CITATION: R. v. Brooks, 2016 ONSC 567

COURT FILE NO.: CR-15-13

DATE: 2016-01-22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant

– and –

MITCHELL IVAN BROOKS Respondent

M.A. Alexander and D. Russell, for the Crown

K. Miles and N. Gregson, for the Respondent

HEARD: January 11, 12 and 13, 2016

RULING ON THE ADMISSIBLITY OF ANTE MORTEM STATEMENTS OF DEENA BROOKS

DiTOMASO J.

THE APPLICATION

[1] Mitchell Ivan Brooks is charged with the first degree murder of his wife, Deena Brooks on May 24, 2013.

[2] In the days, weeks and months prior to her death, Mrs. Brooks made statements to family members, friends and co-workers about her decision to end the marriage and how that decision affected her relationship with Mr. Brooks. Some of the statements were made orally; others were communicated by text messages. Some witnesses were called by the Crown to testify at the preliminary hearing. Transcripts from the preliminary hearing were marked as Exhibits 1 and 2 on this application. Some witnesses who did not testify at the preliminary hearing gave audio taped statements to the police. Those transcribed statements can be found in the brief of Transcript of Statements Given to Police filed by the Crown.

[3] In its application, the Crown provided a helpful chart and addendum which summarized statements given by Mrs. Brooks to eighteen witnesses. The Crown seeks to introduce these statements as admissible evidence at trial.

[4] The chart was a useful guide referred to by both the Crown and defence during their submissions. It is organized to reflect when, where and how conversation(s) happened, what Deena Brooks said, and the existence of extrinsic evidence together with cross-references to the preliminary hearing transcripts, Transcripts of Statements Given to Police and the Crown’s Supporting Documentation brief. The chart and addendum are attached as Appendix “A” and “B” to this ruling.

[5] The Crown submits that this alleged murder was intentional, planned and deliberate and/or occurred while Mr. Brooks forcibly confined his wife. The Crown contends that the alleged murder was motivated by Mr. Brooks’ anger with Mrs. Brooks’ decision to end the marriage.

[6] The Crown further submits the ante mortem statements made by Mrs. Brooks are relevant. They are descriptive of the relationship leading to her death and her state of mind. They are capable of showing that Mr. Brooks bore an animosity (animus) towards Mrs. Brooks as she decided the marriage was over and could not be saved.

[7] It is submitted the finality of her decision gave him motive to kill her in circumstances that amount to first degree murder. The evidence of Mr. Brooks’ motive is relevant to prove that he killed his wife intentionally and not by accident or by suicide gone wrong.

[8] Mr. Brooks acknowledges on Friday, May 24, 2013, Mrs. Brooks died as a result of the single gunshot wound to the chest. It is the position of Mr. Brooks that he intended to commit suicide by shooting himself and that Mrs. Brooks was accidentally shot during a struggle over the firearm.

[9] The Crown seeks admission of Mrs. Brooks’ ante mortem statements so the jury can make an informed decision about whether or not the shooting was intentional committed by a man with an animus his wife and a motive to kill her.

[10] The defence submits some of these statements are inadmissible on the grounds they are hearsay and neither fall within the “state of mind” exception nor are the statements necessary, reliable or meet the test of threshold reliability under the “principled exception” to the hearsay rule. Alternatively, it is submitted that if the statements are to be found necessary and reliable, their prejudicial effect outweighs their probative value and therefore should not be admitted.

A. OVERVIEW – The Parties and General Police Investigation

[11] Generally, there is no issue regarding the background facts.

[12] Mitchell Brooks and Deena Brooks (nee Balser) had been married almost 23 years prior to her death. While they had met at the high school they both attended in Digby, Nova Scotia, it was several years after that and after Mr. Brooks’ first marriage came to an end that they came together and married in 1990. At the time of her death, Mrs. Brooks was fifty years old and Mr. Brooks was forty-nine years old.

[13] Mitchell and Deena Brooks resided in a single detached home in Clearview Township. Their youngest daughter Kristin resided with them. She was at her high school prom on the night her mother died. Kristin had texted back and forth with her mom about wanting to come home early and was waiting for her mom to pick her up a Tangle Creek Golf Course in Essa Township. She was seventeen years old when her mom was shot. Their oldest daughter Cayley, age twenty-one at the time of her mother being shot by her father, is an accomplished mountain bike racer and was competing in Europe when her mom died. When she was not out of town racing, she stayed at home. She had most recently been at home from cycling in New Zealand from April 17 to May 13, 2013.

[14] Mrs. Brooks was employed full time at the Royal Victoria Hospital in Barrie. She had been in different sections of the hospital working part time but for ten years leading up to her death she had worked in the histology lab as a lab technician.

[15] Mr. Brooks ran his own woodworking business building stairs out of a large shop on the residential property. On the day Mrs. Brooks died, Mr. Brooks had taken Kristin to a manicure/pedicure appointment, had lunch with her and drove her down to the waterfront for photos. He then dropped her off a Tangle Creek Golf Course around 5:20 p.m.

[16] Mrs. Brooks had gone to work on the day she died but left early to attend at the waterfront in Barrie where her daughter’s prom photos were being taken. After the photos were done, she made a purchase at Petsmart in Barrie (the receipt recovered from here vehicle finalizes this purchase at 5:30 p.m.) and went home. She was seen by a neighbour to be walking her dog that evening between 6:30 and 7:00 p.m. Starting at 7:37 p.m., Kristin began testing her mom about wanting to be picked up from the prom early. Mrs. Brooks sent her last two texts to Kristin at 7:47 p.m. with respect to picking her up stating “on my way now” and “fast as I can c”. Mrs. Brooks never left the house to go pick her up. Kristin’s further texts to her mom which have been recovered and which will be tendered in evidence went unread and unanswered:

• 7:47 p.m. – Thanks
• 8:02 p.m. – Text me when you’re here.
• 8:39 p.m. – Close?
• 8:53 p.m. – You Close?
• 8:58 p.m. – Mum

[17] On May 24, 2013 at approximately 8:46 p.m. Mitchell Brooks called 911 from their residence phone and told the dispatcher his wife had “been shot…in the chest…with a gun”. In response to the dispatcher’s inquiry about who shot her he responded “uh we were fighting over it”. In response to the dispatcher’s inquiries at various times about Mrs. Brooks’ physical state Mr. Brooks stated “…she is a little bit aware…not breathing normally…can’t feel her breathing or see her chest going up and down…not able to talk to me…unconscious…” he also described Mrs. Brooks as “all blue” and that “she’s so cold”. However, in response to the dispatcher’s inquiry about when this happened he stated “just right before I called you”. The call lasts for some nineteen minutes as the dispatcher instructs Mr. Brooks on performing CPR. This call was recorded and has been transcribed.

