Court File and Parties
COURT FILE NO.: CJ-7668
DATE: 2014-01-16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. DAVID THOMAS
BEFORE: The Honourable Justice D.A. Broad
COUNSEL:
J. Milligan and N. Wansbutter - Counsel, for the Applicant/Accused
K. Katzsch and N. Redgate - Counsel, for the Respondent/Crown
HEARD: 2014/01/15
RULING RE defence APPLICATION FOR LEAVE TO BRING APPLICATIONS
[1] The accused seeks leave to bring four pre-trial applications, as they were not brought 30 days before the day first scheduled for the hearing of pre-trial motions, as required by Rules 30.04(1) and 31.04(1) of the Criminal Proceedings Rules of the Superior Court of Justice (Ontario)..
[2] Rule 2.01 provides that a judge of the Court may only dispense with compliance with any rule where, and to the extent, it is necessary in the interests of justice to do so. Rule 3.02(1) provides that the Court may extend or abridge any time prescribed by the rules on such terms as are just and Rule 34.03 provides that where an applicant under rule 30 or 31 has failed to comply with the rules governing an application, the application shall not be heard unless the presiding judge grants leave, after taking into account all the circumstances of the case.
[3] The applications for which the accused seeks leave are the following:
(i) an order admitting into evidence statements made by the deceased Denise Bourdeau to the accused's probation officer Mary Gifkens on September 18, 2006, pursuant to the "principled approach" to hearsay laid down by the Supreme Court of Canada in R. v Khan;
(ii) an order excluding evidence of blood of the deceased found in the accused's automobile on the basis that the probative value of that evidence is exceeded by its prejudicial effect;
(iii) an order to admit a copy of the toxicology results for the deceased's admission to hospital on June 6, 2005, without any evidence of why she was admitted or what she might have said to staff when there; and
(iv) an order excluding the evidence of Ms. Sherri Burks, a neighbor of the accused respecting noises she heard emanating from the accused’s apartment over the night that the deceased was last seen, because the prejudicial value of her evidence exceeds its probative value.
[4] The six-week jury trial was set to commence on January 13, 2014. The jury has now been selected and has been directed to return on January 21, 2014 to permit the request for leave to bring the applications to be argued and ruled upon. If leave is granted, the applications will be heard in the week of January 20, 2014 and it will therefore be necessary to direct that the jury not return until January 27, 2014.
[5] Pretrial applications were scheduled to commence on September 9, 2013 for five weeks. Due to a personal situation involving one of the defence counsel, the commencement of the pretrial applications was adjourned for one week to September 16, 2013. The applications were heard over 21 hearing days and concluded on November 5, 2013.
[6] At the conclusion of argument on the applications, counsel for both sides requested that the rulings be released in writing, and the accused provided his specific consent to that. Subsequently, defence counsel indicated that the accused wished the rulings to be delivered in open court and that was scheduled for and completed on December 16, 2013.
[7] On the December 16 attendance the Court was informed that defence counsel had, in correspondence to the Crown, indicated an intention to bring additional pretrial applications. The court directed that, should the defence determine to do so, it must serve and file Notices of Application, including a request for leave, by December 31, 2013. Notice of the applications was filed on December 28, 2013 and an amended Notice of Application was filed on January 2, 2014.
Governing Principles
[8] As indicated, Rule 34.03 provides that, before granting leave for the hearing of an application where the applicant has failed to comply with the governing rules, the presiding judge must take into account all the circumstances of the case including various factors listed in the Rule at paragraphs (a) to (j), as well as any other factors the judge considers relevant to his or her determination under paragraph (k).
[9] In the case of R. v. Loveman 1992 2830 (ON CA), [1992] O.J. No. 346 the Court of Appeal confirmed that the trial judge has the inherent power to control the trial proceedings so as to insure fairness to all concerned and to preserve the integrity of the trial process, and that, in the exercise of the Court’s inherent power, the trial judge may decline to entertain a motion or application were no notice or inadequate notice has been given to the other side. The Court indicated that this may be so even when the application seeks to exclude evidence pursuant to section 24(2) of the Charter. The Court did distinguish between cases where a Charter right is at stake and cases where that factor is not present, indicating that a trial judge will be reluctant to foreclose an inquiry into an alleged violation of the Charter.
