A. OVERVIEW

[1] The accused Dellen Millard and Mark Smich (hereinafter, Millard and Smich) are charged with one count of first degree murder on the person of Laura Babcock. I have been hearing a large number of pre-trial Motions on various dates since March 27, 2017. Jury selection is scheduled to commence on October 12, 2017.

[2] The Crown and counsel for Smich have brought a joint Motion seeking the admission of a relatively large number of statements allegedly made by Laura Babcock in the period prior to her disappearance in early July 2012. She has never been seen or heard from in the five years since July 2012.

[3] There is broad agreement between Ms. Cameron on behalf of the Crown, and Ms. Trehearne on behalf of Smich, as to the admissibility of the out of court statements that each party seeks to tender at trial (often referred to in the case law as ante mortem statements, although the defence does not concede that Ms. Babcock is deceased). The statements have all been helpfully collected and summarized by the parties in two documents, marked as Exhibit 4 and Exhibit 5 on the Motion. The first of these two exhibits lists all of Ms. Babcock’s statements made to civilian witnesses. The second exhibit lists all of Ms. Babcock’s statements made to medical personnel who saw her at three different hospitals during late 2011 and early 2012 while she was receiving psychiatric help.

[4] Neither the Crown nor counsel for Smich intend to call all of these witnesses at trial, nor do they intend to elicit all of these out of court statements allegedly made by Ms. Babcock. However, they seek rulings as to the admissibility of those statements that they may seek to tender at trial, either during the Crown’s case or during the defence case. In some instances, counsel seek to tender the statements for their truth, pursuant to a hearsay exception. In other instances, the statements are tendered as non-hearsay, that is, as original circumstantial evidence inferring something about the declarant Ms. Babcock’s conduct or her state of mind and/or something about the recipient’s conduct or state of mind.

[5] As noted previously, there is broad agreement between the Crown and counsel for Smich as to the admissibility of most of this evidence. However, there are a small number of statements where they sharply disagree about admissibility.

[6] Millard was self-represented on this particular Motion, although he has been represented by Mr. Pillay on almost all of the earlier pre-trial Motions and on a further Motion that is being heard this week. Millard has had abundant time to retain Mr. Pillay or some other counsel on this Motion, as it has been scheduled for some time. Millard has chosen to be self-represented. He joined in the Motion and made submissions on his own behalf, opposing the admissibility of one important statement tendered by the Crown. He did not oppose admission of the other statements of Ms. Babcock tendered by the Crown and by counsel for Smich. In fact, he sought admission of a large number of additional statements that were not tendered by the other two parties. During argument, he asked for additional time to seek advice from his long-time counsel Mr. Pillay, before he concluded his submissions on the Motion. I allowed him this additional time.

[7] On September 22, 2017, at the end of three days of argument spread over a five day period, in order to allow Millard further time to consult with counsel, I reserved judgment. These are my Reasons for admitting most of the out of court statements tendered by the parties on this Motion. I also excluded a number of the statements or re-characterized them as non-hearsay.

B. FACTS

[8] Given the broad agreement between the parties as to the admissibility of many of the out of court statements that they wish to tender, and given my own assent to most of what they have agreed to, I do not propose to set out a detailed account of the statements at this stage. This section of the Reasons summarizes the broad factual context in which the statements arise. In the next section of the Reasons, I will set out the statements in greater detail, especially the small number of disputed statements.

[9] As I understand the Crown’s case, they will lead evidence as to Ms. Babcock’s movements and activities in and around Toronto in the days and months leading up to her disappearance in early July 2012. The evidence will indicate that she was troubled and unstable, struggling with mental illness and experiencing difficulties in her relationship with her family. She had graduated from university and was living at home with her parents in late 2011. However, she was hospitalized twice in late 2011 and early 2012 and received psychiatric assistance. She also broke up with a boyfriend during this period. At some point in 2012 she moved out of her parents’ home in Etobicoke. It appears that she began to work as an “escort” in early June 2012. She had no real home at this point and moved from one place to another, staying with various people (including with her escort clients), while constantly looking for the next place to stay.

[10] In the context of this unstable and itinerant lifestyle, it appears that Ms. Babcock contacted Millard and that they met on July 3, 2012. The Crown alleges that she was murdered by Millard and Smich between July 3^rd^ and 4^th^, 2012 and that her remains were cremated in a veterinary incinerator on Millard’s property on July 23, 2012. Her remains have never been found and she has never re-appeared.

[11] The out of court statements allegedly made by Ms. Babcock during the period prior to her disappearance are tendered by the parties for differing purposes. In very general terms, the Crown relies on the statements to infer that Ms. Babcock was vulnerable and to help explain why she might reach out to Millard. In addition, the statements are said to infer Ms. Babcock’s infatuation with Millard (who was a former lover or boyfriend) and more importantly, the statements tend to indicate that Ms. Babcock was causing difficulties in Millard’s relationship with his current girlfriend, one Christina Noudga. In this regard, the statements relate to Millard’s alleged motive to meet with Ms. Babcock in early July 2012 and to harm her.

[12] Counsel for Smich, on the other hand, generally seeks to rely on Ms. Babcock’s out of court statements to infer that she was leading a high risk lifestyle, that she was unstable and occasionally suicidal, that she was unhappy at home and intended to travel to the United States, and that she used drugs. All of this evidence relates to whether the Crown has proved that Ms. Babcock is deceased, as opposed to having simply disappeared in order to start a new life elsewhere. Alternatively, if she is deceased, the defence relies on this same body of evidence to infer that she may have died from some other cause, such as suicide or drug overdose, or that she died in some manner related to the “escort” business. As I understand his position, Millard relies on the evidence for the same purposes as Smich, although he also advances some additional theories of relevance that I will discuss in the next section of these Reasons.

C. ANALYSIS

[13] The parties tender the various out of court statements of Ms. Babcock, sometimes for hearsay purposes and sometimes for non-hearsay purposes, generally in relation to Ms. Babcock’s state of mind. The distinction between hearsay and non-hearsay evidence of the deceased’s state of mind was explained by Doherty J., as he then was, in R. v. Pan (1990), 58 C.C.C. (3d) 334 at pp. 341 and 343-4 (Ont. H.C.J.):

Assuming relevance, evidence of utterances made by a deceased (although the rule is not limited to deceased persons) which evidence her state of mind are admissible. If the statements are explicit statements of a state of mind, they are admitted as exceptions to the hearsay rule. If those statements permit an inference as to the speaker's state of mind, they are regarded as original testimonial evidence and admitted as circumstantial evidence from which a state of mind can be inferred. The result is the same whichever route is taken, although circumstantial evidence of a state of mind poses added problems rising out of the inference drawing process [citations omitted]

Evidence of the deceased's state of mind may, in turn, be relevant as circumstantial evidence that the deceased subsequently acted in accordance with that avowed state of mind. Where a deceased says, "I will go to Ottawa tomorrow", the statement affords direct evidence of the state of mind — an intention to go to Ottawa tomorrow — and circumstantial evidence that the deceased in fact went to Ottawa on that day. If either the state of mind, or the fact to be inferred from the existence of the state of mind is relevant, the evidence is receivable subject to objections based on undue prejudice. [citations omitted]

An utterance indicating that a deceased had a certain intention or design will afford evidence that the deceased acted in accordance with that stated intention or plan where it is reasonable to infer that the deceased did so. The reasonableness of the inference will depend on a number of variables including the nature of the plan described in the utterance, and the proximity in time between the statement as to the plan and the proposed implementation of the plan.

The rules of evidence as developed to this point do not exclude evidence of utterances by a deceased which reveal her state of mind, but rather appear to provide specifically for their admission where relevant. The evidence is not, however, admissible to show the state of mind of persons other than the deceased (unless they were aware of the statements), or to show that persons other than the deceased acted in accordance with the deceased's stated intentions, save perhaps cases where the act was a joint one involving the deceased and another person. The evidence is also not admissible to establish that past acts or events referred to in the utterances occurred. [citations omitted]

[14] Doherty J.’s above reasoning in Pan was subsequently adopted by the Supreme Court in R. v. Smith (1992), 75 C.C.C. (3d) 257 at 266 (S.C.C.) and in R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 at 311 (S.C.C.). Also see R. v. Candir (2009), 2009 ONCA 915, 250 C.C.C. (3d 139 at para. 56 (Ont. C.A.) where Watt J.A. gave the judgment of the Court and stated:

The prosecutor may tender explicit statements of the declarant’s state of mind or statements that give rise to an inference about the declarant’s state of mind. The former are hearsay and require an exception to establish their admissibility. The latter are not hearsay and are admitted as circumstantial evidence from which the declarant’s state of mind may be inferred: P. (R.) at p. 341. Whether admitted by exception or as beyond the exclusionary reach of the hearsay rule, the statements should be contemporaneous with the state of mind of which they are evidence.