[18] At 9:04 p.m. the first police officer arrived on scene. He was Constable Pinn. He found Mr. Brooks in the foyer of the Brooks home. His wife was on her back on the floor mid-foyer in a pool of blood. A black 9 millimeter Beretta handgun was near Mrs. Brooks’ body. Mr. Brooks had blood on his clothes. Though she was obviously dead, protocol required first responders to engage in resuscitation efforts. Mrs. Brooks was declared dead on the scene and was never transported to hospital. Mr. Brooks was arrested a short time after police arrived.

[19] The police investigation revealed an undisturbed foyer where Mrs. Brooks was found. The only blood found was in the foyer; under her body and on her clothes, on the inside of the front door, on the wall to the right of the front door as you enter the house and on the floor in front of the door. Shoe racks were undisturbed, phones were sitting on a table with undisturbed plaques, photos and knick knacks. The foyer closet was tidy and Mrs. Brooks’ purse was hanging beside the front door.

[20] Dr. Toby Rose conducted a post mortem examination on Mrs. Brooks and testified at the preliminary hearing on December 8, 2014. She determined the cause of death to be a perforating, front to back, gunshot wound to Mrs. Brooks’ right chest and that it would have taken her a matter of minutes to die. There were also multiple blunt force injuries found (contusions/bruises, abrasions/scratches/scrapes and bone fractures) which can be caused by falls or blows. These injuries were: two broken ribs on the left side of the body (which is the opposite side to the gunshot wound) and bruising to her left wrist consistent with being forcibly held, bruising and abrasions to both elbows, both knees, and a bruise on her chest, thigh and lower leg. She also had an injury in the webbing part of one hand. Only one of the broken ribs was attributable to resuscitation attempts. Dr. Rose is of the opinion some of these blunt force injuries were incurred peri-mortem or around the time of Deena Brooks’ death.

[21] Detective Constable Mark Lancaster testified at the preliminary hearing as a blood spatter analyst/expert and offered the opinion that given the stains on the interior side of the front door, Mrs. Brooks was no higher than 35 cm above the floor and directly in front of the door when the bullet exited her body. First responders found Mrs. Brooks well into the foyer. The Crown will argue that she was shot while in a vulnerable position and in a confined space in the foyer.

[22] Grant McGimpsey, employed by the Centre for Forensic Sciences, testified at the preliminary hearing and offered opinion evidence as a Firearms Expert and will offer the opinion that the muzzle of the Beretta handgun was less than four inches from Mrs. Brooks at the moment of firing. He will also say that the pressure required to pull the trigger was significant and will explain the safety mechanisms for this firearm. The Crown will ultimately suggest that an accidental discharge was unlikely.

[23] The search of Mr. Brooks’ workshop on the property revealed four other unloaded firearms stored separately concealed in cases in various locations and an empty case which fits the Beretta handgun used in the shooting and death of Mrs. Brooks. Various sizes of ammunition were also stored throughout the workshop.

[24] Examination of the Beretta handgun used in the shooting and death of Mrs. Brooks revealed five more bullets loaded in the magazine. The empty cartridge case which had housed the single bullet fired was found “stove-piped” in the chamber of the firearm meaning that the cartridge did not eject properly after firing.

The Woodshop Search

[25] The police conducted a search of the accused’s workshop, which was situated about 30 meters or so from the main house. It is a very large building loaded with wood and wood working equipment. In that workshop, they found numerous hidden firearms, ammunition and documents for the firearms. For example, they found the following handguns:

a) Sig Sauer – found wrapped in a blue ziplock back inside the planer, but hidden from view as a result of being attached by a magnet to the upper part of the planer. It was unloaded and had no magazine with it. There was no ammunition stored with it. It was later determined to be operable.

b) Smith and Wesson – found in a gray wood bin but only discoverable once all the wood had been dumped out of the bin by the searching officer. It was in an unlocked brown box wrapped in a blue ziplock bag. It had a trigger lock in place. There was no ammunition stored with it. It was later determined to be operable.

c) Black Glock – found in a black sawdust covered suitcase that was locked along the south wall of the workshop. The firearm had a trigger lock in place by no magazine nor ammunition with it. It was later determined to be operable.

d) A second Berretta 380 – found hidden inside a drum sander. It was wrapped in a blue ziplock back attached by a magnet to the underside shelf. It was unloaded, without a magazine and no ammunition stored with it. It was later determined to be operable.

[26] The police also found numerous types of ammunition for these firearms and other types of ammunition throughout the workshop. Most was either hidden or out of sight. The ammunition found was 38 calibre rounds, 22 calibre rounds, 9 mm rounds and 357 magnum rounds.

[27] They also found a number of magazines hidden or out of sight in various locations in the workshop.

[28] The police found in the bottom of a green bin near the back of the workshop the empty case from which the firearm in the foyer would have been taken. Also in that bin was additional ammunition for that firearm from two different manufacturers. Police found a second magazine for this gun, plus an empty blue ziplock bag.

[29] Further, the police found hidden between the top and bottom shelves of a toolbox, documents for all these four firearms. They found a bill of sale and restricted weapons acquisition report, both pertaining to the firearm found in the foyer.

[30] The police found a firearm document on the bed in the accused’s bedroom. That document was identical to the ones found in the workshop and pertained to the firearm found in the front foyer.

[31] The police search of the entire property took place from May 27-30 involving a number of officers. The search of the workshop itself involved approximately 16 different officers over that period of time in order to find all this firearm evidence.

B. OVERVIEW – The Breakdown of the Marriage

[32] Investigation by police revealed that in the weeks leading up to her death on Friday, May 24, 2013, Mr. and Mrs. Brooks’ marriage was deteriorating. It was Mrs. Brooks who chose to end the marriage and finally told Mr. Brooks on Easter weekend, March 29, 2013.

[33] At this time, Mr. Brooks acknowledges that he and Mrs. Brooks were living in the same house, sleeping in different bedrooms. He acknowledges that Mrs. Brooks was unhappy in her marriage and was planning on leaving it.

[34] Mr. Brooks acknowledges that Mrs. Brooks was in the process of determining whether she could assume the mortgage for the matrimonial home on her own. Mrs. Brooks was doing this with the assistance of Jenny Zheng at the Bank of Montreal.

[35] The foyer of the Brooks’ residence was a large open space, measuring approximately 8 feet by 12 feet.

