Court File and Parties

Court File No.: 13-40000614-0000 Date: 2014-03-24 Ontario Superior Court of Justice

Between: Her Majesty the Queen

• and - Kaila Dupuis

Counsel: Tracey Vogel and Rochelle Liberman, for the Crown Adam Newman and David Shulman, for Kaila Dupuis

Heard: February 26, 27 and 28; March 3, 4 and 17, 2014

Before: M. Forestell J.

Rulings:

1. ADMISSIBILITY OF PRIOR ACTS OF VIOLENCE BY DECEASED
2. GOOD CHARACTER OF DECEASED, BAD CHARACTER OF ACCUSED
3. ANTE-MORTEM STATEMENTS AND NATURE OF THE RELATIONSHIP

Overview of the Applications

[1] Kaila Dupuis is charged with the second degree murder of Jason Paglia. The trial began before me on February 18th, 2014 with several pre-trial applications. This ruling addresses three of those applications. Briefly stated, the applications as originally framed were the following:

1. The Defence applied to introduce evidence of prior violent acts of the deceased;
2. The Crown applied to introduce evidence of the good character of the deceased and of the bad character of the accused if the defence was permitted to adduce evidence of the violent disposition of the deceased;
3. The Crown applied to introduce hearsay evidence of ante-mortem statements of the deceased.

[2] The Crown application to introduce ante-mortem statements changed as it became apparent that some of the 'ante-mortem statements' were not all statements of the deceased. In some cases the witnesses made observations of the conduct of the deceased and drew inferences about the relationship between the deceased and the accused from those observations. In other cases the witnesses appeared to base their conclusions about the relationship between the accused and the deceased on a combination of observations and ante-mortem statements.

[3] In ruling on the application to introduce ante-mortem statements I will address both the admissibility of any ante-mortem statements and the admissibility of the observations and conclusions of the witnesses as to the nature and quality of the relationship between the accused and the deceased.

Application #1: Evidence of prior violent acts of the deceased

[4] The accused, Ms. Dupuis applies to introduce evidence of prior violent acts of the deceased. Specifically, the accused seeks to introduce evidence of the following:

1. The evidence of two witnesses who saw the accused to have bruises including the circumstances in which they saw the bruises;
2. The evidence of one witness who heard the deceased on a speakerphone making offensive and threatening comments to the accused;
3. The evidence of witnesses to an incident on a camping trip when the deceased became impaired by drug consumption and acted in a bizarre and threatening manner towards the accused and others.

[5] The accused, if she testifies, will testify as to incidents of violence towards her. She will also testify that the deceased once told her that he had cut his cousin with a knife in a fight.

[6] The Crown does not contest the admissibility of the evidence of prior acts of violence with the exception of the episode in which the deceased is said to have told the accused that he cut his cousin, Mr. Ramkalowan.

[7] On the voir dire, Mr. Ramkalowan and his brother testified that the deceased had never cut Mr. Ramkalowan.

[8] Mr. Ramkalowan testified that he was wounded on his neck and head when he fell into a stake in the ground while playing football. He testified that the deceased was not present. Mr. Ramkalowan was recalled to the witness stand after further information came to light about the incident. I will not review his evidence in detail at this point except to observe that there are some obvious credibility issues with respect to this witness in light of the differences in his testimony on the two occasions.

[9] The Crown initially took the position that the evidence of the accused that the deceased told her that he cut his cousin should be excluded on the basis that its prejudicial effect exceeds its probative value. The Crown's position was that it would be misleading to suggest to the jury that this event occurred when the alleged victim had denied that it happened. I indicated during the course of oral submissions that I was not prepared to deal with this issue in the absence of a proper record. I will address the issue if and when the accused testifies and after counsel have a further opportunity to make submissions.

[10] The Crown on this application took the position that the balance of the proposed evidence of the violent conduct was admissible so long as the Crown was also permitted to lead evidence of the good character of the deceased and the prior discreditable conduct of the accused.

[11] A long line of authority predating the current self-defence legislation has held that such evidence is relevant and admissible. Martin J.A. in R. v. Scopelliti, 1981 1787 (ON CA), [1981] O.J. No. 3157 stated:

It is well established that where self-defence is raised, evidence not only of previous assaults by the deceased on the accused, but also of previous acts of violence by the deceased, known to the accused, towards third persons, is admissible to show the accused's reasonable apprehension of violence from the deceased. Evidence of the deceased's reputation for violence, known to the accused, is admissible on the same principle.

[citations omitted]

[12] In this case, the proposed evidence of prior acts of violence by the deceased is clearly relevant and admissible. The evidence has significant probative value on the issue of self-defence and there is little if any potential prejudicial effect. The evidence of the belief of the accused that the deceased engaged in acts of violence is also admissible, not for its truth but as evidence of the reasonableness of the belief of the accused of the nature of the threat that she faced. The accused has not sought to introduce evidence of the deceased's general reputation for violence.

Application #2: Good Character of the Deceased and Bad Character of the Accused

(a) The proposed evidence of the good character of the deceased

[13] The Crown applies to introduce the following evidence of the good character of the deceased:

1. Evidence of Michael Rini, a friend and co-worker of the deceased that the deceased loved the accused and her son; that the deceased did a lot for the son of the accused;
2. Evidence of Mr. Rini that in the 12-14 years that he had known the deceased he had never seen him do anything violent;
3. Evidence of Mr. Rini that Mr. Paglia was a 'really nice guy' and everyone liked him;
4. Evidence of Mr. Rini that the accused was possessive about the deceased but that the deceased would just 'laugh it off.'
5. Evidence of another co-worker and friend, Serge Sorokin, who would say that the deceased was a "...very positive and upbeat guy. He always had a smile on his face. Always wanted to see a smile on everyone else's face."
6. Evidence from Serge Sorokin that he had never seen Jason do anything violent at work.
7. Evidence from another friend and co-worker, Miriam Bendelac, that the deceased was soft-spoken, non-confrontational and was a 'walking away type of guy.' In her 10 years working with him she never saw him to have any physical confrontations with anyone.
8. Evidence from Ms. Bendelac that the deceased was concerned about women walking home alone at night and so would drive them home.
9. Evidence from Ryan Gleiser, another friend and co-worker, that the deceased was a father figure to the son of the accused and that the deceased was affectionate towards the son of the accused.
10. Evidence from Mr. Gleiser that he believed that the deceased remained in the relationship because of his love for the son of the accused.
11. Evidence from Mr. Gleiser that the deceased was the type of man who was 'never disgruntled about anything in life.'
12. Evidence from the aunt of the deceased, Merle Ramkalowan, that the deceased tried to help the accused and her child and that the deceased appeared to love the child and treated him well.
13. Evidence from Ms. Ramkalowan that the deceased and the accused appeared to be in love.

