ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-M7872
DATE: 2015/08/26
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Rene Jack Goudreau
Respondent
Jason Neubauer and Lisa Miles, for the Crown
Douglas Baum and Samantha Robinson, for the Respondent
HEARD: May 25, 2015
Justice patrick smith
Introduction
[1] This is a ruling on the application of the Crown to permit it to call hearsay statements of the deceased, Lucie Goudreau, and evidence that may be characterized as discreditable conduct of the Respondent, Rene Goudreau.
Overview
[2] The Respondent, Rene Goudreau, is charged with the first degree murder of his mother, Lucie Goudreau.
[3] Pursuant to subsection 231(2) of the Criminal Code, R.S.C. 1985, c. C-46, murder is first degree murder when it is planned and deliberate.
[4] First degree murder may also be made out, pursuant to subsection 231(5)(e) of the Criminal Code, when the death is caused by the accused while he or she is committing or attempting to commit an offence under section 279 of the Criminal Code (kidnapping and forcible confinement), irrespective of whether the murder is planned and deliberate.
[5] The Crown intends to rely on one or both of the above routes to establish that the Respondent is guilty of first degree murder.
[6] The Respondent’s parents, Jack and Lucie Goudreau, were long-time residents of an apartment located at 90 Woodridge Crescent in the City of Ottawa. Ms. Goudreau’s health deteriorated when she was diagnosed with multiple sclerosis; this disease eventually caused her to become totally dependent upon her husband for her day-to-day care.
[7] Jack Goudreau died of cancer in 2012 whereupon the Respondent moved into the apartment to assume the care of his mother.
[8] In the early morning hours of November 27, 2012, the Respondent and his mother were alone in the apartment when a fire broke out killing Ms. Goudreau in her bed. The Respondent managed to escape unharmed.
[9] At the time of the fire, Ms. Goudreau suffered from advanced multiple sclerosis and was completely immobile, rendering her unable to exit the apartment on her own.
[10] The Crown argues that statements that relate to the state of mind of Ms. Goudreau are admissible because they are relevant and they establish that the accused had animus towards his mother and the means and motive to kill her, which they allege that he did by setting fire to her apartment with planning and deliberation.
[11] The Crown also asserts that the statements made by Ms. Goudreau to friends, family and others with respect to her fear of her son and his treatment of her before her death are, although hearsay, also admissible and probative with respect to the mens rea of the Respondent and his forcible confinement of her.
[12] As well, the Crown contends that although some of the statements and evidence sought to be introduced are evidence of prior discreditable conduct, they should be admitted because they are relevant and their probative value outweighs any prejudicial effect.
[13] The statements that the Crown seeks to introduce are described in Appendix “A” of the factum of the Crown.
[14] I have colour-coded the appendix to facilitate an understanding of my rulings. Comprehensive reasons follow.
Is the Evidence Proposed to be Introduced Relevant?
[15] The rule excluding hearsay evidence is an exception to the general rule that all relevant evidence is admissible (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2). Before beginning a hearsay analysis, the issue of the relevance of the evidence must be addressed.
[16] The Crown argues that the statements and evidence sought to be introduced are relevant to animus, motive and intent.
[17] The position of the Defence is that the statements are not relevant and that the Crown seeks their admission not to establish animus and motive, but rather to establish the bad character of the Respondent. The Defence argues that this “bad character” evidence should not be admitted since its probative value is far outweighed by its prejudicial impact.
[18] In R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at paras. 51-52, the Ontario Court of Appeal made the following comments:
In a prosecution for a crime of domestic homicide, evidence of the relationship between the principals, the persons charged and deceased, may be relevant and material: R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 (Ont. C.A.), at para. 98. Evidence that shows or tends to show the relationship between the principals may help to establish a motive or animus on the part of the accused. And evidence of a person's animus or motive to unlawfully kill another may assist in proving the identity of the killer and the state of mind that accompanied the killing. Moo at para. 98; R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609 (Ont. C.A.), at para. 23; R. v. Jackson (1980), 1980 2945 (ON CA), 57 C.C.C. (2d) 154 (Ont. C.A.), at p. 167; Plomp v. R. (1963), 110 C.L.R. 234 (Australia H.C.), at pp. 243, 249-50.