[36] When Constable Pinn arrived on scene, he found Mr. Brooks in the foyer performing CPR on Mrs. Brooks. He appeared to be using the correct technique and was perspiring. Constable Pinn took Mr. Brooks outside once first responders were on scene tending to Mrs. Brooks and asked Mr. Brooks either “do you want to kill yourself” or “did you want to kill yourself”, to which Mr. Brooks replied “yes”.

[37] Mr. Brooks was diagnosed with depression approximately 15 years prior to the day Mrs. Brooks died. Mr. Brooks was being treated for this depression and was prescribed medication. A prescription pill bottle containing some pills with Mr. Brooks’ name on it was found in the loft that Mr. Brooks was using as a bedroom.

[38] Mrs. Brooks spoke to, emailed and texted many friends, co-workers and her own children about the state of the marriage, her own feelings and concerns and its breakdown in the weeks leading up to her death. The first she began speaking of these issues was early in 2013. Generally, her comments can be categorized into three areas and timelines:

(1) The Pre-Announcement Stage (Early 2013 to March 29, 2013): her initial desire to separate because she had not been happy for some time together with her concerns about telling Mr. Brooks and making him angry;

(2) Mitchell Brooks’ Initial Reaction to Learning His Marriage was Over (March 29, 2013 – End of April/Beginning of May 2013): his initial despondency, disbelief and sadness upon hearing his wife wanted out of the marriage; his efforts to win her back and his efforts to convince her to stay;

(3) The Steps Deena Brooks was Taking to End the Marriage and His Reaction – End of April/Beginning of May – May 24, 2013): he no longer wanted to work on the marriage but instead was learning about his rights and threatening to “take her for all she’s worth”.

[39] The Crown submits that the ante mortem statements generally would provide evidence or tend to show that:

• Mrs. Brooks had not been happy with Mr. Brooks or the marriage for some time though only began telling people this a few months before she died;
• Mrs. Brooks was concerned about breaking the news to him as she did not know how he would react;
• Mrs. Brooks finally told him on Easter Weekend that she wanted to end the marriage (March 29, 2013);
• At first Mr. Brooks was despondent, sad and cried a lot;
• Mr. Brooks then endeavoured to win her back by sending flowers, making dinner and wanted to go to marriage counselling;
• Mr. Brooks’ anger began brewing when Deena Brooks tried to engage him in discussion about buying him out of the house, he said, it was a family’s house or it was nobody’s;
• Mr. Brooks then became mean and vindictive when he came to the realization that for her there was no going back.

[40] In addition to the three timelines referred to, there are also three themes that can be found in the statements:

1. References to Mr. Brooks’ self-harm and the concern Mr. Brooks would hurt himself;
2. What Mrs. Brooks told people about guns and their locations; and
3. Financial threats allegedly made by Mr. Brooks as he learned about his rights concerning the matrimonial home and Mrs. Brooks’ pension.

[41] The Crown submits that Mrs. Brooks’ statements as outlined in the chart tend to show a woman who was done with her marriage and a man who was taken by surprise by this and was not willing to accept her final decision. It is submitted the statements tend to show how Mr. Brooks’ reaction to this decision moved relatively quickly from surprise to sadness to anger. Ultimately, the Crown contends that the statements tend to show a manipulative man was not willing to let go but would use financial, suicidal threats and manipulation as bargaining tools against his wife.

LEGAL PRINCIPLES

Relationship Evidence – Domestic Homicides

[42] Mrs. Brooks’ death occurred within the context of a marital/domestic relationship that was over as far as she was concerned and Mr. Brooks knew it. Mrs. Brooks communicated with friends, co-workers and family members about her final decision and how its finality caused a change in Mr. Brooks’ behaviour to where he became angry and vengeful.

[43] The Crown submits that Mrs. Brooks ante mortem statements about Mr. Brooks are of central importance. They provide relevant circumstantial evidence that tends to show a growing animus towards her which can, in turn, tend to show a motive to kill her culminating in an intentional shooting. The Crown submits that the statements are admissible under the “state of mind” traditional hearsay exception as well as under the principled hearsay of approach.

[44] Without the ante mortem statements, it is submitted that the thoughts and reasons of the deceased are lost thereby depriving the trier of fact of valuable information.

[45] Relationship evidence is essential when looking at situations involving domestic partners. The “threshold for relevance is not high”[^1] and the Ontario Court of Appeal has repeatedly affirmed the importance of this type of evidence.

[46] In R. v. Moo, Justice Watt wrote that in these prosecutions, evidence about the nature of the relationship between the parties is “frequently admitted”[^2], even though it “often discloses misconduct other than that charged”.[^3] The reason for admission was that it “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”.[^4] In R. v. Moo, this type of evidence was relevant and material.

[47] Justice Watt elaborated on this type of evidence again in R. v. Candir, a case where a husband murdered his wife. In the part titled “Relationship Evidence in Prosecutions of Domestic Homicide” Justice Watt wrote:

[51] 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 (Ont. C.A.). 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. [All citations omitted]

[52] 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 the trier of fact to conclude that an accused bore the deceased some animus or had a motive to kill the deceased: R. v. Foreman (Ont. C.A.) R. v. P.(R.) [All citations omitted][^5]

[48] In R. v. Carroll, a case where a man was convicted of the first degree murder of his ex-wife and her boyfriend, Justice Watt again stated the importance of relationship evidence:

[104] A deceased’s mental state may be relevant to an accused’s motive to commit an offence: R. v. Griffin, (S.C.C.), R. v. Moo, (Ont. C.A.). 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. [Citations omitted][^6]

[49] In this case, the relationship between Mr. and Mrs. Brooks was coming to a quick and unexpected end for Mr. Brooks – similar to the scenarios before Justice Watt in Moo, Candir, and Carroll. Mr. Brooks’ display of changing emotions and reactions revolved around his inability to deal with the end of the marriage. His behaviour pointed to an animus and motive which, according to the Crown, was capable of showing his intent when he retrieved the firearm from the shop, brought it into the house and ultimately, what happened in the foyer leading up to the shooting of Mrs. Brooks.[^7]

Hearsay Generally

[50] Mrs. Brooks’ out of court statements are relevant but prima facie inadmissible because they contravene the evidentiary exclusionary rules of hearsay. However, there are common law exceptions to these evidentiary exclusionary rules. In addition to common law exceptions, a principled approach to exclusions from the general rule was developed by the Supreme Court of Canada in R. v. Khelawon, 2006 SCC 57, [2006] S.C.J. No. 57 (S.C.C.).