[10] In the case of R. v. Oliver [2005] O.J .No. 596 (C.A.) the Court of Appeal observed that "the interest of an accused in pursuing whatever avenue may assist in his defence does not trump all other interests engaged by the due administration of criminal justice. Counsel cannot expect that scheduling orders will be automatically amended whenever a proposed motion may offer some assistance to an accused in his or her defence.”
[11] One of the factors to be considered by the Court under Rule 34.03, in taking into account all the circumstances of the case, under paragraph (g) is “the apparent merits of the application as reflected in any material filed and any submissions made in the proceeding." It is noted that, even if noncompliance with rules is not in issue, Rule 34.02 expressly permits the presiding judge to conduct a preliminary assessment of the merits of an application on the basis of the materials filed, and if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.
[12] Sharpe, J.A., writing for the Court in R. v. Blom (2002) 2002 45026 (ON CA), 167 C.C.C. (3d) 332 (Ont. C.A.), at para. 21, in a case involving request by an accused for leave to advance a Charter application, made the point that procedural rules, such as rule 30, although important, are not to be rigidly applied without regard to their underlying purpose. He observed that Rule 1.04 requires that rule 30 "be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay” and that Rule 2.01 characterized a failure to comply with rule 30 as a mere "irregularity" and that, even where a rule has not been followed, to the extent possible, steps should be taken "to secure the just determination of the real matters dispute".
[13] Justice Sharpe concluded by stating that, where a procedural rule such as rule 30 is invoked to foreclose consideration of a Charter issue, non-compliance with the rule is not necessarily fatal to the Charter application but rather, the trial judge is required to consider and weigh a variety of factors to determine what course of action is required by the purpose of the Rule.
[14] Justice Sharpe did not, in Blom, speak to the question of whether different considerations apply where a possible Charter right is not at stake. It is also noted that Blom involved a routine prosecution for a routine offence and the accused’s Charter argument was not factually or legally complex. The voir dire would be conducted during the course of the trial the same facts as the voluntariness issue, for which a voir dire was required in any event. In these circumstances Justice Sharpe found that it was difficult to see how the accused’s defective notice caused any prejudice to the Crown (see paras. 25-27).
Application for Admission of Ante-Mortem Statement of Deceased to Mary Gifkens
[15] With respect to the first proposed application, the defence seeks to adduce into evidence statements made by the deceased in her telephone conversation with Mary Gifkens three days after the accused had spoken to Ms. Gifkens advising that he had heard from the deceased and he was interested in resuming his relationship with her. When the deceased called, she told Ms. Gifkens that she had been involved in intense therapy and, when questioned about violence in the relationship, indicated that her own alcohol abuse and mental health issues had been major contributing factors and further advised that she had dealt with those issues and that she now desired contact with the accused.
[16] The defence submits that the statements made by the deceased to Ms. Gifkens should be admitted into evidence on the basis of the "principled exception" to the rule against hearsay, which requires, for admission, that the evidence be necessary and reliable.
[17] The defence argues that the statements of the deceased to Ms. Gifkens achieve threshold reliability on the basis of "other circumstantial guarantees" of trustworthiness. The defence points to case law which supports the proposition that, in respect of evidence proposed specifically by the defence, the rule against hearsay evidence has been relaxed where it is necessary to the fair trial of an accused. The defence states that, although there may have been a motive to lie insofar as the deceased wanted to resume her relationship with the accused and knew that her ability to do so was dependent upon a favorable decision by Ms. Gifkens, that is a matter of weight for the trier of fact and is not a threshold reliability issue. Finally, the defence argues that the evidence is necessary to its ability to make full answer and defense insofar as it assists in giving the trier of fact a "fuller picture" of the relationship between the deceased and the applicant.
[18] The Crown argues that the position advanced by the defence that motive to lie goes only to weight and not to threshold reliability runs counter to the argument strenuously advanced by the defence on the application argued September to November 2013 in reference to various other ante-mortem statements of the deceased that were under consideration. The Crown also submits that it is a position that is not supported by the jurisprudence.
[19] The Crown submits that, not only is the motive to lie readily apparent, there are also several pieces of evidence demonstrating that deceased's statements to Ms. Gifkens were false. The Crown argues that the statements under consideration satisfy none of the various factors to be applied in assessing threshold reliability.
