CITATION: R. v. Johnson, 2017 ONSC 905
COURT FILE NO.: 8535-13
DATE: 20170207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KENNETH JOHNSON
Defendant
Peter Westgate and Michael Ventola for the Crown
Mary Cremer and Colin Sheppard for the Defendant
HEARD: January 26 and 30, 2017
ruling on admissibility of evidence
of prior disreputable conduct
RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
Boswell j.
1. OVERVIEW
[1] Kenneth Johnson is charged with murdering Richard Skupien.
[2] The two men shared an apartment above a shop in downtown Richmond Hill. On August 24, 2013 Mr. Johnson placed a call to 911. He reported finding Mr. Skupien in the washroom without vital signs. Mr. Skupien was pronounced dead later in the day.
[3] It initially appeared that Mr. Skupien died of natural causes. The attending emergency room physician opined that his death was the result of a gastro-intestinal bleed. A post-mortem examination conducted within a matter of days suggested otherwise. The pathologist concluded that the death was not naturally caused but instead was the result of a severe beating. Mr. Skupien had a number of broken ribs, a lacerated spleen and bruising.
[4] The central issues in the case are causation of Mr. Skupien’s injuries, identity and intent.
[5] The Crown posits that the relationship between Mr. Johnson and Mr. Skupien was an abusive one; Mr. Johnson being the aggressor. The Crown seeks to adduce evidence about the nature of the relationship through witnesses who will testify about what they saw and heard in the months prior to Mr. Skupien’s death.
[6] The stated purpose of the evidence offered by the Crown is to provide context to the relationship between the roommates and to demonstrate a level of animus between them. The animus of Mr. Johnson may help establish his identity as the perpetrator of the beating that killed Mr. Skupien as well as the intent with which the beating was delivered.
[7] The admissibility of the proffered evidence is contested. The Crown faces two admissibility hurdles.
[8] First, some of the evidence consists of statements purportedly made by Mr. Skupien to others before his death. The out-of-court statements of Mr. Skupien are said to be offered for the truth of their contents and as such are hearsay. Hearsay evidence is presumptively inadmissible. The Crown relies on the principled exception to the hearsay rule, which admits hearsay evidence where it is both necessary and reliable. The Crown asserts that Mr. Skupien’s utterances are (1) necessary because Mr. Skupien is dead; and (2) reliable given the circumstances in which they were made.
[9] Second, all of the evidence is offered for the purpose of establishing that Mr. Johnson had a propensity for violence and, more particularly, for being abusive to Mr. Skupien. Propensity evidence is presumptively inadmissible. The presumption is rebuttable. The Crown argues that the presumption is rebutted here because the evidence has a valid purpose, is relevant, material and highly probative.
[10] Mr. Johnson’s counsel oppose the admissibility of any of the proffered evidence. They argue that it lacks the probative value suggested by the Crown and at the same time is far more prejudicial to Mr. Johnson than the Crown asserts. They also question the reliability of the ante mortem statements attributed to Mr. Skupien.
2. THE PROFFERED EVIDENCE
[11] It is necessary, of course, to be precise about what evidence the Crown proposes to tender. The following is a list of the evidence in dispute, divided into non-hearsay evidence and evidence alleged to have a hearsay character:
Non-Hearsay
(a) Denise Sherk – a friend of Mr. Skupien - will testify that she witnessed Mr. Johnson throw Mr. Skupien in the kitchen approximately four months prior to his death;
(b) Ms. Sherk will also testify that she witnessed Mr. Johnson push Mr. Skupien into a car and strike him at a BBQ about three months prior to his death;
(c) Michelle Paul – Mr. Skupien’s former girlfriend – will testify that she was at the Johnson/Skupien apartment on Mr. Skupien’s birthday, August 15, 2013. She went to use the washroom. She heard a bang. When she came out of the washroom she saw Mr. Skupien up against a wall, with a terrified look on his face. He said she’d better leave;
(d) Ms. Paul will also testify that she overheard about a half-dozen incidents of arguing or fighting between the roommates over the two year period preceding Mr. Skupien’s death;
(e) Ms. Paul will further testify that Mr. Johnson was never happy with Mr. Skupien’s level of cleanliness;
(f) Ms. Paul will also offer the observation that Mr. Skupien was generally timid when around Mr. Johnson;
(g) Edgar Simon – a neighbour – will testify that he observed daily verbal fights between Mr. Johnson and Mr. Skupien. These fights were often about the cleanliness of the apartment;
(h) Mr. Simon will also say that Mr. Johnson was the more loud and aggressive party and that he would often belittle and “trash talk” Mr. Skupien;
(i) Ghayour Nassirnia – the landlord – will testify that he witnessed Mr. Johnson scream at Mr. Skupien for not paying the rent. He will also say that he heard Mr. Johnson complain about Mr. Skupien not doing chores around the apartment;
(j) David Thompson – an acquaintance of Mr. Skupien’s – will say that Mr. Skupien lifted his shirt a few months before his death to reveal bruising on his torso;
Hearsay
(k) Ms. Sherk will testify that Mr. Skupien told her that he was scared to go home and wanted to move out of the apartment;
(l) Mr. Simon will also say that Mr. Skupien told him that he wanted to move out of the apartment;
(m) Joseph Amodeo – another acquaintance of Mr. Skupien – will testify that Mr. Skupien showed him bruising on his ribs a couple of weeks before his death. When Mr. Amodeo asked what happened, Mr. Skupien said he’d fallen down the stairs, or off his bike. Then he winked. When Mr. Amodeo asked what he meant, he said that “Kenny’s got a hard punch”;
(n) Mr. Amodeo will also testify that Mr. Skupien warned him, “don’t ever piss off Ken, you don’t wanna get him mad at you”.