(i) “State of Mind” Exception

[51] Under this traditional exception, a statement declaring a person’s present emotional state (or their knowledge or belief about a particular state of affairs) is admissible to show that the person in fact held to that belief or emotional state. The evidence can be an explicit statement of a state of mind (direct evidence), or a statement that permits an inference as to the speaker’s state of mind (circumstantial evidence).[^8]

[52] The purpose of this exception comes from the range of possible inferences drawn from the speaker’s state of mind. The Supreme Court in R. v. Griffin discussed the various ways ante mortem statements about his statement of mind were relevant. The following principles emerged:

• “[i]t is well established that a deceased’s mental state may be relevant to the question of an accused’s motive.”[^9]
• “the state of the relationship between a deceased and an accused in the time period leading up to the former’s murder has been recognized as probative of the issue of motive”. Further to this, issues of fear may be probative on issues of “malice, motive and state of mind”, which in turn can be relevant to identity.[^10]
• “the deceased’s statement of mind was one link in a chain of reasoning which could lead to a finding that the accused had a motive to kill. Further, evidence of the deceased’s state of mind may provide ‘an indirect connection to the appellant’s statement of mind.”[^11]
• The state of the relationship between an accused and a deceased in the time leading up to the murder “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.”[^12]
• Once evidence of motive or animus is established it “may assist in proving the identity of the killer and the state of mind that accompanied the killing.”[^13]

[53] The ‘state of mind’ exception has particular application in cases of domestic homicide where there is evidence the deceased wanted to end the relationship. Justice Watt wrote:

In cases like this, where the prosecutor alleges that the murder charged was motivated by the appellant’s anger in the deceased’s decision to end the relationship, the prosecutor is entitled to adduce evidence to prove the deceased’s contemporaneous mental or emotional state with respect to the accused, such as dislike, hatred or fear of the accused. From the deceased’s state of mind, the trier of fact will be asked to infer and can conclude that the deceased acted in accordance with his or her emotional state and that his or her conduct supplied the accused with his or her own motivation to act.[^14]

[54] The Crown submits Mrs. Brooks’ statement are the best evidence, and in some case the only evidence, of how Mr. Brooks’ behaviour and attitude toward her evolved as it became crystal clear that she was determined to end the marriage despite his desire to keep it together. However, they are also highly relevant as they are capable of demonstrating her state of mind, most particularly the fears she had in her own mind about Mr. Brooks’ capabilities. Her fears about physical safety can be found as outlined in the chart (see the evidence of Lori Mitchinson-Bailey, Tamara Hatton and Faye Dempster)

[55] The Crown submits that the various statements made by Mrs. Brooks to these friends and co-workers are highly relevant because they reveal a state of fear in her mind about her own safety. Mrs. Brooks did discuss her concern that Mr. Brooks would kill himself to several of the proposed witnesses. However, the above noted evidence could also tend to show that Mrs. Brooks had given thought to what harm her husband was capable of inflicting on her, and not just himself. Even if self-harm was the greatest concern, it was not the only concern. She was prepared to remove herself from the property entirely if he made an effort to move towards the shop (where the firearms were kept) if the situation did not feel right. She also discussed trying to find the bullets but not being along long enough to do so. This is highly relevant evidence of her state of mind as it can be inferred that she was concerned for her own safety as well.

[56] Further, the Crown submits that comments made to Mrs. Dempster about her life being easier if Mr. Brooks did kill himself would be highly relevant to rebut any suggestion by Mr. Brooks at trial that Mrs. Brooks physically intervened on his suicide attempt on May 24, 2013 thereby resulting in an accidental shooting. This utterance suggests that Mrs. Brooks would act in accordance with her state of mind and would simply not involve herself physically if that situation presented itself.[^15]

[57] The Crown submits that Mrs. Brooks’ ante mortem statements provide the only way that the jury can understand what she was thinking and could provide a link in a chain of reasoning which could lead to a finding that Mr. Brooks had a motive to kill. (per Griffin) The statements are probative of their relations deteriorating relationship leading up to the events of May 24, 2013.

[58] In this regard, the Crown cited the following supporting authorities: R. v. Griffin, R. v. R.P. and R. v. Candir.[^16]

(ii) The Principled Approach

Necessity

[59] The defence acknowledges that the test for necessity is met.

Reliability

[60] Reliability is about ensuring the integrity of the trial process. The evidence should only be admitted if it is sufficiently reliable to overcome the dangers arising from the lack of contemporaneous testing. This is usually met in one of two ways:

• There is no real concern about whether the statement is true or not because of the circumstances in which it came about. This would include some of the exceptions found in the common law, for example, dying declarations, spontaneous utterances and statements against pecuniary interests.
• No real concern arises from the fact that the statement is presented in hearsay for because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested.[^17]

[61] Review of the case law supports Justice Watt’s observation in R. v. Moo that “evidence is frequently admitted to elucidate the nature of the relationship between the accused and deceased.”[^18] A trial without context and background, especially in domestic cases, becomes a sanitized and debilitated search for the truth.

Threshold Reliability vs. Ultimate Reliability

[62] It is important to keep in mind that while admissibility is solely up to the trial judge, the final weight to be given to the evidence rests with the trier of fact. At the admissibility stage, the trial judge must respect his or her circumscribed role. Whether the hearsay is true or not is ultimately up to the jury. As outlined in the Supreme Court in R. v. Khelawon:

As stated earlier, the trial judge only decides whether hearsay evidence is admissible. Whether the hearsay statement will or will not be ultimately relied upon in deciding the issues in the case is a matter for the trier of fact to determine at the conclusion of the trial based on a consideration of the statement in the context of the entirety of the evidence. It is important that the trier of fact’s domain not be encroached upon at the admissibility stage. If the trial is before a judge and jury, it is crucial that questions of ultimate reliability be left for the jury – in a criminal trial, it is constitutionally imperative. If the judge sits without a jury, it is equally important that he or she not prejudge the ultimate reliability of the evidence before having heard all of the evidence in the case. Hence, a distinction must be made between “ultimate reliability” and “threshold reliability”. Only the latter is inquired into on the admissibility voir dire.[^19]

Reliability Considerations

[63] When assessing the threshold reliability of ante mortem statements, considerations focus on understanding the relationship between the declarant and recipient, the timing of the utterances, memory, perception, the circumstances when the utterance was made, and any evidence which may corroborate or contradict the utterance.

