COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carroll, 2014 ONCA 2

DATE: 20140102

DOCKET: C52102

Laskin, Goudge and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Reginald Carroll

Appellant

Jonathan Dawe, for the appellant

Jamie Klukach, for the respondent

Heard: May 28, 2013

On appeal from convictions entered by Justice John S. Poupore of the Superior Court of Justice, sitting with a jury, on December 16, 2009.

Watt J.A.:

[1] Late one night, two blasts from a shotgun ended a lovers’ relationship in a remote camp north of Sudbury. One victim, Carolyn Carroll, was the estranged wife of Reg Carroll (the appellant). The other victim, Tony Comeau, had recently returned to the Sudbury area after an absence of about two decades.

[2] Nobody saw the appellant shoot the victims. No forensic evidence linked him to the killings. Investigators never found the shotgun.

[3] The case for the Crown relied on circumstantial evidence. Evidence of motive and opportunity. Evidence of familiarity with, and access to, the killing ground. Evidence of things said by the appellant to his girlfriend, shortly before and shortly after the killings. And evidence of the appellant’s access to, and familiarity with, guns.

[4] The Crown contended that the appellant was guilty of first degree murder on either of two bases. Each involved a murder that was planned and deliberate. The first was that the appellant himself shot and killed the deceased in circumstances that amounted to planned and deliberate murder under s. 231(2) of the Criminal Code. The second was that the appellant hired two others to kill the deceased and that they did so. On this basis, the appellant committed first degree murder under s. 231(3) of the Criminal Code.

[5] The jury at the appellant’s trial were convinced beyond a reasonable doubt that he was guilty of first degree murder. But the appellant, who did not testify, says that his convictions should be set aside. He says that the trial judge should have cautioned the jury about the danger of relying on the evidence of his girlfriend without confirmation of it from some other sources. He adds that the trial judge should not have permitted Crown counsel to introduce some hearsay and some bad character evidence.

[6] These reasons explain why I have concluded that a new trial is not warranted in this case.

THE BACKGROUND FACTS

[7] A brief canvass of some of the evidence adduced at trial is sufficient to locate the claims of error in their setting, leaving to the specific grounds of appeal more detailed references.

The Principals and their Relationship

[8] The evidence at trial focused on the unravelling marriage of Carolyn and Reg Carroll, an event that closely followed, perhaps was precipitated by, the return of Tony Comeau to Sudbury.

[9] Carolyn and Reg Carroll married in 1989. Their only child, Lacey, was born in 1991. The family lived in a house the appellant built in Wahnapitae, a small community in the western part of Greater Sudbury. This home replaced an earlier residence that had been destroyed, along with all its contents, in a fire. The old and new properties were close together.

[10] Reg Carroll had his own trucking business. Carolyn Carroll received a disability pension because of injuries she had suffered in a car accident several years earlier. Lacey was a student at the local community college and had a part-time job.

[11] Tony Comeau was an old friend of Carolyn Carroll. He returned to Sudbury in the summer of 2007 and was looking for work in the area.

The Camp at Thor Lake

[12] Carolyn Carroll’s family had a camp at Thor Lake, about 60 miles northwest of Wahnapitae. The camp was accessible by train at an unscheduled stop about a 15 minute walk away from the camp or by car. To reach the camp by car involved driving much of the way on a paved road, followed by passage over an extremely rough dirt bush road that required use of a 4-wheel drive vehicle or an ATV. The camp was not on an electrical or a telephone grid and had no cell phone service.

[13] The travel time between the Carroll home and the camp varied between two and three hours during daylight hours. Some familiar with the route said the drive could be completed in less time.

The Carrolls’ Separation

[14] During the last few years of their marriage, the relationship between Carolyn and Reg Carroll deteriorated, in part because of disputes about the appellant’s drinking. By the fall of 2007, the appellant suspected that his wife was having an affair and planned to leave him. Carolyn Carroll denied that she was having an affair. The appellant did not believe her.

[15] The appellant, convinced of his wife’s infidelity and plans to abandon the marriage, transferred over $100,000 from their joint savings account into his own account, piled his wife’s things into her SUV, and locked her out of the house.

[16] Carolyn and Lacey Carroll moved into a hotel. A few weeks later, Lacey came back to live with the appellant. She did not like her mother’s relationship with Tony Comeau and told the appellant about it.

[17] Carolyn and Reg Carroll resumed their relationship briefly after the appellant’s father had committed suicide. The reconciliation did not last. One evening, Carolyn left to “pick up a loaf of bread”. She never returned. Later the same month, the appellant began a relationship with Kim Moncion, a friend of Carolyn’s, who had recently separated from her husband.

[18] In early December 2007, Carolyn Carroll moved into Tony Comeau’s apartment at the Colonial Inn in Coniston, a five minute drive west of Wahnapitae.

The Matrimonial Litigation

[19] Matrimonial litigation followed hard on the heels of the Carrolls’ final separation. Each retained counsel. In early April 2008, the appellant was served with Carolyn’s materials. Predictably perhaps, the litigation was acrimonious. In dispute were the custody of Lacey, the division of property and, especially, possession of the matrimonial home. Carolyn sought exclusive possession of the matrimonial home as well as an accounting of the funds that were missing from the couples’ joint account.