3. THE LEGAL FRAMEWORK
3.1 Relevance
[12] Every admissibility inquiry starts with a basic premise: to be receivable in a criminal trial, evidence must be relevant, material and otherwise not subject to a specific rule of exclusion: R. v. Candir, 2009 ONCA 915, at para. 46.
[13] From the limited vantage point of a pre-trial motion, it can sometimes be difficult to assess relevance. Relevance is generally to be assessed in the context of the entire case and in light of the submissions of counsel: R. v. Cloutier, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709 at pp. 730-32. This is particularly so when the evidence on offer is circumstantial, as it is here. That said, determining relevance is a necessary aspect of this application and the determination will be made on the submissions of counsel, as well as a review of the relevant portions of the preliminary hearing transcript.
[14] The test for relevance involves a low threshold. There are no degrees of relevance and no requirement that an item meet a minimum threshold of probity to be relevant: R. v. Watson, (1996) 1996 CanLII 4008 (ON CA), 108 C.C.C. (3d) 310 (Ont. C.A.), at para. 32. Relevance – logical relevance that is – is about the relationship between a piece of evidence and a live issue. Watt J.A. described it succinctly in R. v. Luciano, 2011 ONCA 89 at para. 204:
Relevance is not an inherent characteristic of any item of evidence. Relevance exists as a relation between an item of evidence proposed for admission and a proposition of fact that the proponent seeks to establish by its introduction. Relevance is a matter of everyday experience and common sense… An item of evidence is relevant if it renders the fact it seeks to establish slightly more or less probable than it (the fact) would be without the evidence, through the application of everyday experience and common sense.
[15] I am satisfied that relevance and materiality are made out in relation to all of the proffered evidence. Evidence of a pattern of aggressive behaviour by Mr. Johnson towards Mr. Skupien over the course of their relationship is relevant for several reasons, all identified by the Crown: it will provide a context to the relationship between the roommates and it may demonstrate motive or animus: see R. v. F.(D.S.) (1999), 1999 CanLII 3704 (ON CA), 43 O.R. (3d) 609 (C.A.) (“DSF”). It is relevant certainly to the core issues of causation and identity.
[16] Relevance and materiality are, as I noted, only two of three pre-requisites to admissibility. The third requires that no specific rule of exclusion apply. In this application, two such rules are engaged: (1) the presumptive exclusion of hearsay evidence; and (2) the presumptive exclusion of propensity evidence.
3.2 The Presumption Against Hearsay Evidence
[17] Hearsay evidence is presumptively inadmissible. The presumption is subject to many exceptions.
[18] The generally accepted rationale supporting the presumption against admitting hearsay has to do with a concern about the reliability of such evidence. More particularly, about the inability of counsel to test, through cross-examination, its truthfulness and reliability.
[19] At its core, a trial is an exercise in getting at the truth. Long ago, our justice system settled on the adversarial model as best suited to achieving that goal – getting at the truth. Cross-examination has long been considered an essential tool in the adversary process. It permits parties to test evidence and to expose that which is untrustworthy and/or unreliable. In criminal cases it is a fundamental component of the ability to make full answer and defence.