[64] In R. v. Mendez-Romero, Justice Pardu outlined factors which merited consideration when evaluating threshold reliability. The list includes:

• The presence or absence of confirmatory evidence
• The declarant’s motive
• The spontaneity of the declaration
• The contemporaneity of the declaration with the events described
• The declarant’s demeanour
• The declarant’s conduct
• The relationship between the declarant and the recipient
• The detail and degree of specificity of the information
• The possibility of mistake by the declarant[^20]

[65] Ante mortem statements often attract questions about reliability. That is why the courts have cautioned about the difference between threshold and ultimate reliability. On this point, Justice Watt wrote:

As proponent of otherwise inadmissible hearsay, Applicant counsel need not eliminate all possible sources of doubt about the perception, memory or sincerity of the declarant. All that was required in this case was that the circumstances in which the statements were made and any relevant extrinsic evidence provided the trier of fact with the means to critically evaluate the honesty and accuracy of the declarant.[^21]

[66] If there is sufficient basis to find that threshold reliability is met, the statement can be admitted for consideration. Admissibility does not necessarily have to equal acceptance by the jury. The final weight, if any, is only decided when all of the evidence has been adduced.

[67] The Crown submits all of the utterances listed in the chart and addendum at Appendix “A” and “B” are admissible pursuant to the “state of mind exception” and the principled approach to hearsay evidence with focus on the principled approach. Under the principled approach, the Crown asserts that the statements are relevant and sufficiently reliable to meet the threshold reliability inquiry. The defence concedes that while some of the ante mortem statements are admissible, others are not. They do not meet the test of threshold reliability and if they do, their prejudicial effect outweighs their probative value to warrant exclusion. The Crown does not agree that the ante mortem statements in question give rise to exclusion on the basis that probative value is outweighed by prejudicial effect.

The Principles Applied – Admissibility

[68] The defence concedes the admissibility of the following statements:

1. Jenny Zheng
2. Don Gain
3. Cayley Brooks
4. Kristin Brooks
5. Cheri Doman
6. Dr. Jane Brooks (qualified: some comments are arguably prejudicial)

(i) Text Messages between Mrs. Brooks and Dr. Jane Brooks – Excised

[69] Dr. Jane Brooks was married to the deceased’s brother, Eric Balser. Dr. Brooks had also experienced marital problems with him. Deena Brooks and Dr. Brooks exchanged text messages that can be found at Tab 13 of the Crown’s Supporting Documentation Brief. The chart also refers to ante mortem statements by Deena Brooks to Dr. Jane Brooks.

[70] Defence counsel sought exclusion of certain portions of these text messages on the grounds that their probative value was outweighed by their prejudice. In reply, the Crown, while not agreeing there was any prejudice, conceded that certain but not all comments be excised. The following comments found at Tab 13, shall be excised from the text messages as follows:

• Pg. 3, May 17, 2013 17:21:04 – Narcissistic fools, both of them
• Pg. 5, May 14, 2013 20:09:59 – Useless asshole
• Pg. 15, April 15, 2013 17:47:48 – Yes. She has been taught well to always be careful about upsetting daddy. 17:49:07 – I could not take them away from him having grown up without a father.
• Pg. 18, April 7, 2013 17:47:44 – I am not looking forward to the conversation with mom but I think she never really liked Mitchell much anyway
• Pg. 19, April 5, 2013 08:52:43 – I hope he doesn’t shoot the dogs this time

(ii) Text Messages between Mrs. Brooks and Dr. Jane Brooks - Disputed

[71] - Pg. 9, April 30, 2013 11:55:41 – Patient, long-suffering wives who have had enough!

[72] The defence submits this comment made by Mrs. Brooks is prejudicial and should be excised. I do not agree. This comment by the deceased speaks to her relationship with Mr. Brooks and how it unfolded from beginning to end. It is relevant and reaches the level of threshold reliability. As for prejudice, the comment does not even come close to ante mortem statements admitted in other cases where evidence of violence and abuse was admitted. I find the probative value of this comment is not outweighed by its prejudicial value and it is admissible evidence.

[73] - Pg. 16, April 15, 2013 17:10:13 – Mitchell is not a nice guy

[74] The defence raises concerns of probative value outweighed by prejudice. I do not agree. This comment reflects Mrs. Brooks’ state of mind as to how Mr. Brooks was reacting to her decision to end the marriage. Her view of her husband’s demeanour is relevant to her perception of the growing hostility towards her as events unfolded. The comment goes to animus and motive. I find the probative value of this comment is not outweighed by its prejudicial effect and it is admissible evidence.

[75] - Pg. 19, April 5, 2013 07:20:49 – I told the councellor (sic) that I have been giving everything I have to keep the peace for 23 years and I have nothing left

[76] The defence submits this comment is prejudicial and should be excised. I disagree. This comment is direct evidence from the deceased why she has decided to end the relationship. It reflects her state of mind and speaks to the deterioration of their marital relationship. The comment is not prejudicial in the sense that the jury would likely consider that Mr. Brooks had been a bad person for 23 years. Rather, the comment reflects Mrs. Brooks’ state of mind and tends to support Mr. Brooks’ hostility towards her (animus) and motive. I find the probative value of the comment is not outweighed by its prejudicial effect and it is admissible evidence.

(iii) Statement of Dr. Jane Brooks to Police

[77] Mrs. Brooks commented to Dr. Jane Brooks that Mr. Brooks was a “mean vindictive bastard”. This comment can be found in the statement of Dr. Jane Brooks to the police: see Transcript of Statements Given to Police at Tab 7, pg. 65.

[78] The defence submits this statement is prejudicial and is inadmissible. It is submitted that its prejudice outweighs any probative value. Further, it is submitted that the broader context Dr. Brooks’ statement disclosed that Dr. Brooks did not feel the deceased perceived Mr. Brooks as a physical threat, particularly when he said if he could not live in the house, no one could. The Crown submits that this comment is to be treated much differently than comments characterized as simply “venting”. Rather, this comment shows Mrs. Brooks’ state of mind and her regard for Mr. Brooks given that there had been a shift in Mr. Brooks’ behaviour. I agree.

[79] I find this description of Mr. Brooks by Mrs. Brooks to her sister-in-law speaks to the deterioration of the marriage and how Mrs. Brooks perceived her relationship with Mr. Brooks. He was no longer despondent and unaccepting of her decision. Instead, she felt he became angry and threatening towards her especially regarding financial matters such as the matrimonial home and her pension. I feel this statement not only demonstrates the nature of the relationship between the parties but it may also afford evidence of animus and motive and evidence to establish the state of mind that accompanied the alleged killing. (see Moo, supra para. 98)

[80] Mrs. Brooks’ statement is admissible under both the state of mind common law exception to the hearsay rule and also under the principled exception. The probative value of this statement exceeds its prejudicial effect. Any moral prejudice asserted by the defence regarding this evidence is not high. The statement does not rise to the level of improper moral prejudice. The descriptor of Mr. Brooks by Mrs. Brooks pales by comparison to the conduct charged. (see Moo, supra at para. 108). I find the probative value is not outweighed by prejudicial effect and this statement is admissible evidence.

