R. v. Thomas, 2013 ONSC 8032

CITATION: R. v. Thomas, 2013 ONSC 8032 COURT FILE NO.: CJ 7668 DATE: 2013-12-16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. DAVID THOMAS

BEFORE: The Honourable Mr. Justice D.A. Broad

COUNSEL: K. Katzsch and N. Redgate, for the Crown J. Milligan and N. Wansbutter, for the Accused

HEARD: September 16, 17, 18, 19, 20, 23, 24, 25, 26, 27, 28, 29, 30, October 1, 2, 3, 4, 29 and 29 and November 4 and 5, 2013

PRE-TRIAL RULINGS

Background Facts

[1] The accused is charged with second degree murder contrary to s. 235(1) of the Criminal Code of Canada in the death of Denise Bourdeau (the "deceased").

[2] The deceased and the accused met in late December 2004 and began a romantic relationship in January, 2005. They lived together at the accused's apartment in Waterloo, Ontario for most of the period following the commencement of their cohabitation until the deceased's disappearance early on New Year's Day, 2007. Their relationship was marked by very heavy drinking by both parties which likely contributed to considerable turbulence in their relationship.

[3] It is alleged by the Crown that the accused was abusive of the deceased, committing repeated acts of violence towards her, most often while under the influence of alcohol.

[4] The deceased occasionally left the accused's apartment to live elsewhere, including with her mother, with whom she resided for much of the summer of 2006. The Crown alleges that during these times the deceased fled from the accused's residence due to his abusive behavior. Shortly before Christmas 2006 the deceased left the accused's apartment to stay at the home of a male friend who she had met at a local bar called "Jonathan's" which she frequented regularly.

[5] On December 31, 2006 the deceased went to Jonathan's with her friend to celebrate New Year's Eve. Sometime after they arrived, the accused entered the establishment. The accused socialized with the deceased and her friend for a time at the bar. The accused and the deceased left the bar sometime after midnight. The Crown alleges that this was the last time the deceased was seen alive and alleges that the accused killed her, probably in the early morning hours of New Year's Day 2007.

[6] The deceased was reported missing by her sister, who lived in Calgary, on January 15, 2007. The Waterloo Regional Police Service ("WRPS") made several attempts to contact the accused without success. On January 17, 2007 the accused called WRPS and spoke to Constable Sauve, expressing concern about the whereabouts of the deceased and related a description of the events at Jonathan's bar on New Year's Eve and early New Year's Day. Police officers ultimately came into contact with the accused on January 23, 2007 at the Brantford police station, where he was performing of plumbing work on a renovation project on the building.

[7] Detective Russell Crook of the WRPS conducted a videotaped interview of the accused at the Brantford police station on January 23, 2007, lasting one hour and eight minutes.

[8] On January 24, 2007 WRPS was granted a search warrant to search the accused's apartment and the tenant locker associated with the apartment. The warrant authorized the police "between the hours of 12:00 p.m. and 8:59 p.m. on January 24, 2007 to enter into the premises and to search for and seize" the items listed in Appendix A to the warrant. The items listed on Appendix A were:

"Blood

Diary belonging to Denise NUTTLEY

White winter jacket with blue sides, blue stitching and a blue-collar

White running shoes"

(It is noted that "Nuttley" was another surname utilized by the deceased at one time.)

[9] Police entered the accused's apartment at 2:23 p.m. on January 24, 2007 and began searching the apartment, as well as the storage locker, continuing until 10:32 p.m. on that date. The search was carried out by Detectives Chris McDonald and Allison Laing.

[10] Detectives McDonald and Laing returned to the apartment at 9:11 a.m. on January 25 to continue the search and departed on that date at 5:25 p.m. They re-attended at the apartment to resume the search at 9:37 AM on January 26, 2007 and completed the search and released at the scene at 3:25 p.m. on that date.

[11] During the search of the apartment, WRPS seized a number of items beyond those listed on Appendix A to the warrant including several personal letters, a shopping list, a toilet, jeans and a photo album. The only items which the Crown seeks to enter into evidence at trial are three handwritten letters and a diary of the deceased as part of the evidence of prior abuse of her by the accused.

[12] The WRPS also obtained a warrant on January 31, 2007 to search the accused's motor vehicle, which resulted in the detection of blood, subsequently found, as a result of forensic analysis, to be that of the deceased.

[13] Detective Crook had a number of telephone conversations with the accused on the days following his initial interview of the accused on January 23, 2007 at Brantford. Detective Crook and the accused had some fourteen communications between January 24 to February 5, 2007.

[14] On February 6, 2007 the accused was interviewed again by Detective Crook, this time at WRPS headquarters. The interview was videotaped and lasted three hours and sixteen minutes.

[15] On July 13, 2011 the accused was arrested at his place of employment and charged with second degree murder in the death of Denise Bourdeau. He taken to WRPS headquarters, where he was interviewed by Detective Valerie Sibley in order to complete a detain sheet. Following the completion of the detain sheet, and after the accused consulted with his counsel, the accused was interviewed by Detective Duane Gingerich. This interview was also videotaped and lasted nine hours.

Nature of Applications

[16] The following applications were argued:

(a) Application by the accused to exclude from the evidence at trial any items seized from his residence pursuant to sections 8 and 24(2) of the Charter of Rights and Freedoms ( the "Charter"):

(b) Application by the Crown to admit into evidence, as voluntary, five statements made by the accused to police;

(c) Application by the Defence to exclude from evidence statements made by the accused to police pursuant to sections 7 and 10(b) of the Charter;

(d) Application by the accused to exclude statements made by the accused to his probation officer;

(e) Application by the Crown to admit evidence of prior discreditable conduct of the accused respecting alleged abusive behavior towards the deceased; and

(f) Application by the Crown to admit evidence of certain post-offence conduct of the accused.

[17] Applications by the accused for production of hospital records and for issuance of a subpoena in respect of hospital records were resolved and not pursued. The application of the Crown for a ruling on the nature of the evidence required to be led by it on the applications was resolved by agreement and did not need to be pursued.

RULING # 1 - SEARCH AND SEIZURE UNDER SECTIONS 8 AND 24(2) OF THE CHARTER

[18] The accused has brought an application to exclude from evidence any items seized from his residence pursuant to s. 24(2) of the Charter of Rights and Freedoms ( the "Charter") owing to breaches of s. 8 of the Charter.

[19] Although more items were seized, the Crown only seeks to enter into evidence three letters alleged to have been written by the deceased as well as extracts from a diary alleged to have been written by her, all seized from the accused's apartment during the search under warrant.

[20] Three officers who participated in the search of the accused's apartment testified on the voir dire, namely Detective Constable Chris McDonald, Detective Allison Laing and Sgt. Stephen Brohman.

[21] The accused asserts that the police breached his s. 8 rights in three ways, namely:

(a) they "over-stayed" by continuing the search beyond the end time specified in the warrant, being 8:59 p.m. on January 24, 2007;

(b) they "over-searched" and "over-seized" by searching for and seizing items which were not listed in "Appendix A" to the warrant; and

(c) they "over-held" evidence by not returning the seized items to the Applicant following expiry of the time for lawful detention of the items on January 25, 2008.

Overstaying

[22] The accused argues that, on the wording of the warrant, the authority of the police to be in his residence expired at 8:59 p.m. on January 24, 2007. At that time the privilege of police to be on the premises terminated and they then became trespassers when they remained on the property. The accused points to the case of Pars Oriental Rug v. Canada (1988) 8 C.E.R. 6 (B.C.S.C. [In Chambers]) in support of the proposition that where a search warrant provides a time-frame for police "to enter into" premises "and to search for" the things named "and to seize same," the search was restricted to that time frame.

[23] In the Pars case the warrant authorized the search in the following language:

"THIS IS, therefore, to authorize and require you between the hours of 9:30 a.m. July 29, 1988 to 6 p.m July 29, 1988 to enter into the said premises and to search for the said things and to seize same, if found."

[24] Justice Wood, at para. 6, found that the language of the warrant was ambiguous, observing that "the clause of the warrant clearly lends itself to the construction that not only the time of entry but also the authorized search and resulting seizures if any, are restricted to the timeframe described." At paragraph 12 he held that "where there is an ambiguity in a document such as a warrant to search, the citizen is entitled to the benefit of that construction which least interferes with his personal rights." He held that the warrant was of no force or effect after the end time specified on it.

[25] The defence was not able to point to any reported case in Ontario which has followed Pars. It is clear that the Ontario jurisprudence has instead followed the decision of the Ontario Court of Appeal in R. v. Woodall [1991] O.J. No. 3563 (C.A.) holding that the final time specified on the face of a search warrant only requires entry, not completion of the search, by that time.

[26] The trial judge in Woodall, Higgins, J. at [1991] O.J. No. 3563 (Ont. Ct. Gen Div.), at para. 61, pointed to the specific circumstances of the case in holding that the search warrant did not lapse at the expiry of the final time stated on its face, but declined to rule that in all situations only entry is required by the specified hour to prevent search warrant from lapsing. As James, J. observed in R. v. Brown 2010 ONSC 2280 (SCJ) at para. 23, in reviewing this decision in the Court of Appeal, Dubin C.J.O. was much less tentative than Higgins, J., disposing of this ground of appeal in the following terms:

The police were required by the terms of the warrant to enter the premises before 9 p.m. They did so. The warrant did not require that the search be completed before 9 p.m. In our view, the failure to complete the search by 9 p.m. does not invalidate the warrant. It was not suggested that the manner in which the warrant was executed was otherwise unreasonable.

[27] The principle enunciated by Dubin C.J.O. has been followed consistently in Ontario, both in the Superior Court of Justice and in the Ontario Court of Justice. Heeney, J. in R. v. Rafferty 2012 ONSC 703 (S.C.J.) at para. 28, relying on Woodall, dealt with the matter unequivocally by stating "the law is clear that once the police enter the premises within the timeframe specified in the search warrant, as they did here, the warrant remains operative until the police complete their search and finally leave the premises."

[28] Similarly, Ewaschuk, J. in R. v. De Jesus (Unreported December 5, 2005, S.C.J.), in response to a submission by the accused in that case, relying on Pars, that the search had to be completed by the time specified in the warrant stated "I reject that submission. Instead R. v. Woodall expressly holds that the time specified on the face of the search warrant only requires entry by the final time specified, not completion of the search by that time."

[29] It is noted that in De Jesus there were no exigent circumstances similar to the facts in Woodall and Brown which the defence in this case submits makes those cases distinguishable from Pars. In De Jesus the warrant authorized entry between the hours of 11:30 a.m. and 8:30 p.m. The police entered at 2:00 p.m. and discontinued the search at 8:00 p.m. until the next day. Like the present case, the search was discontinued on the first day due to fatigue on the part of the searching officers.

[30] See also R. v. Gallinger 2012 ONCJ 600 (OCJ) at para. 53 and R. v. Friers 2008 ONCJ 740 (OCJ) at para. 15, each of which followed the Court of Appeal decision in Woodall.

[31] To hold that the search was required to be completed within the time specified in the warrant would represent a radical departure from established jurisprudence in Ontario. Such a proposition is also unrealistic and impractical as there would normally be no way for the issuing justice, or the police, prior to entering the place to be searched, to predict the time that would be required to complete the search. In this case, for instance, Detective McDonald testified that the length of time required to complete a search would depend to a large degree on the conditions found on the premises following entry, including the quantity of property found therein.

[32] To the extent that the Pars case stands for the proposition that, not only must the entry take place within the specified timeframe, but also the search completed within that time, I specifically decline to follow it, as the Ontario Court of Appeal decision in Woodall is binding on me.

[33] The accused also argues that the police breached his s. 8 rights by remaining in the premises at night contrary to s. 488 of the Criminal Code which requires that a warrant issued under s. 487 or 487.1 shall be executed by day unless the warrant authorizes that it be executed by night. By s. 2 "day" is defined as "the period between six o'clock in the forenoon and nine o'clock in the afternoon of the same day."

[34] The accused cited no authority for the proposition that "executed" for the purposes of s. 488 means the entire length of the search rather than the initial entry onto the premises under warrant. It is noted that in the case of R. v. Sutherland 2000 CanLII 17034 (ON CA), 150 C.C.C. (3d) 231 (CA) Carthy J.A. at para, 20, in discussing the history of s. 488, stated:

Even before it was amended this section [i.e. s. 488] called for "execution by day" and therefore clearly implied that there be a reason for authorizing entry of a home at night (emphasis added).

[35] Support for the proposition that execution of a warrant is equivalent to entry is also found in De Jesus where Ewaschuk, J., in reference to the question of whether the date for execution of the warrant was properly set forth, observed "however, [the issuing justice] did not specify the date of entry, even though the warrant itself was dated March 24, 2003 and entry was executed on the same day" (emphasis added).

[36] I agree with the submission of the Respondent, in its Factum, that the reasons for the special protection in s. 488 against entering a residence at night do not arise when the police continue a search into the night and that no constitutional principles were ever engaged in any meaningful sense by the times within which the police conducted the search.

[37] I therefore find that the police did not breach the accused's s. 8 Charter rights by remaining on the premises to continue their search after 8:59 p.m. on January 24, 2007.

Over-searching and Over-seizing

[38] As indicated above, the warrant issued January 24, 2007 authorized the police to search for four categories of evidence, namely, blood, a diary, certain specified items of clothing and a pair of white running shoes. The police seized a variety of items, many of which were not listed on the appendix to the warrant. The items seized included the following:

(i) three letters

(ii) diary

(iii) a toilet

(iv) a plumbing snake

(v) voicemail messages

(vi) photographs

(vii) samples of water from toilet trap

(viii) cleaning solution

(ix) shopping lists

(x) garbage bags

[39] Section 8 of the Charter guarantees the right to be secure against unreasonable search or seizure. In order to be reasonable, a search must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner (see R.v. Caslake 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 at para. 10).

[40] There are three ways in which a search can fail to meet the requirement that it be authorized by law. First, the state authority conducting the search must be able to point to a specific statute or common law rule that authorizes the search; second, the search must be carried out in accordance with the procedural and substantive requirements law provides; and third, the scope of the search is limited to the area and to those items for which the law has granted the authority to search. To the extent that a search exceeds those limits, it is not authorized by law (see Caslake para. 12).

(a) Over-searching

[41] The defence argues that the police "over-searched" by effectively conducting an open-ended or limitless search of the entire apartment which was not focused on searching for the specific items listed on the appendix to the warrant. As such, it argues that the police were engaged in a "fishing expedition".

[42] I am unable to accept this argument. The warrant specifically authorized the police to search for blood as well as a diary. Detective Constable Chris McDonald (now retired but then a forensic identification officer) testified that, following the initial survey and photographing of the apartment, he undertook a meticulous examination of various surfaces in the apartment utilizing a blood detection agent Leucomalachite Green, commonly referred to as "LMG". LMG is sprayed onto surfaces and is formulated to react with very diluted amounts of blood by turning a dark green. This method is utilized to detect traces of blood where, for instance, an attempt has been made to clean it off a surface.

[43] Based upon Detective Constable McDonald's testimony respecting the painstaking way in which he carried out the search for traces of blood, I am able to infer that droplets or splatters of blood can be found in very small quantities, on virtually any surface, in circumstances where it is not visible to the naked eye. Accordingly, a search for blood in a location, authorized by warrant, could extend to any and all surfaces and items found in that location.

[44] Similarly, the warrant did not specify the form that a diary could take, and in particular, whether it would be contained in one volume or would be comprised of loose pages and if so, whether the pages would be found together, or fastened together in some fashion. Accordingly, an authorization to search for a diary would, by necessity, involve a search in any areas where documents may reasonably be expected to be stored or kept.

[45] The apartment consisted of a living room/dining room/kitchen area, a bathroom and the two bedrooms. One of the bedrooms contained a bed, a desk and other furniture as well as a significant amount of miscellaneous property. The other bedroom was evidently used for storage and contained a large quantity of miscellaneous property and receptacles.

[46] In my view, given the fact that the warrant authorized a search for blood and for a diary, the nature and extent of the search conducted by the police was consistent with the search authorized by the warrant. This was not a case, for instance, of a warrant authorizing a search for a large and bulky item and the police opening small receptacles found on the premises; quite the contrary, the warrant authorized a search for something which could be microscopic, namely blood, in an apartment extensively filled with various types of chattels and receptacles. I therefore find that the police did not "over-search" beyond the scope of the search authorized by the warrant.

(b) Over-seizing

[47] It is acknowledged by the Crown that the police seized items which were not listed in the appendix to the warrant, including the three letters which it seeks to introduce into evidence, and accordingly, on the authority of Caslake, the seizure of the unlisted items was unreasonable and therefore contrary to s. 8 of the Charter, unless authorized by some other law.

[48] The Crown does not rely upon the "plain view" doctrine to supply legal authorization for the seizure of items beyond those listed on the warrant, but rather relies upon s. 489(1) of the Criminal Code. That subsection provides as follows:

489(1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, anything that the person believes on reasonable grounds

(a) has been obtained by the commission of an offence against this or any other Act of Parliament;

(b) has been used in the commission of an offence against this or any other Act of Parliament; or

(c) will afford evidence in respect of an offence against this or any other Act of Parliament.