Motive or animus has to do with an accused's state of mind, not that of the deceased. Yet evidence of the deceased's state of mind may constitute a link in a chain of reasoning that could lead a trier of fact to conclude that an accused bore the deceased some animus or had a motive to kill the deceased: R. v. Foreman (2002), 2002 6305 (ON CA), 62 O.R. (3d) 204 (Ont. C.A.), at para. 30; R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.), at p. 339.
[19] Furthermore, at para 72, the Court stated:
Evidence that a person had a motive to do an act, for example to unlawfully kill another, is relevant to prove that the person with the motive did the act, and did so intentionally.
The Statements of Ms. Lucie Goudreau
[20] The Crown seeks to introduce into evidence a number of out-of-court statements made by Ms. Goudreau – some containing evidence of prior discreditable conduct of the Respondent and some going to the deceased’s state of mind.
[21] The statements relate to the Respondent’s treatment of the deceased and were made in conversations she had with: her sister, Gisele Langelier; her friends, Judith Lachance and Paula Nicolls; the building superintendent, Andras Vance; and Police Constable Lisa Welsh.
[22] Paragraphs 18 – 40 of the Crown’s Supplemental Factum describe in detail the nature of the statements sought to be introduced and need not be repeated.
[23] As I will explain below, I find that the evidence the Crown seeks to admit is relevant.
Are the Statements Hearsay?
[24] The first step in a hearsay analysis is to determine if the proposed evidence is hearsay. According to the Supreme Court in Khelawon, at para. 35, the “essential defining features of hearsay” are:
(1) “the fact that the statement is adduced to prove the truth of its contents”, and
(2) “the absence of a contemporaneous opportunity to cross-examine the declarant”.
[25] Neither the Crown nor the Defence argued that any of the statements were not hearsay.
[26] Some of what the Crown seeks to admit is double hearsay, as some of the deceased’s statements to the proposed witnesses contain statements made by the accused to the deceased. All instances of double hearsay are highlighted in yellow on the attached appendix.
[27] Double hearsay is only admissible if each level of hearsay is admissible (R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 172). I assume that the Crown does not want to introduce the double hearsay statements for the truth of their contents since no argument was presented advancing the admissibility of the statements by the accused under either a traditional exception or the principled approach. Accordingly, I assume that the Crown seeks to introduce the double hearsay statements for the purpose of demonstrating that the accused made these statements to the deceased, not for the proof of the truth of their contents.
[28] The deceased’s statements to third parties are hearsay statements insofar as the Crown seeks to rely on them for the truth of their contents. The hearsay statements are highlighted in green on the attached appendix; statements highlighted in blue on the appendix are observations of the witness, not statements of the deceased.
Are the Hearsay Statements Admissible?
[29] The governing framework for conducting a hearsay analysis is as follows (Khelawon, at para. 42, citing R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15):
(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.
(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.
(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.
(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.
[30] I note at the outset that even where hearsay evidence is found to be admissible under a traditional exception or the principled approach, it should be excluded where its probative value is outweighed by its prejudicial effect. I will address the probative value and prejudicial effect of the statements the Crown seeks to introduce at the conclusion of the hearsay analysis.
[31] The Crown seeks to admit evidence under one of the traditional exceptions to the hearsay rule (specifically, the state of mind exception) and under the principled approach.
The State of Mind Exception
[32] Declarations describing a present state of mind are admissible under the traditional exception to the hearsay rule where the state of mind of the declarant is relevant and the statement is made in a natural manner and not in suspicious circumstances (R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 59).
[33] A finding that the state of mind exception applies to a hearsay statement is generally conclusive that the statement is admissible. This is so unless the traditional exception is successfully challenged on the basis that it lacks sufficient indicia of necessity and reliability, but this will be rare in most cases (Khelawon, at para. 60).
[34] Under this traditional exception, an out-of-court statement may be admitted as proof of the state of mind of the declarant, but not as proof of the state of mind or intentions of another person (Griffin, at para. 58).
