COURT FILE NO.: 10-00905G
DATE: 20120229
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
EFIM KLIMOVICH
Defendant
R. Scott and K. Hutchinson, for the Crown
S. Shikhman, for the Defendant
HEARD: January 30 and February 1-2, 2012
ruling on pre-trial motions
boswell j.
OVERVIEW:
[1] Larisa Klimovich died in her home on January 26, 2010. Her death was bloody, brutal and violent. Her husband, Efim Klimovich, stands charged with her murder. After her death he called 911 and advised the operator that he had killed his wife with a knife. He was arrested at the scene covered in her blood. His trial is scheduled to commence before a jury in Newmarket on March 19, 2012. It appears that the central issue for trial will be Mr. Klimovich’s state of mind at the time of his wife’s death.
[2] The Crown wants to adduce evidence at the trial of statements made by Mrs. Klimovich to her daughter, Alla, which the Crown says supports the conclusion that Mrs. Klimovich was afraid of her husband and wanted to live apart from him. The same evidence may also lead the jury to conclude that Mr. Klimovich bore some animus towards his wife and it may assist the jury in assessing Mr. Klimovich’s state of mind at the time of his wife’s death. Concerned about the hearsay nature of some of the statements, the Crown seeks an advance ruling on their admissibility.
[3] In addition, the Crown seeks a ruling on the admissibility of a statement uttered by Mr. Klimovich to, or at least in the presence of, police officers a short time after his arrest.
[4] The Defendant opposes the applications of the Crown and argues that none of the utterances in issue - of either Mr. or Mrs. Klimovich - are admissible, for reasons I will explore in detail.
ISSUES and POSITIONS:
Utterances of the Deceased
[5] To be receivable in a criminal trial, evidence must be relevant, material and admissible: R. v. Candir, 2009 ONCA 915, per Watt J.A. at para 46. The Crown asserts that statements made by Larisa Klimovich to her daughter, Alla, provide evidence of a persistent state of mind in the months prior to and at the time of her death. Specifically, that she was afraid of her husband and that she intended to live separate and apart from him. If her statements are believed, they may lead the jury to conclude that it is unlikely that she would have acted in a provocative way towards Mr. Klimovich. Such a conclusion would not only eliminate a potential defence, but may also be a causal link in a chain of reasoning that could lead the jury to conclude that Mr. Klimovich bore some animus towards his wife. As such, the Crown submits that the evidence is relevant and probative. Indeed the Defendant does not contest relevance and materiality. But what is in issue is the admissibility of the utterances. As I will detail below, a number of the statements are presumptively inadmissible hearsay. Nevertheless, the Crown asserts that the utterances of the deceased ought to be admitted pursuant to a traditional exception to the rule against hearsay, as evidence of the state of mind of the deceased. Alternatively, the Crown asserts that the evidence is necessary and reliable and admissible under the principled exception to the hearsay rule.
[6] The Defendant argues against the admission of the utterances of Mrs. Klimovich. While conceding necessity, the Defendant submits that the utterances are not sufficiently reliable to justify their admission under either a traditional exception or the principled exception. In any event, the Defendant asserts that the prejudice to him, should the utterances be admitted, will outweigh their probative value and, as such, the Court should exclude them under its residual gate-keeping discretion.
[7] In addressing the utterances of the deceased, it will be necessary to address the following specific matters:
(i) What are the particular utterances in issue?
(ii) Are the utterances relevant?
(iii) Which of the utterances are presumptively inadmissible hearsay?
(iv) Do any or all of the utterances fall within the traditional “state of mind” exception?
(v) Are the utterances admissible under the principled exception?
(vi) Should the utterances be excluded by reason of prejudice to the accused?
Utterance of the Accused
[8] The Crown also seeks a ruling on the admissibility of an utterance allegedly made by the Defendant to the arresting officer, a short time after his arrest. Specifically, York Region Police Constable Drew Leonard testified that Mr. Klimovich made the following statement in his presence:
Today I went shopping and came home and prepared food for my wife and kids, she drank wine, after dinner she said when I go to bed she was going to hit me with a bottle and kill me, then she said she was going to kill my family. We were fighting in the bedroom.
[9] As a prerequisite to admissibility, the Crown must establish, beyond a reasonable doubt, that the Defendant’s statement was made voluntarily. Following a voluntariness voir dire, the Defendant conceded that the Crown had indeed established the voluntariness of the statement to the requisite standard. That said, the Defendant submits that his utterance should still be excluded from evidence as a remedy for a breach of his right to counsel guaranteed by s. 10(b) of the Charter of Rights and Freedoms (the “Charter”).
[10] The evidence is clear that PC Leonard questioned Mr. Klimovich about the offence before he had an opportunity to speak with counsel. The Crown concedes that there was a Charter breach, but asserts that the statement should not be excluded because: (1) there is no nexus between the breach and the statement; and (2) even if the breach and statement are connected, in the particular circumstances of this case, exclusion is not warranted under s. 24(2).
[11] In relation to Mr. Klimovich’s statement, the following specific matters must be addressed:
(i) The particulars of the Charter breach;
(ii) Whether the utterance in issue is tainted by the breach; and,
(iii) If tainted, should the utterance be excluded under s. 24(2) of the Charter?