[49] The Ontario Court of Appeal in R. v. Jones 2011 ONCA 632, [2011] O.J. No. 4388 (C.A.) at para. 72 observed that there is very little jurisprudence dealing with section 489. The effect of the section is to confer on the police the authority to seize evidence not authorized by the warrant provided they have the reasonable grounds to do so. Rather than requiring police to apply for and obtain a second warrant authorizing the seizure of such evidence encountered during a search under warrant, the section permits the immediate seizure of the thing or things, and requires demonstration of the existence of reasonable grounds to do so after the fact.

[50] Paragraph (c) of subsection 489(1) is the pertinent paragraph for the present purposes. In order to be justified under the section, the law enforcement officer must have reasonable and probable grounds to believe that something "will afford evidence" in respect of an offence. It is noted that paragraph (c), in requiring only that the seized item will afford evidence in respect of an offence, is broader in scope than either (a) or (b) which refer to things that have either been obtained by, or used in, the commission of an offence. The paragraph does not say "will afford evidence of the commission of an offence" but rather broadens its scope to include evidence "in respect of" an offense, meaning "relating to" or "pertaining to".

[51] As observed by Blair, J.A., in Jones, at para. 73, s.489 provides law enforcement agencies with a right to seize, but it does not provide them with a right to search for further evidence. Having found that the police in this case did not over-search the premises, the question becomes whether the police, in deciding to seize the items not listed in the warrant, believed on reasonable grounds that they would afford evidence in respect of an offense.

[52] The search of the accused's apartment was conducted by Detective Constable McDonald, Detective Laing, Detective Constable (now Sgt.) Broughman and Sgt. Cordero. Detective Constable McDonald was the exhibit officer (in addition to his role in administering LMG to detect blood on surfaces) whose role was to receive exhibits found by the other officers, putting them into bags, labeling and cataloging them. Detective Laing was with Detective Constable McDonald throughout the search and Sgt. Broughman and Detective Cordero (both with the homicide branch) attended to assist with the search on the third day.

[53] Each of the officers involved in the search read the warrant and the appendices attached and endorsed their signatures to signify that they had done so. Detective Constable McDonald testified that, when he was notified that he would be executing the warrant, he obtained a copy of the Information to Obtain (ITO) and reviewed it to familiarize himself with the case. He indicated that it was quite lengthy and it took half an hour to 45 minutes to read it. Detective Laing also testified that she read the ITO before the search was commenced.

[54] Although Detective Constable McDonald, as a forensic identification officer, had more experience conducting searches under warrant than the others did, it was apparent from the evidence that decisions to seize particular items were reached by consensus between the particular officer finding the item and Detective Constable McDonald receiving it from him or her. Detective Constable McDonald testified that, in some instances, there were discussions between the officers, but there was "usually a reason" for the seizure of each item.

[55] From the evidence, I am satisfied that the "seizure" of each item was not complete until Detective Constable McDonald had received it from one of the other officers and a joint decision had been made to bag, label and catalogue it. From that standpoint, Detective Constable McDonald was the "seizing officer," and accordingly, his belief respecting reasonable grounds and the legal authority for seizing each item is more relevant that of the other officers. This conclusion is reinforced by the testimony of Detective Laing that Detective Constable McDonald "was the exhibit officer and he seized any exhibits." It is noted that there was no evidence that Detective Constable McDonald declined to accept any items brought to him by the other officers during the course of the search, although Detective Laing testified that in some instances she pointed out items to Detective Constable McDonald rather than bringing them to him and that she "brought him in on" each item that she thought was of interest, as she thought that it was appropriate to consult with Detective Constable McDonald who was more experienced..

[56] With reference to the seizure of items not listed in the warrant, Detective Constable McDonald testified that, in each case, he felt that they constituted evidence relating to the offence referred to in the ITO, and believed that he had the authority to seize things that he came upon that may be evidence. Later in his testimony, he phrased it slightly differently by stating that if, when searching for items listed on the warrant, he comes across items which he feels are pertinent to the investigation, he is authorized to seize them.

[57] When asked for the source of his authority to seize items not listed on the warrant, he advised that he was aware of a section in Criminal Code that provided that if he came across an item pertinent to the offence while conducting a search, he had the authority to seize it. He was not able to provide the particular section number but testified that he had read it, having learned about it at police college and that it was knowledge that he carried forward throughout his career.

[58] Sgt. Broughman, in his testimony, expressed his understanding of the authority to seize items not listed on the warrant in a different manner than Detective Constable McDonald. Sgt. Broughman, couched it in terms of the "plain view" doctrine, stating that "while we are looking for items in the warrant, if other items that we come across are of interest to the investigation and are in plain view, we would seize those items."

[59] The defence submits that in consideration of the manner in which the search was conducted in its entirety, none of the three officers who testified (McDonald, Laing and Broughman) seemed to understand what their powers were, and in particular, Detective Constable McDonald thought that he could seize anything that might be of assistance in the investigation and Sgt. Broughman thought he could seize "anything of interest".

[60] The defence pointed to the case of R.v. Cook (2008) CarswellOnt 7028 (SCJ) where, in executing a search warrant at the residence of the accused relating to an investigation of importation trafficking and possession of cocaine for the purpose of trafficking, the police unexpectedly found 16 MP3 players in the garage, and found a further 5 MP3 players in the master bedroom. The prosecution sought to introduce the MP3 players into evidence and the applicant applied to exclude them on the basis that his s. 8 Charter right was breached. Hill, J. found that the seizure of the MP3 players violated the applicant's s. 8 Charter right.

[61] In my view, Cook is distinguishable from the case at bar. At paragraph 46 of Cook Hill, J. observed that, at no point in their testimony, did the officers involved in the search refer to reasonable grounds. He went on to indicate that had the officer made no reference to "suspicion," the absence of reference to having reasonable grounds may not have been significant. However, repeated reference to "suspicion" by the officer and reference to having "acted on a hunch," all the antithesis of reasonable grounds, stood in the way of a finding that the officer subjectively acted on reasonable grounds in seizing the MP3 players.

[62] Moreover, at paragraph 49, Hill, J. found that objectively, reasonable grounds could not be said to have existed for the seizure of the MP3 players. They were entirely unrelated to the objects of the search warrant issued under the Controlled Drugs and Substances Act and there were no known reports of the recent disappearance of such items in criminal circumstances.

[63] The present case does not involve the seizure of items entirely unrelated to the items listed the search warrant under which the officers were conducting the search. At no point in their testimony did any of the officers make reference to "suspicion" or "hunches".

[64] As indicated above, although the officers worked effectively on a consensus basis in making decisions on which items to seize, given the positions that they each assumed, Detective Constable McDonald fulfilled the role of the "seizing" officer and was in a position to make the final decision, if called upon, to seize or not to seize a particular item. Detective Laing clearly deferred to Detective Constable McDonald, given his experience, and Sgt. Broughman was only brought in on the third day of the search in order to provide assistance in light of its magnitude. Like Detective Laing, he brought items that he thought should be seized to Detective Constable McDonald.

[65] Detective Constable McDonald had a basic understanding of s. 489(1), although he could not recall the section number nor could he relate the section verbatim, and was able to articulate a reasoned basis for his belief that he had authority to seize items beyond those listed in the warrant.

[66] I am satisfied, based upon the evidence of the officers, that they understood that their primary purpose in carrying out the search was to search for the items that were specifically authorized by the warrant, and that it was not a case of their simply utilizing the warrant to gain access to the premises in order to carry out an open-ended search for things beyond those listed on the warrant.

[67] Moreover, the Crown has demonstrated that there were reasonable grounds, viewed objectively, for the officers' belief that the seized items would afford evidence in respect of an offence, and in particular the offence in respect of which the warrant was issued, namely the murder of Denise Bourdeau. This determination is informed by the circumstances that existed at the time, namely that it was a case of suspected domestic homicide, but the victim was still missing.

[68] As indicated elsewhere in these Reasons, in reference to my ruling respecting prior discreditable conduct, the three letters seized provided, or had the potential to provide, insight into the nature of the relationship between the accused and the deceased, and could go to animus and motive. The toilet was seized in order to permit a search of it for any items lodged inside. The ITO indicated evidence from a neighbor hearing extensive flushing sounds coming from the accused's apartment in the early morning hours of January 1, 2007 and Detective Constable McDonald was searching for anything, particularly anything bearing blood, that might have been attempted to be flushed down the toilet. Similar considerations apply with respect to the plumbing snake and samples of water from the toilet trap. Photographs were seized as the officers thought that they may depict persons with whom the police might want to follow up in reference to the disappearance of Denise Bourdeau. The voicemail messages were inadvertently discovered when Detective Laing accidentally pushed a button on the recording machine while conducting a search of a bookshelf. The cleaning solution, shopping lists itemizing cleaning products and garbage bags with thought by the police to be potentially relevant to someone having conducted a cleanup of blood in the premises.

[69] I therefore find that the Crown has satisfied the onus on it to show that the seizure of the items not listed on the appendix to the warrant was authorized by law, and in particular by s. 489(1) of the Criminal Code.

Over-Holding

[70] On the question of over-holding, the circumstances giving rise to the issue are not in substantial dispute. As indicated in the Crown's Factum, the original investigation into this matter effectively wound down in 2007 and as a result, the initial detention order lapsed and the police failed to file the necessary paperwork for an extension. In May, 2010, a new investigator was assigned to review the case. In the course of the review, the error was noticed and in June, 2010 the police began the process to bring a renewed application for detention. Despite several attempts to obtain an extension order, at various levels of court, the police were unable to do so as questions arose with respect to which court had the appropriate jurisdiction. An application is brought in the Superior Court in December 2010 for a ruling. Prior to the hearing date, however, the accused was placed under arrest in July, 2011 and at that time both parties agreed that the matter was moot given the operation of s. 490 (2)(b) of the Criminal Code.

[71] Although it acknowledged that the police acted diligently to remedy the failure to seek an extension to the detention order once the problem came to their attention, the defence argued that the fact was that the accused's property was illegally detained by the police, and that represented a breach of his s. 8 Charter rights. The defence submitted that, based upon its arguments on over-staying, over-searching and over seizing, the search was unreasonable and the unlawful detention of the items seized exacerbated the breaches.

[72] The defence originally indicated that it may rely upon the existence of a systemic problem within the WRPS with respect to unlawful detention of seized property; however, following additional disclosure by the Crown, that matter was not pursued.

[73] In the case of R.v. Garner 2013 ONSC 425 (S.C.J.) I held at para. 57 that the case law seems to support the view that a failure of the police to file a report with justice that within seven days of execution of a warrant results in a breach of s. 8 of the Charter, referring to R. v. Kirubanathan [2011] O.J. No. 5766 (S.C.J.) and R. v. Paterson 2011 BCSC 1728 (B.C. S.C.).

[74] The Crown in the present case was not prepared to concede that the retention of the seized items beyond the time permitted by the detention order amounted to a s. 8 breach, making particular reference to the case of R.v. Church of Scientology of Toronto 1987 CanLII 122 (ON CA), [1987] O.J. No. 64 (C.A.) (which was not referred to me in the argument on Garner) for the propositions that, in dealing with detention of seized items, the function of a justice is an administrative function, and that sections 7 and 8 of the Charter do not apply to detention orders.

[75] Given the circumstances, and in particular the defence argument that the over-holding only serves to exacerbate the other breaches upon which it relies, which I have found not to be applicable, it is not necessary nor appropriate for me to attempt to resolve the conflict in the case law on this issue. It is more appropriate, in light of the conflicting case law, to assume a s. 8 breach and consider the issue under 24(2) of the Charter, as was done by E.A. Hughes, J. in the case of R.v. Karim 2012 ABQB 470, [2012] A.J. No. 793 (Alta. Q.B.) at para. 170.

[Section 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec24subsec2_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[76] On the assumption that the accused's s. 8 Charter rights were violated by the failure of the police to return the deceased property to the accused or to obtain an extension of the detention order pursuant to s. 490(1) of the Criminal Code, it is necessary to consider whether the evidence obtained on the search of the accused's residence should be excluded pursuant to s. 24(2) of the Charter. Although I have found that the accused's Charter rights were not violated in reference to his argument that the police over-stayed, over-searched and over-seized, it is desirable to consider the application of s. 24(2) to the evidence obtained as a result of the search in the event that I am wrong on those findings.

[77] S. 24(2) provides that where a Court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that the admission of it in the proceedings would bring the administration of justice into disrepute.

[78] The Court is called upon to conduct a three stage enquiry in determining whether the admission of evidence obtained as a result of Charter-infringing police conduct would bring the administration of justice into disrepute. Consideration must be given to the following three factors:

1. The seriousness of the state conduct;

2. The impact of the breach of the Charter-protected interests of the accused; and

3. Society's interest in the adjudication of the case on its merits

(see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.) at para. 71).

[79] With respect to the breach of s. 8 for failure to return the seized property or obtain extensions to the detention order, I find, as I did in Garner in reference to a failure to file a timely report to the issuing Justice, that this failure would not bring the administration of justice into disrepute. It was a not serious breach, and society's interest in the adjudication of the case on the merits would far outweigh any interest in imposing discipline on the police to encourage timely applications for extensions of detention orders by excluding the evidence obtained as a result of the search. As I observed in Garner, citing R.v. Paterson 2100 BCSC 1728 (B.C. S.C.) at para. 123, an administrative failure of this nature did not go to the root of the police authority to enter and search the premises and seize property pursuant to the warrant, or in this case, pursuant to s. 489(1) of the Criminal Code. Moreover, the police in this case acted diligently in applying for the appropriate extension order once the lapse came to their attention. There is no evidence of any lack of good faith on the part of the police in reference to this aspect of the matter.

[80] The defence acknowledges that if over-staying were the only breach that might have been established, s. 24(2) would not be engaged to justify exclusion of the evidence, based upon the fact that the police acted in good faith in believing that they had the authority to continue the search the beyond the end time specified in the warrant.

[81] However, the defence argues, with reference to the first branch of the Grant test, that there was a "constellation of breaches" of the accused's s. 8 rights in this case raising systemic concerns in reference to the administration of justice, impacting the long-term repute of the justice system (see Grant paras. 67-70).

[82] With reference to over-searching and over-seizing, the defence relies upon the point made by the Supreme Court of Canada in Grant, at para. 75, that while "good faith" on the part of the police will reduce the need for the court to dissociate itself from the police conduct, "ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith."

[83] In my view, the evidence in this case falls well short of demonstrating negligence or willful blindness on the part of the searching officers. Each of them read the warrant including all of the appendices, and the two officers, Macdonald and Laing, who were assigned to execute and carry out the search in its entirety each read the ITO prior to executing the warrant. They each understood that their primary purpose was to search for the specific items listed on the appendix to the warrant. All three of the officers who testified demonstrated a basic understanding of the existence of a legal limitation on their authority to seize items beyond those listed in the warrant and that they were alert to that issue. Any misapprehension they may have been under with respect to that question must be viewed in the context of the general understanding of the law in early 2007, when the search was conducted.

[84] The Court of Appeal decision Jones was not handed down until October, 2011 almost five years after the search in this case. As indicated above, Blair, J.A. observed in Jones that there was very little jurisprudence dealing with s. 489. At para. 58 he made reference to the fact that the relationship between the "plain view doctrine" and s. 489 remained unsettled in the case law, and indeed found that it was not necessary to settle that issue in that case.

[85] In a recent Supreme Court of Canada case considering section 24(2) R. v. Aucoin, 2012 SCC 66 (S.C.C.), Moldaver, J. observed, at para. 50, that where the law surrounding police powers in a particular area is still evolving and where the police acted in good faith and without deliberate disregard for or ignorance of Charter rights, the seriousness of a breach may be attenuated.

[86] On the second branch of the Grant test, it has been long recognized that persons have a high expectation of privacy in their private residences. A Charter breach in respect of the warrant to search the accused's residence would be considered to have a relatively high impact on his Charter-protected interests.

[87] With respect to the third branch of the Grant test relating to society's interest in the adjudication of the case on its merits, the defence argues that the three letters and the diary that were seized and are sought to be introduced by the Crown, unlike many cases such as R. v. Blake 2010 ONCA 1, [2010] O.J. No. 48 (C.A.), do not represent the entirety or even a major component of the Crown's case.

[88] The Supreme Court of Canada in Grant, at para. 83, did identify the importance of the evidence to the prosecution's case as a factor that may be considered in reference to the third branch of the test. The Court pointed out that this factor is corollary to the inquiry into reliability in the sense that the admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused.

[89] As indicated below, in my ruling respecting prior discreditable conduct, two out of the three seized letters, as well as the excerpts from the deceased's diary, are found to have satisfied the test for threshold reliability. Accordingly, they cannot be considered to be of questionable reliability, and since they do not form the entirety of the case against the accused, an adverse effect of their admission on the repute of the administration of justice would be lessened.

