ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 7/10
DATE: 20120507

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – KRISTOPHER LAVALLEE Respondent

Kevin Ludgate and Len Walker, for the Crown.

Susan Adams and W. Adam Schultz, for the Applicant.

HEARD: April 2, 3, 4, 23, 24, 25, 26, 27, 30 and May 1, 2012.

RULING ON ADMISSIBILITY OF STATEMENTS

AND COMMUNICATIONS OF THE DECEASED

gauthier, j.

Van Der Wouden Statements:

[ 1 ] The Crown has made an application for a ruling that two out-of-court statements made by Whitney Van Der Wouden (“Whitney”), be admissible at trial.

[ 2 ] Whitney’s mother, Rose Thrones, apparently overheard a telephone conversation that Whitney was having with Kristopher Lavallee (“Lavallee”), near the end of February 2009. Thrones heard Whitney say “no Kris, you’re disgusting, you’re a fucking pig,”, “you’re 28 and I’m 15,” and “what you’re asking me to do is disgusting.” I will refer to this conversation as “the telephone conversation”.

[ 3 ] As well, Rose Thrones will say that she told Whitney to get off the telephone, and when she did, Rose Thrones asked Whitney what it was that Lavallee wanted her to do. Apparently, Whitney told her mother that Lavallee wanted her to have sex with him and that she didn’t want to. She said that he was too old and that she didn’t like him that way. I will refer to this conversation as “the chat”.

[ 4 ] The Crown suggests that the telephone conversation evidence is admissible to demonstrate Whitney’s state of mind or attitude toward Lavallee, specifically that she was not interested in sexual contact with him. This is not hearsay, or is an exception to the hearsay rule.

[ 5 ] The chat evidence is adduced to further prove Whitney’s attitude toward Lavallee, and to prove that Lavallee was sexually interested in Whitney and that he made a verbal sexual advance toward her on the telephone, which she expressly rejected. This goes to the truth of the statement, is hearsay, and is presumptively inadmissible unless sufficiently necessary and reliable.

[ 6 ] The Crown suggests that the telephone conversation and the chat evidence is necessary and reliable and support the following propositions:

(a) That Lavallee was on the telephone with Whitney;

(b) That Lavallee was sexually interested in Whitney, and made a sexual advance on the telephone;

(c) That Lavallee was aware that Whitney was not interested in him sexually; and

(d) That Lavallee was aware that Whitney could not legally consent to sex.

[ 7 ] Lavallee took no issue with the necessity component of the analysis, but opposes the Crown’s application on the basis that the statements in question have no probative value, are highly prejudicial, and are not reliable.

Facts:

[ 8 ] The facts of this case, as they relate to this ruling are set out in the Crown’s Factum, and paragraphs 1 to 5 shall form part of this ruling.

[ 9 ] Other relevant facts are the following:

(a) While at the Sauve residence, Lavallee is said to have made a comment to G.H. to the effect that G.H. could have Whitney because she was underage;

(b) Lavallee and G.H. left the campsite on or about April 29, 2009, and travelled to Arnprior where they stayed with Neil McLaren for approximately one month;

(c) On May 29, 2009, McLaren gave a statement to the Greater Sudbury Police Service, the most significant portion of which, for purposes of the current analysis, is this:

I drink quite a bit and one night, me Kris and Greg were all around a bonfire and we were all drinking quite a bit. Kris and Greg started rapping about burning bodies and melting flesh and I told them that they were disgusting. I got mad at them. That’s when they started telling me that they were tough guys and it was true that they had been camping with a seventeen year old runaway in the bush and were tag teaming her. She was a willing participant but all of a sudden she freaked out. I guess she was performing oral sex on Greg and Kris started licking her and that’s when she freaked out. She started calling rape and saying she would call the police. Kris and Greg panicked. Kris started choking her and then Greg freaked out and stabbed her in the chest.

(d) Paul Van Der Wouden, Whitney’s father, described Whitney as being “crazy about” two guys, Kris and G.H.;

(e) Whitney lied to her mother about where she was going on April 27, 2009; and

(f) Whitney was known to be rebellious and disrespectful toward her mother.

[ 10 ] It is the Crown’s position that Lavallee committed constructive first degree murder by participating in killing Whitney in the course of sexually assaulting her.

