Court File and Parties
COURT FILE NO.: 168/16 DATE: 2017/03/02
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION BY ORDER OF THE HONOURABLE JUSTICE J. R. HENDERSON ON JANUARY 9, 2017 UNTIL FURTHER ORDER
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Her Majesty the Queen T. Shuster and J. Strecansky, for the Crown Crown
- and -
Jeremy Edward Gough B. Walker and J. Lefurgey, for the Accused Accused
HEARD: January 18 & 19, 2017 The Honourable Justice J. R. Henderson
Pre-Trial Motion #3: Ante Mortem Statements
Introduction
[ 1 ] The Crown brings this pre-trial motion for a ruling as to the admissibility of ante mortem statements made by the deceased Jessica Scanlon (“Scanlon”) to her sister Melanie Scanlon (“Melanie”), her friend Ashley Bielby (“Ashley”), and her boyfriend Jeff Culbert (“Jeff”).
[ 2 ] The accused, Jeremy Gough (“Gough”), is charged with the first degree murder of his estranged common-law spouse, Scanlon. It is alleged that on the morning of February 23, 2015, Gough attended Scanlon’s residence at 13 Chetwood Street, St. Catharines, killed Scanlon, and left her body in the basement of the residence.
[ 3 ] It is not disputed that Gough and Scanlon had lived together in a common-law relationship commencing in November 2006; that they had two young children; that they had lived together at 13 Chetwood Street for approximately one year prior to Scanlon’s death; that Scanlon told Gough that their relationship was over on about January 20, 2015; that Gough vacated the Chetwood Street residence on January 31, 2015; and that Gough wanted to repair and continue his relationship with Scanlon.
[ 4 ] The Crown proposes to call Melanie, Ashley, and Jeff to testify as to statements made by Scanlon to them prior to her death about Scanlon’s relationship with Gough.
The Positions of the Parties
[ 5 ] The Crown submits that the proposed ante mortem statements are relevant to the nature of the Gough/Scanlon relationship, to Gough’s state of mind, to Scanlon’s state of mind, to Gough’s motive to commit the offence, and to the intention element of the offence. The Crown acknowledges that Scanlon’s statements constitute hearsay evidence, but submits that the statements are admissible pursuant to the principled exception to the hearsay rule.
[ 6 ] Defence counsel submits there is little dispute about the nature of the Gough/Scanlon relationship. Therefore, it is submitted that these ante mortem statements are not admissible because they are not relevant and material to the issues before the court.
[ 7 ] Alternatively, defence counsel submits that the statements do not meet the reliability threshold that is required for the admissibility of hearsay evidence. The defence submits that Scanlon tended to exaggerate in her statements and that the defence has no way to test the truthfulness of the statements. Therefore, the defence submits that these ante mortem statements are not admissible pursuant to the principled exception to the hearsay rule.
[ 8 ] In the further alternative, defence counsel submits that these ante mortem statements have low probative value given the nature of the Gough/Scanlon relationship. Therefore, defence counsel submits that the prejudicial effect of the ante mortem statements exceeds the probative value of the statements, and that the court should exercise its discretion to exclude the statements.
Summary of the Ante Mortem Statements
[ 9 ] Melanie is Scanlon’s older sister. The two sisters grew up together in St Catharines and continued to live in St. Catharines as adults. Melanie and Scanlon were very close and communicated every day by text message, Facebook message, telephone, or in person.
[ 10 ] The Crown proposes to introduce, through Melanie, evidence of two oral statements made by Scanlon to Melanie, plus a series of text messages between Scanlon and Melanie.
[ 11 ] The two oral statements in question were made by Scanlon to Melanie in the one or two-year period prior to Scanlon’s death. In summary, in those two oral statements Scanlon told Melanie that she was unhappy in her relationship with Gough; that there were issues in their relationship; that she had mixed feelings about separating; and that she felt everybody would be happier if they went their separate ways.
[ 12 ] The text messages between Scanlon and Melanie cover the period from January 24, 2015, to February 23, 2015. This is the period surrounding the separation of Scanlon and Gough, and their post-separation relationship up until Scanlon’s death.
[ 13 ] The text messages between Scanlon and Melanie disclose that Gough moved out of the Chetwood Street house on January 31; that Gough showed up at Scanlon’s house on February 2 to shovel snow; that Gough wanted to stay for dinner on February 2; that Gough wanted to maintain a sexual relationship with Scanlon; and that Scanlon had started a relationship with another man, Jeff.
