R. v. Cole, 2015 ONSC 406

BARRIE COURT FILE NO.: CR-13-113

DATE: 20150120

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

MARGARET LEE COLE

Respondent

M. Flosman and M. Villamil, for the Applicant Crown

J. Dennis and A. Kwan, for the Respondent Accused

HEARD: December 16, 2014 and January 15, 2015

RULING ON THE ADMISSIBILITY OF THE ACCUSED’S STATEMENT TO CONSTANCE FERRI

DiTOMASO J.

THE APPLICATION

[1] A voir dire was held on December 16, 2014 and January 15, 2015 in respect of the Crown’s pretrial motion to determine the admissibility of a statement given by Margaret Lee Cole to her friend, Constance Ferri.

[2] Ms. Cole stands charged that on or about April 9, 2011, at the Township of Severn, she did commit first degree murder of Richard Humble.

[3] The theory of the Crown is that on April 9, 2011, Richard Humble, aged 82 died in a fire at his home in Washago. The Office of the Fire Marshall investigated the fire but was unable to establish the cause. It is the position of the Crown that Margaret Lee Cole intentionally set that fire and that she did so for financial gain.

[4] The subject of this application is a conversation that Ms. Cole had with her friend, Constance (Connie) Ferri, in which Ms. Cole intimated that she was adept at setting fires as a means to resolving financial problems. It is alleged these comments would presage Mr. Humble’s death some months later.

[5] The Crown relies on circumstantial evidence to establish that the fire was intentionally set, that it was Margaret Lee Cole who set it and that she orchestrated Mr. Humble’s death in such a way as to make herself an heir to his Estate.

POSITION OF THE CROWN AND DEFENCE

Position of the Crown

[6] The Crown seeks to admit the statement by Ms. Cole to Connie Ferri as extrinsic evidence that speaks to the relevant and material issue as to whether the fire was accidental or intentionally set and, if the fire was intentionally set, who set the fire. It is submitted that Ms. Cole intentionally set the fire to make herself an heir to Mr. Humble’s Estate. The Crown submits with planning and deliberation, Ms. Cole set the fire to Mr. Humble’s house while he slept in it.

[7] The Crown submits that the statement of an accused person against interest is admissible evidence provided the probative value of the said statement is greater than its prejudicial effect.

[8] The Crown submits that the tests for admissibility have been satisfied. The conversation between Ms. Cole and Ms. Ferri is relevant, material and has probative value. Lastly, the probative value of the conversation outweighs its prejudicial effect. Accordingly, the Crown submits that the conversation between Ms. Cole and Ms. Ferri ought to be admitted into evidence.

Position of the Defence

[9] On behalf of Ms. Cole, it is submitted that notwithstanding the Crown’s position that the statement is relevant to both Ms. Cole’s state of mind and her proficiency at setting fires, the statement by Ms. Cole does not meet the test for relevancy and materiality. Further, the probative value of the evidence is not strong when the nature of the statement, the quality of that evidence, to whom the statement was made, the deficiency in particulars or details and the credibility of Ms. Ferri is cnsidered.

[10] It is further submitted that the probative value of the statement is not as strong as the Crown would suggest. Rather, it is weak and overcome by moral prejudice. Such moral prejudice would occur by admitting prohibited general propensity evidence which, in this case, far outweighs the probative value of the statement. The defence submits that the statement is so prejudicial, far outweighs its probative value and therefore should be excluded.

ANALYSIS

Evidence

[11] On the voir dire Constance Ferri testified.

Evidence of Constance Ferri

[12] Ms. Ferri has known Ms. Cole for 20 – 30 years. They had been high school friends and grew up in Streetsville. Marked as Exhibit 1 is an excerpt of her evidence on the preliminary hearing.

[13] She testified in-chief that in 2010/2011, she and Ms. Cole were still friends. Ms. Ferri moved to Erin in 2011 but she had still resided in the Meadowvale area in 2010. Ms. Cole was living in Washago at that time. Ms. Ferri testified that she had not seen Ms. Cole very often in 2010. Ms. Cole would drop in and they would have telephone conversations with each other.

