ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1552/11
DATE: 20120426

BETWEEN:
HER MAJESTY THE QUEEN – and – ROGER CRAIG SHORT

Richard Weatherston and Joseph Perfetto, for the Crown
Philip Millar, for the Roger Craig Short

HEARD: January 23, 24, 25, 26, 27, April 3 and 4, 2012.

DESOTTI, J.

1The Crown has brought four pre-trial applications as follows:

a) An application to admit statements made by Craig Short to the police.

b) An application to adduce evidence of disreputable conduct.

c) An application to adduce evidence of post offence conduct.

d) An application to adduce evidence of hearsay statements of the deceased to reflect the deceased’s state of mind prior to her death.

2Initially, defence counsel sought to introduce post offence conduct that was inconsistent with any negative inference of a guilty mind or conduct but has abandoned this application.

3The Crown has called evidence with respect to all of these matters and has produced transcripts and recordings of the evidence upon which they rely.

4In the course of these proceedings, the Crown has also produced a chart to highlight the evidence that it seeks to adduce that is consistent with the prescribed exceptions to the admission of hearsay evidence such as statements of the deceased reflective of her state of mind and the many utterances of the accused. In a similar manner to the process followed by Justice Doherty in the decision of R. v. P. (R.) and Justice Ratushny in R. v. Stevenson, I will attempt to steer my way through this evidence as a means of determining what is or is not admissible.

5Finally, defence counsel acknowledges that the accused was often verbally abusive to his wife Barbara Short and treated her at times rudely, crudely and generally displayed boorish behaviour towards her in public. On the other hand, the defence position is that there is no evidence that Craig Short ever physically abused his wife and after he received the letter from his wife’s lawyer, he attempted to conduct himself with her in a more appropriate manner.

A. Admissibility of Hearsay Evidence of the Deceased, Statements of the Deceased and of the Accused that Reflect Motive, and Disreputable Conduct

6My initial focus will be on the different considerations with respect to hearsay evidence as reflected in statements by the deceased and the accused to third parties. There is a significant distinction as a matter of law between these two types of statements. With respect to the latter, the Supreme Court of Canada in the decision of R. v. Evans at paragraph 24 indicated as follows:

The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party.

7The onus on the Crown in these latter circumstances is to prove on a balance of probabilities that the accused actually made those statements.

8In R. v. Starr, the Supreme Court put forward some concrete principles with respect to hearsay statements made by a deceased to a third party. The first concern is whether the statement that is sought to be introduced was made under suspicious circumstances. If there is some suspicion as to whether the statement was made by the accused, or as Justice Doherty indicated in R. v. Foreman, where there is some concern about the circumstances of the making of the statement, then regardless of the purpose for which the statement is intended to be used, it will be decidedly unreliable and thus inadmissible.

9On the other hand, hearsay evidence in statements made by a deceased to third parties that reveal a motive by the accused to commit the offence is regarded, as a matter of law, generally to be admissible. Again, on the assumption that those statements are not fabricated or suspicious and in considering all of the circumstances surrounding the making of these statements that they appear on balance to be reliable, then they are admissible subject to certain temporal concerns that may arise that may result in a greater prejudicial effect than any probative relevance.

10In R. v. Walker, the British Columbia Court of Appeal in reference to an earlier decision of the same Appellate Court in R. v. Lemky at paragraphs 24-25 affirmed the proposition that:

The state of mind of the victim as regards the relationship with a domestic partner can be relevant to the presence and absence of motive and a declaration made by the deceased shortly before death may be admissible if it meets the test of necessity and reliability.

In this case there was a domestic homicide. Declarations of the deceased made shortly before her death concerning her relationship with the [accused] revealed her state of mind and they were relevant to the motive for the killing as alleged by the Crown.

11In that case, the deceased advised her brother-in-law and her sister-in-law less than ten days before her death that she was leaving the accused. Moreover, this Appellate Court specifically concluded that the statement of law in R. v. Starr was not in conflict with this stated position. Furthermore, they concluded at paragraph [59], that “without this additional evidence of the nature of the relationship between the appellant and Ms. Thomas, the jury would have been deprived of important evidence relating to the relationship.”