[90] In my view, in considering the importance of the evidence to the Crown's case, a contextual approach must be utilized. In this case, the evidence is entirely circumstantial. As discussed in more detail below in my ruling respecting prior discreditable conduct, there is no direct evidence that the deceased was killed, and if she was, there is no direct evidence that her death was caused by an unlawful act of the accused. The Crown's case will be built upon a constellation of disparate pieces of evidence, which it says, when viewed in its entirety, would permit a properly instructed jury to find the accused guilty of unlawfully causing the deceased's death. This includes evidence such as the deceased's writings, comprised of letters and diary entries, which the Crown says goes to motive, intent and animus on the part of the accused. Accordingly, the evidence should not simply be looked at in isolation and determined not to be important to the Crown's case in an entirely circumstantial case such as this.

[91] At para. 84 of Grant, McLachlin, C.J.C. and Charron, J., while acknowledging that the seriousness of the alleged offense may be a valid consideration under the third branch of the test, stated it has the potential to cut both ways. They concluded on this point that "while the public has a heightened interest in seeing a determination on the merits where the offense charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high."

[92] In light of the foregoing, and given the demonstrated good faith of the police and the lack of any evidence that they acted in deliberate or blatant disregard of the accused's Charter rights, I am not able to find that any breach of s. 8 of the Charter which may have occurred in this case engaged society's interest in having a justice system that is above reproach.

[93] In balancing the three inquiries under the Grant test, notwithstanding the serious impact of a breach of the Charter-protected interests of the accused that may have occurred in this case, I am not able to conclude that the administration of justice would be better served by excluding the evidence than by admitting it.

[94] I would therefore decline to exclude the evidence under s. 24(2) of the Charter notwithstanding any breach that might've been found under s. 8

Disposition

[95] The application of the accused to exclude the items seized by the police on the search of his residence is therefore dismissed.

RULING #2 - STATEMENTS OF THE ACCUSED TO POLICE – VOLUNTARINESS AND SECTIONS 7 AND 10(B) OF THE CHARTER

[96] The accused provided five statements to members of the Waterloo Region Police Service (WRPS) that the Crown intends to introduce at trial as part of its case. The defence has conceded that the statement given to Constable Sauve on January 17, 2007 as well as the statement given to Sgt. Smale on July 8.2011 were voluntary.

[97] The remaining three statements in issue are the two videotaped statements given by the accused to Detective Russell Crook on January 23 and February 6, 2007 respectively, and the videotaped statement given by the accused to Detective Duane Gingerich following his arrest on July 13, 2011. The Crown has brought an Application for an Order finding these statements voluntary beyond a reasonable doubt, and the accused has brought an Application excluding the statements made by him to Detective Crook from evidence owing to a lack of voluntariness or owing to a breach of s. 7 of the Charter and excluding from evidence the statement he made to Detective Gingerich owing to a lack of voluntariness or a breach of ss. 7 and 10(b) of the Charter.

[98] The Crown called Detectives Russell Crook and Gingerich, as well as Detective Valerie Sibley to testify on the voir dire. The accused did not testify on the voir dire and called no other evidence.

Background

(a) January 23, 2007 Statement

[99] As indicated above, the accused had already spoken to Constable Sauve, having called him in response to Constable Sauve attending at his residence on January 15 and leaving a business card with a request that the accused call with information regarding a missing person investigation.

[100] The January 23, 2007 statement was obtained at the Brantford police station where the accused was engaged in performing work as a plumber. The statement was videotaped as the facility to do so was available and Detective Crook considered it to be the best way to obtain a complete and reliable record of what the accused said in the course of the interview.

[101] By the date of the interview, the disappearance of the deceased had been classified as a "major case" within the WRPS and a major case manager, lead investigator and file coordinator had been assigned to it. Sgt. Crook was a field investigator on the case and reported to the lead investigator.

[102] On January 22, 2007 a meeting of the team assigned to the case was convened, at which time various tasks were assigned to members of the team. Following the meeting, Detective Crook made arrangements to set up surveillance on the accused. He testified that this was a very regular investigative technique and there were often circumstances where surveillance would be put on the witness.

[103] Detective Crook also contacted the CPIC Centre requesting a search to be carried out for any queries having been submitted across Canada on the accused or on Denise Bourdeau. The request was made on an urgent basis which would permit a response to be provided within two hours. A regular non-urgent request would fall in line behind other pending requests and a response would therefore be delayed. Detective Crook advised CPIC that the concern was with respect to the common-law husband of a missing person and that the WRPS had a suspect under surveillance. One of the requirements of CPIC to respond to urgent requests was that there had to be a suspect under surveillance. Detective Crook testified that at that time the accused's status was that of a "person of interest" and not a "suspect". His advice to CPIC that the accused was a "suspect" was, on Detective Crook's evidence, for expediency in order to justify the urgent search request.

[104] At a briefing meeting on the morning of January 22, 2007 a member of the homicide branch, Sgt. Van Ingen, was tasked with keeping a chronology of grounds for a search warrant, should it be determined that issuance of a search warrant would be requested.

[105] On the morning of January 23, 2007 Detective Crook attended a briefing on the case at police headquarters, the purpose of which was to bring the homicide branch in on the status of the investigation, as it had taken it over responsibility for the case.

[106] Sgt. Van Ingen attended part of the briefing meeting on January 23, 2007 and was told that the police would be applying for a search warrant for the accused's apartment. He worked through the night of January 23 and into the morning hours of January 24 drafting the ITO for the search warrant. Appendix B to the search warrant, describing the offence in respect of which the search was to be made, named the accused, stating that he "did commit first-degree murder on the person of Denise Nuttley". The decision to name the accused and to state the offence as first-degree murder was that of Sgt. Van Ingen.

[107] Towards the beginning of the interview, Detective Crook advised the accused that it was being videotaped, that he was a police officer, that it was part of his job to solve crimes or investigate whether a crime has been committed and that due to the fact that deceased had been missing for some time the crime could be anywhere from murder, to kidnapping, or to assault.

[108] Detective Crook informally reviewed the accused's right to counsel and right to silence by saying "you have the right not to speak to me if you don't want to" and "if you feel like you want to speak to a lawyer, you know that that's your right." He also advised the accused that since interview was being recorded "if something comes up down the road it could be used against you in court…if we get into that." When asked if he "understood all that" the accused responded "yeah, yeah."

[109] Detective Crook also gave the accused an informal secondary warning that if any other officer had spoken to him and "perhaps made any promises or suggestions or anything like that, I don't want that to affect you talking to me."

[110] During the interview the accused provided information about his relationship with the deceased, including incidents of domestic violence and provided details, beyond that provided to Detective Sauve, about what happened on the night of and during the weeks leading up to December 31, 2006 and spoke of his alcohol consumption and his daily routine.

(b) February 6, 2007 Statement

[111] Between January 24 and 28 Detective Crook and the accused had 14 communications which were neither audio nor video recorded. As indicated above, a search warrant was issued on January 24 authorizing a search of the accused's apartment and storage locker, and the search was carried out on January 24, 25 and 26.

[112] Prior to January 31 a Part XI single party consent authorization to record communications between Detective Crook and the accused was obtained. On that date Detective Crook had two telephone conversations with the accused. In the second conversation he advised the accused that his vehicle would be seized pursuant to a search warrant that had been obtained.

[113] On February 2 Detective Crook received a telephone call from the office of Mr. Cox, a criminal defense counsel, inquiring into the search of the accused's vehicle. On the same date, Detective Crook received a voicemail message from Mr. Cox inquiring about the investigation, following which Detective Crook spoke with Mr. Cox who advised that he was representing the accused and was inquiring into the search of the vehicle.

[114] On February 2 Detective Crook received a voicemail from the accused inquiring into tools stored in his vehicle. Three days later Detective Crook called the accused to advise him that the search of his vehicle was completed and attempted to make arrangements for the accused to attend at the police station to retrieve his belongings and to meet with him to discuss the case. The accused advised Detective Crook that he had been told by Mr. Cox to "clam up" and that he wanted to speak with him again prior to meeting with Detective Crook to discuss the case.

[115] Later in the day on February 5, Detective Crook called the accused to make arrangements to meet, at which time the accused asserted his right to remain silent and advised that Mr. Cox had given him legal advice to "be quiet". Notwithstanding that, the accused indicated that he did want to meet with Detective Crook.

[116] Following a few attempts to contact the accused, Detective Crook received a telephone call from the accused in the evening of February 5, at which time the accused advised that he had spoken with Mr. Cox and that he did want to talk. Detective Crook advised him that he may face some "hard questions" to which the accused responded that he had the choice to remain silent if he wished to. During the course of the conversation there was a lengthy exchange between Detective Crook and the accused respecting where the meeting would take place; Detective Crook wanted it at police headquarters and the accused wanted to meet at his apartment or at a coffee shop. Detective Crook eventually was able to persuade the accused to attend at police headquarters for the meeting, in large part because the accused's vehicle and belongings were available there for him to retrieve.

[117] At the time of the February 6, 2007 interview the accused was considered by the WRPS to be a "suspect". Detective Crook testified that he understood that since accused was a "suspect" he had to be conscious that the accused was aware of his right to speak to a lawyer and his right to remain silent. Detective Crook made a deliberate decision not to provide the accused with a caution and warning with respect to these issues, as he was satisfied that the accused had previously been advised on the earlier interview respecting his right to remain silent, that he had exercised his right to consult counsel by speaking to Mr. Cox and that he had revealed that he had received advice from Mr. Cox on how to conduct himself. On the basis of his telephone conversation with Mr. Cox in the intervening period, Detective Crook was satisfied that a lawyer-client relationship existed between the Mr. Cox and the accused.

[118] At the beginning of the interview, Detective Crook provided information to the accused on how to exit the building if there was a fire or if he wanted to leave at any time.

[119] During the first part of the interview the accused provided information respecting the history of his relationship with the deceased, incidents of domestic violence, his alcohol consumption and his activities in the days leading up to and after December 31, 2006. During the second part of the interview, Detective Crook questioned the accused regarding his involvement, if any, in the disappearance of the deceased. He revealed to the accused that he believed that Denise Bourdeau was dead and repeatedly prevailed upon the accused to "do the right thing" and take him to where her body was.

[120] Despite Detective Crook's insistent questioning, the accused did not break down to provide any inculpatory statement with respect to his involvement in the disappearance of the deceased, and asserted his right to silence 15 times.

(c) July 13, 2011 Statement

[121] The accused was arrested on July 13, 2011 at his place of employment. Detective Sibley of the homicide branch led the team tasked to carry out the arrest.

[122] Following the accused's arrival at police headquarters, he was interviewed over nine hours by Detective Gingerich. Prior to the interview the accused was given formal Charter rights and cautions.

[123] Detective Sibley placed a call to the accused's lawyer Mr. Cox requesting that he call back to speak to the accused. After receiving his Charter rights and cautions, the accused spoke with Mr. Cox prior to the commencement of the interview with Detective Gingerich. However, during the interval before Mr. Cox called back, Detective Sibley questioned the accused in order to obtain the information to complete the detain sheet. During the completion of the detain sheet, Detective Sibley asked the accused questions about his drinking and whether he was an alcoholic, which the accused acknowledged.

[124] Early in the interview, Detective Gingerich made reference to the information that the accused had provided to Detective Sibley respecting his alcohol use. On numerous occasions during the interview Detective Gingerich averted to the interview conducted by the Detective Crook on February 6, 2007 and showed the accused certain video-taped "clips" of that interview. At no time during the course of the nine-hour interview did the accused provide any inculpatory statements with respect to his involvement in the death of the deceased. As was the case with the February 6, 2007 interview, details were discussed with respect to the deceased's disappearance and the history of domestic violence in her relationship with the accused.

[125] During the interview, the accused was confronted for the first time with evidence that the deceased's blood had been found inside his vehicle. When confronted with this evidence, the accused asserted that it was from an incident where the deceased had been injured in a workplace and he had gone to pick her up.

[126] During the course of the interview the accused asserted his right to silence 30 times.

Guiding Principles

[127] Generally, a statement made by an accused to a person in authority is not admissible into evidence unless Crown proves, beyond a reasonable doubt, that the statement was voluntary, that is, that the accused has made a meaningful choice to speak (see Paciocco and Stuesser, The Law of Evidence, 5th ed. at p. 320, citing R.v. Hebert (1990), 1990 CanLII 118 (SCC), 77 C.R. (3d) 145 at 180 (S.C.C.)).

[128] The "confessions rule" is reflective of two competing goals, namely, to protect the rights of the accused without unduly limiting society's need to investigate and solve crimes (see R.v. Oickle 2000 SCC 38, [2000] S.C.J. No. 38 (S.C.C.) at para. 33).

[129] Voluntariness is the touchstone of the confessions rule. If a confession is involuntary by reason of the making of threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, the confession is inadmissible (see Oickle at para. 69).

[130] The analysis under the confessions rule is a contextual one, whereby a court should strive to understand the circumstances surrounding the confession and ask if they give rise to a reasonable doubt as to its voluntariness, taking into account all the aspects of the confessions rule (see Oickle para. 71)..

[131] An effort by the police to convince a suspect that it is in his or her best interests to confess becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne (see Oickle para. 57).

[132] If the common-law voluntariness rule is satisfied, there will be no breach of the general right to silence under s. 7 of the Charter because the accused will have exercised his or her choice to speak, which is what s. 7 protects (see Paciocco and Stuesser, The Law of Evidence, 5th ed. at p. 320, citing R. v. Singh 2007 SCC 48, [2007] S.C.J. No. 48 (S.C.C.) at para. 25). A finding of voluntariness will be determinative of whether there was a breach of s. 7. If the Crown proves voluntariness beyond a reasonable doubt, there can be no finding of a Charter violation of the right to silence in respect of the same statement, and the converse holds true as well (see Singh at para. 37).

[133] Suspects who have not been detained have a right under s. 7 of the Charter to choose freely whether to speak to the police or to remain silent. While the interrogating officers do not have the duty to advise a person in those circumstances of the right to silence, the failure to caution such a person may, in the circumstances of the case, effectively and unfairly deny the suspect the choice and lead to relief under s. 24(2) of the Charter (see R.v. Morrison 2000 CarswellOnt 5811 (S.C.J.) at para. 57).

[134] The police are not absolutely prohibited from questioning a detained person and they need not advise the detainee that he has a right to remain silent. The right to remain silent in s. 7 of the Charter is in fact the right of the detained person to make an informed choice as to whether to speak to the police (see R.v. Smith 1996 CanLII 1074 (ON CA), [1996] O.J. No. 372 (C.A.) at p. 13).

[135] The scheme under the Charter to protect the accused's pre-trial right to silence involves sections 7 and s. 10(b) being read together. Section 7 confers on the detained person the right to choose whether to speak to the authorities or to remain silent and s. 10(b) requires that he be advised of his right to consult counsel and permitted to do so without delay. Although the detained suspect may be at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, he is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces (see R. v. Hebert 1990 CanLII 118 (SCC), [1990] S.C.J. No. 64 (S.C.C.) at paras. 51 and 52).

[136] The ambit of s. 10(b) of the Charter must be considered in light of s. 10(a) which requires the police to advise an individual who is arrested or detained of the reasons for such arrest or detention. The rights accruing to a person under s.10(b) arise because he or she has been arrested or detained for particular reason, therefore such a person can exercise his 10(b) right in a meaningful way only if he knows the extent of his jeopardy (see R. v. Black 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138 at para. 30).

[137] When a detained person expresses his desire to consult his lawyer, the police have a duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel (see R. v. Manninen 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233 at para. 23).

[138] Where there has been a breach of a right guaranteed by the Charter in the taking of the statement from the accused, it may, on a review of the entire course of events, taint the obtaining of a further statement which, in and of itself, involved no Charter breach if the breach and the obtaining of the subsequent statement can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the second statement may be temporal, contextual, causal or combination of the three. However, a connection that is merely "remote" or "tenuous" will not suffice (see R.v. Wittwer 2008 SCC 33, [2008] 2 S.C.R. 235 at para. 21).

Analysis

[139] The defence acknowledges that there are no issues with respect to oppression or the lack of an operating mind on the part of the accused with respect to any of the three statements under consideration.

(a) January 23, 2007 Videotaped Interview

[140] With respect to the January 23, 2007 interview by Detective Crook, the defence argues that at that time the accused was a suspect, and not simply a "person of interest", and since he was not made aware of the jeopardy that he was in, and told that he was a suspect, he was not able to make a meaningful decision on whether to speak to the police or maintain his right to silence.

