CITATION: R. v. Merritt, 2016 ONSC 7024
COURT FILE NO.: CRIMJ(P) 1459/16
DATE: 20161110
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
MELISSA MERRITT and CHRISTOPHER FATTORE
Applicants
COUNSEL:
Brian McGuire and Eric Taylor, for the Crown
David Berg and Joel Hechter, for Melissa Merritt
Peter Zaduk and Daisy McCabe-Lokos, for Christopher Fattore
HEARD: November 2, 2016 at Brampton
RULING No. 3: Admissibility of Ante-Mortem Statements of Bridget and Caleb Harrison
RESTRICTION ON PUBLICATION
Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
F. DAWSON J.
[1] Melissa Merritt and Christopher Fattore are charged with two counts of first degree murder in relation to the deaths of Bridget Harrison and her son Caleb Harrison. Mr. Fattore is also charged with second degree murder in relation to the death of Bill Harrison.
[2] Bill Harrison was found dead in his Mississauga home on April 16, 2009. His wife, Bridget Harrison was found dead in the same home on April 21, 2010. Their son Caleb Harrison was found dead in the same home on August 23, 2013. Caleb’s death was clearly a homicide and it lead to the re-investigation of the deaths of Bill and Bridget Harrison.
[3] Melissa Merritt was previously married to Caleb Harrison. They had two children together. A long and bitter battle over custody of the children followed their separation. Christopher Fattore is Ms. Merritt’s subsequent commonlaw partner. They have four children together.
[4] It is the Crown’s theory that the custody battle and related animosity served as a motive for the murders. Bridget Harrison was a party to the custody proceedings and at various points either had access to, or legal custody, of the two children of Melissa Merritt and Caleb Harrison.
[5] This ruling deals with the admissibility of three ante-mortem statements made by Bridget Harrison when she was interviewed by the police on May 6, 2009 shortly after her husband’s death, and of one ante-mortem statement made by Caleb Harrison on April 21, 2010 when he was interviewed by the police following his mother, Bridget Harrison’s death. Counsel have reached an agreement concerning the admissibility of other ante-mortem statements. I appreciate their efforts in that regard.
The May 6, 2009 Statements of Bridget Harrison
The First and Second Statements
[6] It is convenient to deal with the first two statements together. The statements in question form part of a much longer police interview. I quote the passage in question with the challenged portions of the passages emphasized. The page numbers refer to the transcript of the interview:
…so suddenly. He’s never been ill. There’s still is as yet no cause of death from the coroner. And I came home on Thursday night and found him on the floor, I came home from work (page 10)
It’s an order to locate, apprehend and deliver. It’s a restraining order against Melissa to have anything to do with the children. It’s an order for her to turn over the birth certificate or passports, or whatever she’s got, and you’ve got a complete copy of that order.. (page 13)
[7] It is common ground that these statements, which are hearsay and presumptively inadmissible, do not fall within a traditional exception to the hearsay rule. Crown counsel seeks their admission pursuant to the principled approach based on necessity and reliability: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. It is the Crown’s position that necessity is established because Bridget Harrison is dead and that the statements are accurate in fact and, therefore, meet the test of threshold reliability.
[8] In regard to reliability of the first statement, Crown counsel submits that Dr. Feltis, the pathologist who completed the autopsy of Bill Harrison, will testify that his post-mortem report was not completed until July 29, 2009. Consequently, there was no cause of death as of May 6, 2009.
[9] In regard to the reliability of the second statement, Crown counsel intends to introduce an order by Snowie J., dated April 23, 2009, granting “interim interim sole custody of the children” to Bridget Harrison. That order was made after Ms. Merritt and Mr. Fattore had left for parts unknown with the children. Ms. Merritt, Mr. Fattore and the children were subsequently found in Nova Scotia. Ms. Merritt was charged with parental abduction and the children were returned to Bridget Harrison. Paragraph three of Justice Snowie’s order says that Ms. Merritt “is restrained from removing the children” from Bridget Harrison’s care or control. Consequently, Crown counsel submits the second statement is reliable because it too is accurate.
[10] Defence counsel maintains that in the context of all of the other evidence these two statements are not necessarily accurate. As to cause of death, I infer that counsel are concerned that there was a working theory of what caused death that had been discussed with the police even though an official report had not been released. As to the second statement, counsel submit that it is not accurate to say that the restraining order prevented Ms. Merritt from having “anything to do with the children”.
[11] On this last point I observe that I am generally aware that there were a number of orders made over time dealing with custody and access to the children. Those orders are not before me on this application. I am not in a position to determine the precise impact of Justice Snowie’s order on Ms. Merritt’s rights in relation to her children because I do not know what remained in place under any prior orders.
[12] I conclude that these two statements are not admissible. As hearsay they are presumptively inadmissible. In my view, the same reasons Crown counsel advances to establish their threshold reliability undermines any finding of their necessity. While Ms. Harrison is deceased and so the evidence is not available from her that does not end the matter.