12The Court of Appeal of British Columbia went on to say at paragraph [54] in Walker that the above excerpt is a correct statement of the law as it applies to the circumstances of this case. In addition, they also referred to the R. v. P.(R.) decision and noted that the Court of Appeal of Ontario in R. v. Smith had specifically approved of the approach of Justice Doherty.

13As indicated in Walker, a similar conclusion had been reached by Justice Doherty in R. v. P. (R.). He concluded that motive was relevant to intent, and was the crucial fact in issue. Also, the decision by the Ontario Court of Appeal in R. v. Foreman, previously referenced, again by Justice Doherty at paragraph [38] points out a significant distinction between a statement made by a deceased concerning an alleged threat by an accused and in Starr a tendered statement that “could not be attributed to the accused.”

14Justice Doherty went on to affirm that in those cases where the reliability of what was stated by the accused to a third party is not seriously challenged, then the “reliability threshold had been crossed” (para.40).

15In R. V. Mapara, the Supreme Court of Canada affirmed a certain frame work when considering the admissibility of hearsay evidence as follows:

a. Hearsay 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 principle 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.

16Justice McLachlin went to state at paragraph 16 of this decision the following:

Admissibility of evidence is determined on the basis of “threshold reliability” provided by circumstantial indicators of reliability. The issue of “ultimate reliability” is for the trier of fact, in the case of the jury.

17There are some other important factors to weigh in this determination. In R. v. Wills, Justice Fuerst had to determine if certain statements made by the deceased and the accused were admissible. In that case, the accused and deceased made certain statements to third parties at various times that might reflect both motive and their state of mind.

18Justice Fuerst was concerned not with what either the deceased or the accused had said but the significant lapse of time between the statements that were attributed to either party. In that case, the statements attributed to the deceased were said to have been made over a year and a half before the February 2002 disappearance of the deceased and some of the utterances attributed to the accused that may have conveyed past threats (disreputable conduct) were concluded by Justice Fuerst to be vague, ambiguous, and capable of misapprehension.

19Justice Fuerst accepted without qualification the principle of law as articulated in the Ontario Court of Appeal decision in R. v. Jackson, that motive, in the sense of emotion such as anger or jealousy, which is likely to lead to the doing of the act as well as the intent with which it was done is properly admitted evidence. In Wills, as determined by Justice Fuerst, the temporal connection was lacking, the reliability of what was actually said was ‘less certain’, and in the result, balancing the question of probative value versus prejudicial effect of their inclusion, the statements were excluded.

20In this sense, Justice Fuerst mirrored the same type of analysis that Justice Doherty conducted in R. v. P. (R.). In his conclusion, Justice Doherty accepted certain statements of the deceased to third parties as admissible and others he rejected as not satisfying the probative relevance test and the prejudicial effect that might result if the statements were introduced in the trial.

21The prejudice that Justice Doherty was concerned with was not that this evidence might increase the likelihood of conviction but rather that the evidence might be improperly used by the trier of fact. The trier of fact might conclude that the accused is a “bad person” and has thus the propensity to commit the offence.

22In more concrete terms, Justice Doherty accepted the following statements of the deceased to third parties:

1. A statement of the deceased to a third party (Carpenter) some two months before her disappearance that she was moving to a new apartment was admissible.

2. The statements in February, 1988, some days before her disappearance, to a Ms. Dao and Ms. Kil that the deceased had formed a fixed intention to remain permanently away from the accused and to keep the accused out of her life were deemed to be admissible.

3. Her statements to Mr. Fisher in January of 1988 (2 months before her disappearance) that she intended to leave the accused and to attend at Immigration to pre-empt any untoward attempts by the accused to turn her over to Immigration, were admissible as reflective of her state of mind but her comments about what the accused had done to the deceased in the past and that he treated her “like a slave” were determined to be inadmissible as highly prejudicial and not capable of establishing that the accused had in fact engaged in that activity.