[141] A definition of a "suspect" for the purpose of triggering an expectation that the police will give a person being questioned a caution respecting the right to silence has proven to be somewhat difficult to formulate in the case law. Dambrot, J. in R.v. A.D. [2003] O.J. No. 4901 found, at para. 70, that the definition in the Ontario Major Case Manual, utilized by police authorities in the Province, which defines a suspect as "a person and investigator reasonably believes may possess a degree of culpability in the commission of the criminal offense being investigated and there is some incriminating information linking the person to the crime" places the bar too high for this purpose. Trafford, J. in Morrison posited the following definition: "a person is a suspect when, objectively viewed, the information collected during an investigation tends to implicate him/her in the crime." Watt, J. (as he then was) in R. v. Worrall [2002] O.J. No. 2711 (S.C.J.) expressed the view that, once a police officer has information that "would alert any reasonably competent investigator to the realistic prospect" that the death of the deceased may have been associated with an unlawful act committed by a person being questioned, that person should be cautioned.

[142] In the end, Dambrot, J. in R.v. A.D. observed that there was not a great deal of difference in the various formulations and that the trigger for an expectation that the police will give a caution "must be less than reasonable grounds to believe that the person committed an offense, but must surely be more than speculation, knowledge that other persons suspect that person, or even reliable information that the person's background relationship to the victim or the opportunity to commit the offense may warrant further inquiry."

[143] In my view, in all of the circumstances, the accused was a "suspect" according to the various expressions of the definition referred to above. At the time of the interview the police had information that the deceased was missing, that there was a history of domestic violence of the accused towards the deceased, that he had a criminal record for assaulting her, that the deceased had stayed with David Heath for some days prior to December 31, 2006, that the deceased had attended at Jonathan's bar with Mr. Heath on New Year's Eve, that the accused had also attended the bar that evening and had consumed alcohol, that the accused had provided information to police that the deceased had "begun to get friendly" with other men at the bar, that the accused was seen exiting the bar with the deceased and that he had stated to police that he had a verbal argument with her and had left.

[144] Although Detective Crook was not present at the time, a decision had been made in the briefing meeting on the morning of January 23, 2007 to apply for a search warrant of the accused's apartment. In drafting the ITO, Sgt. Van Ingen considered certain facts significant, including the history of the domestic violence between the accused and that the deceased had been wearing a hat belonging to David Heath in the early hours of January 1, 2007, which was located by David Heath on the ground outside Jonathon's bar. It is noted that there is no evidence that Detective Crook was aware that Sgt. Van Ingen considered this last fact significant.

[145] As indicated above, Appendix B to the warrant, as prepared by Sgt. Van Ingen, described the offence as first degree murder, committed by the accused. In my view, it is not determinative that the description of the offence and of the alleged perpetrator was that of Sgt. Van Ingen, without apparent knowledge on the part of Detective Crook. Of more significance is the fact that a decision had been made by the investigative team to seek a search warrant of the accused's apartment prior to the commencement of the interview and that the ITO described the perpetrator as the accused.. That the disappearance of Denise Bourdeau was the result of an unlawful act on the part of the accused would have been a realistic prospect to a reasonable investigator and was more than speculation on the part of the investigative team at the time. Indeed, that was the conclusion reached by Sgt. Van Ingen in drafting the ITO and warrant. Therefore the accused would be considered a "suspect" for the purpose of triggering an expectation that he would be provided witha caution respecting his right to silence. I do not accept the argument of the Crown that the accused's status as a "suspect" did not "crystallize" until completion of the first draft of the ITO by Sgt., Van Ingen at 6:00 a.m. on January 24, 2007. The onus is proving voluntariness is on the Crown. Sgt. Van Ingen's evidence, as stipulated in Ex GG on the voir dire, did not specify when he made the determination to describe the offence in the manner that he did.

[146] Insofar as the rights of the accused are impacted, it was his status as a "suspect" at the time, and the knowledge of the supporting facts within the investigative team as a whole, which are significant, not what Detective Crook may have believed or understood individually. Recognizing the burden of proof on the Crown, any reasonable doubt on this question should be resolved in favour of the accused.

[147] As indicated above, Detective Crook was not under a duty to inform the accused of his right to remain silent. The absence of a standard caution is only one factor to be considered in the voluntariness analysis, just as the presence of such a caution does not automatically lead to the conclusion that a statement is voluntary (see R. v. E.B.2011 ONCA 194, [2011] O.J. No. 1042 (C.A.) at para. 88). If there was a failure to provide the accused with an adequate caution with respect to his right to silence, the question becomes whether the failure, in the circumstances, effectively and unfairly denied the accused the right to make a meaningful choice on whether to speak to the police (see reference to Morrison above).

[148] In E.B. the Court of Appeal found that the statement given by the accused to police was voluntary notwithstanding that the standard caution was not given to him. As indicated at para. 91 of E.B., the standard caution states specifically that the suspect may be charged with a criminal offense but has the right to remain silent and that anything said during the interview can be used against the suspect in court if he or she is charged with a crime. The Court went on to find that, even though the standard caution was not utilized in that case, it was "brought home" to the accused that he did not have to give the statement and that there were potential adverse consequences in doing so.

[149] In R. v. Lourenco 2011 ONCA 782, [2011] O.J. No. 5678 (C.A.) the Court of Appeal, citing E.B. at para. 7 held that, although a caution is not necessary depending on the circumstances, the statement by the accused to police in that case, given the absence of a caution, was not voluntary when there was nothing to bring home to the accused that he did not have to speak and that there were potential adverse consequences to doing so.

[150] In my view, although the statement by Detective Crook that "you have the right not to speak to me if you don't want to" may possibly be said to satisfy the first element in E.B. and Lourenco, the casual statement that "if something comes up down the road it could be used against you in court…if we get into that" did not effectively "bring home" to the accused that there were potential adverse consequences to him speaking to police, and in particular, in the context of a future criminal prosecution against him. In my view, the idiom "bring home" in this context means "to make perfectly clear". A vague reference to "something coming up down the road," without at least specifying what the "something" may be, cannot be said to make the potential adverse consequences perfectly clear to the accused, given the constitutional importance afforded the right to silence under s. 7 of the Charter. In my view, Detective Crook, by the casual language he used, understated the potential adverse consequences to the accused in order to avoid deterring him from speaking.

[151] Although there may not have been, in the circumstances, threats or promises, the lack of an operating mind, or police trickery, the failure of Detective Crook to bring home or make perfectly clear to the accused the potential adverse consequences of speaking to him effectively and unfairly denied the accused the right to make a meaningful choice on whether to speak to him. Although the failure to give the accused an effective caution respecting his right to silence is, on the authorities, only one factor to be considered in the voluntariness analysis, given that the onus of proving voluntariness beyond a reasonable doubt rests on the Crown, the absence of equally strong countervailing indicators of voluntariness leads to a conclusion that the onus has not been met in reference to the January 23, 2007 statement. The accused did not seek out the interview or offer to speak to Detective Crook, and indeed, prior to Detective Crook arriving at the Brantford Police Station where the accused was performing plumbing work, he had no forewarning that Detective Crook wanted to speak with him. This was not a case where the accused agreed to attend at the police station at the request of police to give a statement. Moreover, his statement, after the commencement of the interview that "I'll talk to you guys, no problem" was not a spontaneous offer to speak but was elicited by a leading question from Detective Crook "the bottom line is, Dave, we're here talking because you wanna talk to me."

Disposition

[152] I therefore find that the Crown has failed to prove, beyond a reasonable doubt, that the videotaped statement given by the accused on January 23, 2007 was voluntary. Accordingly, it is not admissible at trial.

(b) February 6, 2007 Videotaped Interview

[153] With respect to the February 6, 2007 videotaped statement, as indicated above, Detective Crook made a deliberate decision not to provide cautions to the accused respecting his right to remain silent or to consult with counsel, believing that he had been adequately the cautioned previously at the time of the January 23 interview, and that he had already exercised his right to consult with counsel, on the basis of his contact with Mr. Cox in the intervening period. Detective Crook described his decision not to give any caution to the accused a "deliberate omission".

[154] As indicated above, since the accused was not detained, the informational component under s. 10(b) of the Charter was not engaged. However, as with the earlier videotaped statement, the failure to provide a caution respecting the right to silence is a factor to be considered on the voluntariness analysis.

[155] The circumstances leading up to the February 6 interview differ from the January 23 interview in that the accused did attend at the police station at the request of Detective Crook. However, although the accused indicated to Detective Crook that he was interested in speaking with him, he agreed to do so at police headquarters very reluctantly and Detective Crook was only successful in persuading him to come to police headquarters by reason of the fact that his vehicle and tools, which the accused was urgently seeking to retrieve, were being held there.

[156] Although the accused invoked his right to silence 15 times during the course of the interview, with the exception of one passing reference earlier, he did not do so in earnest until 51 minutes into the interview after Detective Crook revealed to him that he believed that Denise Bourdeau was dead, and that he was responsible for her death, and prevailed upon him to lead him to her body.

[157] Based upon a review of all the circumstances, including in particular, the deliberate decision by Detective Crook not to caution the accused with respect to his right to silence, I am not satisfied that the Crown has proven beyond a reasonable doubt that the videotaped statement given by the accused on February 6, 2007 was voluntary. Accordingly, it is not admissible at trial.

(c) July 13, 2011 Videotaped Interview

[158] With respect to the July 13, 2011 videotaped interview, the defence argues that the accused's s. 10(b) right was infringed by the police failing to "hold off" questioning of the accused after his assertion of his desire to consult his lawyer, through Detective Sibley obtaining information from him respecting his drinking and alcoholism in the course of completing the "detain sheet".

[159] I would not give effect to this argument. In the case of R. v. Manninen 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233 (S.C.C.) Lamer, J. stated, at para. 23 that s.10(b) of the Charter "imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel" (emphasis added). At para. 24 Lamer, J. observed that, in that case, immediately after the respondent accused had communicated his desire to consult his lawyer, "the police commenced his questioning as if the respondent had expressed no such desire." That is not the situation in the present case. In completing the detain sheet, Detective Sibley was simply carrying out an administrative function in obtaining information from the accused in the interest of protecting the accused's safety and that of other detainees or police personnel while he was in custody. She was not "otherwise attempting to elicit evidence" from the accused.

[160] In the case of R. v. Dupe, 2010 ONSC 6594 (S.C.J.) Dambrot, J., at para. 24, confirmed that the obligation to hold off relates to questions designed to elicit in incriminatory evidence, or at least to elicit evidence relating to the offense under investigation, and does not extend to questioning to assist the accused to exercise his rights, preserve his property, provide care for his family, or to protect his health and safety or the health and safety of others.

[161] Moreover, this case is distinguishable from the facts in R. v. Smith 2011 BCSC 1695 (S.C.J.) where the interviewing officer commenced a rapport-building exercise with the accused in the course of a 90 minute ride in a police cruiser to the police station, after the accused had indicated a desire to consult with counsel and before he was able to do so. At para. 217 Ker, J. observed that the accused had not been able to obtain advice from counsel as to his rights, what strategies, including rapport-building, the police might employ, and how you can exercise those rights, particularly silence, in the face of those strategies.

[162] In the present case Detective Sibley was not engaged in a rapport-building exercise or any other investigative strategy in the course of completing the detain sheet. She was likewise not seeking to compel him to make a decision to participate in a process which could ultimately have an adverse effect on the conduct of an eventual trial (see R. v. Prosper 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236 (S.C.C.) at para, 34, quoted in Smith at para. 206).

[163] In my view, the fact that Detective Gingerich adverted to the answers given by the accused to Detective Sibley regarding his alcoholism did not have the effect of retroactively transforming Detective Sibley's completion of the detain sheet into a breach of the accused s. 10(b) rights, or to otherwise taint the interview conducted by Detective Gingerich.

[164] Detective Gingerich did utilize the indication that the accused had provided to Detective Sibley that he considered himself an alcoholic as a way to open up an area of conversation with the accused respecting his drinking habits. However, the fact that the accused abused alcohol was something that was well known to the police and the information provided to Detective Sibley was not a revelation which provided Detective Gingerich with an opening that he did not otherwise possess.

[165] The defence also submits that the July 13, 2011 was tainted by the involuntary statement given by the accused on February 6, 2007. In the case of R. v. I (L.R.), 1993 CanLII 51 (SCC), [1993] 4 S.C.R. 504 (S.C.C.) at pp. 526-27 (quoted in R. v. Wittwer 2008 SCC 33 (S.C.C.) at para. 23) Sopinka, J observed "under the rules relating to confessions at common-law, the admissibility of the confession which had been preceded by an involuntary confession involved a factual determination based on factors designed to ascertain the degree of connection between the two statements." He went on to state that "a subsequent confession would be involuntary if either the tainting features which disqualified the first confession continued to be present or if the fact that the first statement was made was a substantial factor contributing to the making of the second statement." He observed that the fact that a caution or warning had been given after the advice of counsel had been obtained between the two statement was a factor to be considered but was not determinative.

[166] In Wittwer, at para. 21, the Supreme Court indicated that a 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. The connection between the breach and the subsequent statement may be temporal, contextual, causal or combination of the three.

[167] In this case, aside from a few earlier passing references, Detective Gingerich first adverted to the February 6, 2007 interview conducted by Detective Crook (referred to by Detective Gingerich as "Russ") approximately 2 hours and 45 minutes into the interview, at page 205 of the transcript of the interview, and at approximately 4 hours and 15 minutes into the interview (commencing at page 280 of the transcript) he offered to show the accused video clips of the February 6, 2007 interview. He showed the accused three clips from the video from the earlier interview which he told the accused he entitled "Assaulting Denise on December 27-28", "Assaulting Denise because of STD" and "Blackouts".

[168] Reviewing the first video clip refreshed the accused's memory and prompted the accused to admit that the "last assault" on the deceased took place on December 27 and 28. After watching the second clip, the accused expressed surprise and indicated that he had forgotten the incident but that it had refreshed his memory that it was his having learned that he had contracted an STD that triggered an assault on the deceased.

[169] After viewing the third video entitled "Blackouts," the accused acknowledged that he was "drinking like crazy" and was "a mess" at the time that he was experiencing blackouts from excessive alcohol consumption.

[170] In my view, the fact that the statement was made by the accused on February 6, 2007 was a substantial factor contributing to the accused making the statements respecting his assaults on the deceased December 27 and 28, 2006, the earlier assault triggered by his contracting an STD and his experiencing blackouts from alcohol abuse, as demonstrated by the fact that those statements were elicited from him by watching the video clips. Although the two interviews were not temporally linked, due to the length of time between them, they were contextually and causally linked, and Detective Gingerich effectively made the two interviews part of the same transaction at the point that he commenced adverting to the earlier interview. Accordingly, I am not able to find that the connection between the two interviews was merely "remote" or "tenuous"

[171] Since Detective Gingerich did not advert substantively to the February 6, 2007 interview until well into the July 13, 2011 interview, the entire interview, in my view, was not tainted. In order to avoid confusion in the minds of the jury and possible jury error, the references to the January 23 and February 6, 2007 interviews prior to Detective Gingerich making reference to and showing the video clips to the accused can and should be edited out.

[172] In my view, the portion of the interview after Detective Gingerich offered to show the accused clips of the video of his February 6, 2007 interview should be excluded in its entirety, as having been tainted by that interview which was not shown to have been voluntary. Moreover, after that point in the interview, Detective Gingerich attempted to persuade the accused to retreat from the maintenance of his right to silence by asking him to consider how it would look to a jury that he did not explain his side of the story when given the opportunity to do so and representing that it was the only opportunity he would have to tell his side of the story. The interview after that point also consisted, in large measure, of Detective Gingerich stating at length his own opinion and theory of the case against the accused.

[173] As indicated in R.v. Turcotte 2005 SCC 50 (S.C.C.) at paras. 44-45 the right to silence would be an illusory right if the decision not to speak to the police could be used by the Crown as evidence of guilt. In R.v.Sodhi (2003) 2003 CanLII 52179 (ON CA), 66 O.R. (3d) 641 (C.A.) at para. 105 it was observed that a jury should not be exposed to the opinions and theories of the investigating officers, and at para. 117, the better practice to deal with such passages in a police interview would be to excise them rather than make them the subject of a limiting instruction.

Disposition

[174] I order that the portion of the July 13, 2011 interview commencing at page 280 of the transcript starting with the words on the last line "uhm, one of the things you said to Russ…" and continuing to the end shall be excluded from evidence as being tainted by the involuntary statement given by him to Detective Crook on February 5, 2007. It is at this point that Detective Gingerich begins the process of offering to show the accused clips of the video and proceeds to do so.

[175] In addition, the following prior passages referring to the interviews conducted by Detective Crook are to be edited out:

(a) p. 168, line 20 to p. 169 line 11;

(b) p. 180, line 18 to line 28;

(c) p. 204, line 26 to p. 205 line 19;

(d) p. 232 line 26 to p. 233 line 1;

(e) p. 249 line 20 to p. line 25 to and including the word "yeah';

(f) p. 254 line 27 to p. 255 line 1; and

(g) p. 271 line 25 to line line 18 to and including the word "gathered".

[176] The balance of the July 13, 2011 shall be admitted into evidence.

[177] As indicated above, pursuant to the concession by the defence, the statements given to Constable Sauve on January 17, 2007 and to Sgt. Smale on July 8.2011 shall be admitted into evidence.

