ONTARIO SUPERIOR COURT OF JUSTICE

CR 14-127

HER MAJESTY THE QUEEN

• v. –

PAUL ALVES FARIA

RULING - ADMISSIBILITY OF ANTE-MORTEM STATEMENTS

BEFORE THE HONOURABLE JUSTICE G. MULLIGAN

On AUGUST 5th, 2015 , at BARRIE, Ontario

APPEARANCES:

R. Williams

J. Janiuk Counsel for the Crown

C. Hanson

G. Dorsz Counsel for P. Faria

August 5th, 2015

Mulligan, J: (Orally)

Paul Alves Faria is charged with first degree murder in connection with the death of Victoria Doyle. He was in a relationship with her for several months prior to her death on January 1st 2013. In the days and weeks leading up to her death, Victoria Doyle made various statements to family members and friends about the state of her relationship with Mr. Faria. Some of the statements were made orally; others were communicated via text messages. The Crown called these witnesses to provide evidence at the preliminary hearing. Both Crown and defence agree that the transcripts from the preliminary inquiry would provide the evidentiary basis for this application. In its application, the Crown provided a helpful summary of the evidence given by these witnesses as to the statements to them by Victoria Doyle.

The defence does not oppose the application in general terms, but has two specific concerns. The first concern is the sheer volume of witnesses essentially providing the same or similar evidence. The defence is prepared to make some admissions, rendering much of this evidence unnecessary. As set out in the defence factum at paragraph 9, “The respondent also concedes that this type of evidence, generally, can be presented to the jury to assist them in finding motive or animus, and circumstantially, identity.”

The defence raises a second concern regarding the prejudicial nature of certain ante-mortem statements. As the respondent states in his factum, at paragraph 25:

“A small, but significant, amount of evidence sought to be adduced falls outside of the repetitive “background evidence that the applicant seeks to adduce. It constitutes evidence that is either irrelevant, uncorroborated, unreliable, and/or overly prejudicial.”

As a guide to the various statements it seeks to introduce, the Crown prepared a summary of certain statements made by Victoria Doyle to eleven witnesses, labelled as Appendix ‘A’. In the summary, the Crown noted what Ms. Doyle said, and cross-referenced the statements to the preliminary hearing transcript. The Crown also set out the circumstances under which each statement was made, as well as any available corroborating extrinsic evidence. This summary is attached as Appendix A to this ruling.

Before further discussing the respondent’s concerns, it is helpful to review the essential elements of the offence of first degree murder. The essential elements of first degree murder are often expressed as follows:

(i) Did the accused cause the death of the victim?

(ii) Did the accused cause the death of the victim unlawfully?

(iii) Did the accused have the state of mind required for murder?

If the jury answers “yes” to those essential elements, it would then be asked further questions:

(iv) Was the accused’s murder of the victim planned and deliberate? And/or

(v) Did the accused murder the victim while committing or attempting to commit criminal harassment, intending the person murdered to fear for her safety?

Considering criminal harassment, it is useful to set out s. 264 of the Code:

No person shall, without lawful authority and knowing that another person is harassed recklessly as to whether the other person is harassed, engage in conduct referred to in section (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of

(a) Repeatedly following from place to place the other person or anyone known to them;

(b) Repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

(c) Besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or

(d) Engaging in threatening conduct directly at the other person or any member of their family.

In R. v. Penney, Justice D. Watt, as he then was, considered an application to quash a committal for trial on first degree murder charges involving criminal harassment. As Justice Watt stated at paragraph 58:

Criminal harassment first degree murder is a form of constructive first degree murder. Rather than simply adding criminal harassment as paragraphs (a.1) or (g) to the predicate offences listed in section 231(5), Parliament enacted s. 231(6) and required Crown counsel to prove other essential elements beyond the existing requirements of s. 231(5).

At paragraph 60, Justice Watt provided the following additional elements to a charge of first degree murder when criminal harassment is alleged.

That D. committed or attempted to commit criminal harassment.