The Victoria Day Weekend, 2008

[20] Carolyn Carroll’s family planned to spend the 2008 Victoria Day weekend at the Thor Lake camp. She and Tony planned to take the Thursday evening train. It was their responsibility, as the first to arrive, to turn on the propane appliances and the generator. The couple loaded up some property from the site of the Carrolls’ previous home. The appellant drove by in his truck when the couple were there. He had no trailer attached to his vehicle.

[21] Carolyn Carroll and Tony Comeau went to the train station. The appellant saw them there as he drove to his mother’s home.

The Appellant’s Activities

[22] The appellant picked Lacey up from her after-school job and returned home around 7:30 on Thursday evening. He bought gas and cigarettes at a service station in Wahnapitae at 7:38 p.m. Later, he drove over to the site of their former home where he hitched a black utility trailer to the back of his Chevy Avalanche. After the appellant returned home, Lacey heard him starting up his ATV behind the house but did not see him load the ATV onto the utility trailer.

[23] The appellant stayed at home until Lacey went to bed at 10 or 11 p.m.

The Visit to Kim Moncion

[24] Kim Moncion lived in Hanmer near the Sudbury Airport where she worked as an airline sales and service agent. She telephoned the appellant on Thursday evening shortly after her estranged husband had come to her home, along with his new girlfriend, to drop something off. Ms. Moncion was upset by the visit. The appellant agreed to come over to Ms. Moncion’s house. She accepted his offer. He arrived about 40 minutes later.

[25] When the appellant arrived, Ms. Moncion was outside her home. She thought it odd that the appellant was driving his Chevy Avalanche truck towing a trailer with the quad (ATV) on it. She had never seen a quad on the trailer before. When she asked about the quad, the appellant said he was going to camp.

[26] Over tequila, the couple shared their common upsetting experiences of the day with their estranged spouses. The appellant told Ms. Moncion that he had seen Carolyn and Tony Comeau packing to spend the long weekend at the lake. He didn’t feel that Tony had “the right” to be at the same camp he and Carolyn had shared during their marriage.

[27] As the couple continued to drink tequila, the appellant said he had something else he wanted to discuss with Ms. Moncion but he was reluctant to do so. At her urging, he told her that “tonight was going to be the night”. Ms. Moncion took this to be a reference to some previous conversations in which the appellant had talked about “go[ing] through the Hell’s Angels” to “hire somebody for $10,000” and “have a two-for-one deal”. The appellant explained that there were two men waiting up at Thor Lake. The appellant had doubts about their capabilities. The appellant said he had a gun under the front seat of his truck.

[28] The appellant asked to see Ms. Moncion’s gun collection but she couldn’t find the key to the locked gun cabinet. He left Ms. Moncion’s home around 11 p.m.

[29] Ms. Moncion didn’t take the appellant seriously. She thought he would return home after he left her house. She called him twice on his cell phone within about 15 minutes of his departure. The phone rang but the appellant did not answer.

The Next Day

[30] The appellant’s Chevy Avalanche was in his driveway at 5:30 the following morning. The utility trailer was not attached to it. At 7 a.m., the appellant woke up Lacey for school but did not take her there until 10:30 a.m. For most of the day, the appellant stayed home. He spoke briefly by telephone with Ms. Moncion that evening.

The Finding of the Bodies

[31] Carolyn Carroll’s relatives arrived at the camp at around 9:35 p.m. on Friday. The camp was in darkness. The generator was not running. The other preparatory tasks that Carolyn and Tony Comeau were to have performed had not been completed. Someone started the generator. The family members found the bodies of Carolyn and Tony Comeau in the bedroom.

[32] Family members called the police from another camp and alerted them about the potential for harm to Lacey and another member of Carolyn’s family. The police went to the appellant’s home and took Lacey, the appellant, and another family member to the police station. The officers told Lacey and the other family member about the deaths at the camp. The appellant remained in the lobby of the police station.

The Appellant’s Police Interview

[33] Shortly before 7:30 a.m. on Saturday, May 17, 2008, a police officer interviewed the appellant. The interview was videotaped, transcribed, and admitted as evidence at trial. The appellant was not under arrest at the time of the interview.

[34] During the interview, the appellant denied having been at Thor Lake since the previous fall. He denied having threatened or stalked the deceased. He explained several scratches and bruises visible at various places on his body as having been caused when he was working on his truck at his home on Thursday of that same week.

[35] The appellant drove to Kim Moncion’s house on Saturday afternoon after he had left the police station. He told Ms. Moncion that the deceased had been found murdered or dead. He was driving the Chevy Avalanche without the trailer or quad attached to the rear.

The Physical Evidence

[36] With the possible exception of a licence plate issued for a trailer, no physical evidence connected the appellant to the Thor Lake camp or to the bodies of the deceased. Subsequent searches failed to yield the appellant’s trailer used to transport the ATV, a shotgun, shotgun shells, or the clothing and footwear the appellant was wearing as shown on the videotape from the gas station at Wahnapitae around 7:30 p.m. on Thursday, May 15, 2008.