Positions of the Parties

[14] The Crown submits that evidence of the good and peaceful disposition of the deceased is relevant and material to refute the evidence of the accused that the deceased was violent. The Crown also submits that the evidence is relevant evidence of the context of the relationship.

[15] The defence argues that the evidence of Mr. Paglia's friends that he was a good person and likeable is not relevant and material or that its prejudicial effect far outweighs any limited probative value. To the extent that the proposed evidence is evidence of a peaceful disposition, the evidence describes an absence of violent behavior at work which has very limited probative value in assessing a propensity for violence in a domestic context.

Legal Principles

[16] The legal principles governing the admissibility of evidence of the disposition of a victim were discussed by Sharpe J.A. writing for the court in in R. v. Diu,[^1] where he wrote that:

In general the character of the victim of crime is irrelevant and neither the accused nor the Crown may lead such evidence...

There are, however, circumstances in which the character or disposition of the victim of a crime may be relevant. It has been found, in some cases, that evidence of the disposition of the deceased may be relevant to a charge of murder where the accused relies on self-defence. A useful starting point in this area is the judgment of Martin J.A. in R. v. Scopelliti (1981), 1981 1787 (ON CA), 63 C.C.C. (2d) 481 (Ont. C.A.). In that case, the accused, relying on self-defence, introduced evidence of his own peaceful disposition and of the violent disposition of the two deceased. Martin J.A. held that the accused had opened the door and that the Crown was entitled to lead evidence that the deceased were of peaceful disposition. In the course of his reasons, Martin J.A. observed, at p. 493, that:

... the admission of such evidence accords in principle with the view expressed by this Court that the disposition of a person to do a certain act is relevant to indicate the probability of his having done or not having done the act. The law prohibits the prosecution from introducing evidence for the purpose of showing that the accused is a person who by reason of his criminal character (disposition) is likely to have committed the crime charged, on policy grounds, not because of lack of relevance. There is, however, no rule of policy which excludes evidence of the disposition of a third person for violence where that disposition has probative value on some issue before the jury. [Citations omitted.]

However, Martin J.A. went on to caution against the potential dangers posed by disposition evidence, and added at p. 496 that 'great care must be taken to ensure that such evidence, if admitted, is not misused'.

[17] Sharpe J.A., after reviewing the authorities, concluded that no clear rule had been laid down with respect to evidence of peaceful disposition of an alleged victim. Instead, he articulated the "general proposition that there is no rule excluding evidence of the disposition of a third party, provided such evidence is relevant."[^2]

[18] To be relevant, the evidence must be logically probative of a fact in issue in the case.

[19] In Cloutier v. The Queen,[^3] Pratte, J. said (at 28): "For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. One fact is not relevant to another if it does not have real probative value with respect to the latter."

[20] Therefore a trial judge must assess the relevance of the evidence in the context of the issues in the case and, if it is relevant, ensure its prejudicial effect does not exceed its probative value.

[21] Evidence from family members as to the character of the deceased must be approached with caution. In Diu,[^4] the Court of Appeal described the probative value/prejudicial effect in this way:

The evidence led by the Crown had virtually no probative value. A mother or a father is not well placed to give evidence of their son's reputation for violence. It is difficult to see how, in the circumstances of this case, the evidence from the parents of the victims could have assisted the jury. Not only did the evidence have little or no probative value, the danger that it would be misused by the jury was also considerable. Evidence from the parents of the deceased was bound to evoke sympathy. The very nature of the witnesses made the evidence highly prejudicial. In this case the prejudice is clear -- there was a danger that the evidence would arouse the jury's emotions of sympathy towards the victims and their families and hostility towards the appellants.

Application of the Principles

[22] The peaceful disposition of a deceased person may clearly be relevant where self-defence is raised. However, the general good character of the victim is not put in issue when self-defence is raised. The character trait to which the evidence relates must be relevant to a material issue in the case. Evidence that a victim was nice or happy or generous or considerate will seldom be relevant. Such evidence, even if it could be said to be relevant, has almost no probative value. It might be said that a person who is nice to his friends is less likely to be abusive in his domestic relationship but the tendency of the primary fact in that proposition to prove the secondary fact is weak at best. Therefore, even if the evidence could be said to be relevant, its probative value is almost non-existent. The potential prejudice of friends of the deceased testifying as to the good character of their deceased friend is obvious in that it is likely to arouse an emotional response from the jury.

[23] Therefore, I have concluded that the evidence of good character, other than peacefulness, is not admissible as it is not relevant. The evidence therefore that the deceased was nice, happy, never disgruntled, loved the accused and her son and did things for the accused her son is not admissible. The evidence that the deceased was concerned about women walking home and drove them home is not admissible.

[24] The evidence of Ryan Gleiser that he believed that the deceased stayed in the relationship for the sake of the son of the accused is not admissible. It is not relevant.

[25] The evidence of the co-workers of the deceased that they did not know him to be violent at work is relevant to the issue of whether the deceased was likely to have been the aggressor in the altercation with the accused. While the probative value may be limited in that each of the co-workers knew the deceased only at work and to some extent socially, the potential prejudice is not high if the evidence is restricted to the issue of his disposition for peacefulness.

[26] Evidence of disposition is essentially character or reputation evidence. If the evidence is called by the Crown, it is open to the defence to cross-examine the witness on the context in which the witness knew the deceased and from which they drew their conclusions about his peacefulness.