[35] The position of the Defence is that a number of the statements made by the deceased do not speak to her state of mind primarily because she was secretive and hid her thoughts and feelings from her friends and family.
[36] There was no suggestion advanced by the Defence that any of the statements were made in suspicious or unnatural circumstances. Ms. Goudreau had no motive to lie and, to the contrary, appeared reluctant to divulge her feelings and relationship with her son, even to her closest friends and family members.
[37] In this case, the deceased’s statements to the effect that she was afraid of her son or upset about his conduct are relevant insofar as they may be probative of the issue of motive. Evidence of motive, in turn, is relevant and admissible, particularly where, as here, the evidence on the issue of intention is purely circumstantial: see Griffin, at paras. 59-61.
[38] The deceased’s statements to the effect that she loved her son, that she would try to work things out with him, that she wished to keep the situation private, and that she did not want her son charged are relevant insofar as they explain why, despite the alleged abuse, the deceased did not do more to seek out help or leave the situation.
The Principled Approach to Hearsay
[39] Where the Crown seeks to rely on an out-of-court statement as proof of the truth of the contents of the statement and it does not fall within one of the traditional exceptions to the hearsay rule, the statement may nevertheless be admissible under the principled approach to hearsay. Prior to admitting a hearsay statement under this approach, the court must determine on a voir dire that the statement is both necessary and reliable (Khelawon, at para. 47).
[40] The onus is upon the Crown to establish the necessity and reliability of the hearsay statements it seeks to admit on a balance of probabilities (Khelawon, at para. 47).
[41] Where the declarant is deceased, as is the case here, the element of necessity is satisfied (Griffin, at para. 94).
The Reliability Inquiry
[42] One rationale for the presumptive inadmissibility of hearsay evidence is the general inability to test the reliability of the hearsay statements. However, in some cases, the admissibility inquiry reveals minimal dangers in accepting the evidence; in such cases, excluding the evidence would impede accurate fact-finding by the trier of fact (Khelawon, at para. 2).
[43] The scope of the inquiry into reliability must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility (Khelawon, at paras. 50 & 66).
[44] On a voir dire of this nature, a court must not be concerned about whether the hearsay statement will ultimately be relied upon by the trier of fact. This issue of ultimate reliability must be left to the jury. At this stage, the court must only decide whether the statement is sufficiently reliable to overcome the dangers associated with hearsay evidence (Khelawon, at para. 50).
[45] Khelawon explains, at paras. 61-63, that there are two principal ways of establishing reliability. First, the Crown can show that there are circumstantial guarantees of reliability, i.e. that the circumstances in which the statement was made remove the concerns about whether the statement is true. Second, the Crown can show that despite the hearsay form of the evidence, there are adequate substitutes for cross-examination such that the truth and accuracy of the statement can be sufficiently tested.
[46] In this case, adequate substitutes for cross-examination are not present. For example, there is no transcript from a preliminary hearing during which there was an opportunity for cross-examination of the declarant on these statements, nor were the statements ever made under oath and audio or video-recorded: see Khelawon, at para. 106.
[47] The Crown must therefore establish that there are sufficient circumstantial guarantees of trustworthiness to render the statements admissible despite their hearsay nature.
[48] The Defence asserts that the statements should be excluded because they are not reliable. Specifically, the Defence argues that none of the statements the Crown seeks to introduce are audio- or video-recorded or reduced to writing and that they are attempts by witnesses to paraphrase what was said, years after the fact.
[49] On balance, I am satisfied that the recipients of the deceased’s statements were able to sufficiently recall the essence and circumstances of the conversations. The ability of a recipient to recall what was said, under what circumstances it was said and when it was said has been held to be an issue of weight and not admissibility (R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at paras. 47-51).
[50] The reliability analysis depends a great deal on the circumstances of a particular case. For that reason, cases dealing with hearsay statements that involve facts similar to the present case are helpful.
[51] In R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, the Court of Appeal considered an appeal from a first degree murder conviction. The case turned on the question of whether the deceased died as the result of an accident or a deliberate act that would form the basis for a verdict of first degree murder.