That in committing or attempting to commit criminal harassment, D, intended the deceased to fear for his or her own safety, or the safety of anyone whom the deceased knew; and

That the criminal harassment, whether actual or attempted, in the murder were part of the same series of events.”

In R. v. Moorehouse, the Albert Court of Appeal dealt with first degree murder based on criminal harassment. As the Court stated in paragraph 5:

“Criminal harassment murder requires an intention on the part of the perpetrator to cause fear. It is rarely possible to get direct evidence of an accused’s intention at the time of murder. In all murder cases, it is impossible to have the victim testify at trial as to fear or anything else.”

Legal Principles Concerning Ante-Mortem Statements

Although the defence does not object to the admission of many of the ante-mortem statements the Crown proposes to submit it does object to certain statements it considers to be highly prejudicial. Before reviewing those individual items of concern to the respondent, it is useful to set out the applicable general principles.

In R. v. Gayle, Justice K.M. van Rensburg, as she then was, reviewed the Ontario Court of Appeal’s decision in R. v. Candir and provided the following steps to the issue:

Step 1: Determining Relevance

The first step is to determine whether the evidence is relevant and material. As Watt J.A. noted at paragraph 51 of Candir, citing that court’s earlier decision in R. v. Moo in a prosecution for a crime of domestic homicide, evidence of the relationship between the persons charged and the deceased may be relevant and material.

Step 2: The Evidence Hearsay.

The next step is to determine whether the statement in question is hearsay. Hearsay is presumptively inadmissible, unless the admission is justified under a specific traditional exception to the hearsay rule, or the principle exception requiring an evaluation of its necessity and reliability.

Step 3: Does a Traditional Hearsay Exception Apply?

The “state of mind” exception permits the admission of hearsay evidence demonstrating that the declarant’s state of mind, except where the statements are made under circumstances of suspicion.

Step 4: Is the Hearsay Admissible Under the Principled Exception to the Hearsay Rule?

The principled exception to the hearsay rule requires that the court is satisfied that the evidence is necessary and meets the test for threshold reliability. Necessity means the hearsay evidence is not available directly from the declarant. The element of necessity is established where the declarant is deceased.

Step 5: Is the Evidence Otherwise Inadmissible?

As Watt J.A. noted in R. v. Moo, at paragraph 99, while evidence the relationship between the person charged and the deceased, including misconduct other than that charged, may be relevant and material in establishing the identity of the deceased’s killer and the state of mind at the time of the killing,

“evidence of extrinsic misconduct comes with baggage - moral prejudice (the potential stigma of ‘bad personhood’) and reasoning prejudice (including potential confusion and distraction of the jury from the actual crime charged).

Where such evidence can be characterized as “prior discreditable conduct”, the Crown has the onus to establish that its probative value on a clearly defined issue in the context of the specific prosecution exceeds any prejudicial effect.

Where the evidence is relevant, the court must consider whether there is a risk of moral prejudice, that is that the jury may infer guilt from general propensity or that the verdict may be based on prejudice rather than proof, undermining the presumption of evidence. There is also the risk of reasoning prejudice, the distraction of the jury by the earlier misconduct rather than the evidence related to the offence.

In R. v. Mendez-Romero, Justice Pardu, as she then was, provided the following guidance regarding considerations concerning the trustworthiness of proposed hearsay evidence. As she stated at paragraph 10:

“A court should look at all of the surrounding circumstances, including the presence or absence of confirmatory evidence to assess whether the evidence is trustworthy enough to be admitted. Some of the factors which can be considered include:

(a) the declarant’s motive

(b) the spontaneity of the declaration;

(c) the contemporaneity of the declaration with the events described

(d) the declarant’s demeanour

(e) the declarant’s conduct;

(f) the relationship between the declarant and the recipient;

(g) the detail and degree of specificity of the information, and

(h) the possibility of mistake by the declarant.

Number of Witnesses

As previously noted, the respondent objects to the sheer number of witnesses which the Crown proposes to call. The defence has indicated it is prepared to admit the majority of the problems in the relationship between Ms. Doyle and Mr. Faria, and submits it is unnecessary to call evidence confirming the obvious. The respondent further suggests at paragraph 15 of his factum, “Each witness will say fundamentally the same thing about Victoria Doyle’s desire to end the relationship.”