DISCUSSION:
A. Utterances of the Deceased
The Utterances in Issue
[12] The Crown, at paragraph 42 of its factum, indicated that it seeks to introduce statements of Larisa Klimovich grouped into the following areas:
(i) Arguments;
(ii) Religion;
(iii) Marital separation;
(iv) Her fear of being alone with Mr. Klimovich;
(v) Prior threats made by Mr. Klimovich; and,
(vi) Mr. Klimovich’s return from Israel.
[13] Evidence touching upon each of these six areas was adduced during a voir dire, through Alla Klimovich, the daughter of the deceased and the accused. The evidence of Alla Klimovich was similar, but not identical, to the synopsis contained in the Crown’s factum. I will therefore briefly review Ms. Klimovich’s testimony.
[14] Alla Klimovich said she and her family (meaning her parents and brother) immigrated to Canada from Israel in 2001. In 2002 they moved into a condominium unit on Weldrick Avenue in Richmond Hill. They lived there continuously until her mother was killed in that unit in January 2010. For the past 5-6 years of her life, her mother worked in the bakery department of a local grocery store. Though she made friendships with some of her co-workers, her mother rarely went out of the house for social reasons and never invited friends over. Anna described having a very close relationship with her mother. She said they shared many things with one another.
[15] She further said that her father, the accused, worked as a long haul truck driver. He was, as such, frequently away from home for extended periods of up to two weeks at a time. He would return home for several days, then be off on another road trip. He lost his job about 7 months prior to his wife’s death.
[16] Ms. Klimovich indicated that her parents separated about 8 or 9 months prior to her mother’s death. Her father moved out of the house. She said she saw the separation coming – her parents were arguing frequently. Just before Christmas 2009, her father travelled to Israel to spend time with his parents. Her expectation was that he was going to be gone indefinitely and that he went to try and get his life back in order. He returned to Canada, however, on January 24 or 25, 2010.
[17] Alla Klimovich was not close to her father. She found him difficult to talk to. After he moved out of the family home, she did not visit him. If he came over for a meal after the separation, she would not eat with him. She found her father difficult to live with and she welcomed the separation. She thought her mother was still young and had a chance for a better life.
[18] Of particular significance to this application, Alla testified as follows:
(i) In the last 3 years of their marriage, her parents argued very often. She was present during many of their arguments. The arguments involved Mr. Klimovich complaining about the way in which Mrs. Klimovich was cooking; that the food did not taste the same anymore; that she had lost a lot of weight; and that they weren’t sitting down and eating as a family anymore. He wondered why the kids were always taking her side in arguments. He complained that Mrs. Klimovich would go into Alla’s room to talk with the door closed. They argued about finances - he wondered where all their money was going;
(ii) Religion was another topic of argument. Mr. Klimovich wondered why they did not speak Hebrew at home and why there was a cross in the house. Alla testified that Mr. Klimovich was Jewish, at least according to his mother. Mrs. Klimovich did not express any strong views on religion or religious practices. She was open to anything;
(iii) She went with her mother to a Legal Aid office for the purpose of a consultation about her mother’s legal rights. Her mother was considering hiring a lawyer but never did;
(iv) Her mother brought a letter to her attention on one occasion, which was from a solicitor and which included a draft Separation Agreement. She read the agreement and translated it for her mother;
(v) Her mother always encouraged her and her brother to maintain a relationship with their father;
(vi) While her parents were still living together, her mother frequently asked her to stay home with her, if Mr. Klimovich was going to be home from a work trip. For instance, if her mother was finished work at 5 and knew her father would be home by 7, she would ask Alla to be sure to be home by 7;
(vii) Her mother wanted a separation. She said she did not want to live with Mr. Klimovich anymore. She said she could not live with him under the same roof, after so many things had been said and done. But she felt sorry for him sometimes because he was not adjusting well;
(viii) At some point, her parents agreed that they wanted to separate peacefully;
(ix) Her mother said that she felt fearful and unsafe; that she was afraid of something physical happening if she was alone with Mr. Klimovich;
(x) Her mother said, “try to always be around me because I don’t feel safe”;
(xi) Her mother said that she was afraid Mr. Klimovich might hit her very hard and that she might be paralyzed and/or not able to recover;
(xii) Her mother told her on one occasion that Mr. Klimovich had said, “I’m sick and tired of you. You’ve ruined my life. You should be killed” (I will refer to this utterance as “the threat”); and,
(xiii) Her mother was shocked that Mr. Klimovich was coming back from Israel as early as January 2010. She mentioned she had a bad feeling. She did not want him returning and expressed concern that he would probably want to move in with them until he found another place.
Hearsay Evidence Generally
[19] Dealing with hearsay evidence can be tricky. The law in this area is not always easily applied. The brilliant theoretical physicist, Stephen Hawking, has remarked that a good scientific model is one that is elegant - as simple as possible and containing few, if any, adjustable factors: Hawking and Mlodinow, The Grand Design (2010: Toronto). No one would ever accuse the legal model for assessing hearsay evidence of being elegant. The basic premise is simple enough: out of court statements, offered in court as proof of their contents, in circumstances where the maker of the statement is not available for contemporaneous cross-examination, are presumptively inadmissible. The reason for the rule is also straightforward. A trial, at its core, is a truth-finding exercise. Cross-examination - the scrutinizing, testing and challenging of evidence before the trier of fact - is an essential part of that truth-finding exercise. Indeed, cross-examination was famously referred to by John Henry Wigmore as the “greatest legal engine ever invented for discerning the truth”: see for instance, Lilly v. Virginia, 527 U.S. 116 (1999). The inability to test the veracity and reliability of statements made outside of the courtroom through contemporaneous cross-examination has historically been considered sufficient justification to exclude such statements from the trial process.