[37] In the winter of 2008, the appellant had purchased a black utility trailer and registered it with the Ministry of Transportation. He was issued licence plate E21 93H for the trailer. The day after the bodies were discovered, some relatives of the deceased said they saw and photographed a licence plate, E21 93H, about two feet off the road. They left the plate there undisturbed.

The Post-Offence Conduct

[38] On May 21, 2008, Kim Moncion went to the appellant’s house to see how he was doing. She told him that she had spoken to her mother about his visit to her house the previous Thursday night. The appellant told Ms. Moncion not to tell anyone that he had been at her home that (Thursday) evening.

THE GROUNDS OF APPEAL

[39] The appellant advances three grounds of appeal. One alleges a deficiency in the trial judge’s charge to the jury. The other two claim errors in the admission of evidence. I would paraphrase the grounds of appeal as these:

i. failure to give the jury a Vetrovec caution in connection with the testimony of Kim Moncion;

ii. admission of hearsay statements of the deceased expressing her fear of the appellant and the reasons for that fear; and

iii. admission of evidence of the appellant’s controlling and demeaning behaviour during his marriage to Carolyn that invited jurors to engage in propensity reasoning.

[40] Each ground warrants separate consideration and requires supplementary background information to cast it in its proper light.

Ground #1: The Vetrovec Caution

[41] Counsel for the appellant at trial sought, but failed to persuade the trial judge to include in his final instructions a Vetrovec caution in connection with the testimony of Kim Moncion. The appellant reinvigorates that argument here. He contends that this omission was a legal error sufficiently grave to require a new trial.

[42] To appreciate the nature of the argument advanced on the appellant’s behalf, some further background is necessary.

The Statements of Kim Moncion

[43] Investigators first interviewed Kim Moncion one week after the Thursday evening on which the appellant had come to her house. She told the investigators that she had spoken to the appellant on the telephone on Thursday evening after her estranged husband and his girlfriend had left her home. She admitted that she called the appellant twice on his cell phone after he had left her house. The appellant did not answer her phone. Ms. Moncion went to bed, she said, around 10 p.m.

[44] Kim Moncion explained that she told the police about the telephone calls during her first interview because she assumed the police could check her phone records. She did not tell police that the appellant had been in her home. Ms. Moncion explained that she did not tell police everything because she was afraid that the information she had would not be enough to put the appellant in jail. She was concerned that she too would go to jail because she failed to call the police to try to prevent what occurred after she looked for a key to her gun cabinet at the appellant’s request.

[45] On June 16, 2008, investigators asked Ms. Moncion to come to the police station for a second interview. She intended to repeat her earlier version but changed course when an officer told her that someone had told them that the appellant had been at her home on Thursday evening. Ms. Moncion then admitted that the appellant had been at her home that night. She apologized and explained that she did not know whether “he did it” and was afraid to tell police everything she knew. She remained concerned about her own jeopardy but had no intention of ever disclosing to them all the information she had received from the appellant.

[46] About 10 days later, during her third police interview, the officers suggested to Ms. Moncion that they believed that she was not being completely truthful with them. They suggested that she was protecting the appellant and reminded her that she had already lied for him. The officers told her that by continuing her alignment with the appellant she was obstructing them and digging herself in deeper.

[47] During this interview, Ms. Moncion thought she needed to start being truthful with the police. In answer to their question, Ms. Moncion told the investigators about the appellant’s remarks earlier in their relationship that it would not be difficult to have someone murdered, comments she associated with a discussion they were having about their ex-spouses. She took the remarks as joking. She never raised the subject with him again either before or after the killing of the deceased.

[48] When the interview of Ms. Moncion resumed after a brief respite, the officer asked why she had called the appellant twice on his cell phone after he left her home on Thursday evening even though she claimed to have been very tired. She then told police about the ATV on the appellant’s truck trailer, and his disclosure to her that he had seen Carolyn and Tony packing for camp earlier that day. The following day she told police about the appellant’s comment that he had a gun in his truck and his request to see her guns. She didn’t tell the police about the guns during her earlier interview because she was afraid she would “end up in jail” if she told them she was “stupid enough” to try to give the appellant a gun.

The Trial Judge’s Ruling

[49] Counsel for the appellant asked the trial judge to include in his charge a Vetrovec warning in connection with Kim Moncion’s evidence. Counsel acknowledged that Ms. Moncion was not someone who would “classically be considered a Vetrovec witness”. She had no criminal record. She was not a person with a bad general reputation or a reputation for being untruthful. But her testimony was critical to the case for the Crown. She had a motive to lie – to avoid criminal prosecution – and her ultimate version of events emerged from police pressure and suggestion. She had made several inconsistent statements.

[50] The trial judge declined to include a Vetrovec caution in connection with Kim Moncion’s testimony.

The Arguments on Appeal

[51] For the appellant, Mr. Dawe acknowledges, as he begins, that whether to include a Vetrovec caution resides within the discretion of the trial judge, a discretion informed by two controlling factors: the importance of the witness’ evidence to the Crown’s case and the credibility of the witness.

[52] Mr. Dawe says that rather than focus on these factors, the trial judge fastened exclusively on Ms. Moncion’s personal history, admittedly not the stuff of most Vetrovec witnesses.