RULING # 3 - ADMISSIBILITY OF STATEMENT OF ACCUSED TO HIS PROBATION OFFICER

Background

[178] The Crown seeks to admit into evidence a statement made by the accused to his probation officer Mary Gifkens on April 2, 2006.

[179] Following his guilty plea on November 9, 2005, the accused was convicted of assault causing bodily harm in respect of the deceased and was sentenced to time served, being 46 days and to a probationary term of two years.

[180] Ms. Gifkens was the accused's supervising probation officer from November 2005 to November 2007.

[181] Ms Gifkens was called by the Crown to testify on the voir dire during which she described at length her interactions with the accused throughout his probationary period, as well as a telephone contact with the deceased in September 2006.

[182] The only evidence of Ms. Gifkens which the Crown seeks to tender at trial is a conversation that she had with the accused on April 2, 2006 regarding the September 2005 incident that led to the charges against him and to his subsequent guilty plea and conviction. The Crown's position is that, during the conversation, the accused revealed to her that the incident was actually caused by the deceased and in particular, her infidelity, lies and betrayal towards him.

[183] The Crown asserts that the statement has probative value as it is the accused himself who identifies specific triggers to his violence towards the deceased, namely his perception that the deceased was unfaithful and untruthful, and as such, goes to the issues of motive, intent and animus as well as his state of mind on December 31, 2006. It submits that the statement is admissible in evidence as an admission against interest, being a recognized exception to the rule against hearsay.

[184] The defence position is that, as the accused's probation officer, Ms. Gifkens was a person in authority at the time that the statement was made to her, and accordingly, the burden is on the Crown to prove beyond a reasonable doubt that the statement was voluntary, which it has not done. The defence also submits that the accused's right to silence was breached and accordingly the statement should be excluded. It takes the further position that to permit the Crown to elicit the accused's statement to his probation officer would render the trial unfair, as it was made in circumstances where he had received assurances of confidentiality from her, as an agent of the state.

[185] The defence confirmed in submissions that it was not suggesting that the voluntariness of the statement or the accused's right to silence has been undermined by any other means than by the assurance of confidentiality he received from Ms. Gifkens.

Testimony of Mary Gifkens

[186] In her testimony, Ms. Gifkens described the intake assessment interview that she conducted with the accused on December 2, 2005 in which she reviewed with him the terms and conditions of his probation and had him sign an Acknowledgment of Court Order. She discussed with him the limitations on the confidentiality of statements and information received from him, namely, if she became aware that he may hurt himself or others or there was a child in need of protection, or she if received information respecting the commission of a major crime, she would report it; otherwise she would maintain information received from him confidence unless he provided a release.

[187] Ms. Gifkens later clarified in testimony that probation officers do share information with the police and with the Court in the interest of public safety, and that the confidentiality to which she referred in reference to her intake assessment interview with the accused was in respect of his personal information such as his address.

[188] She testified that her job was to monitor compliance by accused with the probation order and confirmed that she would report if he violated the terms of his probation or if she believed that he was not keeping the peace and being of good behavior.

[189] Ms. Gifkens testified that, in her discussion with the accused, she "covered off" the issues referred to in section 10 of the Ministry of Correctional Services Act, which provides, in part, that every person employed in the administration of the Act, including a probation officer, shall preserve secrecy in respect of all matters that come to his or her knowledge in the course of his or her duties or employment and shall not communicate any such matters to any other person, subject to various enumerated exceptions. Each of Ms. Gifkens and the accused signed the Acknowledgement of Court Order document, which included a statement that "the extent and limits of confidentiality (section 10-MCS ACT) were explained by the interviewer and client understands understanding of same." Ms. Gifkens confirmed that she did not have the section of the Act with her at the time, but rather summarized it from her recollection.

[190] She advised that she never told the accused that there would be negative consequences to his choosing not to talk, or conversely, that there would be positive consequences if he chose to talk. Specifically, she never mentioned to him that there would be positive or negative consequences to his discussing the events surrounding the September 2005 offense.

[191] Ms. Gifkens described the accused as engaging positively in the supervisory relationship with her and that he was not hostile or adversarial.

[192] In specific reference to the April 2, 2006 meeting, she described the interaction with the accused as positive. The issues surrounding the 2005 incident were raised by her. Her motivation for doing so was to discuss the incident with a view to exploring with the accused strategies to avoid future incidents.

[193] On cross examination, Ms. Gifkens repeated that that she would have told the accused that his confidentiality rights remained intact subject to certain exceptions, in particular, if she believed that he would hurt himself or someone else or if there was a child in need of protection. She acknowledged that she did not specifically tell the accused that she shared information with police, however she added that clients generally know that, as probation officers, they need to know the client's current address and place of employment in the event that they need to contact police. She testified that her practice was to tell clients that her job was to monitor compliance with the probation order and that she would report breaches of the order, or breaches of the law, to the police.

[194] Ms. Gifkens stated that probation officers can play a key role in the rehabilitation of offenders and in helping them understand what led them to offend. She agreed that was important to maintain open communication with the client and to promote frank and open discussion.

Analysis

(a) Probation Officer as Person in Authority

[195] On the question of whether an accused's probation officer, such as Ms. Gifkens, is a person in authority, there appears to be a divergence in the case law.

[196] In the case of R .v. Smyth [2006] O.J. No. 5528 (SCJ) Trafford, J. held that a probation officer, to whom an accused charged with murder had previously disclosed graphic deviant fantasies and urges, was a person in authority. At para. 28, Trafford, J. noted that the probation officer in that case was an employee of the Ministry of Correctional Services, that, during the initial interview with the accused, she advised him of her responsibilities under section 10 of the Act, including her duty to report to the police any crimes he admitted to during their conversations as well as any breach of probation. Accordingly, their conversations were not absolutely confidential and thus, the accused reasonably believed that she was capable of influencing, or controlling, any such proceedings against him.

[197] In the case of R. v. Benham 2008 BCSC 1349, [2008] B.C.J. 1904 (B.C. S.C.) it was held that a probation officer is not a person in authority solely by virtue of his or her status. Although the probation officer does not play a role in the prosecution of the underlying charge, but rather only in the prosecution of an alleged breach of a condition of an order, because of a probation officer's connection with the criminal justice system, an accused who believed that the officer could influence criminal proceedings more generally may, depending on the circumstances, be able to establish a reasonable basis for such a belief (see para. 22). At para. 26 Fisher, J. observed that a probation officer may well be a person in authority, but not based on a broadly defined notion that he or she could be a potential prosecutor due to an obligation to report information about crimes to the police. The most obvious circumstance where a probation officer would likely be found to be a person in authority is where he or she receives the statement from an accused in relation to a charge over which he or she has some role to play. At para. 30 Fisher, J. specifically declined to follow Smyth on the basis that the evidence which supported the conclusion that the accused believed that the probation officer had some influence or control in the criminal proceedings but was not specified. Without evidence of the accused's actual belief, a judge is unable to assess the reasonableness of that belief. Fisher, J. held that, in the case before him, the probation officer was not a person in authority as she played no role in the investigation or prosecution of any crimes other than breaches and had no influence in such investigations and prosecutions and there was no evidence that the accused believed that she had.

[198] On appeal, the British Columbia Court of Appeal found that it was unnecessary to make a determination on whether the probation officer was a person in authority, as there was no basis to interfere with the Fisher, J's finding that the accused's statement was voluntary.

[199] In R. v. Kembo [2010 B.C.J. No. 1464 (B.C. S.C.) Stromberg-Stein, J. held, at paras. 16-17, without referencing Benham but citing Smyth, that the probation officers in that case were persons in authority even though the accused was neither arrested nor detained when the accused spoke to them, he was not interrogated nor was he under investigation and they were not agents of the police.

(b) Voluntariness

[200] Although I do not read Smyth as standing for the proposition that probation officers are, by virtue of their status, always persons in authority in their dealings with offenders under their supervision, I find that it is not necessary to make a determination of whether Ms. Gifkens was a person in authority in receiving the statement of the accused on April 2, 2006. I am satisfied that, even if she were a person in authority, the Crown has established beyond a reasonable doubt that the statement was voluntary. As the defence acknowledged, and I find, there is no basis for any suggestion that the will of the accused to choose whether to speak to Ms. Gifkens regarding the September 2005 incident was overcome by inducement, oppressive circumstances, the lack of an operating mind or trickery. The accused was not a suspect, as there was no suggestion that a crime had been committed, and therefore no caution respecting his right to silence was to be expected of Ms. Gifkens.

[201] In my view, the defence claim that an express or implied promise of confidentiality, by itself, supports a finding that the statement was involuntary is in essence a claim that privilege attached to the statement. In the case of R.v. Karasek [2011] A.J. No. 581 (Alta. C.A.) the four-part Wigmore test for a finding a privilege was referred to, at para. 7, as follows;

(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

[202] In my view, the Wigmore test is not satisfied in the present case. Even if the first prong of the test is met, given that the relationship between a probation officer and an offender is statutorily defined and comes into existence by virtue of a court order, the element of confidentiality cannot be said to be essential to maintenance. Moreover, in reference to the fourth prong, any injury that which might be caused to the probation officer/offender relationship by the disclosure of the statement cannot be considered to be greater than the benefit gained by disclosure in the search for truth in the context of the prosecution of the present case, particularly as it involves one of the most serious offenses in our criminal law.

(c) Right to Silence

[203] Having found that the statement of April 2, 2005 was voluntary, it follows that there has been no breach of the accused's right to silence (see R.v. Singh 2007 SCC 48, [2007] S.C.J. No. 48 at para. 25).

(d) Discretion to Exclude Evidence to Preserve Trial Fairness

[204] Finally, the defence relies upon the residual discretion of the trial judge to exclude evidence, including exclusion of confessions independently of the voluntariness rule, in order to preserve trial fairness. The existence of this broad discretion was identified and confirmed by the Supreme Court of Canada in R. v. Harrer 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, albeit in obiter. At para. 21 La Forest, J. stated that the trial judge has a duty, apart from subsections 24(1) and (2) of the Charter, now constitutionalized by the enshrinement of a fair trial in the Charter, to exercise properly his or her judicial discretion to exclude evidence that would result in an unfair trial.

[205] Professors Paciocco and Stuesser in The Law of Evidence (5th ed.) observed, at p.337, that the Supreme Court of Canada furnished little guidance as to the criteria and standards to be employed in identifying trial fairness and, although it can be said with confidence that courts do possess the power outside of the voluntariness rule to exclude confessions, the standards for applying that discretion await clarification.

[206] At paras. 45 and 46 of Harrer, McLachlin, J (as she then was), in her concurring reasons, offered the following observations with respect to what constitutes a fair trial and the nature of evidence which may render a trial unfair:

At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.

Evidence may render a trial unfair for a variety of reasons. The way in which it was taken may render it unreliable. Its potential for misleading the trier of fact may outweigh such minimal value it might possess. Again, the police may have acted in such an abusive fashion that the court concludes the admission of the evidence would irremediably taint the fairness of the trial itself.

[207] Little authority was cited by the counsel in this case with respect to the principles and standards to be applied in the exercise of a discretion to exclude evidence in the interest of maintaining trial fairness. One case that was cited R.v. Brunczlik (1995) 1995 CanLII 7426 (ON SC), 103 C.C.C. (3d) 131 (S.C.J.) involved statements made by the accused to a Crown-retained psychiatrist. Previous defense counsel had agreed to provide access to the accused by the Crown psychiatrist at a time when the identity of the accused as the person responsible for the killings that was not considered a live issue for trial but rather the real issue was the accused's mental capacity to form the specific intent to commit murder. On the eve of trial, instructions from the accused to his newly-retained counsel alerted the Crown and that the identity of the killer had become an issue for trial, and the Crown sought to introduce statements made by the accused to the psychiatrist, wherein he acknowledged responsibility for the killings, on the issue of identity.

[208] Hill, J. found, at para. 88, that the defence decision to permit access to a representative of the prosecution was imbued with a use limitation restricted by the character of the disclosure impelled by the principle which allowed for the drawing of an adverse inference from the accused's refusal to be examined by a Crown-retained psychiatrist. At para. 93 Hill, J. ruled that, whether described in terms of s. 24(1) of the Charter or on the basis of the court's discretion to exclude evidence to secure a fair trial, the evidence of the psychiatrist could not be led by the Crown on the issue of identity.

[209] As indicated in the headnote to the Brunczlik decision, the real issue in that case was whether there existed adjudicative unfairness. The circumstances giving rise to the unfairness arose in the context of the actual prosecution of the charges before the Court. That is not the situation in the present case.

[210] I do not propose to attempt to comprehensively define the standards to be applied by the Court in the exercise of a discretion to exclude evidence in the interest of trial fairness. It is sufficient for the present purposes to find that any assurances of confidentiality which Ms. Gifkens may have imparted to the accused did not have the effect of causing the admission of his statement of April 2, 2006 to render the trial unfair. The way in which the statement was taken did not render it unreliable, its probative value is not so minimal as to be outweighed by any potential for misleading the jury, and there is no evidence of any abusive behavior in the taking of the statement which would irremediably taint the fairness of the trial itself.

[211] In the circumstances of this case, an at-large reliance on confidentiality is not sufficient to create the specter of an unfair trial so as to justify the exercise of a discretion to exclude the statement on the authority of Harrer. To do so would, in my view, effectively confer on the statement a privilege protection in circumstances not supported by the recognized Wigmore test for a finding of privilege.

Disposition

[212] For the foregoing reasons the statement given by the accused to Ms. Gifkens on April 2, 2006 is admissible at trial.

RULING #4 – PRIOR DISCREDITABLE CONDUCT AND HEARSAY STATEMENTS

[213] The Crown has brought an application to have evidence of prior discreditable conduct of the accused admitted at the trial, namely various acts of violent abuse by the accused towards the deceased during their two-year relationship,. Included in this evidence are various written and oral ante-mortem statements made by the deceased, including oral statements made to a friend, her mother and a co-worker, statements made by her to health-care providers on her admission to hospital on three separate occasions, as well as diary entries and letters written by the deceased to the accused recounting various acts of violence and threats by the accused towards her. Additional viva voce and documentary evidence is also sought to be introduced to show the abusive and violent nature of the relationship between the accused and the deceased.

[214] The prior discreditable conduct evidence which the Crown seeks to adduce may be briefly summarized as follows:

(a) hospital records respecting the deceased's admissions to hospital on April 3, June 26and September 24, 2005, reporting descriptions by the deceased of assaults and threats (in the case of the June 26and September 24 admissions) by her boyfriend/common law partner, and notes made of physical injuries observed by attending medical personnel. The records also include photographs depicting the deceased's injuries at the time of her admission on September 24, 2005.

(b) the guilty plea of the accused on November 9, 2005 to a charge of assault causing bodily harm in reference to the September, 2005 incident, and the statement of facts read into the record by the Crown, and accepted by the accused, through his counsel, as "substantially correct". The statement of facts recited that the accused and the deceased began arguing on September 18. The argument escalated into a physical altercation, during the course of which the accused threw the deceased's clothes into the garbage. On September 19 the argument continued during which the accused grabbed the deceased by the throat until she urinated on herself and lost consciousness. During that portion of the assault the accused was yelling repeatedly "I want you dead" and when the deceased regained consciousness she vomited. The statement of facts recited further that five days later, on September 24, a neighbor observed the deceased stumbling down the roadway wiping blood off her face, following which she was brought to the hospital.

(c) a handwritten letter discovered in November, 2006 by the deceased's mother Amy Miller in a handbag that the deceased had left at her residence. The letter was dated July 18, 2006, was written by the deceased, and was addressed to the accused. In the letter the deceased discussed ongoing issues in her relationship with the accused, including physical, mental and emotional abuse and referred to escalating physical abuse including "throat grabbing" and violent beatings when the accused was drinking. The deceased also referred to one or more death threats when the accused would tell her "I want to crush your skull, I kill you and then dump your body out in the woods somewhere where not (sic) one would know as you don't even exist" and "what's seven years for murder". Ms. Miller gave the letter to the police in January 2007 after the deceased was reported missing.

(d) During a search of the accused's apartment under warrant on January 24, 2007 three letters and a journal were seized which appeared to have been authored by the deceased. Handwriting analysis by the Centre of Forensic Sciences concluded that the handwriting on these items could be identified "within the limits of practical certainty" to be that of the deceased. The letters and the journal entries detailed ongoing physical, emotional and verbal abuse during the course of the relationship between the deceased and the accused.

(e) evidence from a co-worker of the deceased, Nancy Cossaboom, that:

(i) during the months of March/April, 2006 she observed injuries on the deceased on several occasions, including a black eye and bruising on her cheek, upper arm and neck as well as marks which looked like "long finger type marks".

(ii) In the spring of 2006 the deceased arrived unannounced at Ms. Cossaboom's residence covered in blood, bruised, disheveled, shaking and crying and indicating that she was fleeing from the accused. Ms. Cossaboom observed red marks on the deceased's face as well as a handprint around her throat, with clear marks from the fingers and the thumb. The deceased stated, in reference to the accused, that "he tried to choke me again" and that during every fight her neck was the accused's "favorite place to grab." The deceased showed Ms. Cossaboom an older bruise on her back from being pushed into a door by the accused as well as bruising on her ribs in a pattern which looked like knuckle marks.