[52] In that case, the Crown sought to prove that the accused, Mr. Polimac, pushed his common law wife, Ms. Pauls, off a cliff, whereas Mr. Polimac claimed that Ms. Pauls had fallen accidentally. The Crown alleged that Mr. Polimac had a motive, namely his desire to end his relationship with Ms. Pauls and start a new life with his mistress, without having to give up the home he owned jointly with Ms. Pauls.
[53] At trial, the Crown introduced statements made by Ms. Pauls to her friends to the effect that Mr. Polimac had emotionally and physically abused her and threatened her during the summer and fall preceding her death. These statements were intended to demonstrate the appellant’s increasing animosity towards Ms. Pauls, his determination to extract himself from the relationship without losing their home, and Ms. Pauls’ fear of Mr. Polimac. A jury found Mr. Polimac guilty.
[54] On appeal, Mr. Polimac argued, inter alia, that certain statements made by Ms. Pauls to her friends should have been excluded as inadmissible hearsay evidence. In upholding the admission of these statements, the Court of Appeal referred, at para. 62, to “several significant findings of fact” made by the trial judge:
[The trial judge] found that Ms. Pauls was very close to the persons with whom she shared these very personal and embarrassing details about her relationship with the appellant. The trial judge also found that the statements were spontaneous and made at a time close to the events described in the statements. The trial judge further found that Ms. Pauls’ emotional state when she made the statements was consistent with their reliability and that the detail provided in some of the statements was significant. All of these findings were available on the evidence and I accept them for the purpose of determining whether, in light of Khelawon, the trial judge erred in law by admitting the statements.
[55] The facts in Polimac are similar to those in the case at bar. Ms. Goudreau was close to the persons with whom she shared the information at issue – information she found embarrassing and was reticent to disclose.
[56] The Supreme Court’s decision in Khelawon is also helpful, not only for the general principles it sets out with respect to hearsay, but also for its application of those principles to the facts of that case. As in the present case, Khelawon concerned allegations of elder abuse.
[57] The Court held that an elderly man’s statements with respect to an assault committed against him by the manager of his residential home were inadmissible and that the circumstances surrounding the statements called into question their inherent trustworthiness. Two reasons for this were that the declarant “was elderly and frail” and that “[h]is mental capacity was at issue – the medical records contained repeated diagnoses of paranoia and dementia” (Khelawon, at para. 107). However, there were also other significant issues that concerned the court, namely: the declarant’s injuries could have been caused by a fall instead of an assault; the declarant made his initial allegations to an employee with an “obvious motive to discredit” the accused; his report of the incident to the treating physician was made in the presence of the same employee and may have been influenced by that employee; the declarant had issues with how the retirement home was managed; and it was unclear from the police video whether the declarant understood the consequences of making his statement (Khelawon, at para. 107).
[58] The Court found that, in these circumstances, the declarant’s “unavailability for cross-examination posed significant limitations on the accused’s ability to test the evidence and, in turn, on the trier of fact’s ability to properly assess its worth” (Khelawon, at para. 107).
[59] It is not known what evidence will be adduced at trial with respect to Ms. Goudreau’s mental capacity at the time she made the statements. I note that counsel for the accused has not raised Ms. Goudreau’s mental capacity, her ability to accurately perceive the accused’s conduct or her ability to recall such conduct.
[60] Nevertheless, while it is apparent that Ms. Goudreau was both frail, due to her illness, and elderly, the other factors identified by Justice Charron in Khelawon are not present in this case. Ms. Goudreau had no motive to lie, nor was there an individual with a motive to lie in a position to influence her with respect to her statements. Moreover, in Khelawon, the declarant’s statements related to a single incident and, in all instances, may have been influenced by a disgruntled employee. Here, Ms. Goudreau’s statements related to multiple instances of abuse and were made to various individuals over time.