[27] Mr. Rini's evidence that the accused seemed possessive and the deceased 'laughed it off' is not relevant. Mr. Rini, in explaining what he meant by this in his police interview, said:

Um, I mean it was not a lot different than many relationships. Like there was fights sometimes. She would, she seemed very possessive over what he was doing or who he was talking to or where he was.... Uh but he always seemed to laugh that off, like he never really, I don't know, you know behind closed doors who knows? But with other people around I never ever saw him get too angry about it.

[28] Mr. Rini's observation is ambiguous. It does not even rise to the level described in Johnson, infra, of evidence of a past conflict. It certainly does not advance the issues of motive, animus or intent.

(b) The proposed evidence of the bad character of the accused

[29] The Crown seeks to introduce the following evidence of discreditable conduct of the accused:

1. The evidence of Pearl Paglia, the mother of the deceased, that on one occasion the accused and the deceased, in her presence, argued about the deceased not letting the accused see something on his computer. The deceased unplugged the computer to stop the accused from looking at it. The accused then became upset and hit the deceased in the chest and head. The deceased did not hit her back.
2. Evidence from Mrs. Paglia, the mother of the deceased, that the accused would hit the deceased when they argued. She described the blows as little punches and said that the deceased would hold her and tell her to 'stop it, you're gonna get hurt.'
3. Evidence that the accused hit her sister. This incident is alleged to have occurred when the accused was on a judicial interim release for the charge of murder. The sister of the accused called 911 and reported that the accused had hit her. The police responded and spoke to the sister who did not want to pursue charges. The police also spoke to the accused in the presence of her mother and recorded that the accused admitted hitting her sister.

Positions of the Parties

[30] The Crown submits that the evidence of Pearl Paglia shows the reaction of the accused and the deceased in the context of a domestic argument is relevant to self-defence. The Crown also submits that it is evidence of the controlling and jealous behavior of the accused in the relationship and therefore relevant to intent and motive.

[31] With respect to the evidence of Pearl Paglia of the conduct of the accused in the course of a domestic argument, the defence argues that the potential prejudice outweighs the probative value in light of the fact that the evidence comes from the mother of the deceased.

[32] The Crown submits that the evidence of the conduct of the accused in the argument with her sister is relevant to the violent disposition of the accused in a domestic context and it is relevant to the issue in trial of who was the aggressor in the conflict between the accused and the deceased.

[33] The defence submits that the evidence of the conflict between the accused and her sister is so vague that relevance has not been shown by the Crown.

Legal Principles

[34] The law governing the admissibility of discreditable conduct of the accused is set out in the oft-quoted passages from R. v. L.B.[^5]

Because of the inherently prejudicial nature of evidence of discreditable conduct, it is subject to a general exclusionary rule unless the "scales tip in favour of probative value." The trial judge who is charged with the delicate process of balancing the probative value of the proposed evidence against its prejudicial effect should inquire into the following matters.

1. Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?
2. If so, is the proposed evidence relevant and material?
3. If relevant and material, is the proposed evidence discreditable to the accused?
4. If discreditable, does its probative value outweigh its prejudicial effect?

In assessing the probative value of the proposed evidence, consideration should be given to such matters as:

(i) the strength of the evidence; (ii) the extent to which the proposed evidence supports the inference(s) sought to be made from it (this factor will often correspond to the degree of similarity between the prior misconduct and the conduct forming the subject-matter of the charge); and (iii) the extent to which the matters it tends to prove are at issue in the proceedings.

In assessing the prejudicial effect of the proposed evidence, consideration should be given to such matters as:

(i) how discreditable it is; (ii) the extent to which it may support an inference of guilt based solely on bad character; (iii) the extent to which it may confuse issues; and (iv) the accused's ability to respond to it.

[35] In R. v. Moo,[^6] Watt J.A observed that,

In prosecutions for domestic homicide, evidence is frequently admitted to elucidate the nature of the relationship between the accused and the deceased. This evidence, which often discloses misconduct other than that charged, 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 the state of mind with which the killing was done. [Citations omitted.]

[36] However, in R. v. Johnson,[^7] the Court of Appeal for Ontario held that evidence of past conflict is not necessarily evidence of animus or motive. The Court said, at paras. 99 to 101:

It is not sufficient for the Crown to identify some past conflict between an accused and a victim, and then speculate that it establishes animus and therefore motive. The Supreme Court in R. v. Barbour, 1938 29 (SCC), [1938] S.C.R. 465, at p. 469, warned that 'it is rather important that the court should not slip into a habit of admitting evidence which, reasonably viewed, cannot tend to prove motive or explain the acts charged merely because it discloses some incident in the history of the relations of the parties.'

Thus, evidence of past misconduct that is woven into a speculative theory of motive does nothing more than bring in the bad character of the accused, and ought to be excluded on the basis that its prejudicial value exceeds any small probative value it might have: see, e.g. R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, at pp. 938-941.

On the other hand, evidence that provides the trier of fact with real insight into the background and relationship between the accused and the victim, and which genuinely helps to establish a bona fide theory of motive is highly probative, even in the absence of similarity with the charged offence: see, e.g. R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 (Ont. C.A.), at paras. 70-109.

Application of the Principles

[37] I am able to find on the balance of probabilities that the conduct described by Ms. Paglia was the conduct of the accused. The conduct of the accused in a domestic argument is relevant and material given the issue of self-defence.

[38] The probative value of the evidence is not high. The observations were made by the mother of the deceased who understandably was of the opinion that her son was gentle and never aggressive. Moreover, Ms. Paglia in describing the 'hitting' by Ms. Dupuis, described it as"Like girls thing you know...little, little punches ...here and there, nothing much...and then he would hold her down and say stop it. And that's it. Nothing violent...." Referring to her son she said that he would hold the accused and say"Stop it. You're gonna get hurt. Stop it." The evidence is ambiguous. The probative value is low and the potential prejudice is significant. As in Diu"the evidence would arouse the jury's emotions of sympathy towards the victim and [his] famil[y] and hostility towards the [accused]."