4. The statement to S.S. in February of 1988 that the deceased was happy to have left the accused and that she was determined to remain separate from him was deemed to be admissible but earlier statements in 1987 to the same S.S. much to the same effect were deemed to be inadmissible. On this latter determination, although these statements reflected the deceased’s state of mind, they were not contemporaneous to the deceased’s disappearance and were thus less probative of her present state of mind.

23Specifically, Justice Doherty affirmed the approach that a judge should take to balance the probative value of this evidence as reflected in a paper presented by then Marc Rosenberg to the Criminal Lawyers Association in 1989 as follows:

1. The judge must determine the probative value of the evidence by assessing the tendency to prove a fact in issue in the case including the credibility of the witnesses.

2. The judge must determine the prejudicial effect of the evidence because of its tendency to prove matters which are not in issue [or I add because of the risk that the jury may use the evidence improperly to prove a fact in issue]

3. The judge must balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions.

24Obviously, certain ultimate determinations by Justice Doherty’s of the admissibility of hearsay evidence that were reflective of the deceased’ state of mind have some considerable weight in my analysis of the hearsay evidence that is before me in this application. For example, statements of the deceased that were dated (over a year before the presumed death of the deceased in R. v. P. (R.)) without any connection to more recent statements of the deceased were excluded.

25In both Wills and P. (R.), earlier statements of the deceased were excluded as there was a significant gap between what the deceased had opined to a third party about her state of mind (her relationship with the accused) and her death some considerable length of time after these statements.

26In my analysis, I have added one additional consideration. In neither the Wills nor P. (R.) decisions was there any continuous connection with the dated statements of the deceased with more recent statements that in P. (R.) were found to be admissible. Justice Fuerst indicated that none of the statements sought to be adduced into evidence were contemporaneous with the death of the deceased.

27In this sense then, there may be circumstances where the continuous state of mind of the deceased might have some probative relevance particularly if these statements were ongoing even if dated (see Justice LaForme’s decision in R. v. Pasqualino). The mischief that has been addressed in the decision of Wills and P. (R.) is not that the statements had been made but that the statements may have too great a prejudicial effect if not more recently connected to the criminal offence, the death of the party making the statements.

28To put this another way, if the statements do not have some real and direct bearing on the criminal offence, if they are separated by a meaningful period of time without connection to the criminal offence, then their relevance becomes equally dated and more prejudicial without the requisite probative relevance.

29In Wills, the concern expressed by the deceased about the jealousy of the accused over a year before her death, was more prejudicial than probative. Obviously, had this state of mind of the deceased been a continuous mindset as revealed through the evidence before the court, then as Justice Fuerst indicated there would have been “a chain of reasoning” as opposed to many missing “links in the chain”.

30I note that Justice Molloy in R. v. Hindessa also came to the same conclusion with respect to dated statements attributed to the deceased. She indicated at paragraph 96 that “there is a real risk that the jury could wrongly infer that a state of mind in 2005 is indicative of a state of mind in May 2006. In my view, the probative value did not outweigh this risk of prejudice.”

31There is also one other very important principle, which was reflected by Justice Doherty in R. v. P. (R.) and affirmed by the Court of Appeal in R. v. Smith at page 237 paragraph (f).

Evidence is not, however, admissible to show the state of mind of a person other than the deceased (unless they were aware of the statements), or to show that persons other than the deceased acted in accordance with the deceased stated intentions, save perhaps cases where the act was a joint one involving the deceased and another person. The evidence is also not admissible to establish that past acts or events referred to in the utterances occurred.

32Clearly, if this type of hearsay of past acts or events were allowed, the accused would be placed in the impossible situation of attempting to discredit his accuser’s assertion of conduct or behaviour based on a hearsay statement that could not be challenged through cross-examination or any other means.