[14] She was asked how she became aware of a fire at Ms. Cole’s house. Ms. Ferri testified that she went to her own cottage to pick up some things. She drove by Ms. Cole’s place and found that it had burned down. She did not know this prior to that trip. She does not believe that Ms. Cole would have told her about the fire as Ms. Ferri would have known about it if Ms. Cole had done so. Ms. Ferri believed that the fire occurred sometime in 2010.

[15] Ms. Ferri went on to testify that she was having some problems selling her house before she moved to Erin. She also had some problems regarding a water main break and insurance problems as a result.

[16] She testified that Ms. Cole because of her own house fire was quite good at dealing with insurance matters. Ms. Cole suggested that she could be the liaison between Ms. Ferri and her own insurer. Ms. Cole could submit an account to Ms. Ferri who could pass it along to her insurance company. This was not something that Ms. Ferri was interested in doing as she had enough problems with her own insurer.

[17] Ms. Ferri testified that she was told by Ms. Cole how Ms. Cole could show Ms. Ferri how to burn down a house and collect money for it. Ms. Cole said that she had gone on the internet, found things on different websites on how to burn down “your house and get away with it”.

[18] Ms. Ferri was not interested in engaging in this kind of conversation. She did not ask any questions about Ms. Cole’s internet’s search or searches. To the contrary, she directed the conversation in another direction.

[19] Ms. Cole went on to tell Ms. Ferri how Ms. Cole’s own house burned down, about laundry in a plastic bag in a room where the sun came through windows resulting in combustion.

[20] Ms. Ferri testified that at no time did Ms. Cole specify the ways found on the internet by Ms. Cole to burn down houses.

[21] She was then asked when the conversation took place. Her conversation took place sometime between January and March 2010. She could not remember if the conversation took place when Ms. Ferri’s house was up for sale. She also was told by Ms. Cole that she had been working for Richard Humble. Ms. Ferri did not remember when this conversation took place. However, the conversation about Ms. Cole’s internet searches took place before the conversation about Richard Humble.

[22] In cross-examination, Ms. Ferri testified that she did not know if Ms. Cole’s fire started in the same way as what Ms. Cole found on the internet. She did not know if the fire occurred in respect of laundry in a sunlit room. She was not sure when the fire took place at Ms. Cole’s home – perhaps in 2009. Ms. Ferri was not told by Ms. Cole what Ms. Cole had found when she went on the internet . She was not told the method by which fires could be set as found on the internet.

[23] As for when the statement was made, she testified it was sometime between 2009 and 2010 because she had moved by 2011. The water main break was in 2009 and she dealt with her insurance company in 2010.

[24] Again, in cross-examination, Ms. Ferri testified that Ms. Cole told her that she could show Ms. Ferri in layman’s terms or teach Ms. Ferri how to possibly set Ms. Ferri’s house on fire and collect the insurance money. Ms. Cole did not explain anything and did not describe how this could be accomplished. There were no details given and Ms. Ferri did not want to continue with the conversation. As the conversation was characterized as a tutorial, Ms. Ferri could not remember any specifics.

[25] Returning to when the conversation took place, Ms. Ferri testified that there were a number of dates at which time the conversation could have taken place: (1) by 2010, (2) between January – March 2010, (3) spring or summer 2010, (4) or the conversation could have taken place after the Humble fire which took place on April 9, 2011. She did not know the sequence of the conversations.

[26] She was cross-examined about her criminal record. She was convicted of the following offences:

January 25, 1988 – Theft under $1,000 in Brampton

1989 – Theft under $1,000 Peel Region

1994 – Possession of property obtained by crime.

[27] While she could only remember one of these convictions, she could not remember all of them.

[28] After persistent cross-examination, her memory improved and she remembered all of the convictions. Put to her was the proposition that these were crimes of dishonesty. She disagreed. She stated that these were not crimes but really acts of desperation and silly behaviour.

[29] She did not know what Ms. Cole found on the internet. She was told by Ms. Cole that the Cole fire was caused by spontaneous combustion. In respect of the Cole fire she was never told by Ms. Cole that she had the intention to set the fire to her own house. Rather, she stated that the cause of fire was spontaneous combustion. Ms. Cole never told Ms. Ferri that she set fire to her own house.

[30] In re-examination, Ms. Ferri did not believe Ms. Cole’s fire was accidental.

[31] No evidence was called for the defence on the voir dire.