[20] As every student of the law is aware, almost as soon as the rule excluding hearsay statements was established, exceptions began to be made. Different categories of out-of-court utterances have been established where the presumption of inadmissibility no longer applies. These categories share a common feature: the making of statements in circumstances that provide a sufficient level of reliability that the lack of ability to cross-examine is no longer a pressing concern. Indeed, it came to be recognized that excluding certain types of reliable hearsay statements may in fact distort the truth-finding function of a trial.
[21] Over the course of the last twenty or so years, the Supreme Court has developed a principled approach to the assessment of hearsay evidence in an effort to create a more elegant model for dealing with such evidence: see, amongst others, R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; and R. v. Khelawon, 2006 SCC 57. The modern approach to the admissibility of hearsay evidence was summarized by Justice Charron in R. v. Khelawon, where she said at paragraph 42, with reference to R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para 15:
(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.
(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.
(c) In "rare cases", evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.
(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.
[22] To proceed with the analysis under the Khelawon model, it is necessary to first confirm that the statements in issue are relevant and material. Then the court must identify which of the proffered statements are, in fact, hearsay. For utterances identified as hearsay, the court must then address whether the statements are admissible either through a traditional exception to the hearsay exclusion, or by way of the principled exception.
Relevance
[23] There is no serious dispute that the utterances in issue are relevant and material. The threshold for relevance is not high. To be relevant, the evidence, if believed, must make the existence of a material fact, more probable than it would otherwise be.
[24] Although the theory of the defence has not yet been revealed, it appears that the central issue at trial is likely to be the state of mind of the Defendant at the time of Mrs. Klimovich’s death. Provocation and/or self-defence are conceivable defence theories. The hearsay utterances in issue go essentially to Mrs. Klimovich’s fear of her husband and her desire to live apart from him. They are relevant to her state of mind and may provide circumstantial evidence from which the jury could assess the likelihood that she would attack and/or provoke her husband. Moreover, as Watt J.A. held in R. v. Candir, as above, at para. 52, “evidence of the deceased’s state of mind may constitute a link in a chain of reasoning that could lead a trier of fact to conclude that an accused bore the deceased some animus or had a motive to kill the deceased.” In other words, though evidence of Mrs. Klimovich’s state of mind, the statements are circumstantially relevant to the state of mind of Mr. Klimovich.
[25] I will move on to the identification of which utterances are hearsay and, as such, presumptively inadmissible.
Which Statements are Hearsay?
[26] I have identified thirteen statements, or groups of statements, that the Crown seeks to introduce into evidence at Mr. Klimovich’s trial. Roughly half of those statements are properly characterized as hearsay, but the other half are not.
[27] In my view, the evidence referenced in subparagraphs 18 (i) through (vi) above, are not hearsay for the following reasons:
(i) The evidence surrounding domestic arguments consists of Alla’s direct observations about the character and topic of discussions she overheard. It is not offered as proof of anything said in the course of the arguments. The Defendant does not, in fact, quarrel about the admissibility of this evidence;
(ii) Alla’s testimony about the family’s religious practices is, again, based on her own direct observations;
(iii) Similarly, Alla is able to provide evidence of her own observations about the visits to Legal Aid, the reason(s) for the visits and the discussions she overhead during any such visits;
(iv) Alla’s evidence about reading a separation agreement to her mother is also original testimonial evidence from which the jury may draw inferences about the separation of Mr. and Mrs. Klimovich. It does not involve the out-of-court utterances of her mother;
(v) Mrs. Klimovich’s encouragements to the children regarding maintaining a relationship with Mr. Klimovich are not offered as proof of their contents, but only as evidence that she made such encouragements. Again, this is original testimony from Alla Klimovich, from which the jury may draw conclusions about Larisa Klimovich’s state of mind;
(vi) Evidence that Mrs. Klimovich implored her children to be home if Mr. Klimovich was going to be home is, again, not being tendered as proof of the contents of the utterances, but rather that the statements were made at all and/or that they were made frequently. This is, again, circumstantial evidence from which the jury may draw an inference relating to Mrs. Klimovich’s state of mind.
[28] On the other hand, the statements referenced in sub-paragraphs 18 (vii) to (xiii) above, are, in my view, examples of out-of-court statements offered as proof of their contents, where contemporaneous cross-examination is not available. They are, as such, presumptively inadmissible hearsay. To overcome the presumption against admission, the statements must come within one of the traditional exceptions to the hearsay exclusionary rule or, alternatively, gain admission through the principled exception. I will review the two possible paths to admission in turn, beginning with the traditional exception for state of mind evidence.
The State of Mind Exception
[29] One of the traditional exceptions to the prohibition against hearsay evidence relates to statements of a present state of mind (also known as the “present intentions” exception). As described by Paciocco and Stuesser in The Law of Evidence, 5th Ed. (2008: Toronto), at page 176:
Where a person describes his or her present state of mind (emotion, intent, motive, plan), the person’s statement to that effect is admissible where the state of mind is relevant and the statement is made in a natural manner and not under circumstances of suspicion.