The respondent relies on R. v. Parsons. In Parsons the Crown called 45 witnesses as to statements made by the deceased. The court noted that the volume of witnesses amounted to redundancy and repetition and stated at paragraph 42:

“Further, it does not appear that, in deciding to admit all the out-of-court statements into evidence, the trial judge entered into that balancing of the probative value of the statements with, in my view, the highly prejudicial effect which the sheer volume and repetition of the evidence would have on the jury, an effect which would not be displaced, or even lessened to any meaningful extent, by any instructions to the jury. In allowing all these statements into evidence, the trial judge was in error.”

The respondent also noted the comments of Watt J.A. in R. v. Candir, at paragraph 60, “This forensic piling on of evidence by the acre unnecessarily lengthens trial, diffuses their focus and diverts the attention of the trier of fact.”

The Crown’s position is that the proposed evidence of these witnesses goes beyond mere repetition to describe, through the words of Ms. Doyle, the unfolding events during the course of this relationship. The Crown notes that in Parsons there were over forty witnesses, some of whom would not have testified, other than for the hearsay purposes. Further in Parsons, some of the statements were many months prior to the murder and many of these witnesses gave the same evidence. The Crown submits that the statements made by Ms. Doyle to her mother, to her brother, to her three children, and to the other friends or acquaintances, spoke to different events or issues that occurred at various stages over the days or weeks prior to her murder. This is not a case where several witnesses heard Ms. Doyle say the same thing on one occasion and are merely called to repeat what they heard. In addition, these witnesses are going to be called in their own right to give evidence as to their statements and observations. Therefore, there is no undue expenditure of court time for witnesses that are called in any event.

The Crown further submits that the issue cannot be determined by merely counting the number of witnesses. In Candir, twelve witnesses testified about hearsay statements. In R v. Ranger, the Court of Appeal reviewed the statements made by eighteen witnesses. As Charron J.A. , as she then was, stated at paragraph 187 referencing Parsons, “In the case at bar, however, the hearsay witnesses related different statements made by Marcia Ottey, or gave evidence about different events.”

I see no merit in the respondent’s submissions that the sheer number of witnesses will overwhelm the trier of fact. Generally speaking, the witnesses will testify about different statements made to them on different dates or times. Those witnesses will be giving evidence in any event. Their recollections of statements Ms Doyle made to them will assist the jury in the unfolding narrative. Their evidence will also provide context for the Crown’s submission that the conduct of Mr. Faria will tend to show planning and deliberation or criminal harassment. To eliminate these witnesses would sanitize the evidence of the relationship. The strength of this evidence and the reliance upon it is ultimately a decision for the jury, the triers of fact. These witnesses will be cross-examined as to their recollection of events, the reliability of their evidence, and their biases, if any.

Particular Pieces of Evidence

I now turn to the second concern raised by the defence, namely, the overly prejudicial nature of certain pieces of evidence.

While acknowledging that much of the evidence the Crown proposes to call is admissible, the respondent takes the position that certain pieces of hearsay evidence are more than just repetitive. As the respondent states in his factum at paragraph 25, “It constitutes evidence that is either irrelevant, uncorroborated, unreliable, and/or overly prejudicial.”

I will review each of these controversial statements. In doing so, I remind myself that necessity is evident here. The declarant, Victoria Doyle, is deceased. It is important that the jury, as the ultimate trier of fact, is able to consider evidence that demonstrates motive or animus between the parties that speaks to the state of mind of the declarant, or which tends to show criminal harassment. As the same time, it is important to weigh the probative value of these statements versus their prejudicial effect.

Megan Hogg

Meghan Hogg was a former co-worker of Victoria Doyle. Their friendship continued after they stopped working together, and they would text back and forth weekly. On December 31, 2012, the New Year’s Eve before Victoria Doyle was murdered, Meghan Hogg received two texts from Victoria Doyle. The first one, at 8:10 p.m. stated, “What can I say, Paul’s turned out to be a stalker. We have to chat?” At 8:17 p.m., she texted, “Men r effed.”