General Applicable Principles

[32] On this application regarding the admissibility of extrinsic evidence, I invited counsel to refer to the general applicable principles set out in my ruling on the admissibility of the Chapman letters commencing at page 8, para. 57. By reference, I address the attention of counsel to my setting out the principles in respect of the general exclusionary rule, the threshold test which includes a consideration of the conduct of the accused, and whether the evidence is relevant, material and conduct discreditable to the accused.

[33] Further, my overview of the principles after dealing with the first step in the analysis, and where the four questions posed by Watt J.A. in Luciano by way of a threshold test had been answered affirmatively, the balancing process begins with an assessment of the probative value of the proposed evidence; namely, whether the probative value of the evidence outweighs its prejudicial effect (see Ruling on the Admissibility of the Chapman Letters at para. 73).

[34] After a consideration of the probative value of the evidence, the next step in the balancing process involves an assessment of the prejudicial effect of that evidence. The final step in the decision about admissibility requires the judge to balance probative value and prejudicial effect and to determine where the balance falls. I have considered the applicable principles regarding probative value, prejudice and the balancing of the two as set out in my previous ruling.

[35] Crown counsel characterizes the statement of Ms. Cole as a statement against interest which ought to be admitted provided the probative value of the statement is greater than its prejudicial effect. The statement is also a statement of extrinsic misconduct which is inadmissible unless the prosecution satisfies the court on a balance of probabilities that the evidence to be proffered meets the threshold for admission and that the probative value of same outweighs its prejudicial effect. Whether the statement is characterized one way or the other, it comes down to the same thing: admission of the proposed evidence is admissible where probative value of same outweighs its prejudicial affect.

The Threshold Test

[36] There are four questions that must be affirmatively answered before the probative value/prejudicial effect analysis can be undertaken:

(1) Is the conduct that of the accused?

(2) Is the evidence relevant?

(3) Is the evidence material?

(4) Is the conduct discreditable to the accused?

(1) Is the conduct that of the accused?

[37] It is clear from the evidence of Ms. Ferri that the conversation that she had with Ms. Cole took place at Ms. Ferri’s home. The conduct of Ms. Cole being considered is her statement to Ms. Ferri about searching the internet and finding information about how to burn down a house to collect money without getting caught. The conduct in question is certainly that of Ms. Cole.

(2) Is the evidence relevant?

[38] The Crown submits that the evidence is indeed relevant as it shows that Ms. Cole knows something about the art of arson and that she can get away with it avoiding detection, burning down a house is a panacea for Ms. Cole’s financial problems.

[39] The defence submits that the statement by Ms. Cole is not relevant. It amounts to nothing more than general prohibited propensity evidence. Counsel refers to R. v. Handy at para. 31. It is not specific propensity evidence to assist the trier of fact regarding the intention of Ms. Cole to kill Mr. Humble which is really the main issue at trial. In our case, a critical issue is the identity of the perpetrator who set the Humble fire. It is argued that there is a vast difference between the offence of arson and the offence of murder. It is submitted that the test of relevancy is not even met and there was no nexus between the evidence being proposed and a fact in issue.

[40] I disagree. Relevance must be established in the context of the entire case. The Crown has established that the evidence is relevant to Ms. Cole’s state of mind, her proficiency with respect to setting fires and ultimately whether the fire was accidental or intentionally set by a perpetrator. Further, the Crown’s position is that the perpetrator is Ms. Cole given her special knowledge.

(3) Is it material?

[41] The defence takes the position that the evidence of the conversation is not material. I disagree. The statement goes to the central issue of the case which is whether the Humble fire was accidental or intentionally set. There is direct evidence that Ms. Cole knows from the internet how to burn down a house and collect money for it and avoid detection. This is evidence that she knows how to commit arson. The conversation is material, once again, to the issue of whether the Humble fire was accidental or the mechanism of the fire was arson.

[42] I find the conversation is material.

(4) Is the conduct discreditable to the accused?

[43] The answer to this question is yes.

[44] As the four questions posed by Watt J.A. in Luciano by way of the threshold test have been answered in the affirmative, the balancing process now begins with an assessment of the probative value of the proposed evidence; namely, whether the probative value of the evidence outweighs its prejudicial effect.

Probative Value

[45] The guidelines for assessing probative value of evidence as well as an assessment of the prejudicial effect of that evidence is set out in R. v. B.(L.).