[30] Sometimes a statement is explicit evidence of a state of mind. Other times it is a statement from which an inference about state of mind might reasonably be drawn. Either way, the statement is admissible, either because it falls within an exception to the hearsay prohibition, or because it is not offered for the truth of its contents but is rather circumstantial evidence from which an inference about state of mind might be drawn. Justice Doherty, as he then was, explained the admissibility of such statements in R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 at page 341 as follows:
If the statements are explicit statements of a state of mind, they are admitted as exceptions to the hearsay rule. If those statements permit an inference as to the speaker’s state of mind, they are regarded as original testimonial evidence and admitted as circumstantial evidence from which a state of mind can be inferred. The result is the same, whichever route is taken.
[31] Perhaps the easiest utterance to address under the present state of mind exception is the threat. While the threat may inform the reasonableness of Mrs. Klimovich’s fear of her husband, it is a statement that ultimately goes to Mr. Klimovich’s state of mind and not hers. This utterance is offered in evidence by the Crown as proof that the threatening comments were made. But the state of mind exception does not render admissible an utterance intended to prove that a past act (i.e. the threat) actually occurred: see R. v. P.(R), as above, at para. 25. In the result, the alleged threat is not admissible under the proposed traditional hearsay exclusion, though it remains to be examined under the principled exception.
[32] The balance of utterances I have identified as hearsay, do appear to me to go to the state of mind of the deceased: that she welcomed a separation from Mr. Klimovich; that she was afraid of him; and that she was apprehensive about him returning to the condominium upon his return from Israel.
[33] The Defendant’s principal objection to admission of the utterances as state of mind evidence is that Alla Klimovich was not precise about when any of her mother’s statements were made. Utterances made some considerable time prior to Mrs. Klimovich’s death may, of course, be of limited probative value in determining her state of mind leading up to and at the time of her death: R. v. P.(R)., as above, para. 43.
[34] While it is true that Alla Klimovich was not precise about when the utterances occurred, it appeared clear to me, listening to her testimony, that the utterances were part of a continuum of events that included a lead-up to the separation, the separation itself and then, finally, the return of Mr. Klimovich from Israel. In other words, they were sufficiently connected in time and space to the events leading up to the time of her death, that they remain relevant to the determination of her state of mind at the time of her death. In my view, they are admissible to show that Mrs. Klimovich had a persistent intention to separate from Mr. Klimovich, that she acted on that intention, and that she intended the separation to be permanent. They are also admissible to show that she was fearful of Mr. Klimovich prior to the separation and that she remained fearful of him up to the point of his return from Israel.
[35] I shall go on, however, to consider whether the utterances of the deceased are admissible pursuant to the principled exception to the hearsay rule. There are three reasons for doing so. First, the Crown relies on both the traditional state of mind exception and the principled exception and the application was fully argued on that basis. Second, I have found that the threat is not admissible under the traditional state of mind exception and its only potential path to admissibility is the principled exception. Third, the Defendant asserts that even if the utterances, or any of them, are otherwise admissible as state of mind evidence, they ought still to be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of this case.
The Principled Exception
[36] Under the principled approach, hearsay evidence should be admitted provided that the guarantees of necessity and reliability are met. These two principles were discussed by Justice Charron in R. v. Khelawon, as above, at para. 49, where she said:
The criterion of necessity is founded on society’s interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. As we shall see, the reliability requirement will generally be met on the basis of two different grounds, neither of which excludes consideration of the other. In some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declaration would add little if anything to the process. In other cases, the evidence may not be so cogent but the circumstance will allow for sufficient testing of evidence by means other than contemporaneous cross-examination. In these circumstances, the admission of the evidence will rarely undermine trial fairness. However, because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect.
[37] It is conceded by the defence that the requirement of necessity has been met, in view of the death of Mrs. Klimovich. Of the two people present at the time of her death, only Mr. Klimovich will be available to testify at trial. In the absence of Larisa Klimovich’s out-of-court statements, as retold by Alla Klimovich, her voice will not be heard at the trial and the jury will not be in the same position to assess her state of mind, as they will be if the utterances are admitted in evidence.
[38] The real dispute involves the reliability of the statements. The onus is on the Crown[^1] to demonstrate that Mrs. Klimovich’s statements are reliable because of the circumstances in which they were made. “Those circumstances must be sufficient to serve as a surrogate for cross-examination of [Mrs. Klimovich], the traditional method of testing the well-documented frailties of hearsay evidence: perception, memory, narration and sincerity”: R. v. Candir, as above, at para. 57. The trial judge’s role, as gatekeeper, is, accordingly, to determine whether concerns about the inability to cross-examine Mrs. Klimovich on the truth and accuracy of the statements is sufficiently overcome by the circumstances of the case. As Justice Charron indicated in R. v. Blackman, 2008 SCC 37, at para. 35:
This criterion is usually met by showing that sufficient trust can be put in the truth and accuracy of the statements because of the way in which they came about, or by showing that in the circumstances the ultimate trier of fact will be in a position to sufficiently assess their worth. The two ways of demonstrating threshold reliability are not mutually exclusive.