[20] The Crown also submits that is difficult to see how a clearly false and fabricated statement by the deceased will assist the jury and provide a "fuller picture" of the relationship and what it may well establish is the extent of control that the accused had over the deceased and the ease with which he was able to deceive his probation officer.
[21] In consideration of the factors enumerated in rule 34.03, it is noted that, although the right of the applicant to raise issues relating to the admissibility of evidence and to have those issues determined on their merits is recognized in paragraph (b), the countervailing need for an expeditious determination of pretrial applications and the orderly conduct of trial proceedings is recognized in paragraph (d).
[22] I find that the effect of the defence advancing these applications well after the time set aside for the bringing of the pretrial applications and effectively on the eve of trial has prejudiced the ability of the Crown to prepare for what will be a relatively lengthy and complicated trial. The Crown's case is entirely circumstantial, and accordingly, in order to make out its case before the trier of fact, a constellation of many disparate pieces of evidence will have to be marshalled. The Crown has indicated that it may call 31 witnesses. Having to respond to these new applications has, by necessity, resulted in Crown counsel having to divert their energies from final trial preparation to the task of responding to the proposed applications.
[23] As was observed by Justice McKenzie in R. v. Basi [2010] B.C.J. No. 2218 (B.C.S.C.) at para. 23, albeit in a different context, a competing interest to that of the accused in making full answer and defence is that of the Crown in marshalling its witnesses and evidence.
[24] Justice McKenzie also observed, at paragraph 24, that a trial before the jury is inherently more fragile than one before a judge alone, which militates in favor of permitting the trial to proceed expeditiously.
[25] It is not clear why the admissibility of the deceased's statement to Ms. Gifkens was not brought forward at the time of argument of the balance of the pretrial applications. Ms. Gifkens was called to testify on the voir dire, and the admissibility of the accused's statement to her of April 2006 was fully argued. The defence states that it did indicate to the Crown and to the Court that it may well be seeking a ruling on the admissibility of the statements of the deceased to Ms. Gifkens at the trial once the other pretrial applications had been decided. It is noted that, to the extent that this disclosure was made during submissions, there was no indication that the application would be brought on the eve of trial necessitating a delay in its commencement. Regardless of this, the report by the pre-trial judge to the trial judge did not indicate that the defence expressed any intention to take a stepped approach to its contemplated pretrial applications at the pretrial.
[26] As indicated above, Rule 2.01 provides that compliance with a rule may be dispensed with where, and to the extent, it is necessary in the interests of justice to do so. In this regard, a consideration of the apparent merits of the application called for under paragraph (g) of Rule 34.05 becomes important.
[27] In my view, it is not a question of whether there is no reasonable prospect that the application could succeed, being the test under Rule 34.02 where non-compliance with a rule is not an issue, but rather a holistic approach should be adopted whereby the apparent merits of the application are weighed against the other factors to be considered in all the circumstances of the case in determining whether leave ought to be granted.
[28] It is not correct to say, as the defence argued in its Factum, that a motive to lie on the part of the deceased that goes only to weight and not to threshold reliability. Indeed defence counsel accepted this in submissions. As indicated in my ruling of December 16, 2013 at paragraph 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 its truth and accuracy to warrant admission; however it is but one factor to consider. The focus of the inquiry must be on the particular dangers arising from the hearsay nature of the evidence.
[29] The statements of the deceased came three days after the accused approached Ms. Gifkens for permission to resume the relationship and was told that the deceased would have to speak to her directly about it. This circumstance, as well as other evidence that what the deceased was telling Ms. Gifkens was false, detract from a finding of threshold reliability, and enhance the dangers raised by the hearsay evidence sought to be introduced. The deceased’s statement that she had been in intense treatment was contrary to the evidence of her mother Amy Miller that during that summer the deceased was residing with her but was asked to leave when she resumed drinking, following which she returned to live with the accused. There is no evidence presented by the defence that the deceased had been involved in any intense therapy program, or indeed corroborating the other assertions made by the deceased in her statement.