(iv) Ante Mortem Statements by Mrs. Brooks to other Witnesses

[81] Mr. Brooks submits that the ante mortem statements which the Crown seeks to admit neither falls within the state of mind exception nor the principled exception to the hearsay rule.

[82] Regarding the “state of mind” exception, it is argued that the Crown does not outline in any detail how the proposed evidence relates to establishing Mr. Brooks’ motive or his state of mind at the time Mrs. Brooks died. The evidence the Crowns seeks to tender is not capable of supporting the inference that Mrs. Brooks was afraid of her safety and/or afraid of Mr. Brooks. The Crown is selective in choosing portions of the evidence to support its position.

[83] Regarding the principled exception, it is argued that the ante mortem statements do not meet threshold reliability. They are not capable of showing animus or motive to kill on the part of Mr. Brooks. They simply go to bad character evidence of a person engaged in the process of divorce litigation. The Crown seeks to admit needless repetitive and cumulative evidence regarding the same issue from multiple witnesses which adds nothing to the trier of fact’s ultimate search for the truth. Lastly, the ante mortem statements are inadmissible where their probative value is outweighed by their prejudicial effect.

[84] The Crown submits that Mrs. Brooks’ ante mortem statements are admissible under the “state of mind” exception and principled approach. Under the principled approach, the Crown asserts that the statements are relevant and sufficiently reliable to meet the threshold reliability inquiry.

General Observations

[85] Common to all these statements under this category are a number of factors supportive of the Crown’s submissions that these ante mortem statements are indeed admissible. These common themes are noted as follows.

Relationship

[86] The majority of the witnesses shared a highly personal and close relationship with Mrs. Brooks. They included her best friend, hairdresser whom she saw regularly and co-workers (friends) with whom she worked with every day.

Timing

[87] The witnesses that both testified at the preliminary hearing and those who gave statements to the police but did not testify recounted conversations with Mrs. Brooks that occurred almost exclusively in the last two to three months of her life, some within a week of her life and some on the day she died. There is no doubt that various utterances were proximate to her death.

[88] The comments made by Mrs. Brooks were also descriptive of events contemporaneous with her complaints. In most cases, she was expressing concerns based on recent and even immediate reactions in attitude changes by Mr. Brooks. She was explaining how her marriage was quickly unraveling and her own present concerns.

Motive

[89] There is no evidence to suggest that Mrs. Brooks had a motive to fabricate the statements in behaviour changes she attributed to Mr. Brooks or to fabricate her own concerns. There appears to be no motive to lie about these deeply personal matters all centred upon the disintegration of her marriage to Mr. Brooks. There is no embellishment about the behaviour of Mr. Brooks or any false/exaggerated accounts of personal violence or overt threats of violence. The situation is not one of Mrs. Brooks seeking individual gain but rather a situation of Mrs. Brooks trying to extricate from a marriage that had come to an end as best she could.

Development of Conversation

[90] During the last two to three months of her life, Mrs. Brooks’ utterances occurred spontaneously and naturally during every day conversation. The conversations transpired in person, emails, phone calls and text messages. They were natural conversations to listeners who sometimes offered her guidance and assistance. The conversations were not influenced by some improper outside pressure.

Demeanour

[91] Mrs. Brooks’ demeanour was consistent with the content of her statements. Witnesses described her behaviour as appropriate to the occasion: Mrs. Brooks appeared upset and stressed.

Appropriate Degree of Detail

[92] The statements made by Mrs. Brooks which were indicative of her own state of mind, narrative of the breakdown and Mr. Brooks’ reaction did not reveal a complicated story. The ante mortem statements have been criticized as lacking detail in some areas. The Crown submits that the ante mortem statements to which it seeks to tender are not particularly detailed because they need not be. They are of sufficient detail to offer the Jury a picture of the situation.

Confirmatory/Corroborating Evidence

[93] The statements provided confirmatory and corroboration evidence which supported what the witnesses will say what Mrs. Brooks was thinking, feeling and speaking about. The chart disclosed in a separate column this kind of evidence. The vast majority of her ante mortem statements were confirmed in text messages between her and her friends, emails between her and Mr. Brooks, emails between Mr. Brooks and a law office, Facebook messages between Mr. Brooks and his brother-in-law Eric Balser, documentation (pension, RSP, tax summaries) found around the house, the location of the guns and ammunition in the workshop, the three piles of money he left around the house, his own utterances and his own writings.

[94] Mr. Brooks’ own writings can be found in the Crown’s Supporting Documentation Brief at Tabs 1 and 2 which describe Mr. Brooks’ changing attitude and behaviour toward his marriage and his wife.

[95] I have reviewed the chart, addendum and supporting documentation and conclude that the following ante mortem statements made by Mrs. Brooks to the following witnesses are admissible under both the “state of mind” exception and principled approach for the following reasons.

Evidence of Lori Mitchinson-Bailey

[96] Ms. Mitchinson-Bailey was Mrs. Brooks’ massage therapist. She knew Deena Brooks for ten to eleven years through mountain biking. Though not particularly close, the relationship was close enough so that Mrs. Brooks had general conversations with Ms. Mitchinson-Bailey about her unhappy and deteriorating marriage.

[97] The conversation which took place on Tuesday, May 21, 2013 – days before her death – related to many of the issues that Mr. and Mrs. Brooks were having as a result of Mrs. Brooks wanting to end the marriage. The issues related to financing a buyout of Mr. Brooks regarding the family home, trying to live in different parts of the house, trying to respond to Mr. Brooks’ threat that he would take her to the cleaners if she left and with respect to her RSP and her pension. There were also concerns about her safety and that of Kristin in the house and that Mr. Brooks’ behaviour was unpredictable. In addition there was evidence about the knowledge Mrs. Brooks had about guns being in the house and ammunition that she could not find. The parties had reached an impasse as Mr. Brooks had said that the house was a family unit and Mrs. Brooks was not going to be able to leave and he was not going to leave. Lastly, they discussed Mr. Brooks being on antidepressants at different times but not at this time. There was further reference in the chart to extrinsic evidence that relates to the issues discussed between Ms. Mitchinson-Bailey and Mrs. Brooks.

[98] I find the ante mortem statements made by Mrs. Brooks to Lori Mitchinson-Bailey admissible. Admission is supported by the applicable principles reviewed in the case law under the “state of mind” exception and principled approach to hearsay evidence. The ante mortem statements between Mrs. Brooks and this witness bear all of the hallmarks of relevance and sufficient reliability to favour admissibility.