I am not satisfied that the statement ”Men r effed” is of any assistance to the jury. It is generic in nature and does nothing to assist the jury with respect to Ms. Doyle’s state of mind about Mr. Faria. I take a different view with respect to her comments that Mr. Faria is a stalker. It tends to show her state of mind at the time it was sent. Whether she was being serious or facetious is something the jury can consider. The Crown’s proposed evidence will show that Ms. Doyle went to a gathering at the Youngs’ house that afternoon, not knowing Mr. Faria would be there. However, he arrived with Mr. Young. Ms. Doyle left the party to go home and have a shower and change, and then she returned. On her return, she stayed and socialized with several individuals, including Mr. Faria, in the garage waiting for the New Year. Her close friend, Cheryl Young remained in the house. She wasn’t feeling well. It may well be that Ms. Doyle sent this message while she was in the garage with Mr. Faria. Ultimately, the jury can decide the probative value of this statement in the context of all the evidence.

Evidence of Alicia Oak

Alicia Oak was Ms. Doyle’s daughter. The Crown acknowledges that it will not pursue any questioning about a ring given to Ms. Doyle by Mr. Faria and statements about this by Victoria Doyle to her daughter, Alicia.

Alicia is an adult who visited with her mother several times a week. Her proposed evidence will be to the effect that her mother told her that she was planning to end the relationship with Mr. Faria. Specifically, she recalled statements made to her at Christmas dinner by Ms. Doyle. As Alicia Oak stated at the preliminary hearing, “I do remember her telling us that she was leaving him after New Year’s.”.. After New Year’s, I’m telling him to fuck off.” Alicia will state that during a conversation at Wendy’s over lunch earlier in the day on New Year’s Eve, December 31, her mother called Faria a “weirdo”. She will state that her mother was receiving text conversations from Mr. Faria during their lunch. She will state that her mother told her at the restaurant, “I finally told him to fuck off.” She will state that there was a conversation about whether or not Paul would be at the Youngs’ party that night, and that her mother said she didn’t want him to come.

The respondent objects to this testimony submitting that it amounts to ‘stalker-like behaviour”. In my view, these statements are admissible. They tend to show the state of mind of the declarant and provide further evidence for the jury to consider with respect to the criminal harassment aspect of the first degree murder count. I am satisfied that their probative value outweighs their prejudicial effect. Alicia Oak is subject to cross-examination. Although the jury cannot hear from Ms. Doyle, they will hear evidence that she was at the Youngs’ residence prior to Paul Faria’s arrival, and that she left the residence to go home, shower and change, and return for the balance of the evening which she spent socializing in the garage with Mr. Young and Mr. Faria.

Evidence of Cheryl Young

Cheryl Young is married to Peter Young, and enjoyed a strong friendship with Victoria Doyle. As she described it at the preliminary hearing, they were like sisters. They confided in each other and spent a lot of time together. Victoria Doyle frequently visited Cheryl Young at her home, including the New Year’s Eve celebration. She spent most of the time in the heated garage with Peter Young, his brother Ian Young and Paul Faria chatting and drinking while waiting for the New Year’s arrival. Cheryl Young was not feeling well and spent most of her time in her residence. The proposed evidence of Cheryl Young will outline her relationship with Victoria Doyle, her observations and statements she made to Ms. Doyle. In addition, she proposes to give evidence about statements Ms. Doyle made to her. Of particular concern to the respondent, is evidence about the alleged assault that occurred in a hotel in Oshawa about six weeks before Ms. Doyle’s murder. Her recollection of what Ms. Doyle said to her about the incident was, “Paul was so upset with her, he had hit her and he shoved - he pushed her on the bed because of him thinking she was flirting at the bar, and she was scared.”

The Crown submits that the proposed evidence of Ryan McTaggart provides some corroboration of Ms. Young’s account of the incident. In conversations with his mother, Ms. Doyle, he recalled her discussing the hotel room incident. This was the only act of violence recounted to him. He stated that she indicated that Mr. Faria “boxed her ears” and she was hurt and dazed.