33The other serious concern that is raised by defence counsel is that the deceased may have made ante-mortem statements to third parties because she contemplated divorce proceedings and wanted to create the proper circumstances to justify, for example, an exclusive possession order with respect the matrimonial home or at least a non-molestation, non-harassment, and non-communication order. In other words, the deceased had a motive to fabricate stories about verbal and emotional abuse.

34There is no question that the deceased went to a lawyer and contemplated both a separation and dissolution of her marriage. At the time of her death, however, no divorce papers were served on the accused, although he had received a letter outlining the position of his wife from his wife’s lawyer and an application had been drafted.

35This background of circumstances is quite different than what occurred in R. v. Czibulka. In that case, it was apparent because of the ongoing conflict between the parties over custody of the children and the purposeful manner in which the deceased conveyed certain bruises to her attendant physician that she was orchestrating realities to portray the accused in an unfavourable light to third parties.

36The Court of Appeal of Ontario held that her statements to third parties in these circumstances were thus unreliable. In effect, she was attempting to create a record, a fact indicated by her physician when he stated that when the deceased showed him her bruising she indicated that she was showing them “for the record”.

37In the matter before me, while it is true that the deceased had seen a lawyer and may have contemplated a divorce or separation, this fact and her many statements concerning her intent to leave the accused and his attitude towards her do not have the same sense of contrivance or designed purpose as reflected in Czibulka.

38Furthermore, in the Supreme Court of Canada decision in R. v. Blackman at paragraph 42 as discussed in R. v. Pasqualino, the existence of a motive to lie is “but one factor to consider in the determining of threshold reliability”.

39While the deceased may have been having an affair and may have concealed this fact from her friends and family, her comments to her friends and family about her husband’s attitude, demeanour and comportment towards her were consistent and spontaneous and was not, in my view, for the purpose of “creating a record”. These conversations seemed to flow naturally between the various parties without any attempt on the part of the deceased to fabricate or promote her dissatisfaction with her marriage and her relationship with her husband.

40On the facts in this case, there was no need for the deceased to obtain any moral or material support from others. She was either on the verge of leaving the accused or was resigned to remain for some undetermined period of time that she believed may have been more advantageous to her. Certainly, there is some evidence that the accused appeared to be exercising better behaviour towards her than he had exhibited towards her in the past.

41Before leaving the decision of Pasqualino, there was one other interesting statement by the deceased that was admitted by the trial judge and that was accepted by the Appellate Court. The deceased had a conversation with her friend, a Silvana Panetta, a year and half before her death, about her fear of the accused, several past incidents of abuse at the hands of the accused, and including one incident where he was said to have broken her nose while travelling in their motor vehicle.

42The trial judge, as indicated by the Appellate Court at paragraph 48, accepted this hearsay evidence as sufficiently proximate in time to the killing “and that it illuminated important aspects of the factual matrix surrounding the crime, including the victim’s state of mind and the prevailing matrimonial environment”.

43There are some difficulties in the acceptance of this hearsay statement given my previous analysis of hearsay evidence that was not accepted by either trial or Appellate Courts. The account of the broken nose occasioned by the accused as stated by the deceased to Ms. Panetta should have fallen within the exclusion of hearsay evidence that seeks to affirm “past events” even though there was evidence from the children of the accused that affirmed that this incident had in fact occurred.

44Other hearsay evidence about this type of past abuse was not accepted by the trial judge particularly that of the children of the deceased who provided hearsay evidence of the accused past violence generally and of this specific incident (the broken nose). Counsel for the appellant submitted that it made no sense to accept the evidence of Ms. Panetta about what the deceased had stated to her about this incident when arbitrarily the trial court rejected the evidence of the children on the same point.

45At paragraph 47, the Appellate Court stated:

The trial judge found the children’s evidence of this incident -- which they had directly witnessed -- to be reliable, but excluded it on the basis that accounts of abuse simpliciter that occurred several years prior to the killing were more prejudicial than probative. The trial judge’s rejection of the children’s direct evidence of this incident as bearing insufficient probative value, however, in no way precluded him from finding Ms. Panetta’s hearsay evidence of the incident both (i) sufficiently reliable to permit threshold admissibility under the principled exception and (ii) on balance more probative than prejudicial and therefore admissible.