[46] The principles in this regard can be found in my ruling regarding the Chapman letters from para. 74 to 78.

[47] In assessing the probative value of the proposed evidence, I have considered the following:

(i) The strength of the evidence;

(ii) the extent to which the proposed evidence supports the inference sought to be made from it (this factor will often correspond to 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. Also reviewed are the seven factors set out in R. v. Handy at para. 82.

[48] The Crown has offered a number of cases to support the strength of the Crown’s case.

[49] In R. v. Lloyd-Owen, [2005] O.J. No. 3211 (Ont. S.C.J.) at paras. 34 and 35 some writings were admitted into evidence. There was established in that case a close nexus in time and events to the date of the killing. The linkage is not just in respect to time but the nature of the relationship between Ms. Cole and her friend Ms. Ferri and even lacking a certain level of detail, the conversation is a powerful piece of evidence.

[50] In R. v. Malone, 1984 CanLII 3480 (ON CA), [1984] 11 C.C.C. (3d) 34 (Ont. C.A.) the accused’s note was relevant because of the continuity in raising the issue much like the insurance problems which Ms. Ferri had and her knowledge of what she was told by Ms. Cole about searching the internet and finding information about how to burn down the house and get away with it. In essence, this is what the Crown is contending, namely, that Ms. Cole knew how to commit arson for financial gain. The Crown asserts that the murder of Mr. Humble is, at its heart, a fraud. It is also the theory of the Crown that what occurred was done to enrich Ms. Cole and nothing more.

[51] In Malone, the evidence of the remark of the accused was admissible in the circumstances because of the continuity provided by the writings.

[52] In R. v. Eng, [1999] B.C.J. No. 1588 (C.A.) there was evidence of a poem written by Mr. Eng, an arsonist. It was submitted that the writing was general in nature. However, it was held at para. 41 that there was a nexus between Mr. Eng’s poem and the charges in the indictment. It amounted to a confession. The Crown’s point was that specificity was a matter of weight and not admissibility.

[53] Crown submissions were made in respect of R. v. Jackson, 1980 CanLII 2945 (ON CA), [1980] O.J. No. 1468 (C.A.) where it was submitted that a statement, although distant in time, was admissible. The lack of proximity did not disqualify the evidence which constituted a statement one year prior to the event.

[54] In R. v. Williams, 2013 ONSC 3100, [2013] O.J. No. 2421 (Ont.S.C.J.) at paras. 5 and 6 can be found the facts of the case. The case involved a video tape regarding a gang killing. It was unsure who made the utterance contrary to the evidence in our case. It was held that the lack of detail regarding the evidence goes to weight and not admissibility. It is up to the jury to decide how much or if any weight is to be afforded the evidence.

[55] Again, in Williams, the Crown submits that the statements are not dispositive of the crime itself and only go to prove a constituent element of the crime but are nonetheless admissible. In Williams, the utterances show that the accused was acting for the benefit of a criminal organization and thus the killing was first degree murder.

[56] It is submitted that likewise in our case, the utterances of Ms. Cole directed to Ms. Ferri are not a statement of intention to kill Richard Humble, but rather they speak to the cause of the fire that ended his life and to the identity of the arsonist. The Crown submits that there is ample evidence of intent, motive and means in the utterances of Ms. Cole and thus, probative value.

[57] In R. v. Liard, [2013] O.J. No. 4000 (Ont.S.C.J.) the accused had written a short story similar to the killing. The issues of that case were set out in paras. 92 and 95. In Liard, it was held that there was a risk of moderate reasoning prejudice and substantial risk of moral prejudice which could be ameliorated somewhat by a firm instruction about the proper use of the story. It was held that the story was, arguably, strong circumstantial evidence of motive, and ought to be available for the jury’s consideration. The Crown submits that even where moral prejudice is raised and can be significant, there can be reason for admission of certain pieces of evidence.

[58] The Crown also submitted that Ms. Cole had a specialized knowledge in respect of the setting of fires. In respect of her statement demonstrating that specialized knowledge and arguing in favour of admission, the Crown cited R. v. Davison et al, 1974 CanLII 787 (ON CA), [1974] O.J. No. 2146 and McWilliams, Canadian Criminal Evidence, 4th ed., page 29-27, para. 29: 40.20.30.