[ 14 ] Ashley is Scanlon’s best friend. They attended high school and college together and have worked together. They were in contact daily by social media, text message, telephone, or in person, and they shared personal information with each other.
[ 15 ] The Crown proposes to introduce, through Ashley, an oral statement made by Scanlon within approximately one year of her death in which Scanlon said, in summary, that her relationship with Gough was rocky; that Scanlon was thinking of leaving Gough; and that Scanlon did not know how much longer she could take it.
[ 16 ] In addition, the Crown proposes to introduce text messages between Scanlon and Ashley covering the period from January 20, 2015, to February 23, 2015.
[ 17 ] The text messages between Scanlon and Ashley disclose that Scanlon informed Gough that the relationship was over on January 20; that Gough moved out of the Chetwood Street house on January 31; that Gough was upset about Scanlon’s decision to end the relationship; that there were major issues between them; that Scanlon was not in love with Gough anymore; that Gough wanted to continue to have sex with Scanlon; that Gough and Scanlon had been fighting; that after the separation Gough kept asking Scanlon if she was seeing someone; that Gough “just won’t let go”; and that Scanlon was scared about Gough showing up at the house.
[ 18 ] Jeff was Scanlon’s boyfriend at the time of her death. Scanlon and Jeff met through a baseball team in 2014, but they did not become close until approximately January 2015. During the month of January 2015 their relationship escalated and they became very close.
[ 19 ] The Crown proposes to introduce an oral statement made by Scanlon to Jeff in early February 2015 to the effect that Gough had been asking Scanlon a few times per week if she was seeing someone. Jeff will also testify that Jeff and Scanlon agreed to tell Gough about their relationship when the time was right.
[ 20 ] In addition, the Crown proposes to introduce text messages between Scanlon and Jeff covering the period from February 1, 2015 to February 23, 2015.
[ 21 ] In general, the text messages between Scanlon and Jeff disclose that on February 1 Gough asked Scanlon “who I fucked last night”; that Scanlon called Gough a “loser” and a “fucking moron”; that Scanlon had to deal with “baby daddy drama”; that Gough still tries to control things; that Gough checked up on her; that Scanlon was having massive anxiety; that Gough tried everything possible to “suck me back in”; that Gough kept asking Scanlon if Scanlon was dating someone; that on February 22 Gough called and “went lunatic” about Scanlon not attending their son’s bowling tournament; and that on February 22 he was “so crazy” that he barged into the house while Scanlon was trying to keep him out.
The Law
[ 22 ] Evidence is only admissible at a criminal trial if it is relevant and material, and it is not rendered inadmissible by reason of any evidentiary exclusionary rule.
[ 23 ] Regarding relevance and materiality, the following excerpts from the case of R. v. Candir, 2009 ONCA 915, [2009] O.J. No. 5485 (OCA), at paras. 46, 48 and 49 are helpful:
To be receivable in a criminal trial, evidence must be relevant, material and admissible.
The threshold for relevance is not high. To determine whether an item of evidence is relevant, a judge must decide whether, 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 it would be otherwise: see R. v. Cloutier, [1979] 2 S.C.R. 709, at pp. 730-32 ….
Materiality is a legal concept. Materiality defines the status of the proposition a party seeks to establish by the introduction of (relevant) evidence to the case at large. What is material is determined by the governing substantive and procedural law and the allegations contained in the indictment. Evidence is material if what is offered to prove is in issue according to the governing substantive and procedural law and the allegations contained in the indictment….
[ 24 ] Previous court decisions have confirmed that in domestic homicide cases evidence as to the state of mind of the deceased, the state of mind of the accused, and the nature of the relationship is relevant and material to the issues before the court. Courts have determined that this evidence may demonstrate animus and motive, and those matters can be relevant to the identity of the killer and to the intention element of the offence. In that respect, see the cases of R. v. Carroll, 2014 ONCA 2, [2014] O.J. No. 2 (OCA) at paras. 104 and 109; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42 at para. 60; R. v. Moo, 2009 ONCA 645, [2009] O.J. No. 3706 (OCA) at para. 98; and the Candir case at para. 74.
[ 25 ] In the Carroll decision, Watt J. summarized the concepts of relevance and materiality of ante mortem statements in a domestic homicide case 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.
