admissibility of the statement made by Ms. Heimbecker to the Litts. The trial judge did not have the benefit of R. v. Starr, supra, and understandably did not follow the analytical path cut in R. v. Starr. Fortunately, his failure to do so did no harm.

[36] It is beyond dispute that had Ms. Heimbecker lived or had a third party overheard the alleged threats by the appellant, Ms. Heimbecker or that third party could have testified that the appellant threatened the deceased. The evidence would have been admissible as an admission offered by the Crown to prove motive and, therefore, intent: R. v. Jackson (1980), 57 C.C.C. (2d) 154 (Ont. C.A.) at p. 168; R. v. Krugel, supra, at pp. 391-93 C.C.C.; R. v. Merz (1999), 46 O.R. (3d) 161, 140 C.C.C. (3d) 259 (C.A.) at pp. 176-78 O.R., pp. 277-78 C.C.C., application for leave to appeal dismissed, S.C.C. Bulletin 2000, p. 1352.

[37] Admissions, which in the broad sense refer to any statement made by a litigant and tendered as evidence at trial by the opposing party, are admitted without any necessity/ reliability analysis. [See Note 1 at end of document] As Sopinka J. explained in R. v. Evans, [1993] 3 S.C.R. 653, 85 C.C.C. (3d) 97, at p. 664 S.C.R., p. 104 C.C.C.: [page216]

The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan"[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath" (Morgan"Basic Problems of Evidence" (1963), pp. 265-6, quoted in McCormick on Evidence, ibid., p. 140). The rule is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases.

(Emphasis added)

[38] The applicability of the rule governing the admissibility of admissions distinguishes this case from R. v. Starr, supra. Here, the first level of hearsay involves an admission by the appellant. In Starr, supra, the tendered statement could not be attributed to the accused.

[39] Had the trial judge given separate consideration to the admissibility of the alleged statement made by the appellant to Ms. Heimbecker, he would have concluded that the hearsay rule posed no obstruction to the admissibility of that statement. The real hearsay problem arose because Ms. Heimbecker, the person to whom the threat was allegedly made, was not available to testify at trial. The crucial question was whether the circumstances in which Ms. Heimbecker made the statements to the Litts provided sufficient indicia of trustworthiness to permit the Litts to tell the jury what Ms. Heimbecker had said, even though Ms. Heimbecker was unavailable for cross- examination. The inquiry conducted by the trial judge was directed at that very question. He decided, relying primarily on the absence of any motive to fabricate, that the out-of- court statement was sufficiently reliable to warrant its admissibility. The absence of a motive to fabricate is an important consideration: R. v. Smith, supra, at p. 935 S.C.R., p. 272 C.C.C.; R. v. Merz, supra, at pp. 175-77 O.R., pp. 276-77 C.C.C.; R. v. Walker, supra, at p. 45 C.C.C.

[40] The circumstances surrounding the making of the statement which potentially contributed to its reliability went largely unchallenged. The cross-examination was directed at the reliability of the Litts' evidence concerning the contents of the statements made to them by Ms. Heimbecker. In my view, the circumstances surrounding the taking of the statements were such as to permit the trial judge to conclude that the reliability threshold had been crossed. He did not err in admitting the statement as evidence that the appellant had threatened Ms. Heimbecker. [page217]

(d) The Instruction to the Jury

[41] The fourth submission by counsel for the appellant accepts that the Litts could testify as to the statements made by Ms. Heimbecker, but challenges the trial judge's instructions in respect of those statements. At the outset of the instructions on the statements, the trial judge told the jury that out-of-court statements were generally not put before a jury, but that if the declarant of those statements was unable to testify "and it is considered reliable evidence, the courts have ruled it can be heard". The trial judge went on to review the contents of the Litts' statements and to instruct the jury at length on how it should assess the reliability of that evidence. His instructions mirrored those outlined in R. v. A. (S.) (1992), 11 O.R. (3d) 16, 76 C.C.C. (3d) 522 (C.A.). Finally, the trial judge reminded the jury of the evidence given by other friends of Ms. Heimbecker to the effect that she had never told them that the appellant threatened her.

[42] The admissibility of evidence is a question for the trial judge. There is no need to explain to a jury the criteria governing admissibility or the trial judge's evaluation of that criteria. The explanation is at best superfluous and at worst may taint the jury's fact-finding function if there is an overlap between the test for admissibility and the criteria to be considered by the jury in assessing the evidence: R. v. Gilling (1997), 34 O.R. (3d) 392, 117 C.C.C. (3d) 444 (C.A.) at pp. 397-98 O.R., pp. 449-50 C.C.C.

[43] The trial judge should not have [adverted] to any determination of reliability made prior to the evidence going before the jury. I am satisfied, however, that his isolated, cryptic, and somewhat oblique reference to the reliability determination made prior to admissibility caused no prejudice to the appellant. The trial judge told the jury that it was their job to decide the credibility and reliability of all of the evidence, including the statements. He reviewed at some length the considerations relevant to the jury's determination of the reliability of Ms. Heimbecker's statements. He told the jury on two occasions that it should proceed with caution before acting on those statements. The jury would have understood that it was their function to assess the reliability of the statements. My conclusion is strengthened by the observation of counsel for the appellant at trial. Counsel indicated that with one exception, the instructions on Ms. Heimbecker's out-of-court statements were "a model". His objection was not the objection raised on appeal.