[39] In the circumstances, the potential prejudice outweighs the limited probative value. The evidence is not admissible.

[40] With respect to the evidence that Ms. Dupuis hit her sister, the record is inadequate to conclude that the conduct is that of the accused. It is certainly insufficient to conclude that the evidence is relevant and material. The evidence is not admissible.

Application #3: Ante-mortem statements of the deceased

The Proposed Evidence

[41] In the application to introduce ante-mortem statements, the Crown relied upon the police interviews of the recipients of the hearsay utterances. Four of the recipients were co-workers of the deceased from the Earl Bales Ski Centre - Serge Sorokin, Miriam Bendelac, Ryan Gleiser and Michael Rini. The fifth witness was the aunt of the deceased.

[42] The witnesses, in the interviews, did not specify whether the information or conclusions came from the deceased or whether the witness was drawing inferences from his or her own observations. To the extent that the witnesses attributed statements to the deceased, the timing and circumstances of the statements were unclear.

[43] The application as originally presented did not specify the utterances that were alleged to have been made. There was, therefore, neither content nor context.

[44] To facilitate trial efficiency, rather than dismiss the application on this basis, the application was adjourned to permit the Crown an opportunity to supplement the record by filing further statements or calling the witnesses on the voir dire.

[45] The Crown filed further statements in the form of e-mails from the investigating officer to each of the witnesses and the e-mailed responses of the witnesses. All of the witnesses other than Mr. Rini responded to the emails.

[46] The inadequacies of the record were not significantly improved by this process.

[47] The application record did not articulate the specific utterances. The court was invited to infer that utterances were made by the deceased from the content of the conclusions of the witnesses. In the case of Ms. Bendelac, the court was asked to infer an utterance from the fact that Ms. Bendelac appeared to have highlighted the phrase 'directly from Jason' in the question sent to her by email.

[48] In these reasons I have attempted to organize the proposed evidence in a way that I believe reflects the evidence that the Crown was seeking to introduce and the basis for the introduction of that evidence.

[49] I will set out the questions and answers for each witness in full.

Serge Sorokin

[50] Serge Sorokin was a friend and co-worker of the deceased. The questions put to Mr. Sorokin were framed as follows:

You provided the following information:

1. In the weeks prior to Jason's death, Kaila was arguing with Jason. (p.7)

(1a) What is the source of the information? (If you received the information from multiple sources please specify.)

(i) Directly from Jason? ii) From observation? iii) From someone else? If so, who? iv) You have no memory of how you received the above information

(2b) Please provide details as to when, where you were and what the context was when you received the information.

2. You were present when Jason received phone calls and text messages from Kaila. (p.7)

(2a) Please provide details as to when, where you were and what the context was when Jason received phone calls and text messages from Kaila.

3. Kaila accused Jason of cheating and told him that she hated him and never wanted to see him again. Jason then received other phone calls telling him she missed him. (p.7)

(3a) What is the source of the information? (If you received the information from multiple sources please specify.)

(i) Directly from Jason? ii) From observation? iii) From someone else? If so, who? iv) You have no memory of how you received the above information

(3b) Please provide details as to when, where you were and what the context was when you received the information.

4. There were times when Jason would not respond to Kaila's text messages. As a result, Kaila would call him on the work phone and argue with him. (pp 6-7)

(4a) What is the source of the information? (If you received the information from multiple sources please specify.)

(i) Directly from Jason? ii) From observation? iii) From someone else? If so, who? iv) You have no memory of how you received the above information

(4b) Please provide details as to when, where you were and what the context was when you received the information.

[51] The answers provided by Mr. Sorokin were the following:

1. I received the information both from Jason directly and from observation. We were working together inside the rental shop (trailer complex next to the ski chalet at Earl Bales). I could hear him talking to her on his cellular or when on the work phone. I sometimes answered the work phone with Kaila on the other line and passed the phone over to Jason. This happened at least once on Thursday December 1. This also happened several times in the weeks preceding. Not exactly sure how many times. Sometimes once per day, sometimes multiple times per day. The context of Jason telling me was that he was venting frustration and irritated by the constant calling.

2. Jason told me directly that Kaila thought he was cheating on her. This was also inside the rental shop where we worked together. We joked a little bit about this and poked fun at each others looks and physical appearance. Ugly, fatty, pudgy to lighten the mood and pass the time. I could hear some of the responses Jason was telling Kaila. He was agreeing with her when she said she hated him and never wanted to see him again. Just so he could get off the phone quicker it seemed. "Fine, okay, you hate me, that's good, okay bye" (not exact wording but an idea as to his irritation)

3.(4) From Jason and from observation. I could hear the text notification going off several times. Sometimes he checked and responded. Other times he would check but not respond for a while or not check at all. Then his cellular would start ringing, sometimes he would answer other times he would not. It was when he would not respond to either the text messages or calls on his personal phone that the line at work would ring. This was also inside the rental shop.

[52] Mr. Sorokin also clarified the timeframe in a later email that stated "the time frame would have been late November 2011 until the last day I saw him which was Thursday December 1, 2011."

[53] In his police interview, Mr. Sorokin described the arguing between the deceased and the accused as 'bickering' and said"um, just as couples do it seems like. Just your standard bickering, just keeps getting more and more."

Miriam Bendelac

[54] Miriam Bendelac was a Supervisor at Earl Bales and worked with the deceased for approximately 10 years.

[55] The first relevant question posed to Ms. Bendelac was the following:

You provided the following information:

2. On December 2nd, 2011, the day of Jason's death, Kaila called him approximately 3-4 times. (pp. 32-33)

2(a) What is the source of this information? (if you received the information from multiple sources please specify.)

i) Directly from Jason? ii) From observation? iii) From someone else? If so, who? iv) You have no memory of how you received the above information

(2b) Please provide details as to when, where you were and what the context was when you received the information.

[56] In response to this question, in her e-mailed response Ms. Bendelac appears to have highlighted the phrase "directly from Jason" in the question. She also wrote: "There were various phone calls that day, where with working with Jason he would tell me he had to take the call from Kaila and he would go outside to have the conversation or away from Ryan and myself, as we were the only ones working together that night."