(iii) The deceased stayed at Ms. Cossaboom's apartment for four days, during which they went to the accused's apartment building to retrieve the deceased's clothing that which had been thrown into a dumpster by the accused. The evidence of Ms. Cossaboom also indicated that the accused was actively looking for the deceased during the time that she was staying with her, and that the deceased was crying and fearful that the accused "knew where she was" and was able to describe the hallways and carpets of the apartment building, indicating that he had been in attendance there.

(iv) The accused arrived at Ms. Cossaboom's apartment demanding to see the deceased, who hid in the bedroom to avoid speaking with him. Ms. Cossaboom and her boyfriend had to physically eject the accused by pushing him back into the hall, whereupon the accused swore at her and kicked or punched her door. Shortly after this incident the deceased left Ms. Cossaboom's apartment and resumed her relationship with the accused.

(v) A couple of months later Ms. Cossaboom observed the deceased sitting in the stairwell of the accused's apartment building and a large red mark on one side of the deceased's face. The deceased was crying and related to her that the accused had struck her again. She requested Ms. Cossaboom to leave fearing that her presence would anger or provoke the accused. Ms. Cossaboom heard the accused yell out to the deceased who immediately ran upstairs.

(vi) During same month, Ms. Cossaboom walked by the deceased sitting outside Jonathon's bar. The accused was standing nearby and the deceased did not respond to Ms. Cossaboom's greeting or acknowledge her in any way. The deceased may have had a mark or bruise on her cheek at that time.

(f) evidence from the mother of the deceased, Amy Miller, that:

(i) she recalled, over the length of the relationship between the deceased in the accused from January 2005 to December 31, 2006, seeing the deceased with various marks and bruises. Ms. Miller recalled seeing the deceased that with at least 12 black eyes over that time;

(ii) following the deceased's resumption of her relationship with the accused upon his release from custody in November, 2005 she would often call Ms. Miller between 2 and 4 a.m. and tell her she was afraid of the accused.

(iii) In July, 2006 the deceased came to Ms. Miller's residence and resided there for six weeks. She arrived with a black eye and had nothing with her but "the clothes on her back". Ms. Miller stipulated to the deceased that she would that be required to refrain from alcohol consumption as a condition of her being able to stay with her. Part way through her stay, the deceased began leaving on the weekends and returned with new injuries, including cuts and bruises on her neck or a black eye. When Ms. Miller discovered in late August, 2006 that the deceased was hiding alcohol in her bedroom, contrary to their agreement, she asked her to leave and later learned that the deceased had resumed her relationship with the accused in September, 2006.

(iv) On New Years' Eve, 2006 that she received a telephone call from the accused who was looking for the deceased. Ms. Miller advised him that she was not with her in the accused responded "I know she's in town and I know exactly where she's going to be tonight."

(g) Evidence from a friend of the deceased, David Heath that:

(i) he observed the deceased in late September or early October, 2005 with a fresh black eye and what appeared to be a broken nose. When asked, the deceased advised Mr. Heath that she had been physically assaulted by her boyfriend.

(ii) in October, 2005, the deceased invited Mr. Heath to her apartment and told him that her boyfriend was in jail for assaulting her.

(iii) he observed further injuries on the deceased on December 22 or 23, 2006. The deceased showed up unannounced at his apartment and had a black eye and a fresh bruise on her cheek and stated that her boyfriend "David" had struck her again and she needed a place to stay.

(iv) the deceased left Mr. Heath's apartment on December 25 and returned four days later with fresh bruising on the left side of her face. She indicated that she had been assaulted and was fleeing from the accused. On this occasion she had an overnight bag with her and again requested to stay with Mr. Heath at his apartment.

(v) two days later, Mr. Heath and the deceased attended at Jonathan's bar to celebrate New Year's Eve. At one point prior to midnight the deceased looked up and saw the accused looking through the bar window and reacting fearfully by beginning to shake, and stated to Mr. Heath "that's him, that's Dave". The accused entered the bar and, after an initial altercation resulting in him being ejected from the bar, he subsequently returned and joined Mr. Heath and the deceased at the table. At one point during the night, the three of them were outside smoking and Mr. Heath confronted the accused about his physical abuse of the deceased. The accused did not deny the allegation but rather indicated that he would "work on that," stating that this abusive behavior was caused by drinking whiskey.

Guiding Principles

(a) Prior Discreditable Conduct

[215] It is worth repeating that the fundamental rule underpinning the law of evidence is that all evidence that is logically probative to some material issue at trial is relevant and is therefore admissible unless it is excluded by some particular rule of law (see R. v. Johnson 2010 ONCA 646 (C.A.) at para. 81, citing R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24 at p. 40 and Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190 at p. 201).

[216] Traditionally, evidence of similar facts of a discreditable nature proffered for the purpose of leading to a conclusion that the accused is a person likely by his/her character to have committed the offence for which he/she is being tried, is inadmissible. This type of evidence raises two forms of prejudice that will generally outweigh any probative value that the evidence itself may possess – moral prejudice (the possibility that the jury might choose to convict, not on the basis that the charges have been proven beyond a reasonable doubt, but to punish the accused for uncharged conduct) and reasoning prejudice (the distracting nature of the past misconduct evidence). Notwithstanding this, courts have recognized an exception to this general exclusionary rule where the evidence of previous misconduct is so highly relevant that its probative value in the search for truth outweighs any potential for misuse (see R. v. Handy 2002 SCC 56, paras. 31-40 and R. v. Johnson 2010 ONCA 646 (C.A.) at paras. 84-86).

[217] Where evidence of prior discreditable conduct is sought to be admitted, the onus is on the Crown to show, on a balance of probabilities, that the probative value of the evidence outweighs its potential for prejudice (see Handy at para. 55).

[218] Doherty, J.A. pointed out in R v. Watkins (2003), 2003 CanLII 3874 (ON CA), 181 C.C.C. (3d) 78 (Ont. C.A.) para. 34, citing Handy at para. 504, that probative value can only be measured by reference to the tendency of the evidence sought to be introduced to prove or disprove a specific fact, and before that measurement can take place, the factual issue to which that evidence is directed must be identified. This point was echoed by Rouleau, J.A. in R. v. Johnson at para. 92 where he stated "it is impossible to measure probative value without first understanding how the proposed evidence might be relevant. Thus, to meet their burden, the Crown must identify a matter in issue that the similar fact evidence is relevant to."

[219] Where the issue to which the evidence is directed is motive or animus of the accused towards the complainant or victim, similarity between the prior conduct and the conduct forming the basis of the charge takes on less significance. The acts could be said to be dissimilar, but the inference on the issue in question may nevertheless be compelling (see Handy at para. 80, quoted in Johnson at para. 98).

[220] Evidence that provides the trier of fact with real insight into the background and relationship between the accused and the victim, and which helps to establish a bona fide theory of motive is highly probative, even in the absence of similarity with the charged offense (see Johnson at para. 101, citing R.v. Moo 2009 ONCA 645, [2009] O.J. No. 3706 (C.A.) at para. 70-109).

[221] The Court of Appeal in R. v. D.S.F. 1999 CanLII 3704 (ON CA), [1999] O.J. No. 688 (C.A.) confirmed at para. 20 that "in cases involving allegations of physical and sexual abuse in the course of an ongoing relationship, courts have frequently admitted evidence of discreditable conduct to assist the court in understanding the relationship between the parties and the context in which the alleged abuse occurred." The Court of Appeal in Moo, at para. 98, confirmed the application of this principle to prosecutions of domestic homicide, stating that "the evidence not only demonstrates the nature of the relationship between the parties, but also may afford evidence of motive and animus relevant to establish the identity of the deceased's killer and state of mind in which the killing was done."

[222] Binnie, J. in Handy at para. 139 emphasized that "prejudice" in the context of the balance between probative value and prejudicial effect, is not the risk of conviction, but rather the risk of an unfocused trial and a wrongful conviction. The forbidden chain of reasoning is to infer guilt by general disposition or propensity.

[223] The Supreme Court of Canada in R. v. S.G.G.1997 CanLII 311 (SCC), [1997] S.C.J. No. 70 at para. 100, had earlier made a similar point by stating that "prejudice" on an enquiry into prejudicial effect of evidence is used in the legal, procedural sense. The enquiry does not focus on the effect that the evidence may have on the outcome of the trial; that is, on how powerful it is for the prosecution, but rather on its effect on the right of the accused to make full answer and defence. The question is not whether the evidence may tend to convict the accused, but whether it is likely to convict him unjustly (see also R.v. L.B. 1997 CanLII 3187 (ON CA), [1997] O.J. No. 3042 (C.A.) at para. 22).

[224] The authors of the Law of Evidence in Canada (3d) ed. (Bryant, Lederman and Fuerst) observed at para. 11.168 that the general and particular prejudices that may result from the admission of the similar fact or discreditable conduct evidence must be identified and that the more reprehensible the prior or subsequent conduct, such as sexual abuse of a young child, the greater is the potential for prejudice. Thus a high degree of probative value is required to justify the admission of the similar fact evidence due to its inevitable prejudicial effect.

[225] Additional concerns are posed where the similar fact or prior disreputable conduct evidence consists of a multiplicity of incidents which may make the task of sifting through a large volume of evidence to be onerous for the trier of fact. This problem is exacerbated in a multi-count indictment where the disputed similar acts are extraneous to the indictment before the court (see Law of Evidence in Canada (3rd ed.) at para. 11.169, citing Handy at paras. 144-147).

[226] The trial judge, in performing the gatekeeper function, may consider whether the proof and counter-proof of the similar fact evidence will consume a disproportionate amount of time and whether it bears too much of the burden of the Crown's case (Law of Evidence in Canada (3d) ed. at para. 11.170). Consideration may also be given to whether the Crown can prove its point with less prejudicial evidence (see Handy at para. 83).

(b) Admission of Hearsay Ante-Mortem Statements of the Deceased

[227] Hearsay evidence, consisting of an out of court statement adduced to prove the truth of its contents, without a contemporaneous opportunity to cross-examine the declarant, was traditionally not admissible, absent a recognized exception. More recently the Supreme Court of Canada has adopted a principled approach whereby hearsay evidence may be admitted if indicia of reliability and necessity are established on a voir dire. The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities (see R. v. Kelawon 2006 SCC 57, [2006] 2 S.C.R. 787 at paras. 34 to 42 and 47).

[228] Trial fairness is the end that must be achieved in the consideration of the admissibility of hearsay evidence. Trial fairness embraces more than the rights of the accused, including the right to make full answer and defense, but also must be assessed in the light of broader societal concerns, including society's interest in having the trial process arrive at the truth. While the criterion of necessity is founded on society's interest in getting at the truth, the criterion of reliability is about ensuring the integrity of the trial process.

[229] Although the evidence may be needed, it is not admissible unless it is shown to be sufficiently reliable to overcome the dangers arising from the difficulty in testing it. The reliability requirement may generally be met on the basis of two different, but not mutually exclusive, grounds; first, that the circumstances in which the hearsay statement came about are such that it may be so reliable that contemporaneous cross-examination of the declarant would add little to the process, or second, that the circumstances will allow for sufficient testing of the evidence by means other than contemporaneous cross-examination.

[230] Even if the two criteria of necessity and reliability are met, the objective of trial fairness provides that the trial judge has the residual discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect.

(see Kelawon, para. 49)

[231] There is an important distinction between threshold reliability and ultimate liability. The trial judge only decides whether hearsay evidence is admissible. It is for the jury to determine whether the hearsay statement will or will not be ultimately relied upon in deciding the issues in the case based on a consideration of the statement in the context of all of the evidence. Only "threshold reliability" is inquired into on the admissibility voir dire (see Kelawon, para. 50).

[232] When the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement's truth and accuracy, there is no need to inquire further into the likely truth of the statement. That question is entirely left to the ultimate trier of fact (see Kelawon, para. 92)

[233] In determining threshold reliability, the court should adopt a functional approach and focus on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers.

[234] The inquiry into threshold reliability is not limited to the circumstances surrounding the making of the statement, but rather may include the presence or absence of corroborating factors (see Kelawon, paras. 93-100 and R.v.Blackman 2008 SCC 37, [2008] 2 S.C.R. 298 at para. 55). However, trial judges must be aware of the limited role that they play in determining admissibility and that the question of ultimate reliability must not be pre-determined on the admissibility voir dire (see Blackman at para. 56).

[235] The presence or absence of a motive to lie is a relevant consideration in assessing whether the circumstances in which the statement came about provide sufficient comfort in his truth and accuracy to warrant admission. However, motive is but one factor to consider in determining threshold reliability. The focus of the inquiry in all cases must be not on the presence or absence of motive, but on the particular dangers arising from the hearsay nature of the evidence (see Blackman at para. 42).

[236] In the context of a case of domestic homicide, ante-mortem statements of the deceased respecting the deceased's domestic relationship with the accused may be found to meet the test of threshold reliability in order to help establish motive or animus on the part of the accused (see R. v. Gandir 2009 ONCA 915, [2009] O.J. No. 5485 (C.A.) at para. 8-9) or "to illuminate important aspects of the factual matrix surrounding the crime, including the victim's state of mind and the prevailing matrimonial environment" ( see R. v. Pasqualino 2008 ONCA 554, [2008] O.J. No. 2737 (C.A.) at para. 48).

Application of the Principles

[237] The defence acknowledges that, pursuant to the line of cases exemplified by R. v. D.S.F. 1999 CanLII 3704 (ON CA), [1999] O.J. No. 688 (C.A.), evidence of prior discreditable conduct consisting of abusive behavior of the accused toward the complainant in cases of domestic abuse, or towards the deceased in cases of domestic homicide, is routinely admitted for the purpose of demonstrating the motive or animus of the accused in committing the offense alleged.

(a) General Considerations

[238] Notwithstanding the fact that evidence of prior abusive behavior is routinely admitted in cases of domestic abuse or homicide, the defence argues that the particular circumstances of the present case are such that the evidence of the prior abuse would skew the trial unfairly by permitting the evidence to acquire too prominent a role and to carry too much weight in proving the Crown's case.

[239] The defence points to two important factors which militate in favor of exclusion of the evidence generally. First, the evidence of the prior abuse is so contemptible that the jury members would be filled with revulsion at the accused's conduct such that they would be inflamed with moral prejudice against him.

[240] Second, based upon the evidence of the pathologist Dr. Fernandez, the cause of the deceased's death is unascertained. He could offer no opinion with respect to the cause or time of death (except that it was weeks or months prior to discovery of the deceased's body) or where she died.

[241] In order to convict the accused there will therefore be two questions for the jury, firstly, whether the deceased was killed, and secondly, if the deceased was killed, whether the accused intentionally caused her death. The defence argues that the presence of the first issue reduces the probative value of the prior discreditable conduct evidence and increases its prejudicial effect by creating the potential for it to affect the jury's determination of the question of whether the deceased was killed.

[242] As stated in its Factum, the defence argues that the discreditable conduct evidence is tendered for a purpose other than to shed light on the accused's relationship with the deceased and to demonstrate motive and animus. Rather, the evidence is tendered to establish that, because the accused had been physically abusive to the deceased in the past, the deceased's death was a homicide because killing her was in keeping with the accused's propensity for violence. It argues that evidence of discreditable conduct is proffered to shore up a critical shortfall in the Crown's case, namely, the cause of death.

[243] On the first general issue raised by the defence, namely, the potential for the jury to become inflamed with moral prejudice due to the reprehensible nature of the accused's abusive behavior, it is noted that the statement of law from Law of Evidence in Canada (3rd ed.) at para. 11.168 that "the more reprehensible the prior or subsequent conduct, the greater is the potential for prejudice" is not supported by any authority which would shed light on its appropriate application and its limits. The example given by the authors, namely child sexual abuse, is not present in this case. Although it may be fair to make the observation that, in general, the more reprehensible the conduct the more potential for prejudice, it must be remembered that the Court is required weigh the prejudice arising from the evidence against its probative value. As indicated above, evidence that provides the trier of fact with real insight into the background and relationship between the accused and the victim, and which helps to establish a bona fide theory of motive is highly probative.

[244] As reprehensible that the evidence of the accused's abusive conduct towards the deceased is in this case, it cannot be said that it is so qualitatively different from the type of evidence that is routinely admitted in cases of domestic abuse or domestic homicide that it should be excluded because its prejudicial effect outweighs its probative value.

[245] In this case the evidence of the abusive, threatening, dominating and controlling behavior of the accused was exclusively directed towards the deceased. This is not a case of evidence that an accused was abusive towards women generally, which might more likely lead a jury into an improper line of moral reasoning in reference to "bad personhood" of the accused.