[59] The Crown concludes that the strength of the evidence can be found in the fact that it comes from a participant conversation, one who was at the time a friend and was not predisposed to fabricate something that would be detrimental to the accused. Lastly, as the cases cited establish, utterances or writings of an accused, made prior to the criminal act with which the accused is charged that are sufficiently probative to an issue at trial, will be properly admissible notwithstanding the evidence demonstrated bad character.

[60] The defence contends that all of the cases cited by the Crown are distinguishable to the case at bar. All of the cases referred to by the Crown demonstrate instances where there exists specific propensity evidence that overcomes the exclusionary rule and crosses the threshold to admissibility. In all of the cases presented by the Crown, there is real and concrete evidence which supports the existence of nexus between the proposed evidence and the live issues in the case. To the contrary in the case at bar, the defence submits that the Crown evidence is weak. It lacks specificity. It lacks the necessary linkage between the conversation generally about arson and the death of Mr. Humble in a house fire, whether or not intentionally set.

[61] The defence submits that the evidence of the Ms. Cole statement to Ms. Ferri constitutes general propensity evidence which ought to be excluded.

[62] In assessing the probative value in this instance, I have considered Ms. Ferri’s evidence which in and of itself I find problematic and which undermines the strength of the Crown’s case as follows:

(1) Ms. Ferri is not a close friend of Ms. Cole. Their relationship has been overstated. They have been friends over the years. However, Ms. Ferri did not even know that Ms. Cole had a fire at her home without Ms. Ferri discovering the fire for herself.

(2) Ms. Ferri is not a confidante of Ms. Cole. The conversation was not a confidential or secretive one. The conversation was not of that nature.

(3) There were no details as to what Ms. Cole read on the internet on how to set a fire and get away with it. While the Crown submits that the details are implicit, I find they are not. Rather, the details would only be implicit when a jury would engage in drawing impermissible inferences i.e. Ms. Cole is an arsonist who burned down her own home and therefore must have committed arson regarding the Humble fire as well.

(4) Further, Ms. Ferri gave four different versions as to when this conversation took place which raises a significant question about the reliability of her evidence.

(5) Ms. Ferri’s credibility is also questionable. When she was cross-examined about her criminal record, she was not forthcoming. Only after being pressed on cross-examination did she admit that she had a record of three convictions for crimes related to theft. When put to her that these were crimes of dishonesty, she disagreed. Rather, she characterized and justified these convictions as being “crimes of desperation and silly behaviour”. She did not acknowledge or consider her conduct to be criminal at all even though she knew that she had a criminal record.

(6) Lastly, the Crown’s cases cited by the Crown were clearly distinguishable from the case at bar as in those cases there was real evidence, specific propensity evidence to assist the trier of fact which is absent in our case. I have considered the arguments advanced on behalf of the Crown and the defence. I accept the arguments of the defence in respect of probative value relating to the strength of the evidence. While I do conclude that Ms. Ferri was a friend of Ms. Cole and while I agree that there is no evidence to show that she was predisposed to fabricate something detrimental to Ms. Cole, I have found that the strength of the evidence is undermined by those considerations presented by the defence which I accept.

[63] Nevertheless, the evidence has probative value. Ms. Cole’s comments suggest that she has some familiarity with the mechanics of starting fires, that she can do so in a way to avoid detection and she is capable to recommend it as a course of action with a tutorial to go along with it.

[64] Ultimately, I do accept the Crown’s submissions that the evidence of the conversation has probative value. A jury can draw inferences about things implicit in what Ms. Cole told Ms. Ferri as set out above. Further, the extent to which the conversation tends to prove is in issue at trial. There was no definitive cause of the fire determined. The evidence of the statement to Connie Ferri provides a possible answer to the question of whether or not the fire was incendiary in origin.

Prejudice

[65] The second step in the balancing process involves an assessment of the prejudicial effect of the proposed evidence. The final step in the discussion about admissibility requires the judge to balance probative value and prejudicial effect to determine where the balance falls.

[66] In assessing the prejudicial effect of the proposed evidence, consideration should be given to the following matters:

(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.

