ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CJ 7617 Kitchener
DATE: 2013/07/04
BETWEEN:
HER MAJESTY THE QUEEN
J. Young, and A. Rajina for the Crown
- and -
AMBROSE AUGUSTI KOSE
J. Marentette, for the Defendant
HEARD: May 27, 2013
The Hon. Mr. Justice Arrell
JUDGMENT
Introduction:
[1] The accused is charged that on June 10th, 2011 he committed second degree murder on his wife Rejina Kendy. His trial will commence on September 3, 2013.
[2] The accused has brought two applications regarding challenge for cause. The parties have now agreed on the questions to be put to the panel on the challenge for cause hearing and I have approved the questions. As such those two applications have been disposed of.
[3] The Crown has also brought an application for the admission of certain hearsay evidence, being statements of the deceased to various individuals, and that is the issue before me at present.
[4] The parties consented to this application being argued strictly on the evidence set out in the preliminary hearing. It must be kept in mind, however, that the actual evidence to be presented at trial will be the viva voce evidence of the witnesses if I rule the hearsay statements to be admissible. I therefore treat the references in the Application to the preliminary hearing transcripts as the anticipated evidence of the witnesses for the purpose of forming the evidence for the basis for this ruling. Should the actual evidence of witnesses be materially different then my rulings may well have to be revisited.
Facts:
[5] In July 2009, the accused returned to Egypt from Canada to marry Rejina Kendy through an arranged marriage which involved a dowry. The accused returned to Canada but his wife did not follow until July 2010. On June 10, 2011 the accused killed her.
[6] The accused admits killing the deceased. I am advised that the likely issues at trial will be manslaughter or self-defence. The Defence agrees all statements of the accused post mortem are admissible. It further agrees all phone calls on the evening of the death, both before and after the actual killing, are admissible. In fact the only statement of the accused in issue is that made during the elders meeting, which I will deal with in more detail later in this judgment.
[7] On November 25, 2010 the accused was arrested for assaulting his wife. He will have pled guilty to this charge prior to this current trial and the Defence concedes this evidence and the circumstances surrounding the assault are relevant and admissible. The accused was also charged with breach of recognizance on June 9, 2011 and the Defence agrees the circumstances of this charge are admissible as is the guilty plea.
[8] In early November 2010 Ms. Kendy walked in on the accused and Ms. Buityqi, a former co-worker, in a state of undress and learned of their extra-marital affair. The Defence agrees this evidence is relevant and admissible.
[9] There is also evidence that the accused subsequently invited Ms. Buityqi to his apartment when his wife was not home and assaulted her. The crown wishes this evidence admitted and the Defence objects.
[10] In March of 2011, Darius Jonathon and John Kolley, relatives of Ms. Kendy met with her, the accused and other relatives of both to discuss the ongoing abuse by the accused and other continuing problems in the relationship. This has been termed the meeting of the elders. It is conceded that during the meeting the accused acknowledged his past abusive conduct, apologized for that past behaviour and indicated his intention to not abuse his wife in the future. Ms. Kendy agreed to continue the relationship on the condition the accused would cease drinking and stop assaulting her. He agreed.
[11] The Crown wishes this evidence admitted. The Defence agrees to a somewhat distilled version of the meeting as outlined in my summary in the above paragraph through Mr. Kolley and Mr. Jonathon. As such the telephone conversation of Mr. Garawei is not required. The Defence concedes the evidence of the meeting will encompass three assaults in total, being the November 25 charge as well as two other assaults prior to the meeting of the elders.
Analysis:
[12] The Crown seeks admission of the various hearsay statements to show past disreputable conduct of the accused, the state of mind of Ms. Kendy and the nature of the relationship. All of which are relevant and probative according to the crown given that self-defence may well be in issue.
[13] The Defence argues much of this evidence is not relevant or probative to the issues and is highly prejudicial.
[14] Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rules. R. v. Khelawon [2006] S.C.R. 57
[15] In R. v. Starr 2000 SCC 40, [2000] 2 S.C.R. 144 the Supreme Court held that the question of whether evidence qualifies under a traditional hearsay exception must be assessed under the principled approach rules. It must be reliable, relevant, necessary and its probative value must outweigh its prejudicial effect. In the case at bar the necessity criteria is easily established as the declarant is dead.
[16] As stated in R. v. Khelawon, supra. at para 49:
“…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.”
[17] Khelawon also instructs as to the approach to be taken by trial judges when determining the admissibility of the proffered evidence at paragraph 50:
“… the trial judge only decides whether hearsay evidence is admissible. Whether the hearsay statement will or will not be ultimately relied upon in deciding the issues in the case is a matter for the trier of fact to determine at the conclusion of the trial based on a consideration of the statement in the context of the entirety of the evidence. It is important that the trier of fact's domain not be encroached upon at the admissibility stage.”
And at paragraph 93:
“…the trial judge must remain mindful of the limited role that he or she plays in determining admissibility -- it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire.”
[18] In R. v. Blackburn, 2008 SCC 37, [2008] 2 S. C. R. 298 at paragraph 30 the Supreme Court of Canada cautioned against too rigid a test being applied when assessing the relevance of evidence for the purpose of admissibility as follows:
“Relevance can only be fully assessed in the context of the other evidence at trial. However, as a threshold for admissibility, the assessment of relevance is an ongoing and dynamic process that cannot wait for the conclusion of the trial for resolution. Depending on the stage of the trial, the "context" within which an item of evidence is assessed for relevance may well be embryonic. Often, for pragmatic reasons, relevance must be determined on the basis of the submissions of counsel. The reality that establishing threshold relevance cannot be an exacting standard is explained by Professors D. M. Paciocco and L. Stuesser in The Law of Evidence (4th ed. 2005), at p. 29, and, as the authors point out, is well captured in the following statement of Cory J. in R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, at para. 38:
• To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to "increase or diminish the probability of the existence of a fact in issue".”