General Principles:

[ 11 ] As a general rule, all relevant evidence is admissible.

[ 12 ] Hearsay evidence is presumptively inadmissible. The Crown has the onus of establishing that otherwise inadmissible evidence should be received.

[ 13 ] When the purpose of tendering the evidence is to prove the state of mind and/or the intention of a declarant, the evidence may not be hearsay. Or, it may be treated as an exception to the hearsay rule, therefore rendering it admissible.

[ 14 ] The admissibility of hearsay evidence is determined on the principled basis of necessity and reliability.

[ 15 ] Necessity can be (and is in this case) established by the death of the declarant. Reliability, meaning threshold reliability and not ultimate reliability, can be established in two ways, as per R. v. Khelawon, 2006 SCC 57, [2006] 2 SCR 787:

(a) The circumstances in which the statement was made render the contents of the statement so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process; or

(b) Although the evidence may not be so cogent, the circumstances allow for sufficient testing of the evidence by means other than contemporaneous cross-examination.

[ 16 ] The following are some factors that assist in the assessment of the reliability of a statement:

(a) Corroborating or contradictory evidence;

(b) Timing of the statement in relation to the event described;

(c) Motive or evidence of absence of motive to lie;

(d) The nature of the relationship between the declarant and the witness.

[ 17 ] Following the evaluation of necessity and reliability, the overall assessment of probative value versus potential prejudice must be conducted. Evidence which is otherwise admissible may nonetheless be excluded where the potential prejudicial effect of that evidence outweighs its potential probative value: see R. v. B. (C. R.), [1990] 1 S.C.R. 717.

[ 18 ] The onus is on an accused person to demonstrate that the balance favours the exclusion of otherwise admissible evidence: see R. v. P.(R.), [1990] O.J. No. 3418 (H.C.J.)

[ 19 ] This “costs-benefit” exercise involves an assessment of the weight of the evidence (although weight is a matter for the trier of fact), that is the importance to be attached to it, in the context of its credibility, its reliability, and the strength of the inferences it gives rise to.

[ 20 ] Potential prejudice is the danger that, despite instructions to the contrary, the trier of fact will use the statements for improper purposes such as improper propensity reasoning.

Crown’s Position:

[ 21 ] With regard to the telephone conversation, that statement falls within the state of mind exception to the hearsay rule. It is not adduced to prove the contents of the statement, i.e. that Lavallee is “disgusting” or a “pig”, or that he was in fact 28 years old. Rather, this evidence is relevant to show Whitney’s state of mind or attitude toward the prospect of a sexual relationship or sexual contact with Lavallee. It supports the Crown’s theory that Whitney likely would have protested Lavallee’s sexual advances at the campsite. The telephone conversation is presumptively admissible.

[ 22 ] Regarding the chat which appears to have immediately followed the telephone conversation, the Crown seeks to introduce it to (a) further prove Whitney’s state of mind or attitude toward Lavallee (sexual disinterest), (b) to prove that Lavallee was sexually interested in Whitney, and made a verbal sexual advance toward her which she expressly rejected, and (c) that Lavallee was aware that Whitney could not legally consent to sex.

[ 23 ] This evidence is being tendered for the truth of its contents, is hearsay, and is presumptively inadmissible, requiring an analysis of the reliability of the statement.

[ 24 ] The Crown submits that the evidence is reliable and its probative value outweighs its potential prejudicial effect.

Lavallee’s Position:

[ 25 ] The defence position focuses on reliability and potential prejudice to Lavallee with regard to the chat, but also takes issue with the admissibility of the telephone call as an exception to the hearsay rule. The argument is that the telephone call in February 2009 is too far removed in time from Whitney’s death to be evidence of her state of mind or attitude at that time. Additionally, there is other evidence to suggest that her state of mind may have changed between February and April 2009.

[ 26 ] With regard to the telephone call, the defence raises several issues militating against admission. One is that we can’t be sure that Whitney was speaking to Lavallee and only to Lavallee. The defence suggests the possibility that Lavallee was sharing the telephone with G.H. at the time of the call.

[ 27 ] Another factor is the absence of the full context in which the call was made. We don’t know how what was being said, was being said; was it as part of a joke?

[ 28 ] One further concern is that Whitney may have been trying to hide from her mother the fact that she was sexually interested in Lavallee, by saying the words she did to Lavallee in the presence of her mother.

