COURT FILE NO.: CR-10-2316
DATE: 20140227
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
PAUL KENYON
Respondent
Ms. G. Sang and Mr. B. Juriansz, for the Crown
Ms. J. Penman and Ms. M. Wyszomierska, for the Respondent
HEARD: January 6, 13, 15, 16, 22, 27, 28, 29, 30, 2014
RULING ON ADMISSIBILITY OF ANTEMORTEM STATEMENTS AND EVIDENCE OF DISCREDITABLE CONDUCT
RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
FUERST J.
Introduction
[1] Marion Deacon and Paul Kenyon were in a relationship. To Ms. Deacon’s dismay, Mr. Kenyon had an addiction to crack cocaine. He stole money and belongings from her and her daughters to support his drug habit. He went missing for periods of days. His drug use was the source of arguments between them, and break-ups. Out of love, and in the belief that she could change him, Ms. Deacon took him back time and again. Her attempts to rehabilitate him did not succeed.
[2] Some months prior to March 2010, Ms. Deacon told Mr. Kenyon that he could no longer live at her home at 6 Doner Street in Stouffville. He moved to his parents’ home in Gravenhurst, but continued to visit Ms. Deacon, usually on weekends.
[3] Mr. Kenyon came to visit Ms. Deacon on the weekend of Saturday, March 6. That night, Ms. Deacon worked an evening shift at a pub on Yonge Street in Aurora. She punched out at 10:46 p.m.
[4] Shortly after 8:00 a.m. on Sunday, March 7, 2010, Paul Kenyon, clad in only his underwear, banged on the door of Ms. Deacon’s neighbour at 8 Doner Street. He told the neighbour that Ms. Deacon’s house was on fire and he could not find her. Another neighbour was alerted and called 911 for help.
[5] Firefighters found Ms. Deacon in her house, lying face down near the bottom of a flight of stairs leading to her master bedroom. She was still wearing her waitress uniform, including her tip apron, and her jacket over top.
[6] Ms. Deacon was pronounced dead at hospital. A postmortem examination revealed that she had suffered blows to the head and face. The cause of death was blunt force injuries to the head and face. No soot was found in her airway, which signified that she was dead before the fire began.
[7] Ms. Deacon would typically earn around $300 in tips on a Saturday night. No money was found in her tip apron, or elsewhere.
[8] At 12:20 a.m. on March 7, someone attempted to access Ms. Deacon’s bank account using the telephone banking system. That attempt failed because of an incorrect PIN entry. Another unsuccessful attempt to access the account was made at 6:01 a.m.
[9] Mr. Kenyon was taken to hospital for smoke inhalation after first responders arrived. Analysis of his blood revealed signs of recent cocaine use. There is evidence that he purchased crack cocaine on March 6.
[10] The cause of the fire was not determined.
[11] On March 9, 2010, Mr. Kenyon was charged with the second degree murder of Ms. Deacon.
The Issues
[12] It is the position of the Crown that when Ms. Deacon found that Mr. Kenyon was using drugs yet again, she decided to end the relationship once and for all, and that Mr. Kenyon killed her in a crack fuelled rage. Crown counsel seeks the admission of hearsay statements made by Ms. Deacon to family, friends and colleagues before her death. Ms. Sang contends that the statements are relevant to Ms. Deacon’s state of mind, animus and motive on the part of Mr. Kenyon, and in turn the identity of the killer. They are admissible under the state of mind and/or the principled exceptions to the hearsay rule.
[13] Crown counsel also seeks the admission of evidence of Mr. Kenyon’s prior discreditable conduct, including his drug use and an assault on Ms. Deacon. Ms. Sang submits that the evidence is relevant because it provides a picture of the relationship between the parties which is necessary context for the events of the night of March 6. Additionally, it is relevant to motive and intent on the part of Mr. Kenyon, and so to the identity of the killer. Its probative value outweighs its prejudicial effect.
[14] On behalf of Mr. Kenyon, Ms. Penman responds that the hearsay evidence is not sufficiently reliable to be admissible. There are issues, including Ms. Deacon’s motive to fabricate. The evidence is repetitious and in that sense does not meet the criterion of necessity. Its probative value does not outweigh its prejudicial effect.
[15] Ms. Penman submits that the evidence of prior discreditable conduct does not advance the Crown’s case of murder. There is nothing to support the contention that Ms. Deacon learned that Mr. Kenyon was doing drugs yet again and that he killed her in a crack fuelled rage. The prior discreditable conduct evidence is devoid of probative value, but there is a danger that it will overwhelm the trial and blacken Mr. Kenyon’s character with the jury.
The Governing Legal Principles
(a) Original Evidence
[16] Statements made by a deceased person may be hearsay or non-hearsay. If the statements permit an inference as to the declarant’s state of mind, they are original (non-hearsay) evidence and admissible as circumstantial evidence from which a state of mind can be inferred: R. v. P.(R.), [1990] O.J. No. 3418 (C.A.).
(b) Hearsay Exceptions
[17] Statements that are hearsay are presumptively inadmissible, unless they fall under an exception to the hearsay rule. In “rare” cases, even though evidence falls within an existing exception it may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 42. The party challenging the admissibility of the evidence bears the burden of showing on a balance of probabilities that it nevertheless should be excluded: R. v. Starr, [2002] 2 S.C.R. 144.