[15] The state of mind exception to the hearsay rule, as discussed in Pan, is closely related to another traditional common law exception for statements of intention. In addition, statements asserting a present bodily feeling or emotional condition have been admitted at common law on the basis of similar reasoning. Finally, statements of the deceased that accompany and explain the doing of some relevant act have been admitted. In all these instances, the hearsay utterance is necessary (because of the deceased’s absence as a witness) and generally reliable (mainly because of the contemporaneity of the statement to the state of mind, intention, bodily condition, or accompanying act). See: Lederman, Bryant and Fuerst, The Law of Evidence in Canada, 4^th^ Edition [LexisNexis Canada Inc. 2014], at pp. 334-350; Watt’s Manual of Criminal Evidence, 20^th^ Edition [Thomson Reuters 2017], at pp. 386-394.

[16] The above authorities make it clear that it is only the declarant’s contemporaneous state of mind, emotion, condition, or intention that is admissible and not “past acts or events referred to in the utterances” or some “anterior factual assertion” underlying the present state of mind or intention, as Doherty J. and Lamer C.J.C. put it in Pan, supra at p. 344 and in Smith, supra at pp. 266-7. These “past acts or events” or “anterior factual assertions” can only be admitted for their truth by going beyond the scope of the traditional common law exceptions, that is, by relying on the modern principled exception to the hearsay rule. The necessity criterion for the principled exception is not at issue in this case, given that Ms. Babcock is clearly not available as a witness. The only issue is whether the threshold reliability criterion can be satisfied because the statements are “procedurally reliable” or “substantively reliable,” or a combination of both, as those terms are understood in the recent case law concerning the principled exception. See: R. v. Khelawon (2006), 2006 SCC 57, 215 C.C.C. (3d) 161 (S.C.C.); R. v. Blackman (2008), 2008 SCC 37, 232 C.C.C. (3d) 233 (S.C.C.); R. v. Bradshaw, 2017 SCC 35, [2017] S.C.J. No. 35.

[17] Applying the above principles to the present case, there are a number of civilian witnesses who the parties will call, or who they may call, and who can testify to certain out of court statements made by Ms. Babcock. I will address each of these witnesses in the same order as they were addressed in oral argument, setting out only those statements that the parties seek to tender.

(i) Andrew Michalski

[18] The first witness is Andrew Michalski. He was one of Millard’s best friends, as well as a friend of Ms. Babcock. On April 17, 2012, Mr. Michalski had a text message conversation with Ms. Babcock in which Ms. Babcock stated, “This is what I got from dell [Millard]. I just looked at my cell.” Seven seconds later, Ms. Babcock appeared to forward a text message to Mr. Michalski that she had just received in which the author of the text stated, “it’s unfortunate you got dealt a bad hand, I don’t blame you for your disorder, but it is up to you to manage it” and “you are harmful to me, please don’t try to contact me until you’ve made some huge leaps of self discovery, as I said before, good luck with life.” The text conversation between Mr. Michalski and Ms. Babcock continued and she stated, “dells [Millard] defs not a fan of me. He told me he told xtina [Christina Noudga] when he slept with me before. Erg these ppl cause do much unwanted drama for me. And bring me into it.” The full text message conversation between Ms. Babcock and Mr. Michalski is set out at p. 12 of the Crown’s Factum.

[19] The Crown and counsel for Smich both submit that Ms. Babcock’s text messages with Mr. Michalski are admissible for their truth. Millard opposes their admission. He submits that the inference and the assertion by Ms. Babcock that Millard was the person who sent the above text message to Ms. Babcock, which she then forwarded to Mr. Michalski, is too weak and unreliable.

[20] I am satisfied that Ms. Babcock’s text messages to Mr. Michalski on April 17, 2012 are admissible for their truth. Her concluding statement — “dells defs not a fan of me” — is an assertion of her state of mind, that is, her belief that Millard did not like her. Similarly, her further statement — “these ppl cause do much unwanted drama for me. And bring me into it.” — asserts her belief that she was being drawn into an “unwanted drama” with Millard and Ms. Noudga. The antecedent event or cause of this state of mind, that Millard had told Ms. Noudga that “he slept with me before,” would not have been admissible under the traditional common law state of mind exception. However, it is substantively reliable as it is corroborated by Millard’s own admissible text messages to Ms. Noudga that same day which state the same thing. In addition, Millard’s own texts with Ms. Noudga corroborate the “drama” that was arising between these three parties due to Millard and Ms. Babcock having previously been lovers. The contemporaneous texts between Millard and Ms. Noudga also corroborate Ms. Babcock’s belief that Millard did not like her, as he twice told Ms. Noudga that “I’m going to hurt her” [Ms. Babcock] and that “I’ll make her leave.” For all these reasons, the concluding statements in Ms. Babcock’s text messages to Mr. Michalski on April 17, 2012 are admissible for their truth under the state of mind exception and under the principled exception to the hearsay rule.

[21] The only real issue concerning these April 17, 2012 text messages between Ms. Babcock and Mr. Michalski is the admissibility of her initial statement to the effect that it was Millard who had sent her the third party text message that she then forwarded to Mr. Michalski. This is not evidence of her state of mind but rather it asserts an antecedent event or cause of her state of mind. In other words, her subsequent statement to the effect that Millard does not like her appears to be based on her reading of the text message that she had just received. Accordingly, this assertion as to the author of the third party text is not admissible under the traditional common law state of mind exception. However, it is admissible under the principled exception. The length of the message that Ms. Babcock forwarded to Mr. Michalski, and the fact that it was forwarded within seven seconds, infers the truth of Ms. Babcock’s assertion that she was, in fact, forwarding a text message that she had just received from someone. Furthermore, the content of the text message closely reflects a text conversation that Millard was having at exactly the same time with Ms. Noudga concerning his prior relationship with Ms. Babcock, as he asserted to Ms. Noudga that “she [Ms. Babcock] really is mentally ill,” and he asserted his intention “to hurt her” [Ms. Babcock] and “make her leave.” The coincidence is too great to suggest that someone other than Millard sent the text message to Ms. Babcock, on these very same topics and at the same time as he was discussing them with Ms. Noudga. The inference is overwhelming that the text message to Ms. Babcock — “you are harmful to me, please don’t try to contact me” — was sent by Millard, consistent with his contemporaneous promise to Ms. Noudga — “I’ll make her leave.”

[22] I am satisfied that Ms. Babcock’s statement — “this is what I got from dell. I just looked at my cell” — is substantively reliable and is admissible for its truth under the principled exception to the hearsay rule. The forwarded third party text message itself introduces a second level of hearsay. However, that second level is squarely covered by the hearsay exception for statements/admissions of the accused. See R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 at paras. 168-174 (S.C.C.) where Iacobucci J., speaking for the majority, held that double hearsay is inadmissible “unless a hearsay exception can be established for each level of hearsay” and that “each level of double hearsay must fall within an exception.” Also see R. v. Griffin and Harris, supra at paras. 57-8.

(ii) Christina Noudga

[23] Both the Crown and counsel for Smich agree that four out of court statements allegedly made by Ms. Babcock to Millard’s girlfriend, Christina Noudga, are admissible as non-hearsay. I agree. The four statements are summarized at p. 2 of Exhibit 4. They all involve Ms. Babcock telling Ms. Noudga about her sexual affairs, including with Millard. Whether these statements were true or not, their relevance is that they were made to Ms. Noudga and they appear to have had a certain impact on her. She, in turn, took certain steps in her discussions with Millard to address this matter, for example, in the April 17, 2012 text messages already described above. In other words, Ms. Babcock’s statements to Ms. Noudga are relevant to the state of mind of the recipient of the statement and to events in the narrative that relate to motive.