[57] In her recorded police statement, Ms. Bendelac states that the calls from Kaila occurred between 5:00 p.m. and 8:30 p.m. She also said that the calls were on his personal phone. The phone records show that the deceased received eight incoming calls and four calls to voicemail during that time period. None of those calls was from the accused. the accused had called the deceased four times in succession at 2:45 p.m. to 2:48 p.m. She also called him once at 4:48 p.m.

[58] The next question posed was the following:

You provided the following information:

3. On December 2nd 2011, Kaila asked Jason where he was and Jason explained that to her that he was working. (p.6)

What is the source of this information? (if you received the information from multiple sources please specify.)

i) Directly from Jason? ii) From observation? iii) From someone else? If so, who? iv) You have no memory of how you received the above information

3(b) Please provide details as to when, where you were and what the context was when you received the information.

[59] In response, Ms. Bendelac again highlighted 'directly from Jason' and then wrote: "this all happened at work, minus one phone call in the parking lot of work when we were done work. The various phone calls he would come back and me how long we would be at work till as the shift was out of the norm and we had to get ready for our first day on Dec 3. The one phone call in the parking lot was when we wrapped things up and he said he needed to go and couldn't drive me home because he needed to go to Kaila's, as she was bugging him all day."

[60] In her original recorded statement to the police, Ms. Bendelac said that Jason would usually drive her home. On the night of his death, he seemed to be in a rush and drove Ms. Bendelac only to the street outside of Earl Bales Park. Jason kept apologizing to Ms. Bendelac for not being able to drive her home and told Ms. Bendelac that he had to "get places". She knew that he was going home with another co-worker and then to see the accused.

[61] The deceased did not go directly to the home of the accused but went to his own home with another co-worker where they remained for about half an hour.

[62] The next question posed was the following:

You provided the following information:

4. On December 2nd, 2011, Jason needed to keep telling Kaila the time he would finish work. (p. 6)

What is the source of this information? (if you received the information from multiple sources please specify.)

i) Directly from Jason? ii) From observation? iii) From someone else? If so, who? iv) You have no memory of how you received the above information

4(b) Please provide details as to when, where you were and what the context was when you received the information.

[63] Ms. Bendelac again highlighted the phrase 'directly from Jason'. She then wrote:

As stated in question 3 he would ask me after her calls to see if he could get a better idea, naturally being his supervisor he would ask me when we would be done. I did tell him if he needed to go he could but he understood how much work we needed to do and insisted he stay to help me and Ryan, also since it was preseason hours he wanted to work as many hours as possible to get as many as possible.

[64] Ms. Bendelac in her police statement said that she heard Jason explain that he was working.

[65] The Crown submits that I can infer from the highlighting of the phrase 'directly from Jason' that the deceased made utterances to the witness.

Ryan Gleiser

[66] Ryan Gleiser was a friend and co-worker of the deceased. He was asked the following question:

You provided the following information:

2. About a year and a half after it began, the relationship between Jason and Kaila started to get ugly. (p.14)

What is the source of this information? (if you received the information from multiple sources please specify.)

i) Directly from Jason? ii) From observation? iii) From someone else? If so, who? iv) You have no memory of how you received the above information

2(b) Please provide details as to when, where you were and what the context was when you received the information.

[67] He responded as follows:

a) From observation

b) Over time it just seem like the two of them where getting tired of each other. They would be arguing, they did not seem happy.

[68] The next question was:

You provided the following information:

3. Jason told you that he received text message from Kaila putting him down and telling him that she hated him. (p.40)

What is the source of this information? (if you received the information from multiple sources please specify.)

i) Directly from Jason? ii) From observation? iii) From someone else? If so, who? iv) You have no memory of how you received the above information

3(b) Please provide details as to when, where you were and what the context was when you received the information.

[69] He responded as follows:

a) Jason had told me this information during work hours at the ski center. We would discuss his relationship once in awhile.

[70] With respect to the content of the text messages from the accused to the deceased, the actual messages are available and were filed on this application. The Crown seeks to lead the evidence of the statement by the deceased about the messages not for its truth but as evidence of the state of mind of the deceased about the messages. The Crown argues that the fact that deceased talked about the messages may be used as evidence that he was concerned about them.

[71] The next question was:

4. In the months prior to Jason's death, Kaila seemed jealous possessive and angry all the time. (p.29)

What is the source of this information? (if you received the information from multiple sources please specify.)

i) Directly from Jason? ii) From observation? iii) From someone else? If so, who? iv) You have no memory of how you received the above information

4(b) Please provide details as to when, where you were and what the context was when you received the information.

[72] Mr. Gleiser's response was:

a) From Observation

b) Her calls become more and more frequent while Jason would be at work. Sometimes it would be 3 calls within an hour. Whenever she would come to the rental shop to visit they wouldn't even talk to each other because some argument had happen prior, this seem to happen on a regular basis.

[73] The Crown argues that the opinion of Mr. Gleiser that the accused seemed jealous, possessive and angry all the time in the months leading up to the death of the deceased is admissible as direct evidence of the observations of the witness. It is argued that the evidence is relevant to show animus, intent and motive. It is further argued that, to the extent that it is expressed as an opinion, it is an admissible opinion as a lay opinion in relation to a common emotional state.

[74] Ryan Gleiser in his police interview described the relationship between the accused and the deceased as a 'love-hate' relationship. When asked to explain he said"Kaila would well, just the way I see it like Kaila would always be yelling at him but also be trying to help him out; come pick him up from work; um spend all their time together right?... Um, same thing with Jason you know, they're arguing all the time but he'd still be doing stuff for her and helping her out with whatever she needed - driving her places and stuff like that so it's like uh, that's what I'd - I would call a love hate relationship."

[75] The next question to Mr. Gleiser was:

5. Kaila would question Jason about where he was and who he was with. (p.29)

What is the source of this information? (if you received the information from multiple sources please specify.)

i) Directly from Jason? ii) From observation? iii) From someone else? If so, who? iv) You have no memory of how you received the above information

5(b) Please provide details as to when, where you were and what the context was when you received the information.