[18] Utterances made by a deceased person that are explicit statements of his or her state of mind fall under a traditional exception to the hearsay rule, as do statements of the deceased’s intention: R. v. P.(R.), above; R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915. They are admissible as proof of the truth of their contents, and to support an inference that the declarant followed through with his or her intended course of action where it is reasonable to draw that inference. They are not admissible to prove that past acts referred to occurred, or to show the state of mind or intention of any person other than the declarant: R. v. Starr, above, at para. 169.
(c) The Principled Approach to Hearsay
[19] Hearsay statements that do not fall under a traditional exception still may be admitted if the indicia of necessity and reliability are established. Under this principled approach, the onus is on the party seeking to admit the statement to establish both necessity and reliability on a balance of probabilities: R. v. Khelawon, above, at para. 47.
[20] Necessity exists where the declarant is deceased. However, it is important to remember that the requirement of necessity does not mean necessary to the Crown’s case. It refers to the necessity of hearsay evidence to prove a fact in issue: R. v. G.N.D. (1993), 1993 14712 (ON CA), 81 C.C.C. (3d) 65 (Ont. C.A.). In that case, where it was alleged that a child was sexually abused by her father, the court considered the admissibility of multiple out-of-court statements of the child. The court observed that the admission of multiple statements may be reasonably necessary to obtain a full and candid account of what allegedly happened to a young child. Where a particular statement contains material particulars or provides important context, some repetition may be essential, but if a hearsay statement adds nothing relevant, it will not satisfy the criterion of reasonable necessity. This decision was applied in a case of antemortem statements by an adult deceased, where Crown counsel sought to adduce statements made to dozens of witnesses: R. v. Parsons (1996), 1996 11073 (NL CA), 146 Nfld. & P.E.I.R. 210 (Nfld. C.A.).
[21] The reliability requirement will be met where the circumstances in which the statement came about provide sufficient comfort in its truth and accuracy. There is a circumstantial guarantee of the statement’s trustworthiness where it was made under circumstances that substantially negate the possibility that the declarant was untruthful or mistaken: Khelawon, at paras. 62 and 70.
[22] In assessing reliability, my role is to make only a preliminary assessment of the threshold reliability of the particular hearsay statement. I must leave the ultimate determination of the statement’s worth to the jury: Khelawon, at para. 2. The factors I must consider cannot be categorized in terms of threshold or ultimate reliability. Rather, I must employ a functional approach, focusing on the dangers raised by the hearsay evidence sought to be introduced, and the circumstances relied on by the party tendering the evidence to overcome those dangers, and consider all relevant factors, including the presence of supporting or contradictory evidence: Khelawon, at paras. 92 and 93.
[23] The hearsay dangers raised by admission of Ms. Deacon’s statements is that she is not before the court to be seen, heard, and cross-examined, nor was there opportunity for contemporaneous cross-examination. In the circumstances of this case, factors relevant to the assessment of reliability on this admissibility voir dire include, but are not limited to, the relationship between the narrator and Ms. Deacon; the presence of supporting or contradictory evidence, meaning evidence tending to show that the statement is true or not; the presence or absence of any motive on the part of Ms. Deacon to lie or to misrepresent her state of mind; and the contemporaneity of the declaration with the events described.
(d) Prior Discreditable Conduct
[24] Some of the out-of-court statements the Crown seeks to introduce contain accounts of discreditable conduct by Mr. Kenyon, including that he used crack cocaine, stole money and property from Ms. Deacon and her daughters, and on one occasion pushed her.
[25] Evidence of the accused’s bad acts, other than those charged, is not admissible at the behest of the prosecution in support of an inference that because of that bad character, the accused is likely to have committed the offence charged. However, evidence of an accused’s bad acts may be admitted as an exception to the general rule, where the probative value of the evidence to a fact in issue exceeds its potential prejudicial effect: R. v. Cudjoe, 2009 ONCA 543, at paras. 63 to 64. In a case of murder, evidence of an accused’s bad acts may illuminate the relationship between the parties, afford evidence of animus, and establish a motive for the killing, all of which are relevant to the issue of identity of the deceased’s killer and the state of mind with which the killing was done: R. v. Moo, 2009 ONCA 645, at para. 98.
(e) Residual Discretion
[26] Even if I determine that an out-of-court statement or evidence of discreditable conduct is admissible, I have a discretion to exclude it if its prejudicial effect outweighs its probative value.
Analysis
Part 1: The Hearsay Evidence
[27] There is interconnection between the issues of the admissibility of the hearsay statements, and the admissibility of the prior discreditable conduct evidence. In this portion of the Ruling I will address only the hearsay issue.
[28] The necessity criterion is met because Ms. Deacon is deceased. I have taken into account the concern about repetition of evidence. To the extent there is some degree of overlap in the statements narrated by the various witnesses, it does not amount to repetition of such a degree that it impacts on the necessity criterion.
(Full judgment text continues exactly as provided in the source, including all paragraphs through [66], maintaining original wording and structure.)
FUERST J.
Released: February 27, 2014
COURT FILE NO.: CR-10-2316
DATE: 20140227
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
PAUL KENYON
REASONS FOR JUDGMENT
FUERST J.
Released: February 27, 2014