[ 26 ] Further, evidence of the deceased’s state of mind may constitute a link in a chain of reasoning that could lead a trier of fact to conclude that an accused bore some animus toward the deceased or had a motive to kill the deceased. In that respect, see the Candir case at para. 52 and the case of R. v. P (R.), [1990] O.J. No. 3418 at para. 11.
[ 27 ] If the proposed evidence is relevant and material, the admissibility of that evidence is still subject to any applicable exclusionary rule. In the case of ante mortem statements there are two exclusionary rules that must be considered, namely the hearsay rule and the rule against the admissibility of bad character evidence. These two exclusionary rules are often intermingled in domestic homicide cases as discussed in the Carroll decision, the Moo decision, and in R. v. Sharples, [2015] O.J. No. 4767.
[ 28 ] Regarding the hearsay exclusionary rule, the Crown in this case relies primarily upon the principled exception to the hearsay rule as discussed in the case of R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787.
[ 29 ] At para. 2 of Khelawon, Charron J. wrote:
… When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gatekeeper in making this preliminary assessment of the “threshold reliability” of the hearsay statement and leaves the ultimate determination of its worth to the fact finder.
[ 30 ] There is no doubt that ante mortem statements meet the necessity element as the declarant is not alive to testify. The issue then in the present case with respect to the hearsay rule is whether the ante mortem statements are sufficiently reliable to meet the requisite “threshold reliability” standard.
[ 31 ] The final step in the analysis is to consider the rule against the admissibility of evidence of bad character or extrinsic misconduct. I accept that evidence of bad character or extrinsic misconduct that goes beyond what is alleged in the indictment is presumptively inadmissible as discussed in the case of R. v. Handy, 2002 SCC 56 at para. 31. However, admissible ante mortem statements in domestic homicide cases often include evidence of extrinsic misconduct by the accused as discussed in the Moo decision at para. 98 and the Sharples decision at para. 34.
[ 32 ] Accordingly, if the ante mortem statements are found to be prima facie admissible pursuant to the principled exception to the hearsay rule and if the ante mortem statements contain evidence of bad character or extrinsic misconduct, the court should consider whether the probative value of the evidence exceeds its prejudicial effect to such a degree that it should be admitted at trial. In that respect, see Moo at para. 107, Carroll at paras. 113-127, Candir at para. 59, Handy at paras. 31-41, P (R.) at paras. 38-41, and Sharples at para. 18.
Analysis
[ 33 ] Regarding relevance and materiality, the proposed ante mortem statements clearly provide some evidence of Gough’s state of mind, Scanlon’s state of mind, and the nature of their relationship. Therefore, this evidence is relevant to the issues of animus and motive, which in turn are matters that the jurors may consider in determining the identity of Scanlon’s killer and the state of mind of the killer.
[ 34 ] Defence counsel contests the materiality of these ante mortem statements on the ground that the nature of the relationship and the states of mind of Scanlon and Gough are not in dispute. The defence acknowledges that Scanlon and Gough were separated; that Scanlon terminated the relationship; that Gough wanted to continue the relationship; and that Scanlon had moved on to another relationship.
[ 35 ] In my view, those acknowledgements by the defence do not preclude or limit the Crown from adducing ante mortem statements of the deceased victim at the trial of a domestic homicide case. The nature of a domestic relationship is a contextual matter. Many domestic relationships cannot be neatly categorized by the words, “married”, “common-law”, or “separated”. There is often a much more complex association between the parties. For example, one party may choose to “terminate the relationship” but seldom does that simple phrase fully explain the complexity of the issues and the feelings between the parties.
[ 36 ] I find that the proposed ante mortem statements in the present case provide evidence that may assist the jurors in understanding the complexity of the relationship between Scanlon and Gough and their respective states of mind. Accordingly, I find that the ante mortem statements in this case are both relevant and material.
[ 37 ] Regarding the principled exception to the hearsay rule, it is acknowledged that the necessity element has been met. With respect to the reliability element, it must be remembered that it is not my role in this case to determine the ultimate reliability of this evidence. That is for the jurors to determine. My role is to determine whether the proposed evidence has enough features of reliability such that it may be considered by the jurors. This has been referred to as “threshold reliability”.
[ 38 ] I accept that there are traditionally recognized concerns about hearsay evidence. In particular, there are inherent difficulties with the reliability of a declarant`s statement if the declarant is not available for cross-examination. Those inherent difficulties include the possibility that the declarant misrepresented the facts; that the recipient wrongly remembered the statement; that the declarant may have unintentionally misled the recipient; and that the declarant may have knowingly made a false statement. See the case of R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520 at paras. 31-32.