(iii) Shawn Lerner

[24] Both the Crown and counsel for Smich agree that four out of court statements allegedly made by Ms. Babcock to her former boyfriend, Shawn Lerner, are admissible for their truth. I agree. These four statements are summarized at p. 3 of Exhibit 4. They are all assertions by Ms. Babcock about her mental health, including about suicide. They also infer if and when her suicidal expressions ended. In other words, they assert a contemporaneous state of mind.

[25] In addition, the parties seek to tender seven further statements as non-hearsay. They are also summarized at p. 3 of Exhibit 4. They are tied up with Mr. Lerner’s observations concerning Ms. Babcock’s mental health, as it deteriorated in late 2011 and led to her hospitalization, and with his observations of her movements and her state of mind in the last days before she disappeared in early July 2012. Regardless of their truth, her statements infer her poor mental health, her unstable and itinerant lifestyle, and her vulnerability at various stages of the narrative. I agree that these seven statements are admissible as non-hearsay.

[26] Millard sought the admission of one further statement by Ms. Babcock to Mr. Lerner, summarized at p. 3 of Exhibit 4. It is to the effect that Ms. Babcock told Mr. Lerner that she was not working as an escort but “was cleaning for them.” I agree with Millard that this statement is admissible as non-hearsay, to arguably infer something about the nature of the relationship between Ms. Babcock and Mr. Lerner at the time. The Crown did not oppose its admission.

(iv) Karoline Shirinian

[27] Ms. Shirinian was Ms. Noudga’s best friend, as well as a friend of Ms. Babcock. The Crown and counsel for Smich seek to tender ten statements allegedly made to Ms. Shirinian by Ms. Babcock as non-hearsay. They are summarized at pp. 5-6 of Exhibit 4. Most of them are analytically similar to Ms. Noudga’s evidence, summarized above, as they involve Ms. Babcock openly talking about having an affair with Millard and about being infatuated with Millard (and Ms. Shirinian then discusses these matters with Ms. Noudga). These statements are admissible, regardless of their truth, because of the impact they may have had on Ms. Noudga and on Millard. They are relevant to motive. In addition, Ms. Babcock talked openly about being an escort, inferring her vulnerability and high risk life-style. Finally, she talked about “meeting some guys at Ribfest” and asking Ms. Shirinian to join her. This was a future event that post-dated Ms. Babcock’s disappearance around July 3 and 4, 2017, inferring that she was not intending to disappear. I agree that all ten of these statements are admissible as non-hearsay.

[28] In addition, the parties seek to tender six statements allegedly made by Ms. Babcock to Ms. Shirinian for their truth. They are also summarized at pp. 5-6 of Exhibit 4. I agree that five of these statements are admissible pursuant to hearsay exceptions. One is a statement of intention as Ms. Babcock asserted that she wanted to travel to Las Vegas, shortly before her disappearance. Four of these statements involve assertions about Ms. Babcock’s work as an escort, about how much she earned, about consuming drugs, and about dating a film producer. These statements are all substantively reliable, as they are corroborated, and they are admissible pursuant to the principled exception.

[29] The last statement (summarized at the bottom of p. 6 of Exhibit 4) is tendered for its truth. It involves an alleged assertion by Ms. Babcock that she no longer needed to take her medication and that a doctor had given her this advice. In my view, this is better characterized as non-hearsay because it infers Ms. Babcock’s state of mind or belief, regardless of its truth. There is no substantive reliability to the assertion that a doctor had told her that she did not need her medication. None of the medical records, nor Dr. Khattak, confirm this advice so it is uncorroborated. It is not admissible for its truth but the inference as to her own belief concerning her need for medication is admissible as non-hearsay.

[30] Millard sought the admission of six further statements by Ms. Babcock to Ms. Shirinian as non-hearsay. They are summarized at pp. 5-6 of Exhibit 4. They are to the effect that Ms. Babcock said she was on medication for anxiety and depression, she said she often went to Millard’s home, she once asked Ms. Shirinian to work for her in the escort business, she said she really liked online dating websites, she was “extremely infatuated” with Millard, and she had hit her head and cut herself. I agree with Millard that these six statements are admissible as non-hearsay. The Crown did not oppose their admission. Some of these statements are tied up with Ms. Shirinian’s observations and some infer Ms. Babcock’s state of mind or her interest in the escort business or her interest in Millard.

(v) Megan Orr

[31] Ms. Orr was a friend of Ms. Noudga, Ms. Babcock, and Ms. Shirinian. Two statements allegedly made by Ms. Babcock to Ms. Orr involve assertions about Ms. Babcock’s mental health. They are summarized at pp. 7 and 9 of Exhibit 4 and involve assertions that she suffered from anxiety, depression, borderline personality disorder, and a serious cocaine addiction. The first two assertions (concerning anxiety and depression) are substantively reliable, as they are corroborated by the medical records, but the last two assertions (concerning a personality disorder and cocaine addiction) are not supported by the medical records. Given that the more reliable evidence in the medical records is being tendered for its truth, the parties sensibly agreed that these two assertions are simply admissible as non-hearsay evidence inferring Ms. Babcock’s own beliefs about her mental health.

[32] The Crown and counsel for Smich also seek to tender ten statements allegedly made by Ms. Babcock to Ms. Orr as non-hearsay evidence inferring the state of the relationship between Ms. Babcock, Ms. Noudga, and Millard. They are summarized at pp. 7-11 of Exhibit 4. They are analytically similar to the evidence of Ms. Noudga and Ms. Shirinian, set out above, as they involve Ms. Babcock talking openly to Ms. Orr about being infatuated with Millard, about having sex with him, and about discussing this with Ms. Noudga in the hope that it would cause Millard and Ms. Noudga to break up. I agree that all of these statements are admissible as non-hearsay because they infer Ms. Babcock’s state of mind and her intentions in relation to Ms. Noudga and Millard, regardless of their truth. They are all relevant to the alleged “drama” between these three parties and to motive.

[33] The Crown and counsel for Smich also seek to tender five statements allegedly made by Ms. Babcock to Ms. Orr for their truth. They are summarized at pp. 9-10 of Exhibit 4. I agree with the parties that they are admissible pursuant to hearsay exceptions. In her last phone call with Ms. Orr, prior to disappearing, Ms. Babcock made two statements of intention relating to her living arrangements — that she “was going to stay with Nate” [Dreksler] and that she was going to be set up with a place to live with a film “producer” [Jeff Wilson]. In addition to being statements of intention, these two statements are substantively reliable as they are corroborated. Ms. Babcock also said that she was at a hotel and that she had $3,000 or $4,000. This statement is also substantively reliable as it is corroborated. The two further statements tendered for their truth are that Ms. Babcock’s parents were “strict” but that they “cared for her” and that she did not have a passport as she had lost it. These two statements are substantively reliable as they are corroborated.

[34] Although there is agreement between the parties about the admissibility of the above seventeen statements made to Ms. Orr, there is sharp disagreement about one further statement. It is summarized at the top of p. 9 of Exhibit 4 and involves an assertion that Ms. Babcock admitted “sleeping with her clients,” one of whom was a film producer who she was going to move in with [presumably Jeff Wilson]. The Crown concedes that the latter part of this statement is admissible for its truth, as a statement of intention. The Crown also concedes that the jury may infer, in any event, that Ms. Babcock was “sleeping” with her clients, that is, the jury may infer that she was working as a prostitute since evidence will be called that she was an “escort” and that she was staying overnight at her clients’ premises.

[35] The Crown does not submit that the alleged statement about “sleeping” with her clients is substantively unreliable. Ms. Babcock made a similar statement to at least one other friend and her clients were simply not asked this question when interviewed by the police. Rather, the Crown’s position is that this evidence is irrelevant or that its probative worth is outweighed by its prejudicial effect. I disagree. Ms. Trehearne submits, correctly in my view, that prostitution is an inherently more dangerous trade than working as an “escort” who may or may not engage in private sexual intimacy with clients. Indeed, one of the main premises of the Court’s decision in A-G Canada v. Bedford (2014), 2013 SCC 72, 303 C.C.C. (3d) 146 (S.C.C.) was that the sex trade is dangerous, especially when it is not being practiced at known secure premises that are under the control of the prostitute.

[36] The Crown’s main argument in relation to Ms. Babcock’s statement about “sleeping” with her clients is that Smich is somehow raising an “alternate suspect” defence. Ms. Cameron submits that evidence about prostitution is tendered by the defence to infer the danger involved in the sex trade and to give rise to a further possible inference that Ms. Babcock may have disappeared as a result of some other cause unrelated to the two accused, for example, due to a desire to escape a dangerous lifestyle or due to a violent client. I do not agree that this process of reasoning means that Smich is raising an “alternate suspect” defence. There is no known alternate suspect that the defence can point to. See R. v. Grant (2015), 2015 SCC 9, 321 C.C.C. (3d) 27 (S.C.C.). In my view, the defence is simply testing the cogency of the circumstantial inferences that the Crown relies on to infer that Ms. Babcock disappeared and was killed while with the two accused on July 3 and 4, 2012. The defence is entitled to point to alternative reasonable possibilities in order to explain Ms. Babcock’s disappearance. Whether the jury agrees that these alternative theories are reasonable possibilities, as opposed to mere speculation, will depend on an assessment of all the circumstantial evidence. See: R. v. Villaroman (2016), 2016 SCC 33, 338 C.C.C. (3d) 1 (S.C.C.); R. v. Morris, Brissett and Benjamin, 2017 ONSC 835 at paras. 103-106.

[37] Finally, I do not agree that the probative value of this evidence is substantially outweighed by its prejudicial effect. Any moral prejudice concerning prostitution will be minimal, as the jury will already have heard that Ms. Babcock was working as an “escort.” See R. v. Seaboyer (1991), 66 C.C.C. (3d) 321 (S.C.C.); R. v. Shearing (2002), 2002 SCC 58, 165 C.C.C. (3d) 225 (S.C.C.). Furthermore, I will instruct the jury as to the limited relevance of this evidence and caution them against any prejudicial reasoning based on the character of the deceased.

[38] For all these reasons, the alleged statement by Ms. Babcock to Ms. Orr concerning “sleeping with her clients” is admissible for its truth pursuant to the principled exception to the hearsay rule.

[39] Millard sought the admission of five additional statements by Ms. Babcock to Ms. Orr, as non-hearsay. They are summarized at pp. 8, 9 and 11 of Exhibit 4. They are to the effect that Ms. Babcock said that she had been kicked out of her home in the winter of 2011/2012, that she asked Ms. Orr to work in the escort business, that she talked about suicide, that she banged her head and threw herself down the stairs, and that she met someone on an internet dating site. I agree with Millard that these five statements are admissible as non-hearsay. The Crown did not oppose their admission. They infer Ms. Babcock’s turbulent home life, her interest in escort work, her mental health difficulties, and her interest in internet dating websites.

[40] Millard sought the admission of two further statements by Ms. Babcock to Ms. Orr, both for their truth. The first of these statements is summarized at the top of p. 10 of Exhibit 4. It is to the effect that Ms. Babcock told Ms. Orr that she had been paid to “show herself nude” on a “live cam website.” Counsel for Smich did not join Millard in seeking the admission of this statement and the Crown opposed its admission. It does not assert a state of mind but relates to a past event or incident. Accordingly, it would have to be admitted pursuant to the principled exception to the hearsay rule. There appears to be no serious issue as to the substantive reliability of the statement as there are two witnesses who confirm this incident. Ms. Orr herself was present on one occasion, with Ms. Babcock and David Austerweil who was Ms. Babcock’s boyfriend at the time. Ms. Orr participated with Ms. Babcock in the web cam performance, after they had been drinking. Mr. Austerweil confirmed that this activity took place in the privacy of the home where he and Ms. Babcock were living, before they broke up in March 2012. It can be seen that there is some issue concerning the necessity of admitting a hearsay version of this incident, when two witnesses are available to give a non-hearsay account as to what actually happened.

[41] However, the real issue is the relevance of this incident. Millard submits it provides additional evidence of Ms. Babcock’s high risk lifestyle and helps to provide alternative explanations for her disappearance in July 2012. I disagree. This conduct took place in early 2012 and was apparently not repeated in the months leading up to Ms. Babcock’s disappearance. Furthermore, it was not the kind of high risk behaviour that could reasonably provide a possible explanation for her disappearance in July 2012. It took place in the safety of her home with others present. It bears no similarity, in terms of danger or risks, to the “escort” work and to the mental health and suicide issues that are situated in the June 2012 time period, which is when Ms. Babcock disappeared.

[42] In my view, Millard is speculating in advancing the theory that live web cam work in early 2012 can help to explain Ms. Babcock’s disappearance in July 2012. It is more in the nature of an attack on Ms. Babcock’s character. Counsel for Smich took the correct position, in my view, in not pursuing this matter. It is inadmissible.

[43] The second of the two further statements Millard sought to tender for their truth, made by Ms. Babcock to Ms. Orr, is summarized at p. 11 of Exhibit 4. It is to the effect that Ms. Babcock had mentioned to Ms. Orr that her former boyfriend David Austerweil had been “violent with her.” Millard submits that it is relevant to the defence theory that Ms. Babcock wanted to disappear in July 2012 because of violence in her life. Counsel for Smich does not join Millard in seeking the admission of this statement and the Crown opposes it.

[44] Apparently Mr. Austerweil was charged with assaulting Ms. Babcock, when their relationship ended in March 2012, so there may be some substantive reliability to this allegation. However, the real issue is its relevance in helping to explain Ms. Babcock’s disappearance in July 2012. There is simply nothing to suggest that alleged assaults by Mr. Austerweil, in early 2012, were somehow on Ms. Babcock’s mind in early July 2012 when she disappeared. She was working as an “escort” at this time, she was also troubled with mental illness and was possibly suicidal, she was also alienated from her parents, she expressed an interest in traveling, and she was itinerant and essentially homeless. I have allowed a large body of evidence to this effect to be tendered by the defence, in order to advance the theory that there are other possible explanations for Ms. Babcock’s disappearance at this time, aside from being murdered at the hands of the two accused. It is pure speculation to also advance a theory that Ms. Babcock was fleeing assaults by Mr. Austerweil. He was simply not a factor in Ms. Babcock’s life at this point.

[45] In my view, the statement that Mr. Austerweil was “violent” with Ms. Babcock is irrelevant and inadmissible. Once again, counsel for Smich took the correct position by not pursuing this matter. It would simply distract the jury and complicate the trial with an irrelevant collateral inquiry.

(vi) Dr. Sohail Khattak

[46] Dr. Khattak is a witness who was an escort client of Ms. Babcock. He saw her in the days shortly before she disappeared in early July 2012. He offered to set her up in an apartment and to pay a portion of the rent. She abruptly left Dr. Khattak when she got a phone call on July 2, 2012. The parties seek to tender nine statements, allegedly made by Ms. Babcock to Dr. Khattak during this period, as non-hearsay. They are summarized at p. 14 of Exhibit 4. They are tied up with Dr. Khattak’s observations of Ms. Babcock and his activities with her. They also infer her itinerant and unstable lifestyle, her lack of a home, and her abrupt departure. I agree with the parties that these nine statements are admissible as non-hearsay.

(vii) Bradley Dean

[47] Mr. Dean was another escort client of Ms. Babcock who saw her in the last days before she disappeared. The parties seek to tender five statements allegedly made by Ms. Babcock to Mr. Dean as non-hearsay. They are summarized at pp. 15-16 of Exhibit 4. As with Dr. Khattak, the statements to Mr. Dean are tied up with his observations of Ms. Babcock and his activities with her. In addition, they infer her unstable and itinerant lifestyle, her beliefs about her medication, and her use of a pseudonym. I agree with the parties that they are admissible as non-hearsay.

[48] Millard sought to tender three further statements made by Ms. Babcock to Mr. Dean as non-hearsay. They are summarized at pp. 15-16 of Exhibit 4. They are to the effect that Ms. Babcock said she had enough money to stay at a hotel for two nights, that she was dissatisfied with the place where she was staying, and that she had a bad relationship with the person she previously stayed with. The Crown does not oppose the admission of these statements as non-hearsay. I agree that they are admissible. They infer Ms. Babcock’s beliefs about her finances and her itinerant and unhappy lifestyle at the time.

(viii) Shlomo Abuhav

[49] Mr. Abuhav was the owner of the escort agency where Ms. Babcock worked in June 2012. The parties seek to tender one statement allegedly made by Ms. Babcock to Mr. Abuhav for its truth. The statement is summarized at p. 17 of Exhibit 4 and is to the effect that Ms. Babcock admitted to Mr. Abuhav that she “stayed at her first date’s house for three days.” This admission upset Mr. Abuhav as it contravened the rules of the escort agency. The parties agree that the statement is admissible pursuant to the principled exception as it is corroborated by Mr. Dean. It was also against Ms. Babcock’s interests to make this admission to Mr. Abuhav. I agree with the parties that the statement is admissible for its truth.

(ix) Jeff Wilson

[50] Mr. Wilson was another escort client of Ms. Babcock. He is apparently the film “producer” referred to in a number of her statements. She stayed with him for a week during the final days before she disappeared. The parties seek to tender seven statements allegedly made by Ms. Babcock to Mr. Wilson for their truth. They are summarized at pp. 18-19 of Exhibit 4. They are mainly statements of intention, indicating her plans to move to a hotel (that Mr. Lerner had arranged for her) and to an apartment (that Dr. Khattak was arranging for her). She also stated that she had lost her passport. These statements are all substantively reliable because they are corroborated. I agree with the parties that they are admissible for their truth.

[51] There are three further statements to Mr. Wilson that the parties seek to tender, summarized at the top of p. 18 of Exhibit 4. There was some suggestion that two of these statements could be admissible for their truth. The three statements involve Ms. Babcock describing difficulties she had had with a previous roommate, telling various stories about her work as an escort, and threatening suicide when Mr. Wilson asked her to leave his home. None of these statements are substantively reliable nor do they genuinely express a present state of mind or present intention. However, they are relevant and admissible as non-hearsay inferring her unstable and itinerant lifestyle and her use of suicide as a threat. The parties ultimately agreed with my view that these three statements should all be characterized as non-hearsay.

[52] Millard sought the admission of one further statement made by Ms. Babcock to Mr. Wilson as non-hearsay. It is summarized at p. 19 of Exhibit 4. The Crown does not oppose its admission as non-hearsay. It is to the effect that Ms. Babcock sent Mr. Wilson a text indicating “she had something in place for a year or so.” I agree with Millard that this statement is admissible as non-hearsay. It infers Ms. Babcock’s state of mind at the time.

(x) Jessica Trevors

[53] Ms. Trevors was a complete stranger who saw Ms. Babcock crying outside a subway station in late June 2012 and took her home, as in the parable of the “good Samaritan.” After helping her for a few days, Ms. Trevors drove Ms. Babcock to her parents’ house in Etobicoke on June 30, 2012. The parties seek to tender eleven statements allegedly made by Ms. Babcock to Ms. Trevors for their truth. They are summarized at pp. 20-22 of Exhibit 4. They are either statements of a present intention or present state of mind (e.g., that she did not want to work as an escort but could not stop, that she wanted to take a trip to Las Vegas and then return, and that she wanted to work for one particular escort service) or they are substantively reliable because they are corroborated (e.g., that she used the name Elle when working as an escort, that she had been kicked out of one place she was staying because of her dog, that she made good money as an escort, and that she had $4,000 at one point). I agree that these statements are admissible for their truth.

[54] The parties seek to tender three further statements of Ms. Babcock to Ms. Trevors as non-hearsay. They are summarized at p. 21 of Exhibit 4. They involved Ms. Babcock asking Ms. Trevors to work as an escort and to come to Las Vegas. They also involved over-hearing numerous phone calls in which Ms. Babcock was trying to find a place to stay. I agree with the parties that these statements are all admissible as non-hearsay inferring Ms. Babcock’s itinerant and unstable lifestyle, her possible plans to travel, and her interest in escort work.

[55] There is one alleged statement by Ms. Babcock to Ms. Trevors where the parties disagree in part. It is summarized at p. 20 of Exhibit 4. It involved Ms. Babcock stating that she was “assaulted while working” as an escort but that she kept at it “because the money was so good.” She stated that she could make $1,000 for a “two day weekend.” Both Smich and Millard seek the admission of the entire statement for its truth. The Crown concedes that the part of the statement about making good money as an escort is corroborated and substantively reliable, and that the part of the statement about finding it difficult to leave this line of work asserts a present state of mind. Accordingly, the Crown agrees that these parts of the statement are admissible for their truth. However, the Crown submits that the assertion of a prior work-related assault is entirely uncorroborated (it was never reported to anyone, there were apparently no injuries, and no one confirms the incident) and it was made in unreliable circumstances (Ms. Babcock was needy and vulnerable and trying to secure a place to stay with Ms. Trevors).

[56] Ms. Trehearne concedes that Ms. Babcock was in a new, needy, dependent relationship with Ms. Trevors at the time the statement was made and so the surrounding circumstances are not particularly reliable. She also concedes that there is no detail in the statement as to the time, place, or circumstances of the alleged assault. It is nothing more than a brief conclusory assertion that “stuff …like assaulted” had happened to Ms. Babcock at work. Ms. Trehearne could not point to any corroboration. Her best argument was that any motive to lie or exaggerate was somewhat attenuated by the fact that Ms. Babcock was trying to recruit Ms. Trevors into escort work.

[57] I agree with Ms. Cameron that the statement concerning a prior work-related assault is not admissible for its truth. It does not begin to approach threshold reliability due to the substantive and procedural factors set out above, even under the somewhat relaxed standard for defence hearsay. See: R. v. Folland (1999), 132 C.C.C. (3d) 14 (Ont. C.A.); R. v. Cesar (2016), 2016 ONCA 890, 343 C.C.C. (3d) 484 (Ont. C.A.). Furthermore, it does not assert a present state of mind, intention, or condition. It is classically a reference to “past acts or events” or to some “anterior factual assertion” that underlie a present state of mind, as Doherty J. and Lamer C.J.C. put it in Pan, supra at p. 344 and in Smith, supra at pp. 266-7. These parts of ante mortem statements have always been inadmissible at common law, unless they satisfy the principled exception.

[58] When faced with these difficulties, Ms. Trehearne faintly submitted that the statement about the prior assault was admissible as non-hearsay, to infer Ms. Babcock’s present state of mind or belief about her vulnerability in the sex trade. This, in turn, could help to explain Ms. Babcock’s sudden disappearance in July 2012. However, Ms. Trehearne was driven to concede that this use of the statement depended on it being true. If Ms. Babcock’s assertion about a prior work-related assault was insincere or exaggerated, in an attempt to gain sympathy, it would add nothing to the significant existing body of admissible evidence about her vulnerability. In other words, an asserted belief by Ms. Babcock about a prior work-related assault, proffered as a reasonably possible explanation for her sudden disappearance in July 2012, necessarily involves an implied hearsay assertion that she was in fact assaulted. As Fish J. stated, speaking for the unanimous full Court in R. v. Baldree (2013), 2013 SCC 35, 298 C.C.C. (3d) 425 at para. 39 (S.C.C.):

The relevance of the statement thus hinges on the truth of the declarant’s underlying belief. Any inference that can be drawn from the statement necessarily assumes its veracity.

[59] For all these reasons, the disputed statement to Ms. Trevors is admissible for its truth in part — to the effect that Ms. Babcock said that she made good money as an escort and found it difficult to leave this line of work — but the part of the statement about a prior work-related assault is not admissible.

[60] Millard sought the admission of one further statement by Ms. Babcock to Ms. Trevors as non-hearsay. It is summarized at p. 20 of Exhibit 4. The Crown does not oppose its admission. It is to the effect that Ms. Babcock asked Ms. Trevors to work with her in the escort business. I agree with Millard that this statement is admissible as non-hearsay. It infers some degree of interest in and commitment to work as an escort on Ms. Babcock’s part.

(xi) Candice Hopkins

[61] Ms. Hopkins worked for the same escort agency as Ms. Babcock and met her at work in early June 2012. The parties seek to tender three statements of Ms. Babcock to Ms. Hopkins for their truth. They are summarized at pp. 23-4 of Exhibit 4. They are to the effect that Ms. Babcock talked about opening a party planning business, that she had met a guy who she was staying with in Yorkville and she had fallen in love, and that she took medication (Seroquel). I agree that these three statements are all admissible for their truth. They are all corroborated and substantively reliable. In addition, one is a statement of intention (about future work plans), one is a statement of present emotional condition (about being in love), and one accompanies an observation (about taking medication).

[62] In addition, the parties seek to tender one further statement of Ms. Babcock to Ms. Hopkins as non-hearsay. It is summarized at p. 24 of Exhibit 4. I agree it is admissible as non-hearsay because Ms. Babcock’s statements about looking for a place to stay infer her unstable and itinerant lifestyle. They also accompany observations by Ms. Hopkins about Ms. Babcock appearing to be stressed and upset.

[63] Leaving aside these areas of agreement, there are two statements of Ms. Babcock to Ms. Hopkins where the parties do not agree. These statements concern allegations of “physical violence at home” and “physical violence and emotional trauma” in her family, provided as explanations by Ms. Babcock for not going home. As with the disputed statement to Ms. Trevors about a prior work-related assault, discussed above, the Crown concedes that parts of these statements to Ms. Hopkins are admissible for their truth. Ms. Babcock undoubtedly had a difficult relationship with her family and her attitude was that going home to her family was not a viable option. The Crown concedes that these parts of the statements are corroborated and substantively reliable (her father will testify about the difficulties in Ms. Babcock’s relationship with her family and the psychiatric records, discussed below, confirm this point). Parts of these statements also express a present state of mind (about not wanting to go home) and this is also corroborated by Ms. Babcock’s itinerant drifting from place to place during June 2012. For all these reasons, I agree with the Crown’s concession about the admissibility of these parts of the statement.

[64] However, Ms. Cameron submits that the part of Ms. Babcock’s statement about being a victim of violence at home is not admissible. It is substantively and procedurally unreliable, for much the same reasons as set out above in relation to the allegation made to Ms. Trevors about a work-related assault.

[65] Unlike her position in relation to the statement to Ms. Trevors about a work-related assault, Ms. Trehearne does not submit that the statements to Ms. Hopkins about violence at home are admissible for their truth. She submits they are only admissible as non-hearsay, to infer the depth of Ms. Babcock’s animosity towards her family and to explain her disappearance and her failure to contact her family in the last five years. Millard, on the other hand, seeks the admission of these statements about family violence for their truth.

[66] In my view, the analysis set out above concerning the admissibility of the statement to Ms. Trevors about a prior assault at work, applies to the statements to Ms. Hopkins about assaults at home. They are clearly not admissible for their truth, and Ms. Trehearne wisely conceded this point. There is no corroboration, no detail as to time, place, or circumstance, and no contemporaneous reporting of any such incident or incidents. Furthermore, the circumstances in which the allegations were made are not reliable as Ms. Babcock was unstable and needy, trying to gain sympathy and trying to persuade others to take her in. The statements do not begin to approach threshold reliability under the principled exception and they would have been excluded under the traditional common law exceptions because they involve references to “past acts or events” or to some “anterior factual assertion” that underlie a present state of mind. See Pan, supra at p. 344 and Smith, supra at pp. 266-7.

[67] Ms. Trehearne’s argument concerning non-hearsay, that the statements infer a particularly strong hostility towards Ms. Babcock’s parents and thus help to provide an alternative explanation for her disappearance in early July 2012, runs up against the same difficulties already discussed above in relation to the allegation of a work-related assault. In the first place, the inference that Ms. Babcock bore extreme animosity towards her parents because they had assaulted her, and that this helps to explain her sudden disappearance, necessarily depends on the truth of this allegation. If Ms. Babcock was insincere or exaggerating or attention-seeking, these statements cannot help to explain her disappearance. The relevance of Ms. Babcock’s asserted belief that she was assaulted by her parents, as an explanation for her sudden disappearance, assumes the truth of her belief. See R. v. Baldree, supra at para. 39. Furthermore, the evidence about Ms. Babcock’s disappearance is not merely that she has not gone home or contacted her parents in the past five years. It is that she has not been seen and has not contacted any of her friends, she has not been heard from on social media, and she has not used her bank account or credit card or telephone. In other words, a belief that she was assaulted by her parents (even if reliable and sincere) is minimally probative of this broad-based disappearance. On the other hand, it would be substantially prejudicial to the trial process because the Crown would be drawn into a dispute over whether the allegation of domestic violence was true (I am advised that the parents deny it), which the jury would then have to resolve.

[68] For all these reasons, the disputed statement to Ms. Hopkins is admissible for its truth in part — to the effect that Ms. Babcock said that she had a difficult relationship with her family and that returning home was not a viable option — but the part of the statement about prior assaults or violence at home is not admissible.

[69] Millard sought the admission of four further statements made by Ms. Babcock to Ms. Hopkins, as non-hearsay. They are summarized at pp. 23-4 of Exhibit 4. The Crown does not oppose their admission as non-hearsay. They are to the effect that Ms. Babcock said that she was going to stay at a Hillside Drive address for a couple of days and she said that she had fallen in love with a guy on the first night they met. I agree with Millard that these statements are admissible as non-hearsay, to infer Ms. Babcock’s emotional state, her state of mind, and her intentions.

(xii) Richard Marcovitch

[70] Mr. Marcovitch was a driver at the escort service where Ms. Babcock worked. The parties seek to tender one statement allegedly made by Ms. Babcock, as non-hearsay. Mr. Marcovitch overheard her making a phone call in which she was trying unsuccessfully to get someone to come and pick her up at the escort service. The statement is tendered as part of the narrative, to help explain why Ms. Babcock ended up staying that night at the escort service offices. It also infers her itinerant and unstable lifestyle. I agree with the parties that the statement is admissible as non-hearsay.

(xiii) Jacob Goguen

[71] Mr. Goguen was a friend of Ms. Babcock’s. He was one of the people she was trying to stay with, prior to her disappearance. He is presently not being called by the Crown. He may be called by Smich. If he is called, the parties agree that the three statements summarized at p. 26 of Exhibit 4 are admissible for their truth. The statements involve Ms. Babcock looking for a place to stay, asserting that she was “into prostitution,” and stating that she had been “contemplating suicide.” I agree with the parties that the statements all assert a present intention or a present state of mind and they are admissible for their truth.

(xiv) Stefan Blasiak

[72] Mr. Blasiak was another friend of Ms. Babcock. He met up with her on July 1, 2012, shortly before her disappearance. The parties seek to tender six statements of Ms. Babcock to Mr. Blasiak for their truth. They are summarized at pp. 27-8 of Exhibit 4. I agree with the parties that these six statements are admissible for their truth. Some are statements asserting a present intention (that she wanted to travel to Las Vegas or Disneyland and that she wanted to travel with a wealthy doctor she had met). Some are statements that are corroborated and are substantively reliable (that she was living in motels and that she was banging her head against the wall and pulling out her hair).

[73] In addition, the parties seek to tender two statements of Ms. Babcock to Mr. Blasiak as non-hearsay. These statements are summarized at pp. 27-8 of Exhibit 4. I agree with the parties that they are admissible as non-hearsay. Both statements infer Ms. Babcock’s interest in or preoccupation with Millard (the statements are to the effect that she often spoke about Millard and always spoke highly of him).

(xv) Nicole MacLeod

[74] Ms. MacLeod was another friend of Ms. Babcock who she reached out to in the days prior to her disappearance. The parties seek to tender two statements of Ms. Babcock to Ms. MacLeod for their truth. They are summarized on p. 29 of Exhibit 4. I agree with the parties that these two statements are admissible for their truth. One asserts a present state of mind and a present intention (that Ms. Babcock had a poor relationship with her parents and was trying to get access to psychiatric help at two hospitals). The other statement is corroborated and substantively reliable (that Ms. Babcock had taken her dog to her parents’ home because the dog was a burden at the places where she was staying).

[75] In addition, the parties seek to tender one statement made to Ms. MacLeod as non-hearsay. It is summarized at p. 29 of Exhibit 4. I agree with the parties that it is admissible as non-hearsay. It infers Ms. Babcock’s instability and lack of a home as she asked Ms. MacLeod if she could stay with her.

[76] Millard sought the admission of one further statement made by Ms. Babcock to Ms. MacLeod, as non-hearsay. It is summarized at the top of p. 29 of Exhibit 4. It is to the effect that Ms. Babcock said that she had been diagnosed with borderline personality disorder. The Crown does not oppose its admission. It is not substantively reliable, as there was no such diagnosis, but it does infer Ms. Babcock’s own beliefs about her mental health. It is admissible for this non-hearsay purpose.

(xvi) Joshua Perry

[77] Mr. Perry is not presently being called as a witness by the Crown. He may be called as a defence witness by Smich. If he is called by Smich, the parties agree that one statement made by Ms. Babcock to Mr. Perry is admissible for its truth. The statement is that Ms. Babcock “admitted to being an escort” (as summarized at p. 30 of Exhibit 4). I agree that the statement is admissible for its truth. It is corroborated and is substantively reliable.

[78] Millard sought the admission of a further statement by Ms. Babcock to Mr. Perry for its truth. It is summarized at p. 30 of Exhibit 4 and is to the effect that Ms. Babcock told Mr. Perry that she had been assaulted by her former boyfriend David Austerweil. Counsel for Smich does not join Millard in seeking the admission of this statement and the Crown opposes it.

[79] I have already ruled that a similar statement made by Ms. Babcock to Ms. Orr, about alleged assaults by Mr. Austerweil, is irrelevant and inadmissible. I simply repeat that ruling in relation to this alleged statement to Mr. Perry.

(xvii) Daniel Fantridakis

[80] Mr. Fantridakis may be called as a Crown witness. If he is called, the parties agree that one statement of Ms. Babcock to Mr. Fantridakis is admissible for its truth. The statement is summarized at p. 31 of Exhibit 4. It is to the effect that Ms. Babcock bragged about a “rich movie boyfriend.” This statement, apparently referring to Mr. Wilson, is corroborated and is substantively reliable. I agree that it is admissible for its truth.

(xviii) Elisabeth Vanrensburg

[81] Ms. Vanrensburg is a long-time family friend of Ms. Babcock. The parties agree that two statements of Ms. Babcock to Ms. Vanrensburg, summarized at p. 31 of Exhibit 4, are admissible for their truth. I agree. The two statements are to the effect that Ms. Babcock argued with her family, who were strict, and that the friction with her family was due to the family not accepting that “she had mental issues.” These statements are corroborated and are substantively reliable. They are also based, in part, on Ms. Vanrensburg’s observations.

(xix) Joshua Huson

[82] Neither the Crown nor Smich are tendering any statements made by Ms. Babcock to Mr. Huson. Millard seeks to tender one statement as non-hearsay. It is to the effect that Ms. Babcock told Mr. Huson that she was bipolar. It is summarized at p. 32 of Exhibit 4. It is not substantively reliable but it does infer Ms. Babcock’s beliefs about her mental health. I agree with Millard that it is admissible as non-hearsay. The Crown does not oppose its admissibility.

(xx) Jason Dengate

[83] Mr. Dengate was another friend of Ms. Babcock and one of the last people she reached out to, prior to her disappearance. The parties seek to tender two statements of Ms. Babcock to Mr. Dengate for their truth. The two statements are summarized at p. 33 of Exhibit 4. I agree with the parties that both statements are admissible for their truth. One statement asserted that Ms. Babcock suffered from anxiety and took medication for it. The other statement asserted that she did not get along with her parents as they thought that she was making up the “anxiety issue.” Both statements are corroborated and are substantively reliable.

[84] In addition, the parties seek to tender one statement by Ms. Babcock to Mr. Dengate as non-hearsay. It is summarized at p. 33 of Exhibit 4. I agree with the parties that the statement is admissible as non-hearsay. It is to the effect that Ms. Babcock asked to stay with Mr. Dengate. It infers Ms. Babcock’s unstable and itinerant lifestyle and her lack of a home.

(xxi) Mr. Omeed Shemranikar

[85] Mr. Shemranikar is not presently being called as a Crown witness. Smich may call him as a defence witness. Mr. Shemranikar briefly dated Ms. Babcock in March or April of 2012, at a time prior to Ms. Babcock becoming an “escort” in early June 2012. The one statement of Ms. Babcock to Mr. Shemranikar that is not in dispute is to the effect that she told him she was depressed and borderline personality disorder, but never talked of suicide (as summarized at p. 33 of Exhibit 4). I agree with the parties that this statement is admissible for its truth. It asserts a present state of mind and there is substantial corroboration that Ms. Babcock was depressed.

[86] However, the parties disagree as to the admissibility of a further statement by Ms. Babcock to Mr. Shemranikar. It is to the effect that when they started dating, “she had just stopped seeing someone who she thought was stalking her” (as summarized at p. 33 of Exhibit 4). On behalf of Smich, Ms. Trehearne submits that the statement is admissible as a hearsay assertion of a state of mind (her belief that she was being stalked). Alternatively, it is admissible as a non-hearsay statement inferring her belief that she was being stalked, regardless of its truth. Ms. Trehearne concedes there is no evidence that Ms. Babcock was, in fact, being stalked. Millard seeks admission of the statement to prove the fact that Ms. Babcock was being stalked. Both Millard and Smich seek to rely on this statement, if admissible, as evidence that helps to provide an alternative explanation for Ms. Babcock’s disappearance in July 2012, that is, it may explain why she would want to get away and start a completely new life somewhere else.

[87] The Crown submits that the statement is substantively unreliable and is inadmissible, either as hearsay or as non-hearsay.

[88] I agree with the Crown that the statement is inadmissible, for essentially the same reasons already set out above in relation to the allegation to Ms. Trevors of a work-related assault and the allegation to Ms. Hopkins of family violence. The assertion that a former boyfriend had been stalking her is completely uncorroborated, there are no details, and there are no known reports. Furthermore, it was made in the context of a new dating relationship where Ms. Babcock had told Mr. Shemranikar about her struggles with mental illness and where she may have been seeking sympathy and support. The statement is not substantively or procedurally reliable, it does not begin to approach threshold reliability, and it is not admissible to prove that Ms. Babcock was being stalked.

[89] In terms of the statement’s use to infer or to assert Ms. Babcock’s belief that she was being stalked in early 2012, as an explanation for her disappearance some three months later in July 2012, that use depends on the truth of the statement. If Ms. Babcock was merely embellishing or exaggerating, in order to gain sympathy and support from Mr. Shemranikar, the statement cannot help in providing an explanation for her disappearance. See: R. v. Baldree, supra at para. 39. It is also a speculative theory as Ms. Babcock never repeated the assertion about stalking in the three months leading up to her disappearance and it appeared to play no role in the circumstances surrounding her unstable and troubled life in June and July 2012. It is like the allegation that David Austerweil was “violent with her” (I note that the allegation that a former boyfriend had been “stalking her” may be another reference to Mr. Austerweil). I adopt and repeat the analysis set out above in relation to the statement made to Ms. Orr about alleged assaults by Mr. Austerweil, to the effect that this is an irrelevant and speculative theory that will simply distract the jury and prejudice the trial process.

[90] For all these reasons, the statement to Mr. Shemranikar about a prior boyfriend who she “thought was stalking her” is inadmissible.

(xxii) The statements to medical personnel

[91] The numerous statements made to medical personnel by Ms. Babcock at the three hospitals she attended during late 2011 and early 2012 can be dealt with as a group. These statements are set out in records obtained by the defence earlier this year on a Third Party Records Motion. The parties have set out the statements that Smich seeks to tender in Exhibit 5. They agree on the admissibility of all these statements, with three exceptions.