[53] Kim Moncion was a crucial witness for the Crown. She provided the only evidentiary support for one basis of liability left to the jury – contracted murder under s. 231(3) – and a significant foundation for the other – planned and deliberate first degree murder under s. 231(2).

[54] Further, Mr. Dawe urges, Kim Moncion was an unreliable witness. She repeatedly lied to police on critical, not peripheral issues. She adopted, incrementally, details suggested to her by police. Her various statements were internally inconsistent and motivated by an overweaning self-interest to avoid jeopardy.

[55] For the respondent, Ms. Klukach underscores the discretionary nature of the decision on whether to include a Vetrovec caution in connection with a Crown witness. She emphasises that it is only when the controlling factors coalesce across a certain threshold that a Vetrovec caution becomes mandatory. To demonstrate error here, she says, the appellant must persuade us that a Vetrovec warning was mandatory.

[56] Ms. Klukach submits that, although Vetrovec eschews a category approach in favour of a case-by-case analysis, some witnesses, like accomplices, jailhouse informants, and career criminals command a Vetrovec warning. These witnesses, an amoral collection, can appear honest and credible to the untutored, thus the imperative to warn. Simply put, Kim Moncion was not of this stripe.

[57] Ms. Klukach resists the claim that the testimony of Kim Moncion was essential to the case for the Crown. Lacey Carroll gave evidence about the trailer, ATV, and the appellant’s knowledge of the weekend trip by Carolyn and Tony to the camp. The finding of the licence plate confirmed the trip. The appellant’s remarks and inquiry about a gun added nothing to the evidence of the appellant’s motive, opportunity, and familiarity with the place where the killing occurred.

[58] According to Ms. Kuklach, the credibility and reliability concerns associated with Ms. Moncion’s evidence did not require a Vetrovec caution in connection with her evidence. She had no general reputation for untruthfulness and no prior involvement with the police. The circumstances in which the details of her evidence emerged were fully explored and plainly apparent to the jury. Significant parts of her testimony were confirmed by other evidence. Considered as a whole, the instructions of the trial judge alerted the jury to the relevant concerns. Nothing more was required.

The Governing Principles

[59] To test the validity of this claim of error, it is necessary to recall the principles at play when a trial judge is asked to include a Vetrovec caution in the charge to the jury.

[60] First, at least as a general rule, whether the testimony of a Crown witness should be subject to a Vetrovec caution lies within the discretion of the trial judge. After all, the trial judge is an eyewitness to the testimony of the witness and the temperature of the trial proceedings: R. v. Vetrovec, [1982] 1 S.C.R. 811, at p. 823; R. v. Bevan, [1993] 2 S.C.R. 599, at pp. 610-11 and 613; R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at paras. 1-2; and R. v. Mariani, 2007 ONCA 329, 220 C.C.C. (3d) 74, at para. 24.

[61] Second, as the parties acknowledge, two factors occupy a position of prominence in a trial judge’s decision about whether to include a Vetrovec caution about the testimony of a Crown witness in final instructions: the credibility of the witness and the importance of the witness’ evidence to the case for the Crown: Brooks, at para. 4.

[62] Where a witness’ evidence occupies a central position in the demonstration of guilt, yet may be suspect because of a disreputable and untrustworthy character, a clear and sharp warning – a Vetrovec caution – may be appropriate to alert the jury to the risks of adopting the evidence without more: Brooks, at para. 3.

[63] But where the evidence is important, but not dispositive of guilt, and where the evidence of the witness merely furnishes additional support for the prosecution’s case, a Vetrovec warning may not be required and its absence confirmed on appellate review: Brooks, at para. 14.

[64] Third, in assessing the credibility of a Crown witness to determine whether to include a Vetrovecwarning, a trial judge must not slot the witness into a particularized category. Like jailhouse informants. Or drug addicts. Or particeps criminis. Such an approach would be at odds with the flexible approach that Vetrovec mandates and a return to the categorical approach it rejects: Bevan, at pp. 610-11; Brooks, at para. 3; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 6; and R v. Potvin, [1989] 1 S.C.R. 525, at p. 557.

[65] Rather, what a trial judge should do is direct his or her mind to the circumstances of the case and thoroughly examine the myriad factors that might impair the worth of the witness’ testimony: Vetrovec, at p. 823; Brooks, at para. 5. Where the judge concludes that the witness can be trusted, no Vetrovec caution is necessary, regardless of whether the witness is an accomplice or a jailhouse informant: Brooks, at para. 5.

[66] In addition, consistent with the flexibility that is the badge of Vetrovec, the fact that a witness seeks to avoid incarceration - and I would add, prosecution – by testifying is a factor which may undermine credibility but, on its own, is not enough to require a Vetrovec caution: Brooks, at para. 10.

[67] Finally, as a general rule, a trial judge’s discretion whether to include a Vetrovec caution in final instructions is to be accorded wide latitude and substantial deference on appellate review: Brooks, at para. 24; Bevan, at p. 614.

The Principles Applied

[68] For several reasons, I would not give effect to this ground of appeal.