[ 29 ] With regard to the chat, the defence suggests that Rose Thrones’ own reliability as a witness is in question, given that she did not tell police about the telephone call until she gave her second statement, after the arrest of Lavallee and G.H. Her first statement refers to having found Whitney in bed with Lavallee and G.H., but makes no mention about the telephone call.

[ 30 ] The defence further suggests that Whitney had a motive to lie to her mother about the telephone conversation. She may have been trying to deflect the fact that she was, in reality, interested in sexual contact with Lavallee.

[ 31 ] According to the defence, a number of other factors render the statements suspect, or unreliable:

(a) Neil McLaren’s statement refers to Lavallee talking about a “seventeen year old”, not a 15 year old;

(b) Neil McLaren’s statement refers to Lavallee talking about the girl being a “willing participant”;

(c) Paul Van Der Wouden relates one incident where Whitney was flirting with three individuals, one as old as 30;

(d) Paul Van Der Wouden spoke of Whitney being “crazy about” Lavallee and G.H.;

(e) Sasha Pines, Whitney’s friend, said that Whitney liked both Lavallee and G.H.;

(f) Whitney was found in bed with both G.H. and Lavallee, approximately one month before the telephone call.

[ 32 ] These factors could suggest that Whitney’s state of mind changed between February 2009 and April 27, 2009, or that she really was interested sexually in both individuals, and wanted to keep that fact from her mother. Whitney lied to her mother on April 29, 2009, about where she was going and whom she was going to see. This renders her conversation with her mother suspect as she may well have lied to her mother in February 2009.

[ 33 ] Further, the submission is that the statements are potentially highly prejudicial. The suggestion is that Lavallee was attempting to lure Whitney while on the telephone in February, and the trier of fact may conclude that because of that, he was more likely to commit a sexual assault in April 2009, which is prohibited propensity reasoning.

Analysis:

The Telephone Conversation:

[ 34 ] This evidence does fall within the state of mind exception to the hearsay rule. The statement is not being tendered to show that Lavallee is disgusting or that he is a pig. The statement is admissible to establish that it was made by Whitney and reflected her state of mind or attitude toward Lavallee in the context of sexual interest.

[ 35 ] The defence’s suggestion that Whitney may well have been putting on an act for the benefit of her mother while speaking on the telephone is not supported by any evidence of such possible concoction.

[ 36 ] The two month period between the telephone conversation and Whitney’s death is not a significant enough time frame to justify the exclusion of the telephone conversation.

[ 37 ] The concern about context or identity of the caller does not favour exclusion of the telephone call either, given that Whitney names Lavallee, had received telephone calls from him before, and socialized with Lavallee.

[ 38 ] I recognize that Whitney’s statement that “you’re 28 and I’m 15” is particularly problematic for Lavallee to the extent that the Crown adduces this to show Lavallee’s knowledge of Whitney’s legal inability to consent to sex, the statement goes beyond an expression of the state of mind of the deceased. It goes to Lavallee’s state of mind, his state of knowledge of Whitney’s age. I would nonetheless not exclude this portion of the telephone conversation, based on the analysis and reasoning which follows with regard to the chat. I also note that this portion of the conversation simply reflects a true fact, that Whitney was fifteen and Lavallee was 28. There is no issue about the truth of the statement. The real issue is whether the statement was made and what understanding Lavallee had about Whitney’s age on April 27, 2009.

[ 39 ] It will be for the jury to decide (a) if Whitney said those words, (b) if Lavallee heard them, and (c) whether those words tend to show that Lavallee knew Whitney to be under age on April 27, 2009.

[ 40 ] There is therefore nothing to favour or justify the exclusion of the telephone conversation.

The Chat:

[ 41 ] As with the telephone conversation, there is no issue about necessity. The issues are reliability and potential prejudice.

[ 42 ] I conclude that the reliability requirement is satisfied for the following reasons and based on the following factors.

[ 43 ] There are several items of evidence to corroborate the statement that Whitney made to her mother, i.e. that Lavallee wanted to have sex with her and that she did not want to as he was too old.

[ 44 ] There is Lavallee’s own admission to Ramsay that he had been engaged in some sexual conduct with Whitney when she “freaked out”. Lavallee said that the three of them had been “making out” for about 10 minutes before Whitney became upset.