[20] The inability to test the veracity and reliability of statements made outside of the courtroom through contemporaneous cross-examination has historically been considered sufficient justification to exclude such statements from the trial process. The risk becomes too great that such evidence will distort, rather than enhance, the truth-finding function of the trial.
[21] Courts have identified what have come to be known as the core dangers of hearsay evidence: perception, memory, narration and sincerity. As Justice Fish observed in R. v. Baldree, 2013 SCC 35, at para. 32:
First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination.
[22] Having said all of that, courts have also recognized that there are instances where the concerns associated with hearsay evidence are more or less absent and the automatic exclusion of such evidence would deprive the trier of fact of relevant, perhaps significant, evidence. In such cases exclusion may risk distortion of the truth more than the inclusion of the evidence would. In the result, a number of exceptions to the presumptive rule excluding hearsay evidence developed. These traditional exceptions share a common feature: they involve circumstances that courts have identified as inherently providing a sufficient level of reliability such that the absence of contemporaneous cross-examine is no longer a pressing concern. In such circumstances it would be, as Professor Wigmore wrote, “pedantic to insist on a test whose chief object was already secured”: Wigmore on Evidence (2nd ed. 1923), vol. III, s. 1420 at page 154.
[23] I propose to canvass only one of the traditional exceptions, as none of the others are relevant on the facts of this case.
[24] The one traditional exception that applies, in my view, perhaps not shared by counsel, is known as the present state of mind exception (also known as the “present intentions” exception). This exception is described by Paciocco (now Mr. Justice Paciocco) and Stuesser in The Law of Evidence, 6th Ed. (2011: Toronto), at page 175:
Where a person describes his or her present state of mind (emotion, intent, motive, plan), the person’s statement to that effect is admissible where the state of mind is relevant and the statement is made in a natural manner and not under circumstances of suspicion.
[25] Sometimes a statement is explicit evidence of a state of mind. Other times it is a statement from which an inference about state of mind might reasonably be drawn. Either way, the statement is admissible, either because it falls within an exception to the hearsay prohibition, or because it is not offered for the truth of its contents but is rather circumstantial evidence from which an inference about state of mind might be drawn. Justice Doherty, as he then was, explained the admissibility of such statements in R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 at page 341 as follows:
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.
[26] While all of the traditional exceptions to the hearsay rule continue to have effect where applicable, the Supreme Court has more recently done its best to craft a more rational and elegant test for determining the admissibility of hearsay evidence. Through a series of rulings made over the last quarter century, the Supreme Court has developed a principled approach to the assessment of hearsay evidence that allows for admission where it is both necessary and reliable: see, for instance, R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915; R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 (“KGB”), R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; and R. v. Khelawon, 2006 SCC 57.
[27] The modern approach to the admissibility of hearsay evidence – incorporating traditional exceptions and the principled approach – was summarized by Justice Charron in R. v. Khelawon, where she said at paragraph 42, with reference to R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para 15:
(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place;
(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance;
(c) In "rare cases", evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case;
(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.
[28] The concepts of necessity and reliability are, to some extent, related. They were discussed in detail by Justice Charron in Khelawon, where she said at para. 49:
The criterion of necessity is founded on society’s interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. As we shall see, the reliability requirement will generally be met on the basis of two different grounds, neither of which excludes consideration of the other. In some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declaration would add little if anything to the process. In other cases, the evidence may not be so cogent but the circumstance will allow for sufficient testing of evidence by means other than contemporaneous cross-examination. In these circumstances, the admission of the evidence will rarely undermine trial fairness. However, because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect.
See also R v. Couture, 2007 SCC 28 at para. 88 and R. v. Blackman, 2008 SCC 37 at para. 35.
[29] In this case, there is no suggestion that there are circumstances that will allow for sufficient testing of the hearsay utterances by means other than contemporaneous cross-examination. The Crown relies, instead, on the first of the two grounds to meet the requirement of threshold reliability. Specifically, that sufficient trust can be put in the truth and accuracy of the utterances because of the way in which they came about.
3.3 The Presumption Against Propensity Evidence
[30] Meeting the admissibility threshold for hearsay evidence is only the first hurdle the Crown must cross. All of the evidence identified in this application – including the hearsay utterances of Mr. Skupien – is tendered by the Crown to establish that Mr. Johnson had a history of abusing Mr. Skupien. It is, in other words, evidence of prior disreputable conduct. Prior disreputable conduct, or bad character evidence, falls under the umbrella of propensity evidence and is presumptively inadmissible.