[69] First and foremost, whether to include a Vetrovec caution in final instructions falls four-square within the discretion of the trial judge. The exercise of that discretion, informed by a demonstrated understanding of and adherence to the governing principles, is entitled to substantial deference on appellate review. The trial judge gave reasons that reflected an understanding of the relevant principles and a measured consideration of them, unadulterated by extraneous considerations, improper weighing or misapprehensions of the evidence.

[70] Second, this is not a case, as are some, in which a Vetrovec caution was mandatory: Bevan, at p. 614. Trial counsel for the appellant frankly acknowledged, as did Mr. Dawe on appeal, that Kim Moncion was not a “typical Vetrovec witness”. The usual indicia were absent. She was not an accomplice. She was not a jailhouse informant. She was not a career criminal. She was not a drug addict. She did not have a history of psychiatric illness impairing reliability. She did not seek tangible benefits. She had no motive to incriminate the appellant.

[71] Third, the evidence of Kim Moncion was important, but not essential to the case for the Crown. It is true that her evidence that the appellant visited her house on the night of the killings enriched the case for the Crown by adding several details:

i. that the appellant left his home after Lacey went to bed;

ii. that the appellant was driving his Chevy Avalanche with his trailer and ATV in tow;

iii. that the appellant had travelled in a direction away from his home and towards Thor Lake;

iv. that the appellant claimed to have a gun in his truck; and

v. that the appellant was heading to camp because “tonight was going to be the night”.

[72] But the case for the Crown consisted of several items of circumstantial evidence. Among those items were evidence of motive, opportunity, peculiar knowledge of the whereabouts of the deceased, familiarity with and access to the Thor Lake property and guns, and conduct afterwards that could be considered as the destruction of evidence linking him to the scene.

[73] Apart altogether from the evidence of Kim Moncion, there was evidence adduced at trial:

i. that the appellant had attached the utility trailer to his Chevy Avalanche earlier in the day of the killings and had “revved up” his ATV at his home;

ii. that the appellant had bought gas for his truck around 7:30 on Thursday evening;

iii. that the licence plate for the appellant’s trailer was found at the side of the road leading to the camp after the killings of the deceased;

iv. that the appellant’s trailer was never seen again after Thursday evening and was not at his home early the following morning; and

v. that the appellant had a motive and opportunity to kill the deceased, a knowledge of their whereabouts on Thursday evening, and the specialized knowledge of how to get to the isolated camp.

[74] Further, even if the evidence of Kim Moncion were elevated to “essential” status, no authority compels inclusion of a Vetrovec caution on this basis alone.

[75] Fourth, the factors that could be considered as relevant to impair the worth of Kim Moncion as a witness did not support the inclusion of a Vetrovec caution.

[76] Kim Moncion was the appellant’s girlfriend. She was gainfully employed. She had no criminal record, for that matter, no involvement with the police. She had neither drug nor psychiatric problems. She was not charged with any criminal offence and had no motive to incriminate the appellant, a person with whom she was involved in a romantic relationship.

[77] Reduced to its essential features, the circumstances invoked as sufficient to require a Vetrovec caution relate to the manner in which the final account of Kim Moncion developed through her various police interviews. These circumstances were fully explored during cross-examination at trial and are routine fare for jurors to evaluate.

[78] The rationale that underpins a Vetrovec caution originates in the concern that, for certain types of witnesses, lay members of the jury simply lack the critical experience to adequately gauge the credibility of these types of witnesses and the reliability of their evidence: R. v. Sauvé (2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 81; R. v. Welsh, 2013 ONCA 190, 115 O.R. (3d) 81, leave to appeal to S.C.C. refused, (#35533, December 12, 2013), at para. 207. No such concerns emerged in connection with the testimony of Kim Moncion. To conclude in the circumstances of this case that a Vetrovec caution was mandatory for the evidence of Kim Moncion would be to countenance a resurrection of the ossified rule interred over three decades ago by Vetrovec.

[79] What is more, Vetrovec cautions do not always enure to the benefit of an accused. A frequent component of a Vetrovec instruction is an illustration of the types of evidence that are capable of confirming the testimony of the Vetrovec witness. Illustrations in this case could have included Lacey Carroll’s evidence about the trailer and ATV and the finding of the licence plate from the never-to-be-seen-again trailer on a road near the camp. These illustrations would not have assisted the appellant.

[80] A final point. The trial judge devoted several pages of his charge to the evidence of Kim Moncion. He reminded the jury about, and pointed out, the several inconsistencies in the substance of her statements. He pointed out that she admitted lying to the police and explained why she did so. He reiterated the jury’s obligation to determine the extent to which they would rely on her evidence in reaching their verdict. The instructions adequately equipped the jury to perform its task.

Ground #2: The Statements of the Deceased

[81] The second ground of appeal takes issue with the trial judge’s decision to admit evidence of what the deceased told several witnesses about her fear of the appellant and the nature of their relationship as their marriage came undone.

[82] A few broad strokes of background will suffice to set this claim of error in its context and permit an assessment of its validity.

The Statements

[83] In general terms, the statements of the deceased admitted in evidence through the testimony of their recipients comprise two broad categories. The first group consists of statements in which the deceased recounts her fear of the appellant but does not explain the basis for that fear. The second category includes statements that describe the appellant’s words or conduct that underpin the deceased’s fear of him.