[ 45 ] There is the alleged statement that Lavallee made to Neil McLaren to the effect that he and G.H. had been camping in the bush with a seventeen year old and they had been “tag teaming” her, when she “freaked out”, started to call “rape” and said she would tell police.

[ 46 ] There is the alleged comment that Lavallee made to G.H., while at the Sauve residence that G.H. could have Whitney because she was underage.

[ 47 ] The discrepancy between the reference to Whitney’s age in the course of the telephone call, and in the evidence of Neil McLaren is a matter for the jury to consider in assessing the ultimate reliability of the statement.

[ 48 ] The timing of the chat favours admissibility of the statement. Rose Thrones told Whitney to get off the telephone and immediately asked her what Lavallee wanted Whitney to do. Whitney’s response to her mother’s question was virtually contemporaneous with the telephone conversation. The information imparted to Rose Thrones was consistent with what Whitney had said on the telephone just moments earlier. There was little opportunity for fabrication.

[ 49 ] There is an absence of a motive to lie. Notwithstanding that Whitney lied to her mother about where she was going and who she was going to be with on April 27, 2009, the evidence to suggest that she wanted to lie to her mother to cover up her sexual interest in Lavallee is meagre.

[ 50 ] Although Whitney may have lied to her mother and have been disrespectful toward her, there is little evidence to suggest that the chat was anything other than a mother-daughter exchange in the context of something the mother overheard. Although Rose Thrones had been angry at Lavallee and G.H. after finding them in bed with Whitney approximately one month earlier, and had called police, she had not forbidden Whitney from seeing Lavallee and G.H., and, in fact, provided G.H. and Lavallee with food later when they were camping. Rose Thrones did not complain to police about Lavallee wanting to have sex with her daughter between February 2009 and April 2009. There appears then to be little basis to suggest that Whitney would not have been forthright to her mother about the telephone conversation.

[ 51 ] There are sufficient indicia of reliability to admit the statement. There is a sufficient basis for the trier of fact to assess the truth of what Whitney told her mother. The question of whether what Whitney told her mother is likely true is for the jury.

[ 52 ] Rose Thrones will be available for cross-examination. I cannot conclude, from the factors raised by the defence, that her evidence is “so deficient that it robs the out-of-court statement of any potential probative value”: see R. v. Humaid (2006), 81 O.R. (3d) 456 (C.A.).

[ 53 ] The evidence supports the facts in issue in this case, including whether Lavallee had sexual contact with Whitney, (a) knowing that she did not want the contact with him, and/or (b) knowing that she could not legally consent, and whether Lavallee participated in the killing of Whitney in the course of the sexual contact.

Conclusion:

[ 54 ] I conclude that the evidence is necessary and reliable, and therefore admissible. I also conclude that the probative value of the evidence outweighs the potential prejudice to Lavallee. This is not a situation where inferences based on propensity reasoning are weak and the jury could convict solely on general bad character.

[ 55 ] The evidence will not be adduced to show that Lavallee generally had a sexual interest in underage girls. The evidence will be adduced to support the position that he had a sexual interest specifically in Whitney, and that he knew her to be underage, which is the basis for the constructive murder charge. It is not being tendered to show general disposition.

[ 56 ] The evidence in question does not depend solely on propensity reasoning for its admissibility.

[ 57 ] If admissibility of the evidence does involve propensity reasoning, it is still admissible as a form of circumstantial evidence of Lavallee’s sexual interest in Whitney and her disinterest in him.

[ 58 ] As R. v. Arp, [1998] 3 S.C.R. 339, instructs, propensity reasoning involves two inferences: (a) based on conduct on an earlier occasion, the accused has a certain state of mind or disposition, and (b) one can infer from that state of mind that the accused acted in accord with that state of mind on the occasion in question. If the evidence reasonably supports both inferences, then it is not impermissible to use this reasoning to infer that the accused committed the offence alleged. The evidence is a form of circumstantial evidence and is relevant.

[ 59 ] As the telephone conversation evidence and the chat evidence form such circumstantial evidence, both are admissible at trial. It will be for the jury to assess the truth and accuracy of the statements and to determine the weight of the statements in the context of all the evidence.

Madam Justice L. L. Gauthier

Released: May 7, 2012