V

[44] Although I am satisfied that the errors as alleged by the appellant have not been established, I will consider the application [page218] of the curative proviso on the assumption that Ms. Heimbecker's statements to the Litts should not have been before the jury. Given the appellant's admission that he shot Ms. Heimbecker and unlawfully caused her death, there were two live issues at trial: did the appellant have the intent to commit murder as defined in s. 229(a) of the Criminal Code, R.S.C. 1985, c. C-46, and if so was the murder first or second degree murder? The characterization of the murder as first or second degree murder depended on whether the Crown could prove either that the murder was planned and deliberate or that it occurred in the course of a forcible confinement.

[45] The Crown's case on planning and deliberation was strong, but its contention that the homicide occurred in the course of a forcible confinement was virtually uncontested. On the appellant's own evidence, he confined Ms. Heimbecker for some time before shooting her. Furthermore, on his evidence, the shooting occurred while Ms. Heimbecker was still confined by him and under his domination. His statement that he wanted Ms. Heimbecker "to suffer" is consistent only with confinement for the purpose of domination.

[46] The only argument raised at trial against the contention that the homicide occurred during a confinement was that Ms. Mathur's attempt to gain entry to the apartment terminated the confinement. This argument had no merit and was not renewed on appeal. Ms. Mathur's aborted effort to gain entry to the apartment had no effect on the confinement, except to demonstrate that the appellant's domination over Ms. Heimbecker continued. If the jury concluded that the appellant was guilty of murder, a verdict of first degree murder was the only reasonably possible verdict in light of the ongoing confinement of Ms. Heimbecker: R. v. Kimberley (2001), 56 O.R. (3d) 18, 157 C.C.C. (3d) 129 (C.A.) at p. 51 O.R., p. 163 C.C.C., leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 79; R. v. Johnson, [2002] O.J. No. 2365 (Quicklaw), 166 C.C.C. (3d) 44 (C.A.) at paras. 39-41.

[47] Intent was the crucial issue at trial. The statements made to the Litts were relevant to the appellant's intent. Counsel for the appellant submits that they were central to the Crown's case that the appellant had the necessary intent for murder. In support of this argument, counsel refers to the prominence given to the appellant's words "If I can't have you, nobody will" by Crown counsel in her closing address.

[48] The appellant's alleged motive was an important part of the Crown's case. The threats described by the Litts offered cogent evidence of that motive. There was, however, abundant evidence apart from the threats that the appellant was very angry over the break-up and had decided to kill Ms. Heimbecker [page219] if she would not reconcile with him. His conduct on the day before and the day of the homicide, and his conduct at Ms. Heimbecker's apartment paint a graphic picture of a person who was pursuing two options: either reconciliation as symbolized by the presents, or murder as symbolized by the loaded sawed-off shotgun. The manner in which the appellant killed Ms. Heimbecker also provides very strong evidence of intention. He retrieved the loaded shotgun only after the final rejection by Ms. Heimbecker. After confining Ms. Heimbecker and her roommate, he directed them to opposite sides of the room. Shortly afterwards, he fired six shots, four of which struck Ms. Heimbecker from close range. The final shot was delivered to Ms. Heimbecker's head while she was lying on the ground. The evidence that the appellant had packed his belongings and withdrawn $400 in cash before going to the apartment and immediately fled to the United States after the killing is also a strong indication that he went to the apartment intending to kill Ms. Heimbecker and flee the jurisdiction if there was no reconciliation.

[49] Against this mass of evidence was the appellant's testimony that the first shot was fired accidentally, a highly unlikely assertion given the mechanisms necessary to fire the gun, and his claim that the subsequent five shots were fired without any intention after he became very angry and lost control. Extreme anger is not a stand-alone defence. In some, if not many cases where anger is part of the emotional mix, it will generate the necessary criminal intention for murder: R. v. Parent, 2001 SCC 30, [2001] 1 S.C.R. 761, 199 D.L.R. (4th) 622. The appellant's evidence that he fired in extreme anger was not inconsistent with the existence of an intention to kill.

[50] In R. v. Khan (2001), 2001 SCC 86, 160 C.C.C. (3d) 1 (S.C.C.) at p. 22, Arbour J. said that s. 686(1)(b)(iii) could be applied:

[I]f it is clear that the evidence pointing to the guilt of the accused is so overwhelming that any other verdict but a conviction would be impossible . . .

[51] Entirely apart from the evidence of the statements made to the Litts, the evidence against the appellant on the issue of intent was overwhelming. It can be safely said that no reasonable jury could have had a doubt about the appellant's intent. If the statements to the Litts should not have been admitted, or if there was misdirection in respect of those statements, the curative proviso can be safely applied to dismiss the appeal and affirm the conviction.

[52] I would dismiss the appeal.

Appeal dismissed. [page220]

Notes

Note 1: This definition is taken from J. Sopinka, S. Lederman & A. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at p. 291.