46At paragraph 48, the Appellate Court indicated that:

In contrast to the children’s evidence, which merely related the facts of a past incident of abuse, the trial judge found that Ms. Panetta’s hearsay account of the incident was an integral part of a conversation that was sufficiently close in time to the killing and that it illuminated important aspects of the factual matrix surrounding the crime, including the victim’s state of mind and the prevailing matrimonial environment. This conversation demonstrated the deceased fear of the appellant, which would reduce the likelihood that she would have provoked the appellant. Given the trial judge’s broad discretion in weighing probative value against prejudicial risk, this determination was not in error.

47In the trial decision, affirmed by the Ontario Court of Appeal, the year and a half that had elapsed prior to the statement of the deceased to Ms. Panetta was stated to be “sufficiently close in time to the killing”. However, in that case, there were significant factual connections with this dated statement to Ms. Panetta and the eventual killing of the accused’s wife.

48In Justice LaForme’s overview, he indicated the following:

For many years the marital relationship between the appellant and his wife had been stormy and unsettled, There was evidence that the appellant, over the years, had repeatedly subjected his wife to both physical and verbal abuse, including utterances that he would kill her if she ever tried to leave him.

49Without the benefit of all of the trial evidence that was before the Appellate Court, there does seem to have been a “chain” of events going back in time leading to the eventual death of the accused’s wife, Marisa Pasqualino. This connecting evidence distinguishes this decision from other decisions that determined that earlier statements of the deceased, a year or years earlier, were insufficiently connected with the victim’s death.

50I would also add that in light of the Appellate Court’s overview, which highlighted years of physical abuse by the accused towards his wife, this evidence in some manner found its way before the court without the necessity of any evidence about physical abuse originating from his children.

51Furthermore, another significant difference in accepting the deceased’s statement of the past action of the accused (breaking her nose) was that there was clear and irrefutable evidence that the event that was indicated by the deceased to her friend in fact had occurred.

52Finally, and without much disagreement as a matter of law, where there is clear and reliable evidence that prior conduct of the accused towards his spouse, girlfriend, or common law partner that reflects a stormy relationship, abusive conduct, prior physical assaults, threats by the accused and a general disposition for controlling and angry reactions and rage towards his partner, this evidence has significant probative value with respect to the motive that the accused may have to do precisely what is alleged against him.

53Specifically, in R. v. Foreman, with Justice Doherty delivering the judgment of the Court of Appeal of Ontario, he affirmed the distinction between an utterance of an accused conveying a threat and a hearsay statement that attempts to convey the state of mind of an accused. While the latter is clearly inadmissible, the former is admissible provided it satisfies the trustworthy test.

54In Foreman, the circumstances surrounding the making of the statement went decidedly unchallenged and only the contents were challenged in cross-examination. The result was the court upheld the trial judge’s ruling that the reliability threshold had been crossed.

55Decisions of R. v. P. S., R. v. Batte, R. v. F.(D.S.), R. v. Pasqualino, and R. v. Cudjoe, all affirm the proposition that reliable evidence of disreputable conduct that demonstrates motive is admissible as a matter of law. The only caveat is that the court should caution the jury about the use of this evidence as was the detailed and appropriate instructions of the trial judge in R. v. P. S.

56Counsel for the accused submits that this disreputable conduct evidence is firstly unreliable and thus should be excluded; secondly, the evidence is too dated to be of any probative value; and thirdly, that the deceased was merely creating a record to hide her own transgressions with other men in her life. For these reasons, I should not admit into evidence most of the statements of the deceased.