[84] At trial, counsel for the Crown invoked both the common law state of mind exception and the principled approach to support the case for admissibility.

The Ruling of the Trial Judge

[85] The trial judge admitted some of the deceased’s statements as evidence, but excluded others.

[86] The trial judge invoked the common law state of mind exception to the hearsay rule to admit evidence of the fear expressed by the deceased of the appellant. These expressions of fear, the trial judge reasoned, afforded evidence of the nature of the relationship between the couple, thus of the animus the appellant bore the deceased. And animus, like motive, was a piece of circumstantial evidence that was relevant to the identity of the appellant as the killer of the deceased, and to the state of mind that may have accompanied the unlawful killing.

[87] The trial judge also admitted evidence of the statements of the deceased under the principled exception to the hearsay rule. Necessity was established: the deceased was dead. The trial judge was satisfied that the circumstances in which the statements were made, coupled with other evidence that confirmed the truth of the content of those statements, established their threshold reliability.

The Arguments on Appeal

[88] For the appellant, Mr. Dawe contends that the trial judge erred in finding that the reliability requirement of the principled exception had been met. The hearsay dangers of perception, memory and credibility overlay this evidence. The statements were conclusory, lacked detail, and were not contextualized by the recipients so that the jury could evaluate their true probative value, if any. Some involved extrapolations by the declarant from a single event or perception to an assertion of invariable conduct. Other statements were amorphous, bereft of any detail. The nature of the “threats” was never disclosed. In one instance, that of Ms. Carrier, the recipient reported details or information that the declarant never mentioned to her closest friends, counsellors, or even her lawyer in the acrimonious matrimonial litigation.

[89] Mr. Dawe advances two arguments in connection with the deceased’s statements admitted under the state of mind exception to the hearsay rule. The first has to do with the admissibility decision, the second with the judge’s instructions to the jury about their use of the evidence in reaching a verdict.

[90] Mr. Dawe says that in balancing the probative value of the deceased’s statements against their prejudicial effect, the trial judge failed to take into account that the appellant did not advance a third party suspect defence, and thus the statements of the deceased could not be admitted to rebut such a claim. Further, the trial judge failed to properly evaluate the inflammatory potential of evidence that included the declarant’s prediction of her own death.

[91] Mr. Dawe argues that even if the evidence was properly admitted, the trial judge’s instructions about its use were inadequate. The instructions did not extend to all the evidence or explain to the jury the steps in the analysis from the state of the deceased’s mind, to the motive of the appellant, to the appellant’s involvement in the deaths of the deceased.

[92] For the respondent, Ms. Klukach says that the appellant’s complaint about the trial judge’s reliability finding mistakes ultimate reliability for threshold reliability.

[93] A party who seeks to admit hearsay evidence need not eliminate all possible hearsay dangers to satisfy the reliability requirement. For this would be to impose a requirement of ultimate reliability as a prerequisite to admissibility. The party need only show that the trier of fact has the necessary tools available to it to evaluate the worth of the evidence. This burden can be discharged by demonstrating that the circumstances in which the statements were made reduce the hearsay dangers to a point at which the trier of fact could test the reliability of the statements without the personal appearance of the declarant. This is threshold reliability.

[94] Ms. Klukach says that the trial judge began with a rule of presumptive inadmissibility, then articulated, in an unexceptional way, the requirements that must be met to engage the principled exception. He concluded that the deceased’s statements were made in circumstances that satisfied the threshold reliability requirement. The declarant’s statements about being followed were made to her close friends spontaneously and contemporaneously with the appellant’s conduct. The statements included an appropriate degree of detail and, in some instances at least, were confirmed by other evidence. The statements reporting threats were equally spontaneous and contemporaneous with the appellant’s conduct and confirmed by other evidence and events.

[95] Ms. Klukach submits that the trial judge was right to admit several of the deceased’s statements under the state of mind exception to the hearsay rule. The statements admitted on this basis fairly reflected the deceased’s then contemporaneous state of mind and afforded evidence on the basis of which the jury could infer an animus or motive on the part of the appellant to kill the deceased, or at least the declarant.

[96] Further, Ms. Klukach continues, the trial judge demonstrated a lively understanding of the discretion to exclude otherwise admissible evidence. He concluded, correctly, that the probative value of this evidence exceeded its prejudicial effect and he was right to admit it. In addition, he explained the permitted and prohibited uses of this evidence in his final instructions and made it plain that the jury must not use the evidence for any prohibited purpose.

The Governing Principles

[97] The parties occupy common ground on the principles that govern the exceptional admission of hearsay evidence. They part company, however, on the result that the application of those principles mandates for the statements of the deceased in this case.

[98] The issues raised and to be resolved here do not warrant an extended foray into the hearsay thicket. Some brief reminders are sufficient.

[99] The rule excluding hearsay is a well-established exception to the general rule or principle of the law of evidence that all relevant evidence is admissible: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 2 and 34. When the hearsay objection is pertinent, we begin from a presumption of inadmissibility. It falls to the proponent of the evidence to satisfy the trial judge that the proposed evidence satisfies the prerequisite of a listed exception or meets the twin criteria of necessity and reliability: Khelawon, at para. 2.