[39] The Crown asserts that the following features provide the requisite guarantee of circumstantial trustworthiness in this case:
(i) There is no evidence that Mrs. Klimovich was, at any time, suffering from any mental defect, nor influenced by drugs or alcohol;
(ii) The statements were made in private and were intended to remain private between Mrs. Klimovich and her daughter;
(iii) The statements were made to someone in a close, personal relationship;
(iv) Mrs. Klimovich’s state of mind remained consistent across the statements;
(v) Some of the statements were made spontaneously and some were made in response to questions posed by Alla Klimovich; and,
(vi) Mrs. Klimovich had no motive to lie.
[40] The Defendant disagrees. Mr. Klimovich argues that the proffered statements are not sufficiently reliable to make up for the absence of contemporaneous cross-examination. In particular:
(i) The statements lack sufficient detail for the court to assess their reliability. Problematically, there is an absence of context and timing; and,
(ii) Mrs. Klimovich did have a motive to lie. The concept of a “motive to lie” is not limited to outright fabrications, but includes misleading statements, exaggerations and embellishments. In this instance, Mrs. Klimovich was motivated by the desire to secure Alla as an ally in the course of the marital separation. Moreover, it is human nature to exaggerate insults and offences committed by another during the course of a heated argument.
[41] In my view, there are sufficient indicia of reliability present in the circumstances surrounding the utterances to overcome concerns arising from the absence of an opportunity to cross-examine their maker.
[42] The statements were made in the context of a close, personal, “special” relationship between a mother and daughter. According to Alla Klimovich, her mother had few friends, certainly none in whom she would share her most private thoughts and feelings. Alla was a daughter and confidante. Statements made in the context of such a special relationship can lead to an inference that the deceased would not lie to Alla about her thoughts and feelings towards the accused: see R. v. Czibulka, 2004 CanLII 22985 (ON CA), [2004] O.J. No 3723 (C.A.) at para 47.
[43] Statements concerning Mrs. Klimovich’s desire to permanently live separate and apart from Mr. Klimovich are supported by extrinsic evidence including the fact that the Klimovichs did indeed separate, Mrs. Klimovich attended at Legal Aid for advice concerning the separation, and Alla assisted her mother in setting up an online dating account.
[44] Likewise, statements concerning Mrs. Klimovich’s fear of Mr. Klimovich are supported by her repeated entreaties to her children not to leave her alone with Mr. Klimovich in their apartment. In addition, during those periods of time when Mr. Klimovich was home between long haul driving trips, Mrs. Klimovich slept on the couch. She would return to the master bedroom when Mr. Klimovich was back on the road. This sleeping pattern may, admittedly, have been the result of Mr. Klimovich having a problem with snoring, but it is also consistent with a desire on Mrs. Klimovich’s part not to be in intimate proximity to her husband.
[45] The Defendant suggests that Mrs. Klimovich had a motive to fabricate – or at least to exaggerate or embellish, in particular, her fear of Mr. Klimovich. The suggested motive arises from the impending separation. Mr. Klimovich asserts that his wife wanted to have an ally in the separation and therefore had a reason to embellish the effect of their arguments and anything said by Mr. Klimovich to her.
[46] It is certainly not an unknown phenomenon for a party embroiled in a matrimonial dispute to exaggerate and/or embellish the offence(s) and insults of an opposing party. In this instance, however, the suggestion that the motive to lie was to make an ally in the separation is, in my view, based on “a generalized assumption about failing relationships rather than any specific evidence heard on this voir dire”: see R. v. Polimac, [2006] O.J. No. 4757 (C.A.) at para. 81.
[47] Given the ages of the children at the time of the separation, it is hard to see just how much could be gained by ensuring that Alla remained aligned with her mother. Apart from perhaps moral support, there would be no apparent advantage in terms of a resolution of property and/or spousal support issues. Moreover, there was no ongoing litigation and none apparently contemplated. The suggestion was that both parents were hopeful of a peaceful separation and, indeed, at one point a draft separation agreement was delivered on Mr. Klimovich’s behalf to Mrs. Klimovich. It appeared from the evidence, in any event, that Alla was aligned with her mother and supportive of her for some considerable time prior to the separation. In other words, that alignment was not the product or result of the statements in issue. Alla Klimovich had her own, independent reasons for estrangement from her father.
[48] It is important, as Justice Rosenberg pointed out in R. v. Czibulka, as above, to distinguish between an absence of evidence of a motive to fabricate (which would be a neutral factor in the assessment of threshold reliability) and evidence of an absence of a motive to fabricate, which may provide an indicia of reliability. In this case, I am satisfied that there is circumstantial evidence from which it may be inferred that Mrs. Klimovich had no motive to fabricate. For instance, Mrs. Klimovich indicated to Alla that she wished to live separate and apart from Mr. Klimovich. In fact, Mr. and Mrs. Klimovich did separate, which supports the conclusion that Mrs. Klimovich was telling the truth when she said she wished to separate. Further, Mrs. Klimovich implored both Alla and her brother to maintain a relationship with their father. This fact weakens any suggestion that Mrs. Klimovich had a motive to exaggerate or fabricate in order to turn Alla or her brother against their father.
[49] There is no evidence that Mrs. Klimovich had a history of histrionic behaviour or was prone to exaggeration. Alla herself witnessed many arguments between her parents and, in the circumstances, was well placed to assess whether her mother’s statements to her were consistent with the arguments she overheard.