[76] The response was:

a) You have no memory of how you received the above information

[77] In light of the response, the Crown no longer seeks to introduce this evidence.

[78] The final question to Mr. Gleiser was:

6. Jason spoke about Kaila in a way that made her look like the bad person. (pp.41-42)

What is the source of this information? (if you received the information from multiple sources please specify.)

i) Directly from Jason? ii) From observation? iii) From someone else? If so, who? iv) You have no memory of how you received the above information

6(b) Please provide details as to when, where you were and what the context was when you received the information.

[79] Mr. Gleiser's response was:

a) Directly from Jason

b) He would discuss how she was a bad mother to her son. How she would go out party late, do drugs in the vicinity of the child. He would speak about how she's got anger problems but not go into detail about much of it. Just that she yells a lot.

[80] The Crown does not seek to introduce the evidence that the deceased thought that the accused was a bad mother, would go out late or do drugs near her child. The Crown does seek to introduce the evidence that the deceased told Mr. Gleiser that the accused had anger problems and yells a lot.

[81] In addition to the information set out above, the Crown seeks to introduce evidence from Mr. Gleiser that the week before Jason's death, Jason put the Respondent on speaker phone so that Mr. Gleiser could hear her arguing and that in the months leading up to Jason's death there was a lot of arguing.

Merle Ramkalowan

[82] Ms. Ramkalowon, the aunt of the deceased, was asked the following question and provided the following answer:

You provided the following information:

1. Kaila would "track" Jason down and was always checking to see where he was. (p.7)

2. What is the source of this information? (If you received the information from multiple sources, please specify.)

i) Directly from Jason? ii) From observation? iii) From someone else? If so, who? iv) You have no memory of how you received the above information.

2. Please provide details as to when you received/observed this information, where you were and what the context was when you received/observed the information.

Answer:

1. The source of this information was directly from Jason, as he told me himself"Auntie, you know sometimes she's always checking to see where I am " to which I replied"it's just because she loves you".

2. Jason was at my home in the kitchen at the time when I asked him who he was talking to on his cell phone, and he told me it was his girlfriend, Kaila.

[83] In a subsequent e-mail Ms. Ramkalowon clarified that the conversation took place sometime in the summer of 2011.

Michael Rini

[84] Mr. Rini, another co-worker, did not respond to the questions sent to him by email as to his source or context for the statements that he recounted to the police as having been made by the deceased. The proposed evidence to be introduced through Mr. Rini is set out in the Crown factum as being the following:

Mr. Rini had known Jason for approximately 12-14 years. They both worked together at Earl Bales. Over the years, they became friends and spent time together outside of work. Mr. Rini also knew the Respondent. He knew they were dating and understood they were still dating on December 2nd, 2011.

Mr. Rini saw Jason on the night of his death. Mr. Rini met Jason after work at 8:30 p.m. They hung out together. While at Earl Bales, he was told the Respondent was calling Jason at work "like crazy". He was also told that Jason had to call her from the Ski Centre land line in order to prove that he was at work. After Earl Bales, they went to Jason's residence for about 45 minutes to an hour.

While Mr. Rini was at Jason's residence that evening (the night of Jason's death), Jason received about three calls from the Respondent. Mr. Rini was unable to hear what the Respondent was saying on the phone. However, he could hear that she sounded angry. Mr. Rini heard Jason tell her he would be there soon.

At one point that evening, Jason told Mr. Rini that if it wasn't for the Respondent's child, he probably would have left the Respondent a while ago.

Jason had told Mr. Rini that he could not 'take it anymore' because the Respondent wanted to constantly know where Jason was and would accuse him of cheating. Although Jason never specifically told Mr. Rini that he was going to break up with the Respondent, Jason had implied that he was 'fed up with it'.

Mr. Rini and Jason were going to go for a drink together. However, Jason decided to go and talk with the Respondent because she was upset with him.

[85] The phone records show that there was one call from the Earl Bales line to the accused on December 2nd, 2011. They also show three calls from the accused to the deceased from just before 9:00 p.m. to around 9:08 p.m.

[86] Miriam Bendelac, Michael Rini and Serge Sorokin all tell the police that the deceased was selling drugs around the time of his death and for about seven years before that time.

Positions of the Parties

[87] The Crown submits that the ante-mortem statements and the observations of the witnesses are relevant and material to the issues of motive and intent. To the extent that the witnesses express opinions about the relationship to Ms. Dupuis, the Crown submits that the evidence is admissible as an exception to the general exclusionary rule.

[88] The ante-mortem statements are tendered for their truth. The Crown has not relied upon any traditional exceptions to the hearsay rule but submits that all of the statements are admissible under the principled approach.

[89] Counsel for Ms. Dupuis submits that the evidence of the observations and opinions of the witnesses with respect to the relationship of the deceased and Ms. Dupuis is irrelevant. Alternatively it is submitted that the minimal probative value is outweighed by the prejudicial effect of the evidence. Counsel for Ms. Dupuis submits that the opinion of the witnesses as to the nature of the relationship is inadmissible opinion evidence that does not fall within the exception for lay opinion.

[90] Counsel for Ms. Dupuis further submits that if the evidence is relevant, the hearsay utterances do not meet the necessity and reliability requirements for admission.

Legal Principles

Relevance

[91] The starting point of the analysis of the admissibility of the proposed evidence is to determine whether it is relevant. As noted above in relation to the application to introduce evidence of disposition, evidence that explains the contextual narrative of a domestic relationship may be relevant in a domestic homicide.

[92] In R. v. Carroll,[^8] the Court of Appeal for Ontario explained that:

A deceased's mental state may be relevant to an accused's motive to commit an offence. In a similar way, the state of the relationship between an accused and a deceased in a time leading up to the unlawful killing of the deceased may demonstrate animus and motive on the part of the accused, and thus be relevant to the identity of the deceased's killer and the state of mind that accompanied the killing. Statements of the deceased may afford evidence of the deceased's state of mind and thus be relevant to prove a motive and animus. [Citations omitted.]