[100] The trial judge acts as a gate-keeper in determining whether hearsay, tendered for admission under a listed or the principled exception, qualifies for admission. Under the principled exception, the trial judge assesses the “threshold” reliability of the hearsay statement. The ultimate reliability, the ultimate determination of the worth of the statement as probative material, is for the trier of fact to determine: Khelawon, at para. 2. The distinction between threshold and ultimate reliability is important and constitutes the difference between admissibility and reliance: Khelawon, at para. 3.

[101] The central reason that accounts for the presumptive exclusion of hearsay statements is the general inability to test their reliability. And so it is that under the principled exception the reliability requirement is aimed at identifying those cases where this difficulty is sufficiently overcome to justify reception of the evidence as an exception to the general rule of exclusion: Khelawon, at para. 61.

[102] The reliability threshold is usually met in two different ways: Khelawon, at para. 61.

[103] One way[^1] to satisfy the reliability requirement is to demonstrate that there is no real concern about the truth of this statement because of the circumstances in which the statement came about: Khelawon, at para. 62. But the reliability inquiry is not limited to the circumstances surrounding the making of the statement. In appropriate cases, it may extend beyond them and involve consideration of confirmatory evidence: Khelawon, at para. 4; R. v. Singh, 2010 ONCA 808, 266 C.C.C. (3d) 466, at para. 34. The reliability requirement involves the assessment of all relevant factors, not their subdivision into those that have to do only with either threshold or ultimate reliability: Khelawon, at para. 4.

[104] A deceased’s mental state may be relevant to an accused’s motive to commit an offence: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 60; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 98. In a similar way, the state of the relationship between an accused and a deceased in a time leading up to the unlawful killing of the deceased may demonstrate animus and motive on the part of the accused, and thus be relevant to the identity of the deceased’s killer and the state of mind that accompanied the killing: Griffin, at para. 61; Moo, at para. 98. Statements of the deceased may afford evidence of the deceased’s state of mind and thus be relevant to prove a motive and animus: Griffin, at para. 61.

[105] Proof of necessity and reliability or the conditions precedent of a listed exception to the hearsay rule removes the hearsay rule as an impediment to admissibility. But it does not follow that the hearsay statements will be admitted. Trial fairness factors influence the ultimate decision on admissibility. A trial judge has a discretion to exclude otherwise admissible hearsay evidence through the application of a cost-benefit analysis: Khelawon, at para. 49; Moo, at para. 95; and R. v. Mohan, [1994] 2 S.C.R. 9, at p. 14.

The Principles Applied

[106] As I will explain, I would reject this ground of appeal.

[107] To begin, recall the context in which the statements were made. Carolyn Carroll had abandoned her marriage to the appellant. She left their home. She continued, more openly, a relationship she had begun with Tony Comeau as the Carrolls’ marriage began to unravel. The appellant was well aware of this new relationship and he did not like it. He was angry and jealous.

[108] The statements or remarks of Carolyn Carroll admitted in evidence through the testimony of those to whom she spoke were spontaneous disclosures, contemporaneous with the events reported, and, for the most part at least, contained sufficient detail to permit a reasoned assessment of their probative worth by the trier of fact. The circumstances in which they were made stamped them with sufficient reliability to warrant their admission.

[109] Second, as noted above, it is well established that evidence of a deceased’s state of mind, as disclosed by his or her utterances prior to death, may be relevant to an accused’s motive or animus towards the deceased: Griffin, at para. 60; Moo, at para. 98. And in turn, evidence of motive or animus is relevant to the identity of the deceased’s killer and the state of mind with which the deceased was killed: Griffin, at paras. 61-63; R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319, at para. 31; Moo, at para. 98. In this case, evidence of the appellant’s motive or animus was also relevant to rebut defence suggestions that someone else, a third party, killed the deceased or that Tony Comeau, not Carolyn Carroll, was the killer’s primary target.

[110] Third, the statements of the deceased admitted here, as reported by the recipients at trial, were at once spontaneous and contemporaneous with the events that were their genesis. While not always expansive or brimming with the minutiae of a disintegrating relationship, the statements provided sufficient detail to permit a properly instructed jury to assess their worth.

[111] Fourth, in large measure, the appellant’s complaints about the inadequate showing of reliability relate to ultimate rather than threshold reliability. As proponent of otherwise inadmissible hearsay, Crown counsel need not eliminate all possible sources of doubt about the perception, memory or sincerity of the declarant. All that was required in this case was that the circumstances in which the statements were made and any relevant extrinsic evidence provided the trier of fact with the means to critically evaluate the honesty and accuracy of the declarant: R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 56; Khelawon, at para. 50; R. v. M.(J), 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 54.

[112] Finally, the decision said to be wrong involved two findings made by the trial judge. The first was that the circumstances in which the statement was made, supported by extrinsic evidence, satisfied the reliability requirement under the principled exception to the hearsay rule. The second involved the application of a cost-benefit analysis and a determination that the probative value of the admissible hearsay exceeded its prejudicial effect. In the absence of demonstrated error, both decisions are entitled to substantial deference at one remove in this court: R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 81 and 132; Blackman, at para. 36; Moo, at para. 101; and R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 61. No error has been demonstrated here.