[61] In this case, I find that there are several circumstantial guarantees of trustworthiness:
(i) The deceased did not have a motive to lie. She had nothing to gain from describing her son’s troublesome and abusive conduct. In fact, the hearsay statements indicate a reticence on the deceased’s part to speak ill of her son or to risk getting him in trouble. There is no evidence, and counsel for the accused does not argue, that the deceased wanted to get her son in trouble or that she had any interest in making false statements about abuse to her friends and family: see Khelawon, at para. 67;
(ii) The nature of the relationship between the parties to the conversation suggests that their contents are reliable. The hearsay statements were made in the context of everyday intimate conversations, mostly between close relatives and friends, where there was no motive for the deceased to fabricate, as discussed above: see R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319, at para. 43;
(iii) The statements were contemporaneous to the events described; made in respect of the deceased’s son’s ongoing conduct and the deceased’s ongoing circumstances. The statements were not, from my understanding, made long after the events they describe (with the exception of the statements regarding the accused’s alleged assault on his father and certain comments relating to the long-term nature of the accused’s mental health problems): see Khelawon, at para. 67; and
(iv) Several of the deceased’s statements are corroborated by extrinsic evidence. For example, multiple witnesses (Mr. Vance and Ms. Langelier) received similar statements by Ms. Goudreau to the effect that her son had emptied the home of most of her possessions, and this is also corroborated by Constable Welsh’s observations that the apartment was “extremely bare” and “had very little furniture in it” (Transcripts, vol. 6, p. 5): see Khelawon, at para. 100.
[62] I am satisfied that the Crown has established threshold reliability and note that the question of ultimate reliability must be left to the jury.
Statements as Proof of Prior Discreditable Conduct
[63] Many of the deceased’s out-of-court statements provide evidence of prior discreditable conduct on the part of the Respondent. Specifically, they describe a long-term pattern of the accused’s abuse of his mother and her reaction to the abuse.
[64] Evidence of an accused’s prior discreditable conduct is presumptively inadmissible for the Crown (R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 73). The Crown is prohibited from “leading evidence of misconduct engaged in by the accused that is unrelated to the charges before the court, unless it [the Crown] can demonstrate that its probative value outweighs its prejudicial effect” (Hart, at para. 73).
[65] This rule is intended to prevent the trier of fact from using evidence of prior discreditable conduct “as circumstantial proof of conduct, i.e., to allow an inference from the ‘similar facts’ that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty of the offence” (R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31).
[66] Nevertheless, evidence of an accused’s prior discreditable conduct is admissible for the Crown where it is relevant to a material issue other than propensity and where its probative value outweighs its prejudicial effect (R. v. G. (S.G.), 1997 311 (SCC), [1997] 2 S.C.R. 716, at para. 65).
Relevance and Probative Value of the Proposed Evidence
[67] The Ontario Court of Appeal has given the following guidelines for assessing probative value:
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 (R. v. B. (L.), 1997 3187 (ON CA), 35 O.R. (3d) 35, at para. 23).
[68] Discreditable conduct evidence can be probative of intent, motive and animus; it can also provide context for the behaviour of the complainant and demonstrate the nature of the relationship between the parties:
Evidence of extrinsic misconduct may be admitted to demonstrate a system of violent control over others, thus to explain why abuse could occur and continue unabated and unreported: B. (F.F.), at p. 732. The evidence may also be admitted as part of the narrative to provide context for other events, as well as to establish motive or animus: R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 132 C.C.C. (3d) 97 (Ont. C.A.), at paras. 22-24; R. v. S. (P.) (2000), 2000 5706 (ON CA), 144 C.C.C. (3d) 120 (Ont. C.A.), at para. 31; and R. v. Trotta (2004), 2004 34722 (ON CA), 190 C.C.C. (3d) 199 (Ont. C.A.), rev'd on other grounds, 2007 SCC 49, [2007] 3 S.C.R. 453, at para. 46 (R. v. T. (J.A.), 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 54).