[246] In Pasqualino, LaForme, J.A. stated that:

The evidence of prior discreditable conduct] is highly relevant to the issues of motive and intent that the appellant may have engaged in recent threats and other discreditable conduct that were specifically targeted against the victim, and that his animus toward the victim had been increasing during the time leading up to the killing. Such evidence of threatening abusive behavior by an accused against a victim possesses probative value precisely because it demonstrates that the accused was asked a specific tendency or intention to act against the victim.

[247] It is noted that, in cases of domestic homicide, evidence of extrinsic misconduct which is proffered to establish animus between the principals, and thus to establish motive as well as identity and the state of mind that accompanied the unlawful killing, the usual limiting instruction to the jury about evidence of extrinsic misconduct is not required and indeed has no place (see R. v. Candir 2009 ONCA 915, [2009] O.J. No. 5485 (C.A.) at para. 68 and Pasqualino at para. 65). This rule serves to highlight the highly probative nature of this type of evidence.

[248] I would therefore not give effect to the argument that the particularly contemptible nature of the evidence of abusive conduct in this case is such as to make its prejudicial effect outweigh its highly probative value.

[249] Regarding the second general issue raised by the defence respecting the lack of evidence on the cause of death, it is noted that no authority was cited for the proposition that the existence of this issue reduces the probative value of the prior discreditable conduct evidence or increases its prejudicial effect.

[250] It is true that the Crown does seek to tender the prior discreditable conduct evidence in order to attempt to establish that the deceased's death was a homicide and that it was intentionally perpetrated by the accused. The evidence in this case is entirely circumstantial and there is no forensic evidence establishing the cause of death. The fact that the cause of death is a shortfall in the Crown's case does not necessarily lead to the exclusion of the evidence of prior abuse.

[251] As the Goudge, J.A. observed in R. v. P.S. 2007 ONCA 299, [2007] O.J. No. 1476 (C.A.) at para. 29, that the criminal law's reticence to propensity reasoning "is not absolute if the evidence of discreditable conduct permits a sufficiently focused form of propensity reasoning such that its probative force outweighs its prejudicial effect." In support, Goudge, J.A. quoted Doherty, J.A. in R. v. Batte (2000), 145 C.C.C. (3d) 339 (C.A.) where he stated "there will be situations in which the probative force of propensity reasoning is so strong that it overcomes the potential prejudice and cannot be ignored if the truth of the allegation is to be determined. The probative force of propensity reasoning reaches that level where the evidence, if accepted, suggests a strong disposition to do the very act alleged in the indictment."

[252] Contrary to the suggestion in the defence Factum, the authorities suggest that evidence of a prior domestic abuse or animus in a domestic homicide prosecution may be proffered in support of an inference that the deceased's death was a homicide, in the absence of other proof that it was, and that the accused intentionally caused the death. In the case of R. v. Polimac [2006] O.J. No. 4757 (S.C.J.), appeal dismissed 2010 ONCA 346, [2010] O.J. No. 1983 (C.A.) certain evidence respecting abusive conduct by the accused towards the deceased, his long-time common-law spouse, prior to her death was admitted for the purpose of showing the accused's animus towards her, her fear of him and the deterioration of their relationship. The deceased had died following a fall from a height while hiking with the accused, and the issue was whether the accused deliberately caused her death by pushing her or whether her fall was accidental.

[253] In the case of [R. v. Jack [1992] M.J. No. 1 (Man. C.A.)] the accused was charged with murdering his wife, although her body was never found. Although the appeal from conviction was allowed and a new trial ordered on other grounds, evidence that the accused had pinned his wife down on the bed prior to her disappearance was found to be admissible. At p. 12 Scott, C.J.M. observed:

"in my opinion the evidence was relevant and admissible as evidence of motive arising from the deteriorating relationship between the accused and [the deceased]. Further, it provided necessary and essential background facts to enable the jury to deal with the real issues before it, including whether in fact there had been a death at all."(emphasis added).

[254] I therefore decline to give effect to the argument that the fact that the cause of the deceased's death is unascertained lessens the probative value and heightens the prejudicial effect of the discreditable conduct evidence sufficiently to support its exclusion. An appropriate instruction may be given to the jury respecting the care which they must take with the evidence on the issue respecting the cause of death.

(a) Necessity Requirement

[255] Turning to the specific items of evidence sought to be introduced by the Crown, it is noted that the defence acknowledged, in reference to the hearsay statements of the deceased, that the necessity requirement has been met due to her death.

(b) Hospital Records

[256] The first category of prior discreditable conduct comprises the hospital records relating to the deceased's admissions on April 3, June 26, and September 24, 2005. The defence did not take specific issue with their admissibility as prior discreditable conduct of the accused, beyond the general issues identified above. However, the defence did argue that the Crown failed to demonstrate that the statements of the deceased respecting her injuries, and the circumstances of her sustaining them, met the standard for threshold reliability and therefore the records should not be admitted into evidence.

[257] Although the defence acknowledged the exception to the rule against hearsay in respect of hospital records under the Canada Evidence Act R.S.C. 1985, Chap. C-5, as amended, and Ares v. Venner 1970 CanLII 5 (SCC), [1970] S.C.R. 608, they argue that the court is still required to carry out the analysis under Kelawon. The Crown does not propose to call the healthcare providers who interviewed the deceased and made the notations to the records but rather seeks to introduce the documentary records into evidence for the truth of the statements contained therein. The defence points out that little is known about the circumstances under which the deceased made the utterances described in the records. For instance, it is not known if the statements were taken verbatim or whether they represent distillations or synopses. It is not known if the statements were spontaneous or to what degree they were elicited. It is similarly not known whether the deceased contradicted herself while imparting information at the hospital.

[258] The difficulty is compounded by the fact that a significant portion of the records, which are largely handwritten, are illegible. The defence also points to the reports indicating high levels of alcohol in the deceased's system at the time of her admissions, suggesting that she was intoxicated when the statements were made. For instance, in reference to the June 26 admission, the toxicology test report indicated an ethanol level of 86.5 mmol/L, with a legal impairment level of greater than 17 mmol/L and the level where death may occur (depending on body mass/metabolism) of greater than 75 mmol/L.

[259] The toxicology information in reference to the September 24 admission indicates an even higher level blood alcohol of 92.7 mmol/L. There were no toxicology results for the first admission on April 3, however the triage record and nursing notes indicated that the deceased had "six beers and two rye in the past 24 hours." The defence suggests that the toxicology reports of the June 26 and September 24 admissions, when compared to what the deceased reported as her alcohol intake on those occasions, suggests that she may well have, innocently or otherwise, understated to ambulance personnel how much she had to drink. This would suggest the possibility that she similarly understated her alcohol intake in reference to the April 3 admission. The defence makes the point that a witness having blood-alcohol in his or her system at the level disclosed in the toxicology reports for the June 26 and September 24 admissions would not be permitted to testify in court before a jury.

[260] The Crown argues that the difficulties associated with the statements attributed to the deceased in the hospital records go to weight or ultimate reliability rather than to threshold reliability. It argues that there are circumstantial guarantees of trustworthiness in reference to the statements reported. For instance, in reference to the April 3 admission, the deceased was described as "ambulatory", was not noted to be confused, was able to communicate in regular full sentences, and was described as an alert, oriented and cooperative. She was clear on the details in the nature of the assault and was not described as confused. The assault which she described was consistent with the physical injuries observed.

[261] The Crown submits that the probative value of the statements given by the deceased on her admission on April 3 includes the timeline of the abuse perpetrated by the accused, indicated by the deceased to be three months, which largely coincides with the inception of the relationship, that the violence was increasing in frequency and nature and the comment by the deceased that alcohol was a factor respecting the violence in the relationship.

[262] With reference to the June 26 admission, the Crown points out that the triage record indicates that the deceased was a cooperative and not noted to be confused. She was noted to be oriented to person, place and time and that she "obeys commands". She was described as "teary" but coherent.

[263] It is noted that on June 26 the deceased initially reported to paramedics that she had been sexually assaulted, but she later retracted that report upon her arrival at hospital. Unlike on her admission on April 3, she did not identify the accused as the person who assaulted her. The records indicated that she was very reluctant to relate what had happened to her.

[264] The Crown acknowledged in argument that, with respect to some of the circumstantial guarantees of trustworthiness, the records relating to the June 26 admission contain less information than are present in the records relating to the April 3 and September 24 admissions. The Crown suggests that the deceased's reluctance to provide information about what happened to her is consistent with her being in an abusive relationship with the accused.

[265] In reference to the records relating to the September 24 admission, it is observed that this was the incident that led to the accused being charged and to his subsequent guilty plea to assault causing bodily harm. The deceased was reported to have indicated that her "husband Dave" assaulted her repeatedly over the previous several days during which he "backhanded" her across the face, sat on her chest "strangling" her, and said repeatedly "I want you dead".

[266] The notes noted the deceased to have been alert and oriented, but to have slurred speech. She was further noted to be cooperative and to be speaking in regular full sentences. The domestic assault/sexual assault intake notes indicated that the deceased reported that she was punched on her face and back and was choked. She was concerned that the accused had been arrested and charged and that he would lose his job and blame her as a result. The deceased reported that she felt threatened or intimidated and when asked to describe this she reported that the accused said "I want you dead" repeatedly. In the report by the domestic violence nurse the accused was identified as the person who assaulted her, with the assault consisting of punching, choking and verbal threats including "I want you dead" and "you're ruining my plans". When asked whether the person who assaulted her threatened to kill her, the deceased responded in the affirmative.

[267] Respecting the history of previous domestic violence, the deceased reported that she had been assaulted previously by the accused, indicating that the relationship had been violent for six months and that it had become more frequent and more violent. She reported that she had sustained injuries from previous assaults and had received prior medical treatment as a result of being assaulted.

[268] The records included detailed descriptions and diagrams and photographs of the injuries sustained by the deceased, which corroborate the account of the assaults provided by her.

[269] As indicated above, the onus is on the Crown to show, on a balance of probabilities, that the reliability requirement of the deceased's hearsay statements, made at the time of her admissions to hospital, is met either because the circumstances in which the statements were made are such to render them so reliable that contemporaneous cross examination would add little to the process, or the circumstances allow for sufficient testing of the evidence by means other than contemporaneous cross examination.

[270] As noted above, the Crown does not propose to call the recipients of the statements made by the deceased as recorded in the hospital records. Accordingly, the recipients will not be subject to cross examination with respect to the circumstances under which the information from the deceased was obtained. Very little precise information is known about the circumstances by which the information came to be recorded in the records. Although the records confirm the injuries sustained by the deceased on each occasion, it is the suggestion that the accused carried out the assaults and the descriptions of the assaults which make the evidence probative on the issues of the nature of the relationship between the parties, the role of alcohol consumption in the violent nature of that relationship, and animus and motive on the part of the accused.

[271] In the case of R. v. Myran 2009 MBQB 71 (Man QB) the point was made by Cummings, J. that the nurses who took statements from the complainant in that case, respecting a sexual assault on her, did not question her for the purposes of gathering evidence for legal proceedings, but rather were trying to treat her injuries. At paragraph 27 Cummings, J. ruled that the statements given to the nurses should not be admitted as they did not meet the minimum test of threshold reliability.

[272] Similar observations may be made in reference to the hospital records in this case. At least in reference to the notes of the April 3 and June 26 admissions, there are, in my view, insufficient guarantees of trustworthiness to support their admission into evidence.

[273] In my view, the records relating to the September 24 admission fall into a different category. The assaults reported by the deceased and recorded in the notes for that admission led to the charges against the accused and his subsequent guilty plea. As indicated below, the accused, through his counsel, accepted the facts read into the record by the Crown following his guilty plea to assault causing bodily harm, which related the violent assaults on the deceased committed by the accused over two days, which included the accused grabbing her by the throat, pushing her to the ground and blocking off her ability to breath and yelling at her repeatedly "I want you dead." The statement of facts, accepted by the accused, also included a detailed description of the injuries sustained by the deceased, consistent with the injuries reported in the hospital notes.

[274] In my view, the admission by the accused to the assaults and the threat reported by the deceased in her statement following her admission to hospital on September 24, as well as the injuries described in the records and depicted in the photographs, renders the statements so reliable that contemporaneous cross examination would add little to the process and also affords sufficient testing of the evidence by means other than contemporaneous cross examination. The problems associated by the legibility of portions of the records go to the weight or ultimate reliability which is within the purview of the jury at trial.

[275] The statements attributed to the deceased at the time of her September 24 admission describing the history of abuse and violence in her relationship with the accused is sufficiently corroborated by other admissible evidence, particularly the detailed letter written by the deceased dated July 18, 2006, to support their threshold reliability. There is therefore no basis to edit out those references from the hospital records.

Disposition

[276] Accordingly, I find the hospital records and photographs relating the admission of the deceased to St. Mary's General Hospital on September 24, 2005 reproduced at Tabs 4 and 5 of Exhibit H on the Application are admissible at trial. The hospital records in reference to her admissions on April 3 and June 26, 2005 reproduced at Tabs 1 and 2 of exhibit H are not admitted.

(c) Guilty Plea and Statement of Facts November 9, 2005

[277] The transcript of the proceedings at the guilty plea of the accused in the Ontario Court of Justice at Kitchener on November 9, 2005 is reproduced at Tab 5 of Exhibit H on the Application. The accused pleaded guilty to a charge that on the 18th day of September, 2005 he committed an assault on the deceased Denise Bourdeau, causing bodily harm to her, contrary to section 267(b) of the Criminal Code.

[278] The transcript disclosed that, following the recitation of the facts by the Crown as summarized above, the accused's then counsel responded that the accused was prepared to accept the facts as being "substantially correct." He went on to state: "both of these parties were significantly under the influence of alcohol, so the recollection of the exact events may not necessarily accord one with the other. Suffice it is to say alcohol intoxication is not a defence. And Mr. Thomas does acknowledge however that he did assaults his girlfriend and that Ms. Bourdeau did suffer the injuries that you've heard about. And so he's content to acknowledge." The presiding judge then made a finding of guilt and entered a conviction on a charge of assault causing bodily harm.

[279] The Crown agreed that the proportion of the transcript following the finding of guilt and conviction on page 5, including, in particular, the submissions of counsel on sentence and the reasons for sentence, should be excluded from the evidence at trial as not being probative of any issues at trial, particularly in light of certain potentially prejudicial comments made by defence counsel in his submissions referencing the possibility of "other tragedies" that may occur if Mr. Thomas does not "change the course of his life" and by the judge in his Reasons making reference to a case of domestic homicide.

[280] The defence acknowledged that the transcript of the guilty plea proceeding meets the reliability criterion as a certified of verbatim record of what was said in court on that occasion. However, it argues that it should not be admitted because the prejudicial value of the evidence outweighs its probative value. In addition, the defence argues that the acceptance of the facts by defence counsel on the guilty plea was qualified, and was limited to the fact that the accused assaulted the deceased and that she suffered the injuries described. The defence argues that the acknowledgment that the facts were "substantially correct" cannot be taken as an admission by the accused that he shouted "I want you dead" during the assault.

[281] It is clear that a plea of guilty and the facts in support of it are admissions and may be introduced against an accused person as an admission in certain situations at a subsequent judicial proceeding (see R. v. W.B.C. 2000 CanLII 5659 (ON CA), [2000] O.J. No. 397 (C.A.) at para.59, aff'd 2001 SCC 17, [2001] 1 S.C.R. 530). The Court of Appeal, at para. 57, quoted Sopinka, J. in R. v. Evans (1994), 1993 CanLII 86 (SCC), 85 C.C.C. (3d) 97 (S.C.C.) at p. 104 that, because the rationale for admitting admissions has a different basis than other exceptions to the hearsay rule, "the practical effect… is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements."

[282] In the case of [R.v. Woodcock [2005] O.J. No. 6227 (S.C.J.)] a similar situation arose to that in the present case. The Crown sought to introduce, as part of its case, the transcript of the accused's earlier plea of guilty to robbery and the recitation of the underlying facts. After the facts were read, counsel for the accused agreed that they were "substantially correct". Defence counsel on the application argued that part of the "facts" read in at the time of the earlier guilty plea could not have been proven then, and were not capable of proof currently, and that defence counsel's statement that the facts were "substantially correct" cannot serve to render admissible allegations for which there were, and are, no evidentiary underpinnings.

[283] Relying on W.B.C., Minden, J. ruled that the summary of relevant facts adduced on the accused's guilty plea was admissible in its entirety. In doing so he noted, at para. 23, that defence counsel at time of the guilty plea did not dispute any aspect of the allegations, nor attempt to make a more narrow qualified admission by stating, for example, that there was acceptance of only those facts required to satisfy proof of the essential ingredients of the offenses charged, and he made no assertion that ought to have resulted in a Gardiner hearing, referencing R. v. Gardiner (1982), 1982 CanLII 30 (SCC), 68 C.C.C. (2d) 477 (S.C.C.).

[284] At para. 29 Minden, J., relying on W.B.C. at para. 60, held that it was open to the accused in that case to qualify the admission, and that the appropriate weight to be attached to it is a matter for the jury. In W.B.C. the Court stated "it is always open to the party was made of the admission to testify that he or she never made the admission, or to qualify it in some other way," referencing The Law of Evidence in Canada, Sopinka, Lederman and Bryant, 2nd. ed., at pp. 287 and 291.