[31] As a matter of human experience, character is often relevant to our everyday judgments about other people. Indeed, common sense suggests that past behaviour may very well be a strong predictor of future behaviour. As Justice Binnie observed in R. v. Handy, 2002 SCC 56, at para. 39,
It is, of course, common human experience that people generally act consistently with their known character. We make everyday judgments about the reliability or honesty of particular individuals based on what we know of their track record. If the jurors in this case had been the respondent's inquisitive neighbours, instead of sitting in judgment in a court of law, they would undoubtedly have wanted to know everything about his character and related activities. His ex-wife's anecdotal evidence would have been of great interest.
[32] Though frequently relevant, Canadian criminal law presumptively precludes the Crown from introducing propensity evidence against an accused person. Bad character evidence has a seductive quality to it, largely because it is employed so regularly by people to make judgments in their everyday lives. It has remarkably remained a topic of juridical debate for centuries. The modern common law exclusionary rule, however, has its roots in the Privy Council’s decision in Makin’s Case, cited as Makin v. Attorney-General for New South Wales, [1894] A.C. 57. There, Lord Herschell famously said, at p. 65,
It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.
[33] The presumptive exclusion is based on policy considerations. As Binnie J. explained in R. v. Handy, the policy basis for the exclusion of propensity evidence is that it may “capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value.” (para. 37).
[34] The exclusion is presumptive but not absolute. The modern test for admissibility was formulated by Justice McLachlin, as she then was, in R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717 where she wrote, at page 732, that “propensity evidence, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where such evidence of prior immoral or illegal acts is presented to the jury.”
[35] Subsequently, in R. v. Handy, as above, Justice Binnie provided a functional framework within which the admissibility analysis should be conducted. In Watt’s Manual of Criminal Evidence (Toronto: Carswell, 2016) at §34.01, Watt J.A. describes this framework as requiring four steps:
(a) Identifying the relevance of the evidence to an issue in the case, otherwise than by demonstrating the propensity of the accused to commit crimes or other disreputable or repugnant acts;
(b) Assessing the probative value of the evidence;
(c) Assessing the prejudicial effect of the evidence; and,
(d) Balancing the probative value against the prejudicial effect of the evidence.
4. THE ARGUMENTS
[36] The Crown asserts that this case is on all fours with DSF. DSF was a case involving domestic violence. The Court of Appeal upheld the trial judge’s decision to admit evidence of a history of abuse perpetrated by one spouse against another over the one year course of their marriage, even though most of the events involved were not part of the charged offences. The Court of Appeal observed that off-indictment, discreditable conduct evidence is frequently admitted in cases involving allegations of physical or sexual abuse in the course of an ongoing relationship. Such evidence is helpful to put the alleged offences into context. It is also potentially supportive of motive or animus, which in turn may assist the trier of fact in assessing whether the alleged events occurred, how they occurred, and what intent accompanied them.
[37] The Crown argues that the jury in this case needs to understand the context of the relationship between Mr. Johnson and Mr. Skupien in order to appreciate how the alleged conduct in this instance fits into the bigger picture. Moreover, causation, identity and intent remain the core issues here. The proffered conduct is relevant, the Crown says, to all three. Moreover, the evidence, they say, is highly probative of causation and identity, if not intent; so much so that its probative value greatly exceeds its tendency to cause prejudice.
[38] With respect to the ante mortem statements of Mr. Skupien, the Crown relies on the principled exception as the route to admission. In view of Mr. Skupien’s death, there is no dispute about the issue of necessity. On the other hand, reliability is very much in issue. The Crown argues, of course, that Mr. Skupien’s utterances are inherently reliable given a number of factors including:
(a) the absence of any motive to lie;
(b) the statements are simple and straightforward;
(c) there is no evidence that Mr. Skupien was irrational or incoherent when the statements were made;
(d) Mr. Skupien made the statements about his injuries at a time when he was still suffering from them, so that his memory as to how they happened would have been clear; and,
(e) The statements about injuries are corroborated by the presence of bruising. Moreover, numerous other witnesses have said that Mr. Johnson regularly beat up Mr. Skupien.