[69] Ensuring the jury has an accurate understanding of the whole relationship between the accused and his alleged victim is particularly important in cases involving a previous relationship between the accused and the deceased:
In a prosecution for a crime of unlawful homicide, such as murder, evidence of an accused's prior abuse of the deceased may illuminate the nature of the relationship between the principals, demonstrate animus and establish a motive for the killing. This circumstantial evidence, used prospectantly, may assist in proving complicity in an unlawful killing and in establishing the state of mind that accompanied it: R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609 (C.A.), at p. 616; R. v. Jackson (1980), 1980 2945 (ON CA), 57 C.C.C. (2d) 154 (Ont. C.A.), at p. 167; R. v. Misir (2001), 2001 BCCA 202, 153 C.C.C. (3d) 70 (B.C.C.A.), at para. 17; Plomp v. R. (1963), 110 C.L.R. 234 (H.C.) (R. v. Cudjoe, 2009 ONCA 543, 251 O.A.C. 163, at para. 64).
[70] In R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 98, the Ontario Court of Appeal again confirmed that discreditable conduct showing the nature of the relationship between the accused and the deceased is relevant and probative in cases of domestic homicide:
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: R. v. Chapman (2006), 204 C.C.C. (3d) 449 (Ont. C.A.), at para. 27; R. v. Cudjoe 2009 ONCA 543, at para. 64; R. v. Van Osselaer (2002), 2002 BCCA 464, 167 C.C.C. (3d) 225 (B.C. C.A.), at para. 23, leave to appeal refused (2003), 313 N.R. 199 (S.C.C.).
[71] In this case, I find that the evidence of prior discreditable conduct is highly relevant and probative as it will provide important context of the nature of the relationship of the Respondent with the deceased. The evidence may also support the inference that the accused bore animus towards his mother and that he had a motive to kill her as well as the intent required for first degree homicide. These issues are central to this case, which turns on the question of whether the fire was accidental or set intentionally.
[72] The question then becomes whether the prejudicial effect outweighs the probative value of the statements.
Prejudicial Effect of the Proposed Evidence
[73] Prejudice occurs where the evidence is used improperly by the trier of fact. Prejudice does not mean that the evidence will work to the detriment of the accused:
It is important to define what is meant by prejudice in this context. In its widest sense, any evidence that tends to prove guilt can be said to be prejudicial to the accused since it is detrimental to his or her position. Obviously that is not the kind of prejudice that calls for special evidentiary rules. Professor Delisle defines the meaning of prejudice in this context succinctly as follows:
Prejudice in this context, of course, does not mean that the evidence might increase the chances of conviction but rather that the evidence might be improperly used by the trier of fact. It is one thing for evidence to operate unfortunately for an accused but it is quite another matter for the evidence to operate unfairly (R. v. B. (L.), at para. 22).
[74] In R. v. B. (L.), at para. 24, the Ontario Court of Appeal set out the following non-exhaustive list of factors to consider in assessing the prejudicial effect of prior discreditable conduct evidence:
(i) how discreditable it is;
(ii) the extent to which it may support an inference of guilt solely on bad character;
(iii) the extent to which it may confuse issues; and
(iv) the accused’s ability to respond to it.
[75] I find that the admission of the proposed statements into evidence will have little, if any, prejudicial effect on the accused. In particular, I note that the severity of the prior discreditable conduct of the accused described in the proposed evidence pales in comparison to the offence charged and that the proposed evidence is likely to give context for the issues of the case, not to confuse those issues. Moreover, the accused will have the opportunity to cross-examine the recipients of the statements at issue regarding, for example, the circumstances in which those statements were made.
[76] The Ontario Court of Appeal has identified three primary ways a jury could misuse evidence of discreditable conduct:
(i) the jury may assume, from its acceptance of the evidence of extrinsic misconduct, that an accused is a "bad person", thus likely to be guilty of the offences charged;
(ii) the jury may tend to punish the accused for the extrinsic misconduct by finding him or her guilty of the offences charged; and
(iii) the jury may become confused by the evidence of extrinsic misconduct, their attention deflected from the main purpose of the trial, the offences charged, and substitute their conclusion on the extrinsic misconduct for their verdict on the indictment they are trying (R. v. T. (J.A.), at para. 52).
[77] To minimize any potential prejudice to the Respondent, the jury will be instructed in mid-trial and final instructions not to rely on prior discreditable conduct evidence “as proof that the accused is the sort of person who would commit the offence charged and on that basis infer that the accused is in fact guilty” (R. v. B. (F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697, at pp. 707-708; see also R. v. T. (J.A.), at para. 53).