[13] In R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, at pp. 546-47, McLachlin J. (as she then was) held that necessity for the purpose of the principled exception must be interpreted to mean “reasonably necessary”. In R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, at para. 34, Lamer C.J. held that necessity “refers to the necessity of the hearsay to prove a fact in issue”. In R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, [1996] S.C.J. No. 117, at para. 71, it was held that “… hearsay evidence will be necessary in circumstances where the declarant is unavailable and where the party is unable to obtain evidence of similar quality from another source” (emphasis added). Similar statements can be found in R. v. U.(F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764, at p. 787 and R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 157 C.C.C. (3d) 129 (Ont. C.A.), at paras. 61-62.
[14] In this case there is evidence of not only similar quality, but better quality, available from a source other than the declarant to assist the trier of fact. The jury will hear from the pathologist and they will have the benefit of the actual court orders together with any judicial instruction necessary for their assistance in understanding them.
[15] These statements are not admissible.
The Third Statement
[16] On behalf of the Crown Mr. Taylor submits that the acrimonious nature of the relationship between Bridget Harrison and Mr. Fattore and Ms. Merritt is both material and relevant. The nature of the relationship is circumstantial evidence of motive which is, in turn, relevant to the identity of Bridget Harrison’s killer: R. v. Moo, 2009 ONCA 645, at para. 98; R. v. Candir, 2009 ONCA 915, at para. 51; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at paras. 59-63. I agree with the general submission that such evidence is material and relevant if the evidence is otherwise admissible. I recognize that the test for relevance sets a low threshold.
[17] The third challenged statement contains comments by Bridget Harrison about Mr. Fattore which Crown counsel agrees must be edited out if it is to go before the jury. In edited form, but with the portions Mr. Fattore objects to emphasized, the statement reads as follows. The page references are to the transcript:
and the few times he’s spoken to us, h-, you know, he, he’s been, um, really rude and abusive, intimidating, uh, we’ve just tried never to respond, always to just keep, um, calm, my husband and I … but, um, the thing that-, um, the children have liked him (page 20) So in my view as long as, as long as he was good to the kids, I wasn’t going to make a lot of complaints about it.
[18] Mr. Taylor does not seek admission of the third statement under the principled exception to the hearsay rule, or on any other basis, to prove that Mr. Fattore was actually rude, abusive or intimidating. Mr. Taylor disavowed that approach at the beginning of his submissions and added that the court should give the jury a limiting instruction to that effect. Mr. Taylor referred to this as bad character reasoning and made no attempt to justify its admissibility on the basis that its probative value exceeds its prejudicial effect.
[19] The thrust of the Crown’s argument is that the statement should be admitted on one or the other of three bases, to demonstrate that Bridget Harrison did not like Mr. Fattore, leading to further inferences about the acrimonious relationship between them, leading to still further inferences of animus and motive.
[20] The first submission is that the statement is not hearsay at all because it is the fact that the statement was made which is relevant to demonstrate how Bridget Harrison felt about Mr. Fattore. The second submission is that, even if the statement is hearsay, it falls within the state of mind and present intention exception to the hearsay rule. Both of these submissions are supported by reference to R. v. P.(R.), [1990] O.J. No. 3418, 58 C.C.C. (3d) 334, at para. 16 and R. v. Humaid (2006), 2006 CanLII 12287 (ON CA), 81 O.R. (3d) 456, at para. 58.
[21] In the further alternative, Crown counsel submits that the statement should be admitted pursuant to the principled exception to the hearsay rule to show Bridget Harrison’s state of mind. I emphasize again that Crown counsel did not submit that the principled approach should be used to permit the jury to reach a conclusion about what Bridget Harrison thought of Mr. Fattore on the basis that Mr. Fattore was in fact rude, abusive or intimidating. It is implicit that Mr. Taylor accepts that the probative value of reasoning in that way towards the nature of their relationship would be exceeded by its prejudicial effect.
[22] I conclude the third statement is not admissible. I do not reach this conclusion because I disagree with Mr. Taylor’s submission that the statement is, by one means or the other, evidence of Bridget Harrison’s state of mind, which could be used by the trier of fact as circumstantial evidence relevant to the nature of the relationship. I accept that general proposition, which is set out in the Griffin case, in particular. I find this evidence inadmissible because I am of the view that the probative value of the evidence is exceeded by its prejudicial effect.
[23] This conclusion flows from my assessment that, in the particular circumstances here, the limiting instruction that Crown counsel concedes is required is likely to be ineffective. In the circumstances here there is a very strong and direct connection between the declarant’s statement and a conclusion that Mr. Fattore acted in a rude, abusive and intimidating manner and therefore that the relationship was acrimonious, giving rise to a further inference of motive.
