ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P)158/13

DATE: 2015-11-25

B E T W E E N:

HER MAJESTY THE QUEEN

Ann-Marie Calsavara and Andrea Esson, for the Crown

Applicant

• and -

ELON BROOKS

Jennifer Penman and Ashley Audet, for the Defendant

Respondent

HEARD: December 2, 2014

REASONS FOR JUDGMENT

Barnes, J.

INTRODUCTION

[1] Mr. Elon Brooks is charged with first degree murder. He is alleged to have killed Kevin Pham on December 28, 2011, in the City of Mississauga. The method of murder was by stabbing.

[2] The Crown seeks an order declaring out-of-court statements made by the deceased to other persons admitted as an exception to the hearsay rule.

[3] These statements fall into two broad categories. First, statements made by the deceased to Hussein Tala and Shanice Lawrence about his deteriorating business and personal relationship with members of the Brooks family and the deceased’s growing distrust of the Brooks family.

[4] Second, statements made by the deceased to Hussein Tala and Shanice Lawrence after an altercation he had with Mr. Elon Brooks and other members of Mr. Brooks’ family. These statements were made less than a week before the deceased was killed.

[5] A voir dire was held to determine the admissibility issue. On consent, the evidentairy basis for argument were the transcripts of the testimony provided by witnesses at the preliminary inquiry in this case.

[6] I conluded that one of the deceased’s statements, “they are going to kill me with my own guns”, is admissible under the traditional “state of mind” exception to the hearsary rule. The other statements are admissible under the principled exception to the hearsay rule. These are my reasons.

BACKGROUND FACTS

[7] At about 6:30 p.m., on December 28, 2011, Kevin Pham, age 19, was stabbed twice in the chest, and once in the back. The wound to his upper chest was fatal. The deceased also suffered a number of other sharp force injuries to his chest, forearm, legs, hands as well as some minor blunt force injuries.

[8] The deceased and his friend Hussein Tala walked into the stairwell at 2233 Hurontario Street in Mississauga, Ontario. It is alleged that the deceased was then immediately confronted by the accused. The accused is said to have been hiding behind the door to the stairwell. Mr. Hussein Tala ran downstairs out of the building and hid under a truck.

[9] Mr. Elon Brooks is alleged to have immediately stabbed the deceased and then ran out of the building followed closely by his cousin V.B. (a young person) and his friend Murtaza Naqvi. The deceased exited the building, walked to and collapsed outside a neighbouring building. There was a trail of blood from where he was stabbed to where he collapsed. The deceased was transported to Trillium Health Center where he was pronounced dead at 7:05 p.m.

[10] It is alleged that Elon Brooks, V.B. and Murtaza Naqvi travelled from the Brooks’ home to 2233 Hurontario Street. They traveled in a pickup truck driven by Eyuael Taera. According to the Crown, while enroute, Elon Brooks and V.B. were armed with knives and they uttered the words “let us go check KP”. “KP” is the deceased. The Crown’s position is that while enroute Elon Brooks said “turn up the music I need to get in the mood”.

[11] When they arrived at the destination, Elon Brooks, V.B. and Murtaza Naqvi got out of the truck in the parking lot. Mr. Taera was instructed to park on a nearby street. Mr. Taera stayed in the vehicle and waited for the others to return.

[12] Just a few minutes later, Elon Brooks, V.B. and Murtaza Naqvi ran back to the vehicle and instructed Mr. Taera to drive away and to take a different route from the route they had taken to get to 2233 Hurontario Street, Mississauga.

[13] It is the Crown’s theory that Elon Brooks was angry with the deceased and wanted to retaliate against him. Therefore, Elon Brooks and his accomplices devised a plan to find out where the deceased was expected to be. The plan was to ambush the deceased, use a deadly weapon to stab the deceased and flee to a pre-planned location, leaving the deceased to die.

[14] Elon Brooks, V.B. and the deceased had been friends for a long time, however, that friendship had deteriorated. They had also been business associates in the illicit drug trade. The Crown seeks to admit out-of-court statements made by the deceased about this deterioraiting relationship to his close friend Hussein Tala and his ex-girlfriend Shanice Lawrence, who was also the mother of his daughter.

[15] In 2010, Elon Brooks was living with the deceased and Shanice Lawrence. During that period of time, Elon Brooks had a girlfriend called Ashley. The deceased asked Ashley to keep some guns for him at her residence. Ashley was a young person. The police conducted a raid of Ashley’s home. The police found the guns at Ashley’s home. Ashley was charged and convicted of possessing the guns. It is the Crown theory that Elon Brooks was angry at the deceased for letting Ashley take the blame for the guns. The Crown seeks to admit out-of-court statements by the deceased to Hussein Tala and Shanice Lawrence about this event.