[50] The threat is a particularly significant utterance. Again, it seems to me that in the context of Mrs. Klimovich’s relationship with Alla, it would be unlikely for her to lie about the threat being made. Alla confirmed, under cross-examination, that the content of the threatening statement was not an uncommon turn of phrase in the Russian community. But she noted that her mother had appeared scared to her when she relayed the threat.
[51] I am troubled by the lack of detail in terms of the timing and circumstances of the statements. Many of the statements appear to have been made significantly prior to Mrs. Klimovich’s death. The timing of the threat, in particular, is not clear. For me, however, the issues regarding timing and particular circumstances go more to the ultimate probative value of the statements. I have already commented that, in my view, the statements provide evidence of a continuous fear of Mr. Klimovich and desire to live separate and apart from him over a period of time leading up to the separation, throughout the separation and, indeed, upon the realization that Mr. Klimovich was returning from Israel. The evidence is consistent with a persistent and unwavering state of mind.
[52] Ultimately, the circumstances of the utterances are sufficiently detailed and placed in context that the otherwise sufficient indicia of their reliability is not fatally undermined. I am satisfied that the twin criteria of necessity and reliability are met with respect to each of the proffered utterances. As such, the utterances are admissible under the principled exception. It remains necessary to consider whether the probative value of the evidence is exceeded by any prejudicial effect on Mr. Klimovich.
Prejudice vs. Probative Value
[53] The Defendant argues that the probative value of the utterances is outweighed by their prejudicial effect. I have already commented on the probative value of the statements. It is necessary to balance against that probity, any prejudice that might arise to the Defendant from the admission of these statements.
[54] In my view, there will be slight, if any prejudice, when considering the place this evidence will have in the context of the trial. The Defendant has conceded the admissibility of the recording of the 911 call he placed. During that call he indicated to the operator that he needed the police. When asked what for, his reply was, “I killed my wife.” He went on to say, “I killed her by knife” and to indicate that she was “in my bedroom.” Indeed, Mrs. Klimovich died as a result of multiple stab wounds and she was located in a pool of blood in the master bedroom. Mr. Klimovich was arrested at the scene a short time later covered in her blood.
[55] In view of the foregoing evidence, any moral prejudice to Mr. Klimovich arising from the evidence is slight indeed. Any reasoning prejudice can be adequately addressed with an appropriate instruction to the jury, indicating the purposes for which the hearsay evidence may and must not be used, the frailties of evidence of this nature and a reminder to consider this evidence in the context of all of the evidence to be adduced at trial.
Conclusion
[56] In conclusion, and for the foregoing reasons, I am satisfied that all of the statements identified at paragraph 18 above are admissible in evidence.
[57] I turn now to the second Crown application – to admit into evidence a specific utterance of the Defendant.
B. Utterance of the Defendant
[58] Voluntariness being established, on consent, the utterance of the Defendant is prima facie admissible. The Defendant argues, however, that his utterance ought to be excluded under s. 24(2) of the Charter as a remedy for a breach of his s. 10(b) right to counsel.
Section 10(b) Right
[59] The nature and scope of the rights guaranteed by s. 10(b) of the Charter have been the subject of significant Supreme Court jurisprudence: see R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233; R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190; R. v. Bartle, (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289; R. v. Prosper, [1994] 2 S.C.R. 236; and R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217.
[60] Over the course of R. v. Manninen, R. v. Brydges and R. v. Bartle, former Chief Justice Lamer refined a number of duties imposed on state authorities who arrest or detain a person, in an effort to foster fair treatment of the accused person and to promote the purposes of s. 10(b). Those duties were described in R. v. Bartle, at para. 17, as follows:
(i) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
(ii) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
(iii) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).
The Breach
[61] The Crown concedes that there was a breach of Mr. Klimovich’s s. 10(b) right to counsel arising from the failure of PC Leonard to refrain from questioning him about the circumstances of the offence until after the police had afforded him the chance to speak with counsel.
[62] During the voir dire, the following exchange took place between Crown counsel and Officer Leonard. To put the exchange into context, the officer had arrested Mr. Klimovich and read him his right to counsel. He also cautioned him that he need not say anything about the offence and that anything he did say could be used in evidence against him. Mr. Klimovich was handcuffed and seated in the rear of Officer Leonard’s police cruiser and Officer Leonard was sitting in the front seat with a notebook. They had not yet left the scene of the arrest at the front of Mr. Klimovich’s condominium:
OFFICER: At that time I asked the male, what happened? To which he replied, “I killed my wife, I stabbed her and cut her throat.” I asked him where his wife was. He replied that “she is on the bed.” I asked where the knife was. He also said, “it’s on the bed”. I asked him “what happened?” He stated, “she stole my tax return in 2008, she said she was going to kill me.” He continued to make utterances under his breath, in the rear of the cruiser. At that time I was recording the utterances on a separate piece of paper as previously stated.
CROWN: Ok, so at this point, you’re talking about questions you’re asking Mr. Klimovich, answers he’s giving you. Is he still in the back of the police cruiser?
OFFICER: Yes.
CROWN: Has the cruiser started to travel to the police station yet?
OFFICER: No, at this time we were just waiting for other emergency vehicles which had since arrived on the scene to move out of the way because they had blocked my cruiser in the roundabout at the front of the building.
CROWN: So that was delaying you in leaving?
OFFICER: Yes.
CROWN: Why did you ask him what happened and the follow up questions after that?
OFFICER: I was trying to figure out what was going on with the situation.