[24] The hearsay dangers of truthfulness and accuracy in relation to this statement are apparent. The declarant is not available for cross-examination which might well be able to diminish the strength of this statement as a direct link to a finding of abusive and intimidating conduct demonstrating motive. Even if these hearsay dangers do not directly factor into the admissibility analysis under the first two submissions, they nonetheless manifest themselves as part of the reasoning prejudice that I do not think can be overcome by a limiting instruction. That is because it will be very difficult for the jurors to restrict themselves to the circuitous and somewhat tenuous chain of reasoning associated with the permissible use of the evidence in the face of such an appealing, strong and direct route towards the same ultimate conclusion by using the declarant’s statement as direct evidence of an acrimonious relationship because of Mr. Fattore’s rude, abusive and intimidating conduct.
[25] I also observe that there is considerable moral prejudice associated with this character blackening evidence which comes, not from a deceased spouse or commonlaw partner of an accused, but from a deceased who had little contact with Mr. Fattore by her own account.
[26] On the probative value side of the analysis, applying a permissible chain of reasoning, I do not assess the inferences available from this statement as particularly strong. Based on my knowledge of the case so far it also seems to me that there is other and better evidence available about the nature of the relationship.
[27] My decision comes at the balancing stage. For the reasons stated I conclude the probative value of the third statement is outweighed by its prejudicial effect given my conclusion that a limiting instruction is unlikely to be effective in the particular circumstances associated with this evidence.
The April 21, 2010 Statement of Caleb Harrison
[28] Caleb Harrison was interviewed by the police on the day his mother was found dead in the family home. During that interview he was asked about Melissa Merritt breaking the non-association condition of her bail on the child abduction charge. He answered as follows. Mr. Fattore objects to the admissibility of the emphasized portion. The page numbers in the passage refer to the transcript of the interview.
Uh, she was parked-, out house, you know, this (indicates) is the first, we’re the second house. Her-, the car was parked here (indicates) in front of the third house and her boyfriend was walking up the step when we came home, we had to go to an orientation at Nahani Way. Uh, just show the kids where it is and introduce ourselves and, uh, so when we got home, uh, my girlfriend and I and her son and Mason were in the car and then we saw Chris walking up the driveway and we looked and we saw Melissa and, uh, she’s not supposed to be at the school or-, like, she has strict conditions of not to be anywhere, anywhere near … where the kids-, and especially our house. (page 15 and 16)
Not to be in the contact with me, my mother, any-, like as you can imagine, child abduction, it’s … it’s, uh, serious. Um, and they rearrested her. (page 16)
They dropped off a letter and a, a video of, uh, uh, pictures. For the kids. (page 16)
[29] Crown counsel submits that this statement is admissible pursuant to the principled exception to the hearsay rule. On behalf of Mr. Fattore, Mr. Zaduk submits that the statement was made in the context of ongoing family law litigation which renders its reliability suspect. However, strong opposition was not mounted to the admissibility of this statement.
[30] I conclude this statement is admissible under the principled exception. Necessity is established by Caleb Harrison’s death. While Melissa Merritt’s guilty plea on the abduction charge will be admitted, the facts she acknowledged when pleading guilty are admissible only in relation to her. Caleb Harrison’s statement is also admissible against Mr. Fattore. The statement also establishes what Caleb Harrison saw and was aware of concerning the event.
[31] I agree with Crown counsel’s submission that there are a number of factors which, together, lead to a conclusion that threshold reliability has been established. These factors address the particular hearsay dangers of observational accuracy, recall and truthfulness which arise in connection with this statement. They provide circumstantial guarantees which significantly reduce the need for cross-examination.
[32] Caleb Harrison was describing events which occurred just 11 days before he was interviewed. There is no obvious motive for Caleb Harrison to fabricate that Mr. Fattore was present or walking down the driveway. This had no relevance at the time. Mr. Fattore was not charged with abduction or subject to restrictive bail conditions. Although Ms. Merritt’s factual admission on her guilty plea is not admissible against Mr. Fattore, it tends to confirm the accuracy of Caleb Harrison’s statement. Mr. Fattore’s presence was also witnessed by Caleb Harrison’s girlfriend, Ms. McEwen. She will be a witness and is expected to confirm this account. In addition, Mr. Fattore himself described the event in a similar fashion in his statement to the police on April 29, 2010, at p. 14. While Caleb Harrison was asked about Ms. Merritt “breaking her bail” the statement was not elicited by leading questions.
[33] Ultimate reliability is, of course, for the jury to determine. I am satisfied that there are sufficient indicia of reliability to achieve threshold reliability given the particular hearsay dangers that are present. There is no prejudicial effect which would outweigh the probative value of this evidence.
Conclusion
[34] The three challenged ante-mortem statements of Bridget Harrison made May 6, 2009 are inadmissible.
[35] The challenged ante-mortem statement of Caleb Harrison made April 21, 2010 is admissible.
F. Dawson J.
Released: November 10, 2016
CITATION: R. v. Merritt, 2016 ONSC 7024
COURT FILE NO.: CRIMJ(P) 1459/16
DATE: 20161110
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
MELISSA MERRITT and CHRISTOPHER FATTORE
Applicants
RULING No. 3: Admissibility of Ante-Mortem Statements of Bridget and Caleb Harrison
F. Dawson J.
Released: November 10, 2016