Balancing of Probative Value and Prejudicial Effect of the Proposed Evidence
[78] It is always necessary to balance the probative value of the evidence sought to be introduced with its prejudicial effect.
[79] Generally speaking, the higher the probative value of the evidence, the lesser the prejudicial effect. The stronger the evidence and the more it supports the inferences sought to be made from it, the higher the probative value (R. v. B. (L.), at paras. 25, 36-39 & 50).
[80] In Moo, at para. 108, the Ontario Court of Appeal held that evidence of prior discreditable conduct should be admitted when its probative value outweighs its prejudicial effect:
While moral and reasoning prejudice is inherent in any evidence of extrinsic misconduct, its influence may vary significantly from one case to the next, depending, in part at least, on the nature and extent of the misconduct. Here, the extrinsic misconduct paled by comparison to the conduct charged. In some instances, it reflected more badly on others, for example, the deceased's father, than on the appellant. The sting of any prejudice was largely alleviated by the limiting instructions given by the trial judge forbidding propensity reasoning, instructions that were more favourable than those to which the appellant was entitled.
[81] In the case at bar, the evidence sought to be introduced is highly probative of the issues that the jury must decide. Prejudice can be addressed by proper instructions to the jury. The conduct described is far less serious than the charges before the court.
[82] I find that the probative value of the evidence outweighs any prejudicial effect, subject to the two exceptions noted below.
Summary of Rulings
[83] With the exception of three statements noted on the attached decision chart, I find that the statements made by Ms. Lucie Goudreau to Andras Vince, Judith Lachance, Paula Nicolls, Gisele Langelier and Constable Welsh are admissible.
[84] Three of the statements proposed to be introduced are not admissible: the deceased’s comments to Ms. Lachance that the accused “had bipolar or schizophrenia” and the deceased’s husband may have had the same mental illness and that the accused beat his father. These statements do not express the deceased’s state of mind at the time she made them and, as such, they are not admitted under the state of mind exception. The Crown’s argument that the deceased’s statement that the accused beat his father should be admitted under the principled exception will be addressed below.
[85] I also find that all statements containing evidence of prior discreditable conduct are admissible, except as indicated below. The attached appendix identifies these statements (they are the ones underlined in red) and states whether they are admissible.
[86] Regarding the deceased statements to the effect that the accused “beat” his father, even if this evidence has relevance, I find that its probative value is minimal (as it was not a recent event and did not directly have any bearing on the relationship between the accused and the deceased). As such, the probative value of this evidence is outweighed by its prejudicial effect and these statements are not admissible.
[87] During the voir dire, testimony was heard from Karissima Rohman, a former girlfriend of the Respondent. Although Crown counsel did not present argument that Ms. Rohman’s evidence should be admitted at trial, I will address it for completeness. I am not satisfied with respect to its threshold reliability principally because the relationship with the Respondent was several years ago and because it is a relationship that has nothing to do with the Respondent’s relationship with the deceased. I also find that the nature of the evidence to be provided by Ms. Rohman is unconnected to the facts of this case and consists of incidents of discreditable conduct. It is my finding that any probative value of this evidence is outweighed by its prejudicial effect and hence it is ruled inadmissible.
[88] In Appendix “A” to their factum, the Crown listed Karen Shaver as a witness. Ms. Shaver did not testify at the hearing therefore these reasons are silent with respect to her proposed testimony.
Patrick Smith J.
Released: August 26, 2015
COURT FILE NO.: 12-M7872
DATE: 2015/08/26
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Rene Jack Goudreau
Respondent
REASONS FOR JUDGMENT
Smith J.
Released: August 26, 2015
CORRIGENDUM TO REASONS ON CROWN APPLICATION
Released August 26, 2015
P SMITH J.
[1] The Court’s Reasons regarding the Application brought by the Crown dated August 26, 2015 are amended as follows:
• The name Samantha Robinson shall be added as co-counsel for the Respondent/Accused.
Patrick Smith J.
Released: February 5, 2016