Hearsay

[93] If the proposed evidence is an out of court statement, the purpose for which the evidence is tendered must be articulated. If the out of court statement is tendered for its truth it is hearsay and is presumptively inadmissible unless it falls within an exception to the hearsay rule.

[94] Where the statement does not fall within one of the traditional exceptions to the hearsay rule, it may be admissible under the principled approach if it is both necessary and reliable. The burden of proof is on the party tendering the statement to show necessity and reliability on a balance of probabilities.[^9]

[95] In R. v. Smith,[^10] Lamer C.J.C. held at, para. 35, that "the criterion of necessity must be given a flexible definition, capable of encompassing diverse situations. What these situations will have in common is that the relevant direct evidence is not, for a variety of reasons, available. Necessity of this nature may arise in a number of situations." He then cited Wigmore's suggestion that the categories of necessity should include not only instances where the declarant is unavailable for the purpose of testing through cross-examination, but also situations where "we cannot expect ... to get evidence of the same value from the same or other sources

[96] Bennett J., of the British Columbia Supreme Court, summarized the approach to the necessity requirement in R. v. Pilarinos,[^11] writing: "Necessity means the necessity of the hearsay evidence to prove a fact in issue and the unavailability of the declarant to testify. The concept of necessity is flexible and will encompass many circumstances: R. v. Smith, supra, at p. 9. The issue is the availability of the testimony, not the availability of the witness: R. v. Parrott (2001), 2001 SCC 3, 150 C.C.C. (3d) 449 (S.C.C.) at para. 64. Sometimes the criteria of necessity is met because it is the "best evidence": R. v. U.(F.J.), supra, at para. 33 and R. v. Starr, supra, at para 206." [emphasis added]

[97] In R. v. Khelawon,[^12] Justice Charron writing for the court observed that,

As we know, the Court ultimately ruled in B. (K.G.), and the principle is now well established, that necessity is not to be equated with the unavailability of the witness. The necessity criterion is given a flexible definition. In some cases, such as in B. (K.G.) where a witness recants an earlier statement, necessity is based on the unavailability of the testimony, not the witness. Notwithstanding the fact that the necessity criterion can be met on varied bases, the context giving rise to the need for the evidence in its hearsay form may well impact on the degree of reliability required to justify its admission.

[98] The approach to the reliability requirement was considered at length in Khelawon. Justice Charron explained that reliability is usually met in two different ways: "One way is to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about....Another way ...is to show that no real concern arises from the fact that the statement is in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested."[^13]

[99] As summarized by West J. in R. v. Souliere,[^14] some of the factors identified by the courts as being relevant to the reliability inquiry include:

1. the absence of a motive to fabricate or lie;
2. the timing of the statement in relation to the time of death (remoteness);
3. the demeanour of the declarant at the time of the making of the statement;
4. the spontaneity of the statement;
5. the relationship between the declarant and the witness;
6. the detail given in the statement;
7. whether the declarant could be mistaken; and
8. in cases where more than one statement is sought to be adduced (relating to the same incident or event), the degree of consistency between the statements.

[100] The accuracy of the record of the statement is also a relevant factor. In R. v. B. (K.G.)[^15] Cory J. wrote:

The statements to be considered on such a voir dire will fall somewhere along a continuum of reliability. For example, at one end it may be established that the statement had been videotaped; the witness had access to counsel; the witness had a relative or responsible person present throughout the interrogation; the witness had been made aware of the gravity of the investigation and the importance of telling the truth; and the witness gave the statement voluntarily. Statements made in those circumstances may be readily admitted. Other statements may still be found to be reliable and admissible although they do not present every one of the foregoing indicia of trustworthiness. For example, there may not be a videotape, but a recording of the interview made in the presence of dependable and reliable independent witnesses who attended the interview and who attest to the demeanour and deportment of the witness and the police. At the other end of the continuum maybe a prior inconsistent statement contained in the hurried notes of a single police officer who was paraphrasing the words the witness speaking to him in hectic and difficult circumstances. It might well be difficult to conclude that such a statement should be admitted.

[101] As set out in R. v. Khelawon,[^16] the presence of supporting or contradictory evidence may also be relevant to the threshold reliability inquiry.

[102] While the onus of showing reliability on a balance of probabilities rests with the proponent of the hearsay, as pointed out by Watt J.A. in R. v. Carroll, at paragraph 111, that party "need not eliminate all possible sources of doubt about the perception, memory or sincerity of the declarant."[^17] Justice Watt went on to hold in that case that "[a]ll that was required... was that the circumstances in which the statements were made and any relevant extrinsic evidence provided the trier of fact with the means to critically evaluate the honesty and accuracy of the declarant."

[103] The credibility and reliability of the hearsay recipient are generally not factored into the determination of threshold reliability.[^18]

[104] The role of the trial judge as gatekeeper in the determination of threshold reliability was described at paragraph 3 of Khelawon as follows:

The trial judge's function is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to be decided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact. In the context of a criminal case, the accused's inability to test the evidence may impact on the fairness of the trial, thereby giving the rule a constitutional dimension.

[105] Even if the hearsay statement is shown to be necessary and reliable, the trial judge retains a residual discretion to exclude the evidence where its prejudicial effect is out of proportion to its probative value.

Opinion of Laypersons

[106] In Paciocco & Stuesser, The Law of Evidence,[^19] the authors summarize the general rule excluding opinion evidence from laypersons and its exceptions saying"In simple terms, we let lay witnesses offer opinions when there is no other meaningful way for them to communicate ordinary knowledge that they possess." In Graat v. R.,[^20] Dickson J. said that lay witnesses could present their observations as opinions where they "are merely giving a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly."

Application of the Principles

[107] The observations of the witnesses that the deceased received frequent telephone calls and text messages at work is not relevant without evidence that the calls and messages were from the accused. The evidence that the calls were from the accused is based on statements of the deceased. The statements are hearsay. The Crown must demonstrate necessity and reliability.