[30] It is noted that the proposition that the Court has residual discretion to relax in favour of an accused a strict rule of evidence is limited, on the caselaw, to situations “where it is necessary to prevent a miscarriage of justice and where the danger against which an exclusionary rule aims to safeguard do not exist” (see R. v. Williams 91985), 1985 113 (ON CA), 50 O.R. (2d) 321 (C.A.), cited with approval in R.v. Folland 1999 3684 (ON CA), [1999] O.J. No. 143 (C.A.) at p. 22, and approved in R. Finta, 1994 129 (SCC), [1994] 1 S.C.R. 701). It cannot be said that it is necessary to admit the deceased’s statements to Ms. Gifkens in order to prevent a miscarriage of justice, or that the danger against which the rule against hearsay aims to safeguard is not present. On the contrary, the danger is acute, given the lack of any evidence corroborating the deceased’s statements and the existence of contradictory evidence, combined with her acknowledged motive to lie.
[31] Since Ms. Gifkens was examined fully on the earlier voir dire, and the admissibility of her evidence was argued at length, I am in a position to the conduct an informed assessment of the apparent merits of the application called for under paragraph (g) of Rule 34.03. Weighing the apparent merits of the proposed application in light of all the circumstances of the case, including the prejudice to the Crown and the need for an expeditious determination of pre-trial applications and the orderly conduct of trial proceedings, I am unable to find that it is in the interest of justice to the grant leave to the accused to bring the application for admission of the statements made by the deceased to Ms. Gifkens.
Evidence of Blood Splatters in the Accused Vehicle
[32] With respect to the proposed application for an order excluding evidence of blood found in the accused's automobile, the defence points to the evidence of the pathologist Dr. Fernandez, who examined the deceased's body following its discovery and testified that he was unable to find any obvious evidence of trauma other than fractured ribs. From this the defence argues that there was no evidence that there were lacerations or cuts to the body of the deceased.
[33] The defence argues that the evidence of the blood, on this basis, has low probative value, whereas its prejudicial effect is high, given that, in the absence of evidence of lacerations on the deceased's body, it serves as further evidence of prior disreputable conduct. However, the defence argues that the evidence is vague as the date and cause of the deposit of blood in the vehicle are unknown.
[34] The defence argues that the probative value of the blood evidence was closely linked to whether the accused's statements were ruled admissible, given his explanations to police respecting the presence of blood in his vehicle, and to the prior disreputable conduct evidence sought to be introduced by the Crown, and accordingly, it made sense to await the outcome of the motions respecting those matters before bringing the application to exclude the blood evidence.
[35] As indicated above, a stepped or piecemeal approach to the applications does not appear to have been contemplated at the pretrial of this matter, nor at the time that the pretrial applications were scheduled, and certainly not in the course of argument of the applications.
[36] In light of the prejudice to the Crown in its trial preparation, as referred to above, a consideration of the apparent merits of the application is appropriate in order to determine whether it is necessary in the interests of justice to grant relief from compliance with the rules in reference to this evidence.
[37] The defence does not rely upon a specific exclusionary rule or a Charter breach in support of its proposed application, but rather relies upon the residual power of the Court to exclude evidence if its prejudicial effect exceeds its probative value. It must be remembered, as indicated in my rulings of December 16, 2013, that prejudice in this context does not mean simply damaging to the interests of the accused at trial, but rather whether the effect of the evidence is unfairly or unjustly prejudicial to the accused.
[38] Given the existence of predation by animals on the deceased's body, and the apparent extent of decomposition and missing tissue, it is not clear that the trier of fact would be necessarily prevented from drawing an inference that the presence of blood in the accused’s vehicle and the evidence of an attempt to clean up the blood points to complicity of the accused in the deceased's death. It is, of course, open to the defence to point to a lack of evidence of lacerations and cuts on the body as pointing away from such an inference, or to lead evidence in support of competing inference. An appropriate warning may be given to the jury to view the evidence of the blood in the vehicle with caution in light of a lack of evidence of any lacerations or cuts on the body when Dr. Fernandes examined it, if that is indeed his evidence at trial.
[39] Contrary to the submission of the defence in its Factum, this evidence is dissimilar to the evidence of Amy Miller respecting late-night phone calls from the deceased which was ruled inadmissible due to its vagueness. That evidence was hearsay which did not meet the test of threshold reliability, whereas the evidence of blood is physical evidence. In my view, it would usurp the role of the jury to remove this evidence from its consideration. Accordingly, I find that the proposed application to exclude the blood evidence lacks sufficient merit, when considered in light of all of the circumstances, including those listed under Rule 34.03, to support a finding that the interests of justice favour the granting of leave.