Paul Faria was questioned by the police, and with respect to the Oshawa hotel incident, and he acknowledged that something happened. However, he provided no further specifics.

There is no evidence that Ms. Doyle contacted the police or took any other steps to notify anyone at the time of the hotel incident.

I am satisfied that the probative value of this evidence is of significance. It bears significantly on animus and motive. Although it is said to have occurred several weeks before Ms. Doyle’s death, it can provide part of the unfolding narrative of criminal harassment should the jury accept that such statements were made.

In R. v. Handy, Justice Binnie considered the prejudicial effect of certain evidence. He considered moral prejudice arose where evidence may lead to an improper inference of guilt from evidence of general disposition or propensity. He defined reasoning prejudice as evidence distracting the jury from their proper focus based on inflammatory evidence or distracting side issue.

In R. v. Dupe, Justice Dambrot considered this issue in a ruling in a first degree murder case. As Justice Dambrot stated at paragraph 69:

The defence, however, argues that the reception of the evidence will result in moral prejudice. I do not agree. While the evidence will suggest that the accused has been emotional and even assaultive in the past, such conduct pales in comparison to the fatal stabbing in this case. While the evidence logically and properly supports an inference of the existence of animus or motive for the accused to do harm to the deceased, it does not paint him as a bad man who was the sort of person who would have a disposition to fatally stab a neighbour with a knife.”

In my view, the evidence about the alleged assault in the hotel room does not rise to the level of moral prejudice so that a jury would leap to the conclusion that an individual would commit murder because he had hit pushed, or “boxed the ears” of the victim some six weeks earlier. As with any hearsay evidence, the jury ought to be warned about the limited use of such evidence when they consider the motive or animus or criminal harassment aspect of this case. Such a warning would be appropriate in this case.

The Deck Incident

James Doyle is Victoria Doyle’s brother. He lived in British Columbia, but they shared a close relationship, conversing by telephone on a regular basis. On the evening of December 24th, he was on the telephone with Victoria Doyle. At the preliminary inquiry, he recalled his sister telling him on earlier occasions that she was going to try and break off the relationship, or at least slow it down. On Christmas Eve, she indicated to James that she wanted to end the relationship. During the conversation, she noted someone was at the window, looking into the house. His evidence was that she screamed and called for her son, Justin, who was elsewhere in the house. She told Mr. Doyle that she saw someone in the window. Later in the conversation “It’s obviously Paul watching me in the window, and he got pissed because I….” She also said to her brother, “Don’t you think that’s weird? That’s weird that she’s stalking, a type of stalking.”

Although James Doyle recalled that she called for her son Justin, Justin McTaggart had no recollection of this event when he testified at the preliminary hearing.

Cheryl Young also spoke about this incident in her testimony. She recalled that Victoria Doyle spoke to her about Mr. Faria being caught lurking outside her home saying, “What the f? What was he doing on the deck?” Cheryl Young recalled Ms. Doyle saying, “Justin, Justin, there’s someone on the deck,” and she continued saying, “so he flew out of bed, ran to the window to look out and said he’s seen Paul outside. And he [Mr. Faria] was peeking in the window at her at 2:00 in the morning, but he took off when he - Justin came to the door.”

I have some concerns about the reliability of these statements. James Doyle’s evidence appears to indicate that Ms. Doyle’s first impressions were that “someone” was outside her window. Clearly, she formed the impression that it was Paul Faria by the time she spoke to Cheryl Young. There was some evidence that some presents left outside the window may have come from Paul Faria to Victoria Doyle. But Justin McTaggart although at home, had no recollection of this event. Ms. Doyle’s first impression to her brother was that “Someone” was at the window. I am satisfied that this hearsay statement lacks reliability and therefore that its potential prejudicial effort outweighs any probative value.

Changing the Locks

Cheryl Young gave evidence about two conversations she had with Victoria Doyle about changing her locks. After the deck incident, Ms. Young said that Ms. Doyle came to her house “and asked me and Peter about changing locks on her door”. Ms.