Ground #3: Evidence of Bad Character

[113] The final ground of appeal also concerns the admissibility of evidence, but invokes a different exclusionary rule in support of the claim of error: the prohibition against the introduction of evidence of other discreditable conduct by the person charged.

[114] A brief reference to the nature of the evidence in issue and the trial judge’s reasons for permitting its introduction provide an adequate backdrop for the discussion that follows.

The Evidence

[115] Crown counsel at trial sought to introduce a wide range of evidence that showed that the appellant was controlling in the marital relationship and mistreated his spouse especially in the late stages of the marriage. The principal sources of this evidence were two close friends of Carolyn Carroll who were eyewitnesses to the conduct.

The Ruling

[116] The trial judge excluded most of the evidence of extrinsic misconduct. He excluded Marlene Leroux’s evidence about the appellant’s drug use, and about his possession and discharge of guns during the marriage. Ms. Leroux was permitted to give evidence, however, that was relevant to establish motive, animus, the state of the marital relationship and harassment.

[117] The trial judge followed a similar path of reasoning in connection with the testimony of Gail Boivin-Tremblay, a confidant of Carolyn Carroll, who provided her with emotional support prior to and during her separation from the appellant. The trial judge excluded evidence that the appellant threatened to kill Carolyn Carroll by drowning her but did allow other evidence offered to prove motive, animus, and the nature of the marital relationship.

The Arguments on Appeal

[118] For the appellant, Mr. Dawe submits that the trial judge should have excluded the evidence that demonstrated that the appellant was a controlling spouse who repeatedly demeaned Carolyn Carroll during their marriage. This evidence, Mr. Dawe says, was of negligible probative value but laden with significant prejudice. The Crown’s case on animus and motive was generated by what occurred after the Carrolls separated. And of this there was, admittedly, substantial evidence. The evidence at issue added nothing on this score and showed the appellant as nothing other than a person of bad character.

[119] For the respondent, Ms. Klukach acknowledges the general exclusionary rule and the prohibition against propensity reasoning as a pathway to proof of guilt. She says, however, that in prosecutions for domestic homicide, Crown counsel may introduce evidence of the relationship between spouses since the nature of that relationship may assist in proof of animus or motive on the part of one spouse to kill the other. Evidence of animus or motive is relevant to prove the identity of the deceased’s killer and the state of mind of the killer.

[120] Ms. Kuklach contends that the evidence about which complaint is now made was relevant and admissible to establish animus and motive and supported the position of the Crown that the appellant was the killer and that the killings amounted to planned and deliberate murder. In the end, Ms. Klukach adds, the trial judge strongly cautioned the jury against propensity reasoning. This instruction was far more favourable than the direction to which the appellant was entitled and eradicated any potential prejudice that might have incidentally ensued from the reception of the evidence.

The Governing Principles

[121] Two brief points worthy of notice emerge from the relevant authorities.

[122] First, in cases of domestic homicide, evidence may be admitted during the case for the Crown, including evidence of extrinsic misconduct, that elucidates the nature of the relationship between the spouses. This evidence may tend to establish animus or motive on the part of one spouse, and thus be relevant to prove that the killer of the deceased was the spouse with the animus or motive, rather than someone else, and that the killing was murder: Moo, at para. 98; R. v. Cudjoe, 2009 ONCA 543, 251 O.A.C. 163, at para. 64; and R. v. Van Osselaer, 2002 BCCA 464, 5 B.C.L.R. (4th) 73, at para. 23.

[123] Second, where extrinsic misconduct evidence is admitted to demonstrate animus or motive towards the very person killed, the usual caution associated with such evidence is not required: Moo, at para. 100; Pasqualino, at para. 65; and R. v. Merz (1999), 46 O.R. (3d) 161 (C.A.), at para. 59.

The Principles Applied

[124] For several reasons, this ground of appeal cannot succeed.

[125] First, the evidence was properly admitted on the basis of a substantial and unbroken line of authority in this province. Despite its incidental effect of showing that the appellant engaged in prior disreputable conduct, this evidence elucidated the nature of the Carrolls’ marital relationship. The nature of that relationship was relevant to proof of animus or motive. Evidence of animus or motive was relevant, in turn, to proof of the identity of the deceased’s killer and the legal character of the unlawful killing.

[126] Second, the trial judge carefully considered where the balance settled between probative value and prejudicial effect. His analysis reveals no legal or other error and is thus entitled to substantial deference from this court.

[127] Third, even if the reception of this evidence reflects error, the limiting instructions the trial judge gave, which were unduly favourable to the appellant if the evidence were properly admitted, enjoined propensity reasoning and attracted no objection from trial counsel.

CONCLUSION

[128] For these reasons, I would dismiss the appeal.

Released: January 2, 2014 (“JL”)

“David Watt J.A.”

“I agree John Laskin J.A.”

“I agree S.T. Goudge J.A.”

[^1]: The second way, not applicable here, is to demonstrate that no real concern arises from the hearsay nature of the statement because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested: Khelawon, at para. 63.