[39] Defence counsel take the opposite position. They submit that none of the ante mortem statements are reliable and none should be admitted. They point to the following factors as indicative of a lack of threshold reliability:
(a) Mr. Skupien was an alcoholic and quite possibly addicted to drugs. His perception, memory and ability to recount events is all highly suspect;
(b) Mr. Skupien’s addictions were driving his conduct. He frequently sought renewals of painkiller prescriptions before they were due. He may have fabricated allegations of injuries and pain in order to persuade others to provide him with pills;
(c) There is an absence of evidence relating to a motive to fabricate. This is not the same as evidence that Mr. Skupien had no motive to fabricate. If anything, it is a neutral factor;
(d) There are numerous issues surrounding the timing and content of the statements that make their content and interpretation a matter of debate; and,
(e) There are issues surrounding the recipients that should cause further reliability concerns.
[40] Defence counsel further submit that none of the prior disreputable conduct evidence should be admitted. Its potential for prejudice exceeds its probative value. Given serious issues with each of the witnesses, the probative value of the proffered evidence is questionable. At the same time, it has the great potential of encouraging the jury to engage in improper reasoning – of too readily concluding that if Mr. Johnson assaulted Mr. Skupien on a prior occasion, he must have killed him on this occasion and he must have done it intentionally.
[41] Mr. Skupien had a documented history of hurting himself, by way of falls or bicycle accidents or otherwise. He made a number of visits to the local hospital’s emergency room. Defence counsel expressed concern that if the jury is permitted to hear the proposed evidence of prior assaultive behaviour by Mr. Johnson, they may improperly speculate that Mr. Skupien’s hospital visits were in fact the result of assaults, which of course would be highly prejudicial to Mr. Johnson.
[42] Moreover, the issue of causation remains a live one. The introduction of evidence of prior assaults may encourage the jury to accept, too readily, that the injuries that led to Mr. Skupien’s death were the result of a beating. Mr. Johnson’s defence requires that the jury examine carefully and critically, the evidence of causation.
[43] With respect to the Crown’s assertion that this case is akin to DSF, the defence submit that the reasoning in DSF should be restricted to cases of domestic assault where there is a romantic dimension to the relationship.
5. ANALYSIS
5.1 The Ante Mortem Statements
[44] I will deal first with the ante mortem statements. There are essentially four of them in issue. Two people will testify, if permitted, that Mr. Skupien told them he wanted to move out of the apartment he shared with Mr. Johnson. One of those, Ms. Sherk, will say he expressed to her that he was afraid of Mr. Johnson. A third person will testify, if permitted, that Mr. Skupien told him “Kenny has a hard punch” and also, “Don’t ever piss off Ken. You don’t wanna get him mad at you.”
[45] The first determination to make is whether the statements in issue are hearsay.
[46] In terms of the statements involving Mr. Skupien’s desire to move out (the “move out” statements), I would agree that the utterances are offered for the truth of their contents and are properly characterized as hearsay.
[47] The statement, “Don’t ever piss off Ken. You don’t wanna get him mad at you”, is not, in my view, hearsay. It is not offered for the truth of its contents. It is original testimony from which the jury will be asked to infer that Mr. Johnson gets violent when angry. It is not presumptively inadmissible as hearsay, though it remains to be assessed in the broader context of prior disreputable conduct evidence.
[48] The statement, “Kenny has a hard punch” (the “hard punch” statement), is arguably not hearsay. Again, it could be interpreted as original testimony from which the jury will be asked to infer that Mr. Skupien knows what it feels like to get punched by Mr. Johnson.
[49] In the particular circumstances, however, I think the better view is that the statement is being offered with a ready inference; that Mr. Skupien was attributing injuries to his ribs as being the result of being punched by Mr. Johnson. In other words, it is being tendered by the Crown as evidence that visible injuries to Mr. Skupien’s ribs were caused by Mr. Johnson’s punches. For this reason, I conclude that the statement is hearsay.
5.1.1 The Present State of Mind Exception
[50] The next determination is whether a traditional exception to the hearsay rule applies. Again, only one appears to me to be relevant: the present state of mind exception. I find that this traditional exception applies to the move out statements and the statement that Mr. Skupien was afraid of Mr. Johnson. But it does not apply to the hard punch statement.
[51] Mr. Skupien purportedly told two people that he wanted to move out of his apartment. A desire to move is a present state of mind. It is an expression of a wish, or even an intention, to move out of apartment six. The same can be said of the statements Mr. Skupien purportedly made to Ms. Sherk to the effect that he was afraid of Mr. Johnson. These were also clearly statements of a state of mind existing at a point in time relatively proximate to Mr. Skupien’s death.
[52] On the other hand, the hard punch statement has nothing to do with Mr. Skupien’s state of mind or his intentions. If it is to be admitted into evidence, it must pass through the gateway of the principled exception. In other words, it must satisfy the twin pre-requisites of necