Court File and Parties
Court File No.: CR15-5114 Date: 2017/04/11
Ontario Superior Court of Justice
Between:
HER MAJESTY THE QUEEN S. Kim, for the Applicant Crown
- and -
RICHARD BENNETT A. Craig, for the Respondent Accused
Heard: February 23 & 27, 2017
Pretrial Written Ruling # 3 – Admissibility of Pre-Death Utterances of the Deceased
A.J. GOODMAN, J.:
[1] The respondent, Richard Bennett (“Bennett”), is alleged to have committed first-degree murder on July 28 – 29, 2004 with respect to the deceased, Jean Paul Page (“Page”).
[2] The principal issue in this case concerns the identity of the person or persons who killed Page.
[3] The Crown seeks to introduce separate statements made by the deceased to five various individuals prior to his death. There is no dispute with respect to the deceased’s ante-mortem statements made to one of those individuals, (the deceased’s father, Roger Page).
Positions of the Parties:
[4] The Crown submits that evidence demonstrating that the accused expected to receive money from the deceased is evidence of motive. This includes the fact that Page was planning to buy one-half to 1 pound of marijuana from “Jamaican guys” at work. There is an inference to be drawn that Bennett was the “Jamaican guy” and may also lead to an inference that Bennett expected that Page may have had cash on hand in his residence as motive for the crime.
[5] The Crown says that the relationship between Bennett and Page is an important issue for trial. This includes evidence about Bennett’s purchase of a bottle of rum for the deceased and the timing of that transaction.
[6] The defence concedes that the deceased planned to purchase a bottle of rum for the deceased but disputes that any statements relating to the timing of the transaction lack sufficient reliability to be admitted under the principle approach to hearsay. The respondent disputes any references being admitted to a drug transaction between Page and Bennett as either vague, without foundation or not passing the threshold admissibility test for its introduction by any of the witnesses. There is no evidence whatsoever suggesting that Page and Bennett were involved in a drug transaction and the Crown’s theory is flawed.
[7] The defence submits that none of the statements relied upon by the Crown falls within any traditional exceptions against hearsay evidence. The defence says that there are no alternative means available to test the reliability of the hearsay statements of the deceased. Further, there is nothing compelling in the statements of the deceased that allow the court to place sufficient comfort in their truth and accuracy, not to mention their prejudicial effect.
Discussion:
[8] The approach to be taken in determining admissibility of such pre-death statements is not in issue. A deceased’s out-of-court statements are prima facie inadmissible as contravening the hearsay rule. The evidence may be admitted under the principled approach to hearsay evidence, if it is determined that the evidence meets the tests of both necessity and reliability: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298; R. v Moo, 2009 ONCA 645, [2009] O.J. No. 3706.(C.A.))
[9] Relevance of the evidence to be proffered is situational and depends not only on the identification issue in the case but also on other factual issues that may lead to the ultimate issue: R. v. R. P., [1990] O.J. No. 3418 (H.C.) at para. 11. As well, the court must consider whether the probative value of the evidence exceeds its prejudicial effect.
[10] While some of the statements sought to be introduced may not be considered discreditable per se, the jurisprudence governing the admissibility of such statements or conduct is found in a multitude of cases: R. v. B.(L.), [1997] O.J. No. 3042 (C.A.); R. v. Moo, 2009 ONCA 645, [2009] O.J. NO. 3706 (C.A.). Two categories of statements of the deceased are sought to be introduced: as series of statements related to the purchase of rum from the respondent and those related to the purchase or transaction of a quantity of marijuana.
[11] As to the first category, the defence agrees with the Crown that the utterances related to the purchase of a bottle of rum are conceded. It is the scope of what the Crown seeks to introduce in relation to that subject that remains contested.
[12] The Crown submits that the relevance and probative value of these statements goes directly to the issue of motive, opportunity to commit the crime, and most importantly, identity. The Crown says that the statements can be said to fulfill the reliability requirement since it was made in circumstances where there would be no reason for the deceased to lie, and since it is amply corroborated by other evidence. The contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little to the process.
[13] The Crown points out details concerning these conversations upon which it places reliance, referring to the preliminary inquiry transcripts and prior statements provided by the four individuals, including: Paul McKeegan (“McKeegan”), Crystal Burns (“Burns”), Shawn Bellfontaine (“Bellfontaine”) and Jason Davis (“Davis”).
[14] As illuminated in the Crown’s factum at paras. 10 to 13, the prosecution anticipates to illicit from McKeegan that Page told him that he had the opportunity to buy one-half to 1 pound of marijuana from some Jamaican people he worked with at a pretty low price, and was asked for some money. Burns is expected to testify that Page told her he was getting marijuana from some of the Jamaican guys at work for personal use. On July 28, 2004, Page said that he was supposed to get a bottle of rum from a guy at work named Richard who had just returned from Jamaica. Bellfontaine is expected to state that he was informed about the bottle of rum and he thought Page told him that Richard got it for him. Davis was informed by Page about monies owed and that Bennett had been to his house a couple of times.
[15] Obviously the criterion of necessity is met, Page is deceased.
[16] The defence argues that the reliability of the evidence from all of the individuals is in question, that the statement relates to events not proximate in time, thereby lessening its probative value. The various witnesses are vague concerning what was said, and the context or references are uncertain.
[17] The defence submits that the statements of the deceased to McKeegan and Burns about purchasing marijuana from some Jamaicans at work lack sufficient relevance. There is no evidence that the deceased was purchasing or planning to purchase marijuana from Bennett.
[18] Is the hearsay evidence relevant? In R. v. Carroll, 2014 ONCA 2, [2014] O.J. No. 2, at para. 104, Watt J.A. explains:
A deceased’s mental state may be relevant to an accused’s motive to commit an offence. In a similar way, the state of the relationship between an accused and 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 companied the killing. Statements of the deceased may afford evidence of the deceased’s state of mind and thus be relevant to provide a motive and animus.
[19] I also agree that evidence of motive and opportunity to commit a crime is relevant to the issue of identification: See R. v. Malone (1984), 11 C.C.C. (3d) 34.
[20] The deceased’s statements made to Burns in connection with the drug transaction issue and bottle of rum purchase between Page and Bennett were reasonably close in time to his death. In the course of providing several statements and testifying at the preliminary inquiry, Burns revealed the following:
Q. Does Jay have any friends or people he knows that are black?
A. Um, yeah, he has a couple of friends that are black. But they are well educated, and don’t really come around. I only met them once. I think his name is Richard, a guy that Jay works with. He’s supposed to bring back some Jamaican rum or something. Because he’s supposed to have come back from Jamaica, but I haven’t met him.
Q. Do you know where he bought his drugs from?
A. I do not know. Um, no I don’t, I think ah, you would be better off asking Paul about that, yeah.
[21] It is not apparent from the record whether Burns specified the sources of all of her information. In other words, if the information came directly from the deceased or whether she was drawing a conclusion.
[22] Burns was questioned further on these topics at a later date:
A. Yeah, I didn’t ah, do anything and I know there was um, a, okay, now the pot now I remember, he used to get pot sometimes off ah, one of this Jamaican guy’s at his work.
A. Okay.
A. Don’t know his name, never met the guy, ah, this guy had gone to Jamaica just recently and he was actually Jay was supposed to be getting a bottle of rum or something like that from him, like that day at work, cause he had just come back or something like that.
[23] If indeed this was a statement received from the deceased, the extent to which the witness attributed statements to the deceased bearing on the issue of the “pot” purchase transaction is contextually vague.
[24] While there is no independent corroboration, the context bearing on the aspect of whether and to what extent the comment was made, cannot be explained by Burns even with full cross-examination to help the jury assess the value of the comment. I agree with the defence that there is no other evidence adduced at this hearing to suggest that Bennett ever sold marijuana to Page.
[25] Generally, I am persuaded that there is sufficient guarantees of trustworthiness in that the declarant had no apparent motive to lie to Burns. As such, I have no concerns about Burns’ recall of what was said to her by the deceased. I am satisfied that the deceased’s statements to Burns are admissible, provided that they are so established in evidence at trial. However, any references to the alleged marijuana transaction(s) are not temporally situated or can it be related to the same individual who purchased the rum for Page on or close to the date of the homicide. Apart from the topic of “pot”, the gist of Burn’s testimony is premised on inferences to be drawn that could implicate Bennett and his timely association with Page close to the date of the murder.
[26] The respondent complains that the prejudicial value of the impugned statements would leave the jurors with the impression that he is a drug dealer. I am mindful of this concern, however I am persuaded that any prejudice arising from such a proposition can be remedied by a clear and timely jury instruction.
[27] However, I take a different view with respect to McKeegan. The information from McKeegan includes:
Q. In your first interview you said you knew of J.P.’s dealer, do you know his name or how we can identify this person?
A. I remember Jay calling him, I knew his first name but I can’t remember it for the life of me.
A. Uhm, I guess, I don’t really remember Jay calling to (sic) many people.
Q. Did you ever know JP to purchase his drugs from work?
A. From work yeah, from somebody but I don’t know who.
Q. You spoke of persons at work that JP was looking at dealing with for a large quantity of weed, can you tell us anymore about this?
A. He had just talked to me on the phone about a guy at work that either was Jamaican or knew some Jamaicans that could get weed dirt cheap, like a pound for a half pound. I met one guy at Jay’s apartment, from his work. I can’t remember his name but I can remember his face, he was more light skinned, he didn’t look intimidating or threatening one bit.
Q. Yeah.
A. But no, I don’t remember him acting off, like the only thing I remember that was off that I can tie into what happened to him and I think I said in my statement was that he was talking to me about buying a, actually a decent amount of weed from some dude from Gentek.
Q. Okay.
A. And he said he was a Jamaican guy.
[28] McKeegan’s memory gaps due to the passage of time and his initial statements to the police, along with his lack of recollection of the name of the individual mentioned by Page is problematic. I am convinced that this specific lack of recall whether in relation to one or more Jamaican individuals negates or reduces the probative value of the evidence in support of the Crown’s position as it relates to the drug transaction leading to motive, or identity of the perpetrator.
[29] To further illustrate my concerns, the witness appears to offer conclusions or his “thoughts” rather than what he may or may not have been told by the deceased. For example, I note this exchange from his July 23, 2009 statement:
Q. How much money did he ask for (sic) you?
A. I would, I would think a few hundred dollars.
Q. How much money did he ask for (sic)you?
A: I would, I would think a few hundred dollars.
[30] In my opinion, the circumstances surrounding the evidence of the deceased’s statements to McKeegan have not passed the threshold reliability for its admission.
[31] Bellfontaine provided several statements to the police. The relevant segments from his November 2, 2007 statement include:
Q. In your first statement you spoke of being at the coffee truck hearing Steven Van Dyke speak about buying a bottle of rum. Do you remember who he was speaking to or what context this was in?
A. I remember I think it was someone had Jamaican rum, someone saying he was getting a bottle of rum or something like that. I am trying to remember where that was coming from.
Q. What do you know of Richard Bennett to be dropping off a bottle of rum for JP?
A. Might have been Richard I have no idea.
[32] In his July 29, 2004 statement to the police, Bellfontaine revealed the following:
Q. Did Jean Paul mention about anyone supposed to go to his place last night other than the landlord?
A. Uh, he mentioned this guy Richard from work He was supposed to drop of a bottle of Rum from Jamaica that was earlier in the day not on the ride home.
Q. Do you know Richard?
A. I don’t really talk to him much just Hi how’s it goin. If he is on my line or I am walking past him. I don’t really have a conversation with the guy.
Q. Do you know Richards last name?
A. Ya, Bennett.
Q. What does he look like?
A. He is maybe 5’8” short black hair, pretty dark skinned, he is a black male maybe a buck 50 (150lbs), he may have a beard or a goatee. I heard this morning at the coffee truck, Van Dyke say something about buying a bottle or Rum, I’m assuming it was said toward Richard, he was close in line. Richard was in Jamaica a little while ago. Jean Paul told me he was, I don’t know if he was going to give Richard the money to buy the Rum before Richard went to Jamaica or when he came back. I don’t know how close they were but they seem to hang out at work. Richard seems like a nice guy.