[16] The deceased was incarcerated in 2011. During his incaceration, the police conducted two raids of V.B.’s residence. The police were searching for drugs. The Crown theorizes that the Brooks suspected that the deceased was responsible for the police raid. The deceased was released from prison shortly after this raid. While the deceased was in prison, V.B. took care of the deceased’s property and ran the deceased’s drug business. The property included money, guns, video games and a T.V.

[17] Some weeks before the murder, Elon Brooks visited and stayed with his cousins - the Brooks at their Elm Street apartment. It is the Crown’s theory that there was a dispute brewing between the Brooks family and the deceased. The dispute was over money and property that V.B. owed the deceased and the Brooks’ belief that the deceased had provided information to the police which lead to the police search of the Brooks’ residence in 2011. According to the Crown, this is another reason why Elon Brooks was angry at the deceased.

[18] On December 23 or 24, 2011, just a few days before the murder, the deceased and his friend Hussein Tala went to the Brooks’ apartment. The deceased and V.B. met in the stairwell of the apartment. Hussein Tala went into the Brooks’ apartment. Elon Brooks, Junior Brooks, Eyueal Taera and Murtaza Naqvi were in the apartment at that time. There was an altercation between Hussein Tala, Elon Brooks, Junior Brooks and Murtaza Naqvi.

[19] According to the Crown, Elon Brooks left the apartment and went to join the deceased and V.B. in a stairwell. There was a verbal dispute between V.B., Elon Brooks and the deceased in the stairwell which cluminated in the deceased punching Elon Brooks in the face and fleeing the scene.

[20] As the deceased fled he called Shanice Lawrence and said “they are going to kill me with my own guns”. The deceased met Hussein Tala at the parking lot of the apartment building and told him what had transpried. The Crown seeks to admit these out-of-court statements.

[21] The following day, the deceased met Shanice Lawrence and told her about the events at the Brooks’ residence and repeated his belief that the Brooks were going to kill him with his own guns.

[22] V.B. is a young offender. He pleaded guilty to manslaughter. In his guilty plea he identifed Elon Brooks as the person who stabbed the deceased. At the preliminary inquiry, V.B. was called as a Crown witness. He refused to testify. He was subsequently charged and convicted of obstructing justice. Hussein Tala and Murtaza Naqvi are Crown witnesses.

LAW

[23] Hearsay is defined as an out-of-court statement which is adduced, for the truth of its contents, in circumstances where the deponent is unavailable for contemporaneous cross-examination under oath. It is this lack of opportinuty to test hearsay by contemporaneous cross-examination under oath in court that makes hearsay inherently unreliable and presumptively inadmissible. The admission of hearsay evidence generally renders the trial unfair because the party against whom the hearsay is introduced has no opportunity to challenge it: R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at paras. 30-32; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 35-41,47.

[24] The first issue to be determined is whether the hearsay evidence is relevant. Evidence is relevant where, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence of a material fact more probable than not. At this stage of the analysis it does not matter much whether there may be other available inferences: R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at paras. 51-52.

[25] Out-of-court utterances or conduct of an unavailable witness that tends to show the witness’ state of mind are admissible under the traditional state of mind exception to the hearsay rule. An exception to this evidentiary rule is where the utterances were made under suspicious circumstances: R. v. Humaid (2006), 2006 12287 (ON CA), 81 O.R. (3d) 456 (C.A.), at para. 59. Suspicious circumstances are circumstances that call into question the reliability of the out-of-court utterance or conduct.

[26] A deceased’s out-of-court statements, demonstrating their state of mind or from which it can be inferred, can describe the state of the relationship between an accused and a deceased person in the time leading up to the killing. This is probative of the issue of motive to kill. Motive is a description of the accused’s state of mind. The deceased’s state of mind is a relevant link in the chain of reasoning to prove motive. Motive is relevant to the issue of the identity of the murderer: R. v. Assoun, 2006 NSCA 47, 244 N.S.R. (2d) 96; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at paras. 60-63. Evidence of the accused’s state of mind or animus towards the deceased is also relevant to rebut defence suggestions that someone else committed the offence: R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at para. 109.

[27] Out-of-court statements of the deceased proffered to show a deteriorating or acrimonious relationship between the deceased and the accused establishes animus between them. It is relevant to the state of mind of the accused to carry out the killing – i.e. relevant to show that there was a motive to kill. The evidence of motive increases the probability that the killing was intentional and that it was planned and deliberate: Griffin, at para. 62.