[92] Although the Crown is not tendering any evidence from medical or psychiatric personnel, the Crown concedes that Smich can tender this evidence (subject to the three exceptions) as part of the defence case. The numerous statements in this category that Smich seeks to tender are summarized at pp. 1-6 of Exhibit 5. Millard joins with Smich in seeking a ruling as to the admissibility of this body of evidence. The Crown concedes that the statements (subject to the three exceptions) are all admissible for their truth. I agree with the parties. The statements all tend to describe Ms. Babcock’s present emotional state and her present state of mind, at the time when she attended at the three hospitals, although she also incidentally described the history of how and when her present state arose. Accordingly, the statements would generally be admissible under the traditional common law state of mind exception discussed in Pan, supra and Candir, supra. In addition, Ms. Babcock’s descriptions of her anxiety and depression are substantively reliable as they are corroborated. Finally, there is some degree of procedural reliability as the medical personnel had a duty to record her statements accurately and thoroughly.

[93] For all these reasons, the above statements set out in Exhibit 5 are admissible for their truth.

[94] The three disputed statements, where the Crown opposes admissibility, are as follows:

That Ms. Babcock “engages in purging behaviour once or twice a week” (found in a September 15, 2011 hospital report);
That Ms. Babcock “imagines herself as a kept woman and living the life of a wealthy person in the future” (found in an October 5, 2011 social work report); and
That Ms. Babcock’s parents “hit her when she gets upset” (found in an April 29, 2012 Emergency Department report).

[95] In my view, the first two statements are admissible but the third statement is inadmissible. In the first two statements, Ms. Babcock described her own emotional state and her own state of mind, as provided for in traditional common law exceptions to the hearsay rule. In the third statement, she made an allegation about the conduct or prior acts of third parties, which has traditionally been excluded at common law unless it falls within the principled exception.

[96] The Crown concedes the substantive reliability of the first statement, about Ms. Babcock’s “purging” behaviour. Ms. Cameron’s main submission is that it is remote and irrelevant to Ms. Babcock’s disappearance in July 2012 and to any suggestion that she was suicidal at that time. Ms. Trehearne submits that the statement refers to risky, self-harming behaviour of some frequency. Although it does not add much to the large body of evidence about Ms. Babcock’s mental instability, Ms. Trehearne submits that it is part of the full picture and that the standard for relevance is not high. I agree with Ms. Trehearne’s position. The statement is admissible for its truth.

[97] The Crown takes a similar position in relation to the second statement, submitting that it is remote and marginally relevant to Ms. Babcock’s eventual disappearance. The Crown also submits that it is prejudicial evidence of bad character. Ms. Trehearne submits that the statement clearly refers to Ms. Babcock’s state of mind, in the sense of her goals or aspirations, and that it is borne out by her conduct in June 2012 when she met Dr. Khattak and Mr. Wilson. The latter two witnesses will already be testifying and so their evidence about these arguably analogous relationships with Ms. Babcock will already be before the jury. I agree with Ms. Trehearne. The statement is admissible for its truth.

[98] As noted above, the third statement is qualitatively different from the first two statements. It does not assert Ms. Babcock’s state of mind. Rather, it makes an allegation of criminal conduct against her parents, as a prior act that underlies her present emotional and mental state. Ms. Trehearne concedes that the Crown’s position is correct, that there is no substantive or procedural reliability that would allow admission of this statement under the principled exception. She seeks admission of the statement as non-hearsay, inferring the depths of Ms. Babcock’s animosity towards her parents and helping to explain her disappearance. This submission essentially repeats the same argument that was made, unsuccessfully, in relation to the statements Ms. Babcock made to Candice Hopkins about alleged violence at home. Unlike Smich, Millard seeks admission of this statement to medical personnel, about assaults by Ms. Babcock’s parents, for its truth.

[99] In my view, the same reasoning already set out above in relation to the Candice Hopkins statements applies to Ms. Babcock’s statement to medical personnel alleging that her parents “hit her when she gets upset.” There is no detail and no corroboration and the statement was made on an occasion that raises concerns about its reliability. Ms. Babcock had been living at home and was brought to the hospital Emergency Department and was detained on a Form 1. Ms. Babcock’s mother alleged that Ms. Babcock had thrown coffee at her. Ms. Babcock was essentially making a counter-allegation against her parents, in the midst of an obviously stormy relationship, and so the context for this statement was potentially self-serving or self-interested. The statement is neither procedurally nor substantially reliable, in my view, and it is not admissible pursuant to the principled exception. It is also not admissible under the traditional common law state of mind exception, as already explained above.

[100] In terms of its admissibility as non-hearsay, to infer the depths of Ms. Babcock’s beliefs and hostility towards her parents and to help explain her sudden disappearance in July 2012, I repeat the analysis already set out above in relation to the similar statements made to Candice Hopkins. This use necessarily presupposes the truth of Ms. Babcock’s alleged beliefs about parental assaults. Furthermore, even if these beliefs were sincere and reliable, they are minimally probative as an explanation for her broad-based disappearance in July 2012 and they are substantially prejudicial to the trial process, for the reasons stated previously.

[101] For all these reasons, the third statement — that her parents “hit her when she gets upset” — is inadmissible.

(xxiii) Statements Millard seeks to tender as evidence relating to Ms. Babcock’s character and/or reputation

[102] There is one further body of statements allegedly made by Ms. Babcock to a number of witnesses that I have not addressed in these Reasons. These are statements that Millard sought to tender, as non-hearsay, involving Ms. Babcock providing allegedly inconsistent or unreliable accounts about various matters or incidents. These matters or incidents are not themselves relevant, and Millard does not seek to prove the truth or falsity of any of the particular incidents or matters. He simply seeks to prove the fact that she has given inconsistent or unreliable accounts, in order to infer her general character or reputation and to then further infer that she was someone who was not taken seriously amongst their group of friends. This is relevant to the Crown’s theory of motive, namely, that Ms. Noudga and Millard were allegedly upset by the fact that Ms. Babcock was sowing dissention and drama by spreading the story that she was having an affair with Millard and that he had been unfaithful to Ms. Noudga. Millard seeks to weaken this theory of motive by eliciting evidence that Ms. Babcock was untruthful and untrustworthy and that the rumours and stories she circulated would not have been taken seriously. Smich does not join in this theory of relevance and admissibility and the Crown opposes it.

[103] I dismissed Millard’s attempts to seek the admission of a number of statements on this basis, in short oral reasons on September 22, 2017, after hearing argument from the parties on each of the statements that Millard sought to tender. In substance, I held that Millard could elicit general evidence from the witnesses about Ms. Babcock’s character and reputation for reliability, and ask whether the witnesses would believe things that she said and would take her seriously. In other words, Millard can do directly what he seeks to do. However, I ruled that he could not go into the specific incidents he raised in order to indirectly infer or illustrate Ms. Babcock’s alleged general unreliability. I ruled that he could not seek to prove multiple past incidents of specific inconsistencies or falsehoods, in order to infer Ms. Babcock’s general character for unreliability, but that he could call evidence of her general character or reputation amongst this group of friends and ask whether the witnesses would take her seriously.

[104] My rulings to this effect were based on the minimal probative value, and significant prejudice to the trial process, of allowing Millard to elicit a large number of specific incidents of allegedly unreliable or untrustworthy behaviour in order to prove general character or reputation. The instances of alleged inconsistent or unreliable statements by Ms. Babcock, which Millard sought to tender, were neither clear nor significant. They were all open to interpretation and they would have led into lengthy collateral inquiries about the context in which the statement or statements were made and whether they were truly inconsistent or unreliable. See, generally: R. v. McNamara et al. (No. 1) (1981), 56 C.C.C. (2d) 193 at pp. 348-9 (Ont. C.A.); R. v. Yaeck (1991), 68 C.C.C. (3d) 545 at pp. 561-7 (Ont. C.A.); R. v. Clarke (1998), 129 C.C.C. (3d) 1 at paras. 28-54 (Ont. C.A.).

D. CONCLUSION

[105] Many of Ms. Babcock’s out of court statements are admissible, either for hearsay or non-hearsay purposes, in accordance with the Reasons set out above. However, some of her out of court statements are not admissible, either as hearsay or non-hearsay, in accordance with the Reasons set out above.

M.A. Code J.

Released: September 27, 2017

CITATION: R. v. Millard, 2017 ONSC 5701

COURT FILE NO.: CR-15-50000474-0000

DATE: 20170927

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DELLEN MILLARD and MARK SMICH

REASONS FOR JUDGMENT

on HEARSAY ANTE MORTEM STATEMENTS MOTION