Evidence of Kristin Gizuk

[99] Ms. Gizuk was a co-worker of Mrs. Brooks at the Royal Victoria Hospital. They were friends and also discussed private matters as opposed to simply work related issues. The chart provides the temporal and thematic context that are relevant to the nature of the relationship, animus and possible motive – all of which was supported by a number of extrinsic evidence references. I find that this proposed evidence falls within both the “state of mind” exception and admission under the principled approach. The evidence is relevant and sufficiently reliable as it speaks to the nature of the marital relationship, the state of mind of the parties, Mr. Brooks’ changing attitude and behaviour, animus and possible motive. As well, the touchstones referred in my general observations apply to the evidence of this witness.

Evidence of Faye Dempster

[100] Ms. Dempster was a co-worker of Mrs. Brooks. They worked in the same department at the Royal Victoria Hospital. In the year leading up to her death, they worked together four to five days a week. Mrs. Brooks started mentoring Ms. Dempster about a year prior. They saw each other socially, they were at a girls’ weekend two weeks before Mrs. Brooks’ death. Ms. Dempster provided an audio taped statement to police and also testified at the preliminary hearing. Ms. Dempster’s evidence is discussed commencing at page 11 of the chart. There is sufficient detail in respect of when, where and how the conversation(s) took place. There were three of them commencing six months before the death of Mrs. Brooks, two months prior to her passing and one month prior to her passing. The last two conversations occurred at work. The conversations have the tenor of talk between friends without exaggeration. The conversations at work also relate to the nature of the deteriorating marriage, that Mrs. Brooks wanted the marriage to end and wanted to leave Mr. Brooks. Mrs. Brooks was concerned and afraid of Mr. Brooks’ anger and well-being and that he could something to himself. There was discussion about guns which Mrs. Brooks believed were locked up in the gun case in Mr. Brooks’ workshop. It is Ms. Dempster who suggested that Mrs. Brooks need to dispose of them as he could turn the guns on Mrs. Brooks and her daughters. Mrs. Brooks did not think so but, regardless, she would not be able to remove the guns without Mr. Brooks’ knowledge. These conversations are corroborative of the concerns that Mrs. Brooks had about Mr. Brooks, his anger and what was capable of doing to her and to himself. Her concern about what he might do to himself did not exclude to what he might do her. They had discussions about Mr. Brooks going off his meds and when he had done so in the past he became unpredictable, angry and scary. The conversations disclosed further deterioration in the marital relationship including Mrs. Brooks obtaining legal counsel and the matrimonial home would need to be sold and Mrs. Brooks did not care if she was a tiny house as long as she had a place for her girls to call home.

[101] Again, the evidence of Faye Dempster is admissible. While it is argued on behalf of Mr. Brooks that the fear which Mrs. Brooks expressed was not fear for herself, this aspect can be probed in cross-examination. The statements of Mrs. Brooks to Faye Dempster speak to the deteriorating nature of the relationship, the change in attitude and behaviour of Mr. Brooks going to animus and, the fear of Mr. Brooks’ anger and what he might do to himself as well as Mrs. Brooks’ concern about the guns and ammunition possessed by Mr. Brooks. There was extrinsic evidence to support these concerns expressed by Mrs. Brooks to Faye Dempster. The proposed evidence also meets threshold reliability.

[102] Under both the “state of mind” exception and principled approach exception, I find the evidence Faye Dempster is admissible.

Evidence of Tamara Hatton

[103] Ms. Hatton was Mrs. Brooks’ hairdresser. Ms. Brooks saw Tamara Hatton every four weeks for the last four and a half years at Tamara Hatton’s shop. Mrs. Brooks’ next appointment should have been on May 27. Her last appointment was in April 2013. Tamara Hatton provided an audio taped statement to police and also testified at the preliminary hearing. The evidence of Tamara Hatton is summarized in the chart commencing at page 13.

[104] The chart disclosed when, where and how the conversations took place between Mrs. Brooks and Tamara Hatton. The chart concisely summarizes that Mrs. Brooks wanted to leave Mr. Brooks, how his initial reaction upon being told was unhappiness. He did not want the marriage to end and at first there was a “honeymoon phase” for a short time. After that, Mrs. Brooks became very angry when Mr. Brooks brought up the subject of his entitlement of one-half of her pension and what he would be able to get from her in the divorce. They were not sleeping in the same room. She described their relationship as two people in a house living separate lives. Again, the concern about guns was referenced in a conversation between Mrs. Brooks and Tamara Hatton on May 7, 2013. It was Tamara Hatton’s advice that if Mrs. Brooks did not feel safe, she should go to Ms. Hatton’s house or the house of a friend, Denise Parliament. It appeared to Tamara Hatton that Mrs. Brooks’ concern was “more him harming himself”. The defence argues that the statement is too vague for any use by the jury. Mrs. Brooks did not feel that she was in any danger but was rather more concerned about Mr. Brooks harming himself.

[105] I do not agree that these statements are too vague for any use by the jury. The evidence is relevant and sufficiently reliable. It is supported by extrinsic evidence. Tamara Hatton’s evidence can be tested in cross-examination in respect of any fear and safety concerns that Mrs. Brooks had either for herself, her daughters and/or Mr. Brooks.

[106] I find the evidence of Tamara Hatton is admissible under the “state of mind” exception and principled approach to hearsay.

Evidence of Denise Parliament

[107] Ms. Parliament was the best friend of Mrs. Brooks. Leading up to her death, they spoke and texted three to four times a day. Prior to her death, Mrs. Brooks slept over at Ms. Parliament’s house six times both during the week and on weekends. Sometimes her daughter Kristin was with her. They had worked together at the hospital for eleven years and prior to that time, they had worked together at the hospital in Orillia.

[108] She provided an audio taped statement to the police and testified at the preliminary hearing.

[109] The evidence of Denise Parliament is detailed as to when, where and how the conversations took place beginning in 2013. There is sufficient description and detail in respect of what Mrs. Brooks said. There is temporal and thematic connection regarding when the conversations occurred prior to the death of Mrs. Brooks and what was discussed at that time. Extrinsic evidence supports what was discussed.

[110] The chart commencing at page 15 describes what Mrs. Brooks said regarding the marital problems she had and how she was going to end the marriage. She was concerned about Mr. Brooks being angry all the time and having to always accommodate him to prevent him from being angry.

[111] Around Easter 2013 she told Mr. Brooks that she wanted a divorce. She described his reaction and his increased anger along with a threat to take her for everything she had. He was off his medications and was unusually angry. They argued about how to dispose of the matrimonial home. She arranged to obtain financing to buy Mr. Brooks’ share of the matrimonial home which is supported by the evidence of Jenny Zheng.