[28] This link between evidence of the state of the relationship between the accused and the deceased and the issue of motive is reiterated by Watt J.A. in Carroll, at para. 104, as follows:

A deceased’s mental state may be relevant to an accused’s motive to commit an offence: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 60; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 98. In a similar way, the state of the relationship between an accused and a deceased in a time leading up to the unlawful killing of the deceased may demonstrate animus and motive on the part of the accused, and thus be relevant to the identity of the deceased’s killer and the state of mind that accompanied the killing: Griffin, at para. 61; Moo, at para. 98. Statements of the deceased may afford evidence of the deceased’s state of mind and thus be relevant to prove a motive and animus: Griffin, at para. 61.

[29] Relevant hearsay evidence may be admitted where the evidence falls within a traditional exception to the hearsay rule or where the hearsay evidence can be admitted under the principled exception to the hearsay rule. Hearsay evidence that does not fall under any of these two categories is excluded.

[30] Hearsay evidence falls under the principled exception to the hearsay rule where 1) the evidence is necessary and 2) the circumstances under which the evidence was generated have sufficeint indica of reliability, such that there is no concern that the evidence is presented in hearsay form because the trier of fact, despite the absence of contemperanous cross-examination, can test it in a meaningful way by other means: Khelawon, at paras. 62-63,105.

[31] In assessing the reliability of the statement, the court is not limited to only a consideration of the circumstances surrounding the making of the statement. The court can also consider extrinsic evidence that may confirm or conflict with the statement: Khelawon, at paras. 93-100; R. v. Gayle, 2013 ONSC 5293, at para. 26.

[32] Hearsay statements have been found to be reliable in circumstances where the declarant had no motive to lie; where the subject area of the statement was outside the expected knowledge of the declarant (e.g. a child); where the statement was made contemporaneously or shortly thereafter; where the statement is corroborated by real evidence: R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, at p. 548; where there is no reason to doubt the declarant’s statement; where the traditional dangers associated with hearsay – perception, memory, credibility – are not present to any significant degree: R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, at p. 935; and in circumstances where the circumstances surrounding the taking of the statement demonstrate “circumstantial guarantees of trustworthiness” such as to provide adequate substitutes for the traditional safeguards for testing the evidence: R. v. B.(K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, at pp. 795-96.

[33] Some examples of “circumstantial guarantees of trustworthiness” include: where the statement is provided under oath; where the circumstances under which the statement was uttered and nature of the relationship between the declarant and the recipient are such that fabrication is unlikely (R. v. Pasqualino, 2008 ONCA 554, at para. 43; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at paras. 41-43; R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723 (C.A.), at para. 50); or where there is other admissible corroborating evidence: R. v. Badgerow, 2014 ONCA 272, 119 O.R. (3d) 399, at para. 175.

[34] Any concerns about the credibility of the recipient is a matter to be considered by the jury, however, the court may exclude such otherwise admissible evidence, in circumstances where the credibility or reliability of the recipient is so deficient that the probative value of admitting that evidence is exceeded by the prejudicial value: Humaid, at para. 57.

[35] The admissibilty of hearsay evidence is analyzed under two distinct categories of admissibility – threshold admissibility and ultimate admissibility. The trial judge determines threshold admissibility. If the trial judge finds the evidence admissible, the trier of fact determines the ultimate admissibility of the hearsay evidence. Threshold admissibility entails a determination of whether the admission of the evidence is necessary in the context of the issue to be decided, or whether the reliability of the evidence is readily apparent from its contents or the circumstances under which it was created and it can be meaningfully tested by the trier of fact: Khelawon, at para. 3.

[36] The trier of fact determines the ultimate reliability of the evidence. Therefore, it is the trier of fact who decides whether the evidence can be relied on, in the context of and together with all of the other evidence, to determine the issues in the case: Khelawon, at para. 3.

[37] The party seeking to rely on the hearsay evidence bears the onus of demonstrating that the hearsay evidence is admissible either under a traditional hearsay exception or under the principled approach to the hearsay rule: Khelawon, at para. 47.

[38] The hearsay admissibility framework is succinctly summarized by the Supreme Court in R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15, as follows:

a) hearsay 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 which falls within an exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case; and

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.

[39] Even if hearsay evidence is admissible, the trial judge has the residual discretion to exclude it if, for reasons of trial fairness, the trial judge concludes that the prejudicial effect of admission outweighs the probative value of admission: Khelawon, at paras. 3,49, 62-63, 105.

[40] If after the conducting the probative value – prejudicial effect analysis of the hearsay evidence, the trial judge concludes that the probative value of admission outweighs the prejudicial effect such that trial fairness warrants the admission of the hearsay evidence, the trial judge should consider whether the hearsay evidence is inadmissible because of some other articulated evidentiary rule: R. v. Gayle, [2013 ONSC 5293](h