Toxicology Results on the Deceased’s Admission to Hospital June 6, 2005
[40] With respect to the proposed application to admit a copy of the toxicology results for the deceased's admission to hospital on June 6, 2005, the defence argues that it, combined with the toxicology test results on her admission on September 24, 2005, the records of which were ruled admissible, indicates a long-standing habit of the deceased of becoming very intoxicated which is, in turn, is relevant to a habit of risk-taking. The defence asserts that risk-taking behavior is relevant to the possibility of a cause of death arising from accident or in some manner other than by homicide on the part of the accused.
[41] The Crown argues that, given that the balance of the records respecting the deceased's admission to hospital on June 6, 2005 was ruled inadmissible, it would be misleading to admit the evidence of the results of the toxicology test undertaken on that admission as it would lead the jury to infer that her drinking either caused her to become severely ill or she injured herself, leading to her admission to hospital. The Crown states that would be highly prejudicial to admit this evidence without any context as it would leave too much room for improper speculation on the part of the jury.
[42] The Crown also disputes that the trier of fact can take "judicial notice" that heavy drinking can be equated to risk-taking behavior and accordingly, the inference that the defence seeks to suggest to the jury is not available on the evidence.
[43] Strictly speaking, it does not appear that a pretrial ruling on the admissibility of the toxicology report, by itself, would be required by rule 30.01 because the evidence is not presumptively inadmissible by a common law rule or other rule of admissibility. By itself the toxicology report would be admissible under the rule in Ares v. Venner or under s. 30 of the Canada Evidence Act.
[44] The complicating factor in this case is the fact that all of the records associated with the deceased's admission on June 6, 2005, including the toxicology report, have been excluded from evidence as not passing the test of threshold reliability.
[45] I do not agree with the Crown's submission that it is clear that an inference of risk-taking behavior on the part of the deceased would not be available to the jury on the evidence of the toxicology report, when viewed in conjunction with other admissible evidence. However, I do agree with the Crown's position that there may be a possibility of jury error should the toxicology result be received in evidence in isolation from any evidence of the context in which the deceased was admitted to hospital.
[46] Although the defence, in its Notice of Application, sought admission of the toxicology results for the deceased’s June 6, 2005 admission without any evidence of why she was admitted or what she might have said to staff when there, in argument it conceded that some form of context would have to be given to the jury on a basis to be determined by the Court.
[47] In the case of R.v. Riley [2009] O.J. No. 241 (S.C.J.) Dambrot, J. made the point that there may be evidentiary issues that are best and most efficiently dealt with as they arise in the course of trial for a number of reasons. These include the fact that many evidentiary issues may be dealt with expeditiously in the course of trial, as well as the fact that some evidentiary issues can only be understood in light of evidence already led or in the context of other answers given by a witness. Trying to resolve these issues in advance, rather than saving time, may require an extensive pre-trial review of the case that will squander rather than conserve scarce judicial resources (see Riley at para. 17 and 18).
[48] It is a well-accepted that it is open to a trial judge to revisit a pre-trial ruling in light of evidence led and circumstances arising during the course of the trial. In my view, it is appropriate, in reference to the admission of the toxicology evidence, to defer making a ruling on its admissibility until the matter arises in the course of the trial. Should the defence seek to introduce this evidence as part of its case it will likely be appropriate, as acknowledged by the defence, to revisit the exclusion of the hospital records relating to the deceased's admission on June 6, 2005 if it is necessary to give appropriate context to the reasons for her admission to hospital. That determination is most appropriately made in the context of all of the evidence led to that point in the trial,
[49] Leave is therefore granted to bring the application for admission of the toxicology results of June 6, 2005, however, argument of the application is deferred until the matter arises in the course of the trial.
Evidence of Sheri Burks
[50] The final proposed application is for exclusion of the evidence of Ms. Sheri Burks, a neighbor living in the apartment below the accused, who told the police that she heard loud music and banging sounds like “hitting the balcony with something” from 10 PM on New Year's Eve until 5 AM on New Year's Day. She also told police that she heard the sound of someone plunging the toilet as if trying to unplug it for several days after.
[51] The defence submits that the evidence of Ms. Burks is of a very slender probative value as it is not more than evidence that the accused was doing something strange the night that the deceased apparently went missing. It submits that the evidence is akin to "demeanour" evidence that appellate courts have warned trial judges to be cautious of. The defense argues that the prejudicial effect of the evidence is heightened because of the evidence of discreditable conduct and post-offense conduct that the Court has admitted.