[33] In Carroll, at para. 111, Watt J.A. reminds trial judges that the party proffering the hearsay evidence “need not eliminate all possible sources of doubt about the perception, memory or sincerity of the declarant”. However, I still must exercise my gatekeeper function as related by the Supreme Court of Canada in Khelawon at para 3.
[34] Bellfontaine testified at this hearing. While his memory of the events may be waning, he clarified the circumstances of his providing his evidence at the preliminary inquiry. In his testimony before me, the witness steadfastly held to his original version provided to the police on July 29, 2004, right after the time of the murder. Some of the witness’ inconsistencies can be addressed and challenged by the defence at trial.
[35] I am satisfied that Bellfontaine may testify about the rum bottle purchase. The evidence consists of various comments, reported by Bellfontaine who may have suffered from a lack of recall due to the passage of time between the events in questions and the preliminary inquiry. However, he has explained those gaps in memory. This evidence is probative and relevant as it relates to an association between Page and Bennett. Ever mindful of the threshold test for admissibility, his evidence will be ultimately subject to cross-examination.
[36] Probative value is an issue that the jury can determine in the context of the witnesses’ evidence concerning the intended meaning of the comments, and the circumstances in which it or they were made. I note that in this case, if such evidence is permitted, the defence will be able to test the veracity of the statements through the cross-examination of the various witnesses.
[37] I also take a different approach about certain of the deceased’s statements to Davis as recalled by this witness.
[38] In applying the Court of Appeal’s analysis in R. v. Czibulka, [2004] O.J. No. 3723, the evidence adduced during this hearing for those two witnesses leaves me with the observation that there is the possibility of misperception, misunderstanding or faulty recollection. Indeed, some of these statements seem to be conjecture or conclusions being offered by the recipient.
[39] What does not pass the trustworthiness threshold or the test of reliability are the deceased’s statements to Davis, with one notable exception. In reviewing Davis’ prior statements and preliminary inquiry testimony, it is clear that he was uncertain about what the deceased said. On several occasions, he expressed that he “guessed” or was otherwise equivocal.
[40] During oral arguments, the Crown resiled from seeking to introduce the deceased’s statements to Davis with respect to monies being owed. For the sake of completeness, I would have disallowed this evidence in any event, as the utterances purported to have been made by Page to Davis are vague. I find that the statement lacks sufficient reliability and trustworthiness as to the witness’ recall of what was said, if anything, to him by Page. In both circumstances, the prejudicial effect where the evidence is sought to be tendered by the Crown outweighs its probative value, in the sense that the jury may use it improperly.
[41] That being said, the statement in reference to Page informing Davis about Bennett “coming by lately” is suggestive that the respondent had attended at the deceased’s apartment. This is probative of the issues at trial as it relates to a relevant, temporal association between Page and Bennett. I am satisfied that it is reliable and its admission would not be outweighed by any prejudicial effect.
Conclusion:
[42] The application is granted, in part.
[43] I am satisfied that Crown has met its onus and that there are circumstantial guarantees of trustworthiness sufficient to warrant certain of the deceased’s ante mortem statements into evidence.
[44] The circumstances of the receiving of the utterances from the deceased and recounting the information is sufficiently reliable for its admission. Therefore, the evidence sought to be introduced by the Crown may be admitted with respect to all of the deceased’s hearsay statements to Burns with the exception of any reference to “pot” or any illicit drug transactions. The deceased’s statements to Bellfontaine regarding all of the circumstances and timing of the rum bottle purchase by the deceased are admissible. With regards to Davies, only the reference to him from the deceased that “Richard had been coming by lately” may be introduced. All of the alleged statements made by the deceased to McKeegan are disallowed.
A.J. Goodman J.
Released: April 11, 2017