[285] Although not referred to by counsel in argument, it is noted that the approach adopted in W.B.C. and Woodcock was more recently applied in [R. v. F. (O.), [2008] O.J. No. 5331 (S.C.J.)].

[286] In the present case, counsel for the accused on his 2005 guilty plea did not, in the words of Minden, J. in Woodcock, attempt to make a more narrow or qualified admission by stating that there was acceptance only of the facts required to satisfy proof of the essential ingredients of the offence to which the guilty plea was made, and not to the evidence of the threat by the accused by the use of the words "I want you dead". Had counsel sought to make that qualification, the Crown could have proceeded with a Gardiner hearing if it sought to use the threat as an aggravating factor. In my view, counsel at the guilty plea accepted the summary of the facts as entered into the record by the Crown on behalf of the accused, and his comments following the acceptance, did not represent a clear qualification sufficient to render the evidence inadmissible at the trial of the current charge.

[287] It is open to the accused to seek to qualify his admission by testifying at trial and the weight to be given to it, in light of counsel's comments respecting the intoxication of the accused at the time of the assault and professed lack of complete memory of the events, is a matter for the jury.

[288] The statement of facts on the accused's guilty plea is highly probative to the issues at trial. It may also be said to be prejudicial in the sense that it tend to implicate the accused. However, as indicated above, the question is not whether the evidence may tend to convict the accused, but whether it is likely to convict him unjustly. In balancing the probative value against the prejudicial effect, given that the admission was that of the accused himself, I cannot find that the evidence is unfairly prejudicial by adversely impacting the accused's right to make full answer and defense.

Disposition

[289] The summary of relevant facts adduced by the Crown upon the accused's guilty plea on November 9, 2005 is admitted in its entirety, provided that no part of the transcript at Tab 5 of exhibit H following page 5, line 22, shall be admitted into evidence at trial.

(d) The deceased's writings – diary entries and letters

[290] With respect to the writings of the deceased that the Crown seeks to adduce into evidence, it is noted that the diary entries, the letter dated March 3, 2005, the excerpts (pages 3 and 4) of the undated letter which the parties acknowledge was likely written in May 2005, and the undated brief note were all seized from the accused's apartment during the search on January 24, 2007. The five page letter dated July 18, 2006 was found that by the deceased's mother Amy Miller in November 2006 in a handbag used by the deceased and left at Ms. Miller's residence. Ms. Miller placed the letter in a file and provided it to the police following the deceased's disappearance.

[291] From the context of the diary entries, they appear to have been written by the deceased for her daughter. In the first entry dated February 5, 2005, being approximately one month into her relationship with the accused, the deceased states that "I think Dave is another abuser" and goes on to provide a detailed description of an assault by the accused concluding "wailing" her twice in the head causing bruising and a couple of "goose eggs", "wailing" her in the arm and grabbing her by the throat. She also describes verbal abuse on the part of the accused calling her "just about every name in the book" as well as his controlling behavior, calling her a "fat pig slut-whore" when she helped herself to some food.

[292] In the entry dated April 27, 2005 the deceased wrote that she was still with the accused and described it as a "very rocky road." Although she stated that the accused really does love her she stated "it's like he has this emotional battle going on within himself". She described that he had previously thrown her out of the apartment and that he "came" at her.

[293] In the seven-page letter dated March 3, 2005 addressed to "Dave" the deceased describes abusive behavior on the part of the accused, relating "you say I don't stand up for myself, but when I do I end up with lumps on my head and when I am quiet or sleeping I end up with a black eye, bruises and locked out." She went on to state that "the only physical touching I get from you is to hit or kick me. When you came home last night you said that I had no idea how sorry you were and that it would never happen again. It was less than two hours later you are at it again. You couldn't even go for a different part of the body you had to wail on the same eye." She stated that it had been six years since she had been in an abusive relationship and she truly thought that she had left that all behind her, and that she is now emotionally and physically exhausted. The deceased described further name-calling and controlling behavior, with the accused calling her a "fat sow and a cow" apparently in response to her not leaving enough milk for the accused's breakfast. She stated "what I'm basically asking is could you please, please stop the hitting and name-calling. I can't take it anymore. From one day to the next I never know if I'm going to have the security of you or a home. My stomach is constantly in knots." She ends the letter by offering to leave but asking if the accused is prepared to make a commitment to want her to stay without "taking the keys and kicking her out" 24 or 48 hours later "with or without alcohol" in his system. She signed the letter "my heart is yours do with it what you will" followed by a series of "x's and o's.

[294] In the two-page excerpt (marked "3" and "4") of the undated letter apparently written in May, 2005, the deceased described the accused "phoning the cops" on her and telling her that "it was my final warning, one more screw-up and there was no turning back." She references more physical and emotional abuse stating "every day you change how you feel about me. As recent as Tues. night (May 10) you loved me very much and then Wed. (May 11) you couldn't stand the sight of me, hated my fat fucking guts. What am I suppose (sic) to trust and believe in? Only difference is, you don't have to worry about being beaten, thrown out with the cops called on you." She goes on to profess her love for him and concluded "I wish so much that I could turn back the hands of time and change everything we have done to each other."

[295] There is a brief undated note addressed to "Dave" stating "when you are sobre (sic), you love me so much and want me here, forever. When you are drunk, you can't stand me, wanted me out or dead. I'm so sorry for everything I've done but at the very least that was four months ago." There is no apparent context to this note indicating when it was written by the deceased or any other circumstances regarding it.

[296] The final writing of the deceased is the five page letter dated July 18, 2006. The date that it bears is around the time that the deceased showed up at her mother Amy Miller's residence with "nothing but the clothes on her back". It is not clear as to whether the letter was written prior to or after she left the accused's apartment to move in with her mother. However, from the context, the deceased appears to be explaining to the accused why she left him. She stated "I know you never did read it, but the book you brought home from your anger management (on the end table) stated that physical, mental and emotional abuse usually does not end until one or the other partner moves out. Dave you must know that this is what I have to do. The physical was intensifying and the mental (your (sic) a loser, fat Indian niche and so on) was out of control."

[297] The deceased went on, "I don't understand how you can justify the continual hitting, throat grabbing, name-calling and recently locking me in for, as you stated yourself, just to torment me. Why?" After observing that when he gets drunk the accused becomes a "mean evil person that no one wants to be around" she states "my worst beatings were when you were drunk because you have no self-control (at least with me you didn't) you don't need to remember a lot of them because you have blackouts seven days a week."

[298] The deceased described how she was "walking on egg shells" as everything she did only angered the accused. She stated that she tried to talk to him about these issues but this only angered him and he would call her names and "then a bruise or two would follow." She went on to state "the death threats were also becoming more frequent" and quoted the accused as saying to her "I want to crush your skull, I kill you and then dump your body out in the woods somewhere not one would know as you don't even exist or what's seven years for murder?" She concluded the letter by stating "you said you would give me one more chance, is that one more chance to watch you get loaded and wait for an even worse beating (if not death) you will never give up with the rye because that's more important than life to you, which also means you and I cannot happen. There are so many qualities about you that I love you."

[299] The Crown states that the writings of the deceased have great probative value in providing the jury with necessary information with respect to the nature of the relationship between the deceased and the accused, the recurring and escalating level of violence in that relationship, largely fueled by excessive alcohol consumption, and helps to establish motive or animus on the part of the accused. As indicated above, on a prosecution of domestic homicide, evidence that has the potential to show the relationship between the principals may help to establish motive or animus on the part of the accused and may assist in proving the identity of the killer and state of mind that accompanied the killing. Although motive or animus has to do with the state of mind of the accused rather than the deceased, 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. (see Candir at paras. 51-52).

[300] The defence makes the point that very little is known regarding the circumstances of the making of the writings. What is known is that the deceased was abusing alcohol. It is not known if she made the writings during times of sobriety or while under the influence of alcohol. It is not suggested by the defence that there is any evidence or suggestion of a motive to lie on the part of the deceased in the writings.

[301] It appears from a review of the documents that there is little on their face to suggest that deceased was drunk at the time she wrote any of them. The writings are logical, the handwriting is legible, the sentence structure is reasonably well-crafted and they appear to be the product of rational and deliberate thought and reflection. In my view, the suggestion that the deceased was under the influence of alcohol at the time that the writings were prepared is speculation, and is not supported by a plain reading of the documents themselves. Moreover, insofar as the writings describe a pattern of abusive and violent behavior towards the deceased by the accused, they are corroborated by the statements given by the deceased to medical staff at the time of her admission to the hospital on September 24, 2005 wherein she related some of the history of abuse and violence at the hands of the accused. The contents of the letter of July 18, 2006 in which she describes "continual hitting and throat grabbing" and death threats is also corroborated by the accused's acceptance of the statement of facts on his guilty plea in relation to the September, 2005 incident.

[302] I would exclude the brief handwritten statement at Tab 9 of Exhibit H as its probative value is weakened by the fact that it is not dated and it is devoid of meaningful context, due to its brevity. There is no context provided for the statement "I am so sorry for everything I've done." The note does not shed the same degree of light on the nature of the relationship of the parties as the other writings do. Balancing the relatively low probative value of the statement against its prejudicial effect where it says that when the accused was drunk he wanted the deceased "out or dead," leads to exclusion of the document.

[303] The probative value of the July 18, 2006 letter is very high, particularly given its reference to the threats by the accused to kill the deceased and their similarity in detail to the circumstances of her disappearance on January 1, 2007 and the subsequent discovery of her body. From the context it is likely that the deceased wrote the letter after she had left the accused to live with her mother, and during the period that she was "clean and sober" pursuant to the agreement that which was a condition of her living at her mother's residence. The letter goes into considerable detail with respect to the history of violent abuse and controlling behavior by the accused in the relationship, the impact of alcohol abuse in triggering the violence, and the state of mind of the deceased at the time. Notwithstanding her descriptions of abuse and humiliation inflicted on her by the accused, she was not lashing out at the accused in the letter but rather continued to express her affection and love for him, a factor which reinforces the reliability of the statements in the document.

[304] As observed previously in reference to the accused's acceptance of the facts on his guilty plea, there is prejudicial effect to the admission of the deceased's writings into evidence in the sense that it would be harmful to the accused at trial. However, it cannot be said that the admission of the writings would be unfairly or unjustly prejudicial. In my view, with the exception of the undated brief handwritten note at Tab 9 of Exhibit H, the probative value of the deceased's writings exceeds their prejudicial effect.

[305] Any uncertainty with respect to the circumstances of the making of the writings and doubts as to whether the deceased was under the influence of alcohol at the time that she made them, go to weight and ultimate reliability, which are matters to be left to the jury. As observed by Chief Justice Lamer in R. v. Smith 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915 at p. 937, properly cautioned juries are perfectly capable of determining what weight ought to be attached to hearsay evidence which satisfies the criteria of necessity and reliability, and of drawing reasonable inferences therefrom.

Disposition

[306] On the basis of the foregoing, the deceased's journal or diary entries February to April, 2005, the letter dated March 3, 2005, the excerpt comprised of pages 3 and 4 from the undated letter and the letter dated July 18, 2006, reproduced at Tabs 6, 7, 8 and 10 respectively of Exhibit H are admitted into evidence. The undated note reproduced at Tab 9 of Exhibit H is to be excluded from evidence.

Ante-Mortem Statements of the Deceased to Witnesses

[307] The evidence of the Nancy Cossaboom, Amy Miller and David Heath encompasses not only hearsay statements made to them by the deceased, but also their own observations respecting her injuries and some conduct of the accused.

(a) Evidence of Nancy Cossaboom

[308] The Crown asserts that the probative value attached to the evidence of Ms. Cossaboom is that it provides another link in the chain of the continuous nature of the abuse suffered by the deceased at the hands of the accused. It shows the nature of the violence, control and stalking behaviour exhibited by the accused in the year leading up to the deceased's disappearance. Ms. Cossaboom was not close to the deceased, having only very cursory contact with her in the workplace over approximately two months prior to the deceased arriving at her doorstep in the spring of 2006, covered in blood, crying and advising that she was fleeing the accused. Ms. Cossaboom is able to provide clear evidence of her own independent observations of the deceased's injuries, and was one of the few people that the deceased confided in with respect to the abuse in her relationship with the accused. Given the fact that Ms. Cossaboom was not close to either the deceased or the accused, she cannot be said to be aligned with either party.

[309] Ms. Cossaboom's evidence relating to the accused's behavior in looking for the deceased after she left him to seek shelter at her home also has probative value in reference to the events of December 2006 respecting the accused's state of mind and the issues of animus and motive. There are parallels in the reactions of the accused when third parties such as Ms. Cossaboom and Mr. Heath interject themselves into the relationship between himself and the deceased.

[310] The defence points to two factors which it says detract from the threshold reliability of the statements made by the deceased to Ms. Cossaboom. The first relates to a possible motive to lie on the part of the deceased with respect to what had happened to her. It appeared that the deceased had been ejected from her home and she needed a place to stay. She therefore had a motive to fabricate what happened by relating that she had been physically abused by her common-law partner in order to elicit sympathy from Ms. Cossaboom, who did not know her very well, in an effort to enhance her chances of being allowed to stay.

[311] In Smith, Chief Justice Lamer excluded a hearsay statement being a telephone call by deceased to her mother to the effect that the accused had come back for her and that she did not need a ride, contrary to her earlier request to her mother for a ride due to the accused having abandoned her at a hotel. At p.37 Lamer, C.J. observed "at the highest, it can only be said that hearsay evidence of the third telephone call is equally consistent with the accuracy of Ms. King's statements, and also with a number of other hypotheses. I cannot say that this evidence could not reasonably have been expected to have changed significantly had Ms. King been available to give evidence in person and subjected to cross examination." Lamer C.J. made this observation after considering evidence of circumstances supporting the possibility that the declarant (Ms. King) was mistaken or that, since she was traveling under an assumed name and using a credit card which she knew was either stolen or forged, she was capable of deceit (see p. 936).

[312] In the present case it is clear that the deceased had been forced from her home, needed a place to stay and had significant injuries. There is nothing in the circumstances to suggest the existence of one or more hypotheses which would be equally consistent with the accuracy of her statements to Ms. Cossaboom respecting the cause of her injuries, such as falling down, having been struck by a vehicle or having been assaulted by someone other than the accused. Sustaining injuries by one of these causes would be unlikely to lead to her ejection from the apartment she shared with the accused.

[313] The defence candidly acknowledged that the evidence does not indicate that the deceased made a request of Ms. Cossaboom to stay with her. Rather, the offer came from Ms. Cossaboom after observing the deceased's condition and hearing her relate what had happened to her.

[314] In my view, the fact that the statements were made by the deceased to Ms. Cossaboom in the context of her being offered a place to stay does not, by itself, support the existence of a motive to lie so as to undermine the circumstantial guarantees of trustworthiness supplied by the corroborating evidence referred to below, in the absence of other hypotheses which would be equally consistent with the accuracy of the statements. It is noted that lack of evidence of a motive to lie or fabricate is not equivalent to proved absence of motive to fabricate in order to contribute to satisfaction of the evidentiary burden on the Crown to establish threshold reliability (see R v. Czibulka 2004 CanLII 22985 (ON CA), [2004] O.J. No. 3723 (C.A.) at para. 44). Motive to lie is therefore a neutral factor in this case. However, this is not a case like the scenario posited in Czibulka at para. 43 of motive to lie being neutral with few other compelling circumstances of reliability, resulting in the application to admit the statement probably failing. As indicated above, Kelawon established that, in considering threshold reliability, the Court may look to the presence or absence of corroborating evidence and is not restricted to consideration of the circumstances of the making of the statement itself. In addition, as indicated above, Blackman confirmed that motive to lie is but one factor to consider in determining threshold reliability.

[315] The second issue raised by the defence is the possibility that the deceased was intoxicated when she attended at Ms. Cossaboom's apartment relating that she was fleeing the accused who had assaulted her. Ms. Cossaboom's evidence is that when the deceased showed up at her apartment she was drunk but "not staggering drunk but almost." In the absence of compelling corroborating factors, the fact that the deceased was under the influence of alcohol at the time of her initial statement to Ms. Cossaboom upon her arrival at her apartment would be a factor militating against a finding that threshold reliability has been established.

[316] The report by the deceased that the accused had assaulted her and had ejected her from the apartment is corroborated by the fact that she led Ms. Cossaboom to the dumpster behind the accused's apartment building to retrieve her belongings including her purse and wallet. The fact that the deceased knew where to look for her belongings could lead to the inference that it was not the first time that the accused had thrown her belongings into the dumpster.

[317] The statement made by the deceased to Ms. Cossaboom upon her arrival at her doorstep was spontaneous and was not elicited by leading questions or promptings. The statement was corroborated by the nature and extent of her injuries.

[318] The deceased's statements to Ms. Cossaboom regarding the source of her injuries is also corroborated by the accused's stalking behavior in attending at Ms. Cossaboom's apartment looking