[112] Mrs. Brooks’ concerns about guns kept in the shop by Mr. Brooks is further supported by the extrinsic evidence of the police search of the shop. Mr. Brooks’ own writings confirm his feelings about the marital breakup. Extrinsic evidence was also found in the home on the bed in the loft where Mr. Brooks slept relating to Mrs. Brooks’ financial situation. There is also extrinsic evidence from Brian Benedek who will say that Mr. Brooks changed the beneficiaries of his life insurance from Mrs. Brooks to Cayley and Kristin Brooks on May 7, 2013.

[113] I find the evidence of Denise Parliament admissible under both the “state of mind exception” and principled approach to hearsay. The evidence is admissible as it relates to Mrs. Brooks’ state of mind, the nature of the relationship, animus on the part of Mr. Brooks, his state of mind and any possible motive. The evidence is relevant and sufficiently reliable to pass threshold admissibility as is the evidence of the other witnesses that I have considered in this category. The evidence is important to provide the jury with a complete picture of what was happening in the months, weeks and days before the death of Mrs. Brooks in order to better understand not only what was happening their lives but also the ultimate issue in this case – planned and deliberate intentional murder as opposed to the accidental death of Mrs. Brooks.

Evidence of Krystal Deschamps, Sarah June Littlewood, Suzanne Wicks, Valerie MacDonald and Katie Montgomery

[114] I have grouped the evidence of all of these witnesses together. They were all co-workers of Mrs. Brooks. Some of them closer than others. Some became friends.

[115] For easy reference, the evidence concerning these witnesses can be found in the chart as follows:

• Krystal Deschamps – page 17
• Sarah Jane Littlewood – page 20
• Susan Wicks – page 21
• Valerie MacDonald – page 22
• Katie Montgomery – page 23

References to their evidence can also be found at the addendum. All of these witnesses provided audio taped interviews to the police and did not testify at the preliminary hearing. Some of these witnesses had conversations with Mrs. Brooks in the weeks before or even on the day before or the day of her death. The evidence of the co-workers is relevant to the nature of the relationship to show a continuum in the relationship between parties terminating with the death of Mrs. Brooks on May 24, 2013. The conversations are natural and unforced between Mrs. Brooks and her co-workers. They have a temporal and contextual relationship to the issues in this case, namely the state of mind of Mrs. Brooks, the nature of the relationship with Mr. Brooks and any animus in that regard, and potentially Mr. Brooks’ motive.

[116] The defence submits that the cumulative effect of all of these witnesses adds precious little to an overall appreciation of what was happening in respect of the marital relationship between the parties. According to the defence, this unnecessary presentation of cumulative evidence is nothing more than evidentiary “piling on” that serves no purpose. Rather, their impact is prejudicial to Mr. Brooks. With respect, I do not agree.

[117] The evidence of all of these witnesses is relevant temporally and contextually as it relates to Mrs. Brooks’ state of mind. All of the evidence bears the hallmarks that I had referred to by way of general observations. There is sufficient detail as to when, where and how the conversations took place, what Mrs. Brooks said and what extrinsic evidence is corroborative or confirmatory of the evidence of these witnesses and other witnesses.

[118] I find that the evidence in question is admissible under the “state of mind exception” and the principled approach to hearsay evidence. The evidence is both relevant, sufficiently reliable and meets the threshold reliability test. The evidence can be subject to cross-examination and the ultimate arbiters of weight will be the triers of fact, the jury. I find that all the evidence of these witnesses is admissible. I do not agree that in this case, I ought to exercise exclusionary discretion on the grounds that the same purpose could have been achieved by the introduction of fewer statements. Having more statements than fewer statements does not make the nature of the evidence inadmissible or prejudicial. The Crown can decide which of these witnesses it will call and those witnesses will be subject to cross-examination. The trial judge will be in a position to give the jury the appropriate limiting instruction, if necessary.

[119] For these reasons and upon my consideration of the applicable legal principles, the evidence of all of these witnesses is admissible.

Evidence of John Anderson

[120] The evidence of John Anderson can be found in the chart at page 17 and also there is reference to his evidence in the addendum. John Anderson provided an audio taped statement to the police but did not testify at the preliminary hearing. He met Mrs. Brooks a year prior to her death through a common interest in cycling. They became good friends. He had “seen her” as more than a friend twice but otherwise would meet her at bicycle races. His evidence describes when, where and how he had conversations with Mrs. Brooks. He knew that she was going through a divorce and that Mr. Brooks was suffering from depression. This was confirmed by the extrinsic evidence of Denise Parliament. Within a week or two (maybe longer) Mrs. Brooks told Mr. Anderson that she and Mr. Brooks were dealing with mediation. She reported that Mr. Brooks was saying he was going to take her pension. This statement on the part of Mr. Brooks was also confirmed by extrinsic evidence.

[121] I find the evidence of Mr. Anderson is admissible under the “state of mind” exception and also under principled approach to hearsay evidence. The defence submits that Mr. Anderson is not a reliable witness and has credibility issues. That may or may not be so. The defence can probe Mr. Anderson’s credibility if he should be called to testify at trial. The defence has submitted that Mr. Anderson’s evidence does not meet threshold reliability. I find that it does and this evidence is admissible.

Evidence of Dr. Eric Balser

[122] Dr. Balser is the brother-in-law of Mr. Brooks. He was the brother of Mrs. Brooks and husband of Dr. Jane Brooks. He did not have frequent contact with Mrs. Brooks. However, in the weeks prior to her death, he did have a conversation with her. His evidence can be found summarized at page 29 of the chart. It is indicated there as to what they had discussed which largely related to a detailed discussion of the marriage and how it ended. He and Mrs. Brooks had discussions about the negative impact of the marriage on Mr. Brooks. There is also extrinsic evidence regarding how Mr. Brooks reached out to Dr. Balser on Facebook after Dr. Balser learned that Mrs. Brooks was leaving Mr. Brooks. Facebook messages were exchanged. Those messages can be found at Tab 7 of the Crown’s Supporting Documentation Brief. Dr. Balser stopped responding when he found out that Mr. Brooks threatening financial ruin.

[123] The defence submits that this evidence is repetitive, does not meet threshold reliability and should be ruled inadmissible. I do not agree.

[124] For the previous reasons given regarding the other witnesses above, this evidence is relevant and meets the test of admissibility under the “state of mind” exception. Further, this evidence is sufficiently reliable and meets the test of threshold reliability. The exchanges between Mr. Brooks and Dr. Balser are evidenced by contemporaneous text messages which supports reliability and credibility. I find the evidence of Dr. Eric Balser is admissible.

CONCLUSION

[125] For the reasons given, I find that the ante mortem statements of Deena Brooks are admissible and the application is granted subject to the specified deletions identified in my reasons.

DiTOMASO J.

Released: January 22, 2106

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