57I shall refer to the chart provided to the court by the Crown to guide my ruling on the admissibility of the evidence that the Crown and defence seek to introduce at the trial. In addition, I will provide certain guiding principles from the decisions referred to in my analysis regarding hearsay evidence, statements made by the both the deceased and accused, and evidence of disreputable conduct. These guiding principles are as follows:

1. Hearsay evidence is presumptively inadmissible unless it falls within an exception to the hearsay rule.

2. Any hearsay statement that is sought to be introduced must meet the threshold of reliability. Any suspicion about the authenticity of the statement would render the statement inadmissible.

3. Even a statement that meets the threshold of reliability must still be assessed by the trier of fact. This is sometimes referred to as the “ultimate reliability” (Justice McLaughlin).

4. The length of time that has elapsed from a statement that is deemed to be reliable is one factor that a trial judge must consider when determining relevance and probative value versus the prejudice that might arise if it is determined to be admissible.

5. Dated statements may be less relevant and of less probative value unless they can be connected by a “chain” of events leading to the criminal offence (see R. v. Wills, R. v. Hindessa, R. v. P. (R.) and R. v. Pasqualino).

6. Reliable hearsay evidence reflecting the statement of mind of the deceased is an exception to the hearsay rule and usually admissible.

7. There are some exceptions to the admissibility of this state of mind statements of the deceased. Where the statement seeks to affirm a past event or occurrence in the utterance of the deceased, they are excluded (see R. v. Smith and R. v. P. (R.)). Secondly, when the statement itself is more prejudicial than probative such as was the case in R. v. P. (R.) where the deceased indicated that the accused treated her “like a slave”, they are excluded. Thirdly, where the statement seeks to characterize the state of mind of another person, usually the accused, they are excluded (see R. v. Smith). Fourthly, where the statements of the deceased are dated and unconnected to the criminal occurrence, they are excluded as more prejudicial than probative of the present state of mind of the deceased (see R. v. P. (R.), R. v. Wills, and R. v. Hindessa). Fifthly, where the evidence of the state of mind of the deceased has an element of contrivance or where its purpose is to create a record, these statements are excluded as not probative of the state of mind of the deceased (see R. v. Czibulka).

8. Utterances of an accused that convey a threat are not considered hearsay but are admissible provided the circumstances of their utterances are trustworthy and without ambiguity.

9. State of mind statements of the deceased that are indicative of a motive to commit the offence are relevant, probative and admissible (see R. v. P. (R.), R. v. Walker, R. v. Smith, R. v. Jackson, and R. v. Lemky).

10. As Justice Blair of the Ontario Court of Appeal indicated in R. v. Christopher Baldree with respect to hearsay evidence at paragraph [152], “if a 100 legal professionals were placed in a room and asked whether the proffered evidence constitutes hearsay, the question would generate 40 firm responses in the affirmative and 40 equally firm responses in the negative, with the remaining 20 falling into the unsure category.” In concluding that he fell into the “unsure” category with respect to the hearsay evidence in the Baldree appeal, he preferred a different approach to the characterization of evidence into hearsay or non-hearsay categories. In these difficult scenarios, he indicated that perhaps a better approach was to focus on the principle approach of necessity/reliability and prejudice vs. probative value. In the result, he concluded that the one call made to the cell phone concerning the purchase of drugs absent any follow up by the police to the caller who had indicated where he could be found, negated any semblance of reliability.

58The Crown and defence have agreed that some of the statements made by the deceased as admissible as meeting one of the many hearsay exceptions that allow these statements to be adduced at trial and satisfy the threshold reliability test. The parties disagree with respect to other statements and I have indicated in the course of our interaction and exchange in court that I was either probably of the view that the statement was admissible or probably of the view that the statement was inadmissible. In doing so, I indicated that I would review again all of these statements that were contested and provide my ruling in advance of the jury selection.

59For reasons stated, the following statements I have concluded meet both the reliability threshold and an exception to the hearsay rule as reflective of her state of mind. In these circumstances, necessity of course is not in issue. Where the statement is not contested, I will indicate same in brackets under the statement.

(Statements 1–36 reproduced verbatim as in the source HTML.)