CROWN: Why? To what point? What was the point in that?
OFFICER: Because I’m a police officer and I’m there to figure out what’s going on so I just wanted to know what’s going on and if there’s any further information I could pass on to the officers who were upstairs that could assist with them.
CROWN: What is it that you felt was necessary to pass on to the police officers upstairs?
OFFICER: Any, if, any injuries that he knew of because they were just getting up there and anything I could ask him what happened.
CROWN: Did you pass on any of this information to police officers, the other police officers?
OFFICER: No I did not.
CROWN: Why not?
OFFICER: Because by the time I started talking to him officers were up with the victim at that time.
Events Subsequent to the Breach
[63] Officer Leonard was joined in his police cruiser by PC Matthew Houlieff, who drove Officer Leonard and the Defendant to 2 District station, about four minutes away. PC Leonard testified that, during the car ride, Mr. Klimovich continued to talk, without prompting. PC Leonard could not recall if it was one long narrative, or whether there were gaps, but he made notes of any significant utterances, which included “I killed my wife. I killed her. She said she was going to kill me and kill my family.”
[64] Officer Houlieff also recalled that Mr. Klimovich was making rambling utterances, in the back seat of the cruiser. He did not make note of them save for the comment, “I killed my wife, 28 years.” He recalled Mr. Klimovich as being distraught, breathing heavily and crying. Officer Leonard recalled him breathing heavily but not crying.
[65] The arrest of Mr. Klimovich occurred at 9:05 p.m. Officer Leonard asked him what happened at about 9:23 p.m. Mr. Klimovich was delivered to 2 District station at 9:33 p.m. He was paraded before Staff Sergeant Ian Clarke, who was in charge of the station that night. Mr. Klimovich appeared to Staff Sergeant Clarke to be exasperated and upset. He was not immediately responsive to questions and appeared to be mumbling incoherently and not everything he said was in English. He eventually began to calm down. He confirmed that he understood the reason for his arrest, responding that “I killed my wife.” Staff Sergeant Clarke re-read Mr. Klimovich his right to counsel and caution. In addition, there is a sign on the front of the booking desk which refers to the right to counsel. It is written in numerous languages, including Russian. PC Houlieff pointed out the Russian language version to Mr. Klimovich.
[66] After booking Mr. Klimovich into the station, Staff Sergeant Clarke instructed Officers Leonard and Houlieff to place Mr. Klimovich into Interview Room #1, which is located in the cells area, close by the booking desk. There, he was to await his call from duty counsel. Staff Sergeant Clarke did not want to put Mr. Klimovich into a cell because he was worried that he might wash himself. He was attempting to get the water turned off in one of the cells. In the meantime, he wanted Mr. Klimovich to be under the watch of the two officers because he was concerned about the destruction of evidence.
[67] Inside Interview Room #1 is a bench, a table, and a phone. The room is videotaped, but there is no audio recording. PC Leonard testified that Mr. Klimovich sat on the bench in the interview room. He started to talk to himself again. Officers Leonard and Houlieff both stood inside the interview room with Mr. Klimovich, one on either side of the door. The door was open behind them. PC Leonard said that the reason for doing this was to ensure that Mr. Klimovich did not try to wipe the blood from his hands and to ensure that he was medically sound. He was continuing to breathe heavily and was sweating and holding his chest. PC Leonard asked him repeatedly if he was okay and he responded that he was, but that he just needed water. PC Leonard recalled that he was holding a bottle of water and would pass it to Mr. Klimovich when he requested a drink.
[68] According to PC Leonard, Mr. Klimovich continued to make utterances throughout his time in the interview room. PC Leonard denied that he was prompting Mr. Klimovich and said the only questions he asked were about his health. Mr. Klimovich appeared to be replaying the day in his head. He was not speaking directly to the officers, but just seemed to be talking. At about 9:56 p.m. he uttered the phrase that the Crown seeks to introduce into evidence, namely:
Today I went shopping and came home and prepared food for my wife and kids, she drank wine, after dinner she said when I go to bed she was going to hit me with a bottle and kill me, then she said she was going to kill my family. We were fighting in the bedroom.
[69] A call to duty counsel had been placed by another officer – Detective Slywchuk – and duty counsel called back to speak to Mr. Klimovich at 10:20 p.m. Mr. Klimovich had been in the interview room for about 30 minutes before duty counsel called. During that time, PC Leonard said that he asked Mr. Klimovich how he was doing – whether he was ok – every couple of minutes, perhaps ten times or more.
[70] PC Houlieff’s account of Mr. Klimovich’s behaviour in Interview Room #1 was similar to that of PC Leonard. PC Houlieff testified that Mr. Klimovich calmed down somewhat once he was in the interview room. He was constantly talking to some degree. PC Houlieff could not always understand him and it wasn’t clear whether he was speaking in English the whole time. Other than asking Mr. Klimovich if he was okay, there was no other conversation between the officers and Mr. Klimovich. He asked for water and they gave it to him.
[71] Detective Slywchuk testified that he made the call to duty counsel for Mr. Klimovich. He also met with Mr. Klimovich briefly in Interview Room #1. He said Mr. Klimovich had been placed in that room at 9:47 p.m. He attended the interview room to let Mr. Klimovich know that the charge against him had been upgraded from assault with a weapon to murder. He re-read his right to counsel because of the change in his jeopardy.