[108] Necessity has not been demonstrated. While the witness, the deceased, is unavailable, the evidence of the calls is available through the records. The telephone records are available and provide the best evidence of the frequency of the calls.

[109] The evidence of the witnesses as to the content of the text messages is not necessary because there is a record of the text messages.

[110] Even if I had concluded that the necessity requirement was met with respect to the telephone calls and text messages I am not satisfied that the Crown has shown threshold reliability. The deceased had a reason to mislead his employer about who was calling him. He was dealing in drugs. If he received calls that were related to that activity he would not want his employer to know. There is evidence that he misled Ms. Bendelac abut the caller in the eight calls he received between 5:00 p.m., and 8:30 p.m. He also misled Ms. Bendelac about having to go to the home of the accused after work.

[111] Therefore the evidence of the frequency of the calls and messages and the content of the text messages is not admissible as it is neither necessary nor reliable.

[112] The evidence of Ryan Gleiser and Serge Sorokin that the accused and the deceased were always arguing and that the relationship was getting ugly is not admissible. The arguing was described by the witnesses as 'typical bickering' and a 'love/hate relationship' on both sides. This evidence, while disclosing a relationship that was acrimonious, does not advance the issues of motive, animus or intent. The evidence of Ryan Gleiser that the accused was jealous, possessive and angry is not an admissible opinion. Mr. Gleiser is opining on character traits of the accused rather than specific emotional states. It is a conclusion whose foundation is unclear. The evidence of Mr. Gleiser's opinion of the accused also lacks probative value.

[113] The evidence of Serge Sorokin that the deceased told him that Ms. Dupuis accused him of cheating is not admissible. There is no adequate record of the circumstances and context of the statement to conclude that it is reliable. The only context that was provided tends to suggest unreliability as the two were joking at the time.

[114] The evidence of Ryan Gleiser that the deceased told him that the accused had an anger problem is not admissible. There is insufficient detail or context in the record before me to conclude that the evidence meets the reliability requirement for admission as a principled exception to the hearsay rule.

[115] The evidence that the deceased put the accused on speakerphone while they were arguing and she said that he was acting like a jerk for doing so is not admissible. This evidence is not relevant to motive, animus or intent. Evidence that the accused and the deceased argued is not evidence of motive, animus or intent to kill.

[116] The evidence of the aunt of the deceased that the deceased had complained about the accused checking up on him is not admissible. It is not relevant to animus, intent or motive that the deceased mentioned to his aunt that the accused checked up on him months before the incident.

[117] The evidence of Michael Rini as to ante-mortem statements of the deceased is not admissible. The record provides insufficient context for the alleged statements to conclude that they are relevant. Mr. Rini's observations as to the telephone calls on the night of the incident at the home of the deceased are admissible. They are not hearsay. Mr. Rini states that he heard the accused and heard her tone of voice which he described as 'angry'. This is an opinion that is within the exception of the rule excluding lay opinion. The evidence is clearly relevant.

[118] Assuming that Mr. Rini will say that the deceased told him that he was going to see the accused when he left Mr. Rini that night, this evidence is also admissible. While it is hearsay, it falls within a traditional exception of state of mind or statement of intention.

Conclusions

Application #1 –Evidence of violent acts by the deceased

[119] On the application to introduce evidence of prior acts of violence by the deceased, the evidence of prior violence and threats against the accused is admissible. The evidence of the conduct of the deceased at the camping trip is admissible.

[120] My ruling on the evidence that the deceased told the accused that he cut his cousin is reserved until further evidence and submissions are received.

[121] There was some discussion of the admissibility of evidence of the drug dealing of the deceased. The positions of the parties were not entirely clear. I will hear further submissions on the admissibility of that evidence if the issue has not been resolved by agreement that the evidence is part of the narrative.

Application #2(a) – Evidence of good character of the deceased

[122] The evidence of the good character of the deceased is not admissible except for the evidence that the deceased was not violent at work.

Application #2(b )- Evidence of bad character of the accused

[123] The proposed bad character evidence is not admissible.

Application #3 - Ante-Mortem statements and observations

[124] The evidence outlined in the application to introduce the ante-mortem statements of the deceased is not admissible except for the evidence of Mr. Rini as to the tone of voice of the accused the night of the incident and the statement of the intention of the deceased to go to see the accused.

M. Forestell J.

Released: March 24, 2014

[^1]: 2000 4535 (ON CA), [2000] O.J. No. 1770 (C.A.) at paras. 39-40 [^2]: Diu, supra, at para. 49 [^3]: (1979), 1979 25 (SCC), 48 C.C.C. (2d) 1 (S.C.C.) [^4]: Diu, supra, note 1, at para. 54 [^5]: R. v. B. (L); R. v. G. (M.A.) 1997 3187 (ON CA), [1997] O.J. No. 3042 (C.A.), at paras. 10, 23, and 24 [^6]: 2009 ONCA 645, [2009] O.J. No. 3706 (C.A.), at para. 98 [^7]: 2010 ONCA 646 [^8]: 2014 ONCA 2, [2014] O.J. No. 2 at para. 104 [^9]: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 (S.C.C.), R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531 (S.C.C.) R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358 (S.C.C.) [^10]: [1992] 2 S.C.R. No. 915 [^11]: [2002] B.C.J. No. 13 [^12]: Khelawon, supra, note 9, at para. 78 [^13]: Khelawon, supra, at paras. 61-63 [^14]: [2013] O.J. No. 3174 (Ont. C.J.) (P.C. West J.) [^15]: 1993 116 (SCC), [1993] 1 S.C.R. 740 at para. 181 [^16]: Khelawon, supra, note 9, at para. 4 [^17]: Carroll, supra, note 8,at para 111 [^18]: R. v. Blackman, 2008 SCC 37, [2008] 2 SCR 298, at para. 50 [^19]: David Paciocco & Lee Stuesser, The Law of Evidence, 5th ed. (Toronto: Irwin Law, 2008), at 185-87 [^20]: 1982 33 (SCC), [1982] 2 S.C.R. 819, at 835