[52] The defence points out that, although Ms. Burks’ evidence was included in disclosure available since 2011, the Crown had not, prior to December 9, 2013, mentioned the possibility of her being called to testify at trial. Since the disclosure included statements or will-states of over 100 other civilian witnesses and over 80 police witnesses, it would have been in an efficient use of court time for the defense to pre-emptively bring motions with respect to every witness that the Crown might call whom the defence believes has evidentiary difficulties associated with it.
[53] Although this factor may go some way toward explaining why defence did not indicate an intention to bring the application at the time of the pretrial and did not do so prior to the commencement date for the hearing of pretrial applications, the existence of this evidence from a neighbor in an adjacent apartment to that of the accused was referenced on a number of occasions during the hearing of the applications, and in particular, in reference to the application respecting the search under warrant of the accused's apartment. It should have been apparent to the defence that it was realistic to expect that the Crown would lead this evidence.
[54] No indication was provided by the defence that an application was under consideration, to exclude that evidence. Had such an indication been made during the time set aside for the hearing of pretrial applications, arrangements to schedule the hearing of the application sufficienly in advance of the trial to avoid prejudice to the Crown, or a delay of the trial, may have been made.
[55] As with the evidence of the blood in the accused’s vehicle, the defence does not rely upon a specific exclusionary rule or a Charter breach in support of its proposed application, but rather relies upon the residual power of the Court to exclude evidence if its prejudicial effect exceeds its probative value.
[56] With respect to the merits of the application respecting Ms. Burks’ evidence, I find that it is not necessary to have regard to the questions of inadequate notice and noncompliance with the Rule on the part of the defence and to carry out the exercise of weighing the various factors under Rule 34.03, as I am satisfied, on the basis of the materials filed by the defence, that there is no reasonable prospect that the application could succeed, and accordingly, the application should be dismissed without further hearing or inquiry, quite apart from any non-compliance with the Rule on the part of the defence.
[57] The evidence of Ms. Burks is not akin to "demeanour” evidence which appellate courts have directed that trial judges to should be wary of. At least insofar as the evidence respecting the loud music and banging sounds is concerned, the evidence is not of post-offence conduct. The evidence of toilet plunging sounds is wholly different than evidence of an accused’s demeanour upon being confronted with a suggestion of complicity in an offence. It is evidence of positive action of the accused from which it may be possible for the trier of fact to infer that the accused was attempting to dispose of incriminating evidence.
[58] Moreover, the conclusory statement of the defence that "the prejudicial effect of this evidence is heightened because of the evidence of discreditable conduct and post-offense conduct that the court has admitted" provides no information on how such heightened prejudicial effect is caused, nor what particular discreditable conduct and post-offense conduct evidencd has that effect.
[59] No explanation is offered on how the accused may be unfairly or unjustly prejudiced by the evidence. The defence will be fully able to test the veracity and reliability of Ms. Burks’ evidence on cross examination at trial, and will be able to suggest to the jury that they should not draw the inferences from it suggested by the Crown, or to lead evidence in support of a competing inference. In my view, it would usurp the role of the jury to remove this evidence from its consideration.
[60] In the event that I am wrong that there is no reasonable prospect that the application would succeed, I would exercise my discretion to refuse leave to bring the application to exclude Ms. Burks’ evidence, in consideration of all of the circumstances of the case under Rule 34.03.
Disposition
[61] For the foregoing reasons, leave is refused for the accused to bring applications:
a) for an order admitting into evidence statements made by the deceased Denise Bourdeau to the accused's probation officer Mary Gifkens on September 18, 2006, and
b) for an order an order excluding evidence of blood of the deceased found in the accused's automobile.
[62] Leave is granted for the accused to bring an application for an order to admit a copy of the toxicology results for the deceased's admission to hospital on June 6, 2005, however, the hearing of the application is deferred until the defence moves to admit the toxicology reports into evidence as part of its case, at which time consideration will be given to the admission of evidence of the context and reasons for the deceased’s admission to hospital on that date.
[63] The application of the accused for an order excluding the evidence of Ms. Sherri Burks, a neighbor of the accused, respecting noises she heard emanating from the accused’s apartment, is dismissed pursuant to Rule 34.02.
D.A. Broad J.
Date: January 16, 2014