The Tainting Effect of the Breach
[72] I find as a fact, for the purposes of this application, that none of the officers involved – PC Leonard, PC Houlieff, Staff Sergeant Clarke and/or Detective Slywchuk – questioned Mr. Klimovich about the offences after he arrived at the station. In other words, the only Charter breach I find relates to the questioning of Mr. Klimovich by Officer Leonard in the police cruiser at Weldrick Avenue. The question, then, is whether Mr. Klimovich’s utterance at 9:56 p.m. in Interview Room #1, is tainted by that earlier Charter breach.
[73] In R. v. Wittwer (2008), 2008 SCC 33, 231 C.C.C. (3d) 97, at para. 21, (S.C.C.), Fish J. held that “in considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct.”
[74] The Crown’s position is that the utterance in issue is not connected in any way to the breach. It is separated in time and place and, in any event, Mr. Klimovich was clearly a person prepared to make spontaneous utterances.
[75] The Defence position is that the utterance is clearly connected to the breach. It came a short time after the breach, in the presence of the same officer who committed the breach and was merely a part of a continuous narrative set in motion by the breach.
[76] Officer Leonard clearly questioned Mr. Klimovich improperly. That said, his questioning ended sometime before 9:30 p.m. and the statement in issue was uttered at 9:56, roughly a half an hour later. I accept that 30 minutes may be considered a brief period of time, or it may very well be a significant period of time, depending on the circumstances. In this case, a good deal happened in that half hour period. Mr. Klimovich was transported from the scene of the offence and arrest to 2 District Station. He was not questioned further during the car ride. He was paraded before Staff Sergeant Clarke and advised of his right to counsel and cautioned. He was furthermore directed to a posted notice, written in Russian, about his right to speak with counsel. He was given water. He was placed in another room to await a call from duty counsel. He calmed down somewhat. He was again given his right to counsel by Det. Slywchuk, though apparently not otherwise cautioned about his right of silence. He was not questioned further about the offences.
[77] This is one of those cases where a compelling argument can certainly be made on both sides of the issue. It is my view that the utterance, on balance, is not part of the same transaction associated with the Charter breach. There was a meaningful break in time and space between the offensive questioning and the utterance in issue. There were a number of intervening events, including two further notifications of the right to counsel and at least one further caution. These notifications and caution were given in a controlled environment separated in time and space from the arrest scene. All the while Mr. Klimovich appeared to be engaged in a spontaneous, rambling narrative of the events of the day.
[78] There is certainly much to be said for the Defence argument. The breach was clear and certainly did give rise to significant statements from Mr. Klimovich. The police officer who committed the breach did remain at Mr. Klimovich’s side throughout the relevant time period. He continued to interact with Mr. Klimovich from the time of the arrest to the time custody of him was turned over to a homicide detective. But in my view, the Defendant’s position is ultimately not borne out on the facts. Mr. Klimovich demonstrated a clear tendency to make spontaneous utterances throughout a period from prior to his arrest right up until speaking with duty counsel. He called 911 and stated that he killed his wife with a knife. In the car ride to the police station, he rambled on his own, uttering at one point, “I killed my wife, 28 years.” At the station, in answer to Staff Sergeant Clarke’s inquiry as to whether he understood the reason for his arrest, he said, again spontaneously, “I killed my wife”. When asked about his health, he said, “I don’t have a problem…well I have a problem my whole life…just my wife is my problem”.
[79] Staff Sergeant Clarke confirmed that Mr. Klimovich was mumbling incoherently, sometimes in English and other times not. That continuous rambling carried on in Interview Room #1, where the statement in issue was ultimately uttered.
[80] I find that Mr. Klimovich gave direct responses to Officer Leonard’s improper questions and that those responses are clearly the result of the Charter breach. But I also find that Mr. Klimovich made spontaneous utterances both before his arrest and afterwards and that he would have continued to make spontaneous utterances with or without the Charter breach. I appreciate that a causal connection between the breach and the utterance is not required. It is sufficient if the breach and utterance can be said to be part of the same transaction. I am not satisfied that they are, in this instance. It is the Defendant’s onus to establish the Charter breach and the tainting of the utterance by the breach. On balance, I am not satisfied that the onus has been met. I do not find that there is a sufficient nexus between the breach and the utterance in issue such that the utterance is tainted.
[81] In the result, it is unnecessary to address s. 24(2) of the Charter. Voluntariness having been conceded, I find no basis to exclude the utterance of the accused.
[82] I wish to thank counsel for their thorough preparation and their efficient and helpful submissions throughout.
Boswell J.
Released: February 29, 2012
[^1]: I have found that most of the proffered statements are admissible under the traditional, state of mind, exception to the hearsay rule. It is rare for evidence falling within a traditional exception to nevertheless be excluded under the principled exception. In such cases, the party challenging the admissibility bears the burden of showing that it should be inadmissible: see R. v. Starr, as above, para. 214. Accordingly, save for the statement relating to the threat, the Defendant actually bears the onus to demonstrate that the utterances in issue ought not to be admitted in evidence. That said, in my view, the matter of onus is not determinative in the circumstances of this case. In other words, as will be apparent below, I am satisfied that there are sufficient indicia of reliability to admit the hearsay utterances into evidence. Whether this is described as a failure of the Defendant to meet his onus, or the Crown satisfying its onus is not material.