[ 39 ] In the present case, I find that there are some aspects of the proposed evidence that minimize the traditional concerns about the reliability of hearsay evidence.
[ 40 ] First, the majority of the proposed evidence is in the form of text messages that have been recorded. Therefore, there can be no issue about whether the recipient has correctly remembered the words that were used by Scanlon. Scanlon’s words are recorded in the text messages and those exact words will be read by the jury.
[ 41 ] Second, there is some corroboration of these ante mortem statements because there are three separate recipients of the statements, and the statements are fairly consistent as between the recipients. That is, generally Scanlon told each of Melanie, Ashley, and Jeff that her relationship with Gough was over, that she was moving on, and that Gough was having trouble accepting the end of the relationship. The consistency of Scanlon’s statements supports the reliability of the statements.
[ 42 ] On this point, defence counsel questions the consistency of the statements because Scanlon seemed to be more disparaging of Gough in her statements to Jeff, her new boyfriend, than in her statements to Melanie or Ashley. Because of this apparent inconsistency, the defence submits that Scanlon may have exaggerated Gough’s behaviour, and contends that it is difficult to test the truthfulness of Scanlon’s statements.
[ 43 ] I accept that there are subtle differences in Scanlon’s statements depending upon the recipient, but I find that is what one should expect. That is, one should not expect Scanlon to talk to her boyfriend in the same language or with the same expression as she would talk to her sister. In my view, Scanlon’s message to all three recipients was essentially the same, although expressed differently.
[ 44 ] Third, Scanlon’s relationships with Melanie and Ashley are longstanding, close, intimate relationships. The evidence suggests that Scanlon regularly talked with Melanie and Ashley about very personal matters. Thus, I find that it is not likely that Scanlon would mislead or lie to Melanie or Ashley.
[ 45 ] Lastly, regarding reliability, it is important to recognize that the three recipients of the ante mortem statements are available for cross-examination. Each of the three recipients have some direct evidence as to their own observations of the Gough/Scanlon relationship, and each may be fully cross-examined as to their personal observations, their own relationship with Scanlon and Gough, and the statements made by Scanlon. I accept that this is not a perfect substitute for cross-examination of Scanlon, but it will assist the defence in testing the truthfulness of Scanlon’s statements.
[ 46 ] For these reasons, I find that all of the proposed ante mortem statements meet the standard of threshold reliability, and are prima facie admissible.
[ 47 ] The final step in the analysis is to weigh the probative value of the ante mortem statements against their prejudicial effect.
[ 48 ] Prejudicial effect refers to the adverse effect of evidence that is not relevant and material to the issues at trial. That is, evidence cannot be prejudicial to the accused if it relates to an issue at trial. For example, evidence that Gough was upset about the end of his relationship with Scanlon goes to Gough’s state of mind, a relevant issue, and cannot be considered to be extrinsic prejudicial evidence.
[ 49 ] When considered in this manner, I find that the prejudicial effect of the proposed ante mortem statements in this case is minimal. There is no suggestion in the proposed ante mortem statements that Gough was of general bad character, or that Gough had been violent or threatening towards Scanlon in the past, or that Gough had acted in a criminal or immoral manner.
[ 50 ] The most significant bad character evidence perhaps is Scanlon’s statement to Jeff that Gough “went lunatic” because she did not attend a bowling tournament. I accept that the language used by Scanlon about that incident is inflammatory, but that effect can easily be limited by way of an instruction to the jury. Overall, I find that the prejudicial effect of these ante mortem statements is minimal.
[ 51 ] Regarding probative value, I find that the value of the proposed ante mortem statements in this domestic homicide case is high. The identity of the killer and the intention of the killer are the two most significant issues in this case. Therefore, evidence of the relationship between Scanlon and Gough and their states of mind is very important to the case.
[ 52 ] For these reasons, I find that the probative value of the ante mortem statements far outweighs the prejudicial effect such that the ante mortem statements should be admitted into evidence.
Conclusion
[ 53 ] In summary, I find that Scanlon’s ante mortem statements to Melanie, Ashley, and Jeff constitute evidence that is prima facie admissible pursuant to the principled exception to the hearsay rule. Further, I find that the probative value of this evidence exceeds its prejudicial effect, and that these ante mortem statements are admissible at trial.
J. R. Henderson, J. Released: March 2, 2017