60The following statement or sentences have either been excluded on consent or I have excluded them as to the prejudicial value outweighed their probative value.

61I have also excluded some statements such as the deceased’s conversation with her doctor as adding nothing to the history of the parties relationship with one another and other statements that I considered as double hearsay. The one other statement I have excluded concerns Barbara Short conversation with her neighbour Gary Crawford.

62This statement I have concluded based on the decision in R. v. Khelawon does not meet the reliability threshold. There was a significant history of dislike between the Crawfords and Barbara and Craig Short that seems to make this conversation between Barbara Short and Gary Crawford more unlikely. I cannot say it didn’t happen, I just am not satisfied that it meets the reliability threshold.

63On the other hand, I will allow both neighbours, that is, Gary Crawford and Ashley Bowling to testify that they often heard Craig Short yelling at his wife and saying things to her that they considered to be verbally abusive.

64The excluded statements are as follows:

(Statements 1–19 reproduced verbatim as in the source HTML.)

65With respect to specific evidentiary occurrences that reflect disreputable conduct, the witnesses detailing the following occurrences are permitted to give testimony about what they heard or saw as this evidence is reliable and the probative value exceeds any prejudice to the accused.

(Occurrences 1–7 reproduced verbatim as in the source HTML.)

66I have excluded one statement under disreputable conduct where I considered there prejudicial value exceeded any probative value. I have excluded Laura Bowling entire statement as there is no time frame, the account is repetitious of other account affirming the same type of conduct and there is the reference that in the statement that Craig Short treated Barbara Short “like a slave” which would be highly prejudicial.

B. Post offence Conduct

67Numerous cases are relied upon by counsel for the accused and for the Crown. The most recent decision of R. v. White of the Supreme Court of Canada is an appropriate starting point in assessing the Crown application.

68Five of the Justices agreed that paragraph 137 of Justice Binnie’s dissent correctly states the law:

it is wrong to suggest that anything said or done by an accused after the commission of an offence gives rise to special rules of admissibility, or that it is subject to a special warning as to what use may be made of it by the trier of fact.

69Post‑offence conduct is therefore not a special category of evidence but is to be weighed with all the evidence.

70The Supreme Court nevertheless recognized circumstances where caution may be required, including eyewitness identification evidence, jailhouse informants, lying to police, and demeanour evidence.

71Observations of demeanour may require special caution where the inference being drawn amounts to speculation about an accused’s mental state.

[ 72 ]–

79(Discussion of R. v. White and the distinction with R. v. Arcangioli reproduced verbatim as in the source HTML.)

80In reviewing this decision, several principles emerge regarding post‑offence conduct.

81The Ontario Court of Appeal decisions in Regina v. Hall and Regina v. Belic modified the standard jury instruction to reflect that post‑offence conduct should be assessed together with all the evidence in determining guilt.

82The purpose of the amendment was to better conform to the Supreme Court of Canada’s decision in Regina v. White.

83Most of the post‑offence conduct consists of statements or actions of the accused to third parties.

84The Crown’s theory is that some of these discussions were intended to disguise the accused’s responsibility and to advance an alternative explanation involving a gasoline thief.

85I accept that the Crown may call this evidence for those purposes.

86There is no suggestion that the evidence is unreliable and its probative value outweighs any prejudice to the accused.

(Items 1–25 describing post‑offence conduct witnesses reproduced verbatim as in the source HTML.)

87Since many witnesses will be called in this matter and will be asked questions about the relationship of the Shorts, specifically where I have excluded their evidence on a certain issue, there shall be no attempt to have them engage in answers that might touch on matters so excluded.

“Justice John A. Desotti”

The Honourable Mr. Justice J.A. Desotti

Released: April 26, 2012.