[67] The Crown submits that evidence contained in a conversation between Ms. Cole and Ms. Ferri will not be the only evidence that the jury will hear which will be prejudicial. There will be evidence from a number of other witnesses that we will hear about; a voluntary statement by Ms. Cole relating to the fire and by a number of other witnesses relating to her financial troubles. Any prejudice to Ms. Cole will be tempered by what the court will hear from all of these sources.

[68] The defence submits that there is little probative value in respect of the proposed statement contrasted with great prejudicial effect. It is submitted that what is being proposed is prohibited propensity reasoning of the general kind that will lead to an impermissible inference. That impermissible inference would be that Ms. Cole knew how to set fires without getting caught for financial gain, that is what she must have done to her own house and that she did the same thing to the Humble house, with Mr. Humble in it.

[69] Even the Crown admits that there would be substantial amount of prejudice that would enure to Ms. Cole should the evidence be admitted. The Crown, however, argued that even in circumstances where there is substantial prejudice, there may be good reason to admit such evidence.

[70] I find that there is no evidence that Ms. Cole set her house on fire for financial gain. There is no evidence that she was an arsonist in respect of the fire that destroyed her home. She was insured for the fire loss and her insurer paid her $400,000 to $500,000. The evidence is only she had a house fire and she received insurance proceeds because of it. Further, there is no evidence that the Ontario Fire Marshall could find as a result of its investigation that the Humble house was destroyed by an act of arson. The Crown submits that the conversation between Ms. Cole and Ms. Ferri provides that linkage, that nexus, by which inferences can be drawn that Ms. Cole knew how to commit arson, committed arson in destroying her own home and being competent in the art of arson, destroyed Mr. Humble’s home with him in it.

[71] I do not agree with the Crown’s position for the following reasons.

[72] What the Crown asserts amounts to double general propensity evidence. It invites the trier of fact to infer that Ms. Cole is an arsonist who must have set fire to her own house for financial gain (which is not supported by the evidence) and then take one step further to improperly infer that if she set fire to her own house, then she must have set fire to Mr. Humble’s house while he slept for financial gain. This is a leap way too far.

[73] I accept the main thrust of defence counsel’s argument in respect of the question of moral prejudice. Propensity evidence by any other name is still propensity evidence. The evidence relied upon by the Crown is thin even described by Crown counsel as “sparse” although arguably gaining strength when viewed through the lens of the context of the case. It is submitted by the defence that the moral prejudice inherent in the statement outweighs the probative value it generates. I find that the proposed evidence is discreditable to Ms. Cole. There is dangerous exposure to an impermissible inference of guilt based solely on bad character. I am not so much persuaded that the proposed statement would confuse issues as there would be other evidence forthcoming from the Crown that would ameliorate the effect of prejudice. Lastly, Ms. Cole has had the ability to respond to the proposed evidence.

[74] I find that the prejudice to Ms. Cole is exceedingly substantial if her proposed statement to Ms. Ferri is admitted into evidence.

Balancing Probative Value against Prejudice

[75] For the applicable legal principles in this regard, please refer to para. 92 and following in my Ruling regarding admissibility of the Chapman letters. The final step in this decision about admissibility requires the judge to balance probative value and prejudicial effect to determine where the balance falls.

[76] I find that the probative value of Ms. Cole’s statement to Ms. Ferri is far outweighed by its prejudicial effect and therefore, the statement should not be admitted into evidence. The balancing of probative values and prejudicial effect does not favour admission for the reasons that I have stated above. Admission of the evidence proposed by the Crown is so dangerous that it will most certainly cause the trier of fact to embark upon impermissible reasoning. If the evidence were admitted, the jury most certainly would be in a position to draw prohibited inferences about Ms. Cole being an arsonist, about Ms. Cole setting fire to her own house by means of arson for fraudulent financial gain. Having committed that criminal act, it would take very little for the jury to infer that Ms. Cole must have deliberately set fire to the Humble home by arson to kill him for fraudulent financial gain.

[77] I am not satisfied that the prosecution has satisfied this court on the balance of probabilities that in the context of this particular case, the probative value of the proposed evidence in relation to the issues identified at trial outweighs its potential prejudice and therefore justifies its reception.

CONCLSUION

[78] For the following reasons, the Crown’s application is dismissed. The statement of Ms. Cole to Ms. Ferri does not constitute admissible evidence.

DiTOMASO J.

Released: January 20, 2015