This observation is particularly appropriate in the present situation where the admissibility of the evidence is being determined before any evidence has been heard by the jury.
[19] Following the decision in R v. Handy, 2002 SCR 56, I conclude that the evidence of Ms. Buityqi that the accused invited her to the apartment, subsequent to them being caught by Ms. Kendy, where he assaulted her will not be admitted. The evidence is not similar fact and is highly prejudicial while not being probative to the issues in the case at bar.
[20] The evidence of the meeting of the elders through Mr. Kolley and Mr. Jonathon including the three assaults will be admitted as per my version in paragraph 9 as relevant, probative of the relationship and an admission by the accused of his past behaviour.
[21] The evidence of Mr. Ladu that the accused told him that he had assaulted his wife resulting in her hospitalization will not be admitted. This is evidence that will be before the jury as a result of the admission of this assault by the accused resulting in his guilty plea. The evidence of Mr. Ladu goes to reasoning prejudice as set out in the case law. The court has the discretion to reduce reasoning prejudice by reducing the number of witnesses who say exactly the same thing. Such is the issue with the evidence of Mr. Ladu. It is not needed to explain the narrative and is prejudicial. It therefore will not be admitted.
[22] The Crown wishes the evidence of Ms. Amass and Ms. Oushla admitted. They are expected to say that individually and separately they spoke with Ms. Kendy the day before and day of the killing. Their respective evidence is that Ms. Kendy indicated to them both that she intended to go to a shelter. Ms. Oushla’s evidence goes further and is to the effect that Ms. Kendy told her in response to her question that she was going to the shelter because the accused hit her and she no longer wished him to be her husband.
[23] The Crown argues this evidence is highly probative and relevant to the state of mind of Ms. Kendy around the time of her death and shows her present intention. It goes as well to motive and animus. The Defence urges me to find that this evidence is highly prejudicial and cannot be used as evidence of further assaults. It therefore has limited probative value. The Defence further argues that there is no evidence they were living together after the November assault as a result of the bail order of no contact. I am not sure that in fact will be the actual evidence.
[24] The evidence of simply going to the shelter does indeed reflect the state of mind of the deceased at the time. It is reliable as she had no motive to lie and she told two different people spontaneously at separate times the same thing. Indeed she brought luggage to Ms. Oushla’s home. It is also necessary as such evidence is not available elsewhere. However, as stated in R. v. Smith 1992 79 (SCC), [1992] 2 S.C.R. 915 at para. 24-27, the evidence is not admissible to establish that past acts or events referred to in the utterances occurred. It is admissible to show the deceased had a certain intention if it is relevant. It is not admissible to show the accused’s state of mind. As Lamer J. stated in Smith “At its highest, therefore, the present intentions exception to the hearsay rule invoked by the appellant would operate only to allow the first two statements into evidence for the purpose of proving that the deceased wanted to return home.” Likewise, with the case at bar, the evidence will be limited to the extent that the accused intended to go to a shelter and not for the reasons why.
[25] The Crown wishes to adduce evidence by Cecilia Bagi that Ms. Kendy told her 6 months before she was killed that she was considering going to Immigration and asking that they take her back to Egypt. The Crown asserts this goes to the state of mind of Ms. Kendy. The Defence argues that given the lack of proximity to the date of the killing this evidence has little relevancy. I agree.
[26] This statement occurred prior to the meeting with the elders in March whereby the accused admitted his abuse towards his wife and she forgave him and took him back. Her intentions prior to that meeting, in my view, have very little relevance and no real probative value as she obviously changed her mind as a result of the meeting with the elders and the promises of the accused. As such this evidence will not be admitted.
[27] The Crown concedes that the statement to Ms. Abondait that she was going to stay with her husband to “fix” him is not likely admissible as going to state of mind. I agree and it will not be admitted.
[28] The Crown also concedes that statements by Ms. Kendy to Ms. Oushla, Mr. Ernesto, and Ms. Bagi to the effect of being assaulted by the accused and being hospitalized are speaking to the assault where charges were laid. Such statements are not admissible under the principal of reasoning prejudice.
[29] In the deceased’s statement to Mr. Ernesto she is alleged to have said that after catching the accused with another woman the domestic situation escalated. The Crown urges me to admit this statement to show the nature of the relationship. I disagree. This statement occurred prior to the meeting with the elders and the deceased's forgiveness of the accused. It therefore is not terribly relevant as to nature of the relationship after that meeting and is highly prejudicial. As such this statement will not be admitted.
[30] The Crown concedes that the statement of Ms. Kendy to Jake Molayi who attended classes with her and observed her face swollen relates to the same assault that resulted in charges being laid against the accused and is therefore not admitted under the reasoning prejudice doctrine.
[31] The Crown wishes to tender evidence from Joseph Kose who lived with the accused and Ms. Kendy. His evidence is to the effect that when the accused drank he was not a fine man. He also observed some of the assault on November 25th and indeed was assaulted himself by the accused. I conclude his evidence is not admissible under the doctrine of reasoning prejudice. As well it is highly prejudicial. It is also not similar fact evidence.
[32] Finally, the Crown wishes admitted the statement of the deceased who contacted Ms. Buityqi several weeks after she was caught having an affair with the accused, whereby she warned her to stay away from her husband. The Crown argues this statement goes to the nature of the relationship. The Defence does not disagree that this statement is admissible. As such it will be admitted.
ARRELL, J.
Released: July 4, 2013
COURT FILE NO.: CJ 7617 Kitchener
DATE: 2013/07/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
AMBROSE AUGUSTI KOSE
REASONS FOR JUDGMENT
ARRELL, J.
Released: July 4, 2013