CASES CONSIDERED

R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723 (C.A.); R. v. Candir, 2009 ONCA 915 (), [2009] O.J. No. 5485 (C.A.); R. v. Bari, 2006 NBCA 119 (), [2006] N.B.J. No. 532 (C.A.); R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72; R. v. R. (P.L.), 2004 CarswellNS 306; R. v. Maragh, 2003 Carswell 2449; R. v. MacKinnon, (1999) 1999 1723 (ON CA), 43 O.R. (3d) 378; R. v. Burton, 2000 CarswellOnt. 3916; R. v. Beland and Phillips (1987), 1987 27 (SCC), 36 CCC (3d) 481; R. v. Baltrusaitis, 2002 36440; R. v B. (S.) (1997), 1997 6319 (ON CA), 36 OR (3d) 516; R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449; R. v. S.G.T. 2010 SCC 20 (), [2010] 1 S.C.R. 688; R. v. Batte, (1999) 2000 5751 (ON CA), 145 C.C.C.(3d) 449; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. Arcangoli, 1994 107 (SCC), [1994] 1 S.C.R. 129; R. v. Peavoy, (1997), 1997 3028 (ON CA), 34 O.R. (3d) 620; R. v. Hall, 2010 ONCA 724 (), [2010] O.J. No. 4603; R. v, Stiers, [2010] O.J. No. 2185; R. v. Cudjoe (2009), 2009 ONCA 543 (), 251 O.A.C. 163, [2009] O.J. No. 2761 (ONCA); R. v. Figueroa (2008), 2008 ONCA 106 (), 233 O.A.C. 176 (C.A.), [2008] O.J. No. 517; R. v. Chenier, 2006 3560 (ON CA), [2006] O.J. No. 489; R. v. Armstrong, 2003 29258 (ON CA), [2003] O.J. No. 3610; R. v. Diu (2000), 2000 4535 (ON CA), 49 O.R. (3d) 40; R. v Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9; R. v. Griffin, 2009 SCC 28 (), [2009] 2 S.C.R. 42; R. v. Evans, 1993 86 (SCC), [1993] 3 S.C.R. 653; R. v. Khelawon, 2006 SCC 57 (), [2006] 2 S.C.R. 787; R. v. Starr, 2000 SCC 40 (), [2000] 2 S.C.R. 144; R. v. F.(D.S.) 1999 3704 (ON CA), [1999] O.J. No. 688 (ONCA); R. v. Handy, (2002) 2002 SCC 56 (), 164 C.C.C. (3d) 481 (S.C.C.); R. v. Hindessa, 2009 48836 (ON SC), [2009] O.J. No. 3837 (Ont. Sup. Ct.); R. v. Jefferson [2010] O.J. No. 4383 (Ont. Sup. Ct.); R. v. Krugel 2000 5660 (ON CA), [2000] O.J. No. 354 (ONCA); R. v. Merz 1999 1647 (ON CA), [1999] O.J. No. 4309 (ONCA); R. v. Moo 2009 ONCA 645 (), [2009] O.J. No. 3706 (ONCA); R. v. Pasqualino 2008 ONCA 554 (), [2008] O.J. No. 2737 (ONCA); R. v. P.S. 2007 ONCA 299 (), [2007] O.J. No. 1476 (ONCA); R. v. P. (R.), [1990] O.J. No. 3418; R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358; R. v. Parnell (1983), 1983 3602 (ON CA), 9 C.C.C. (3d) 353 (Ont. C.A.); R. v. B.(L.), 1997 3187 (ON CA), 1997 CarswellOnt 2711, 102 O.A.C. 104; R. v. Castellani, [1967] 3 C.C.C. (B.C.C.A.); R. v. Blackman, 2006 42356 (ON CA), [2006] 215 C.C.C. (3d) 524; R. v. Lemky (B.C.C.A.), 1992 431 (BC CA), [1992] B.C.J. No. 1784; R. v. Wills [2007] O.J. No. 823; R. v. Baldree, 2012 ONCA 138; R. v. Walker, 2002 BCCA 89 (), 163 C.C.C. (3d) 29; R. v. Smith, 1990 6797 (ON CA), 61 C.C.C. (3d) 232; R. v. Devine, 2008 SCC 36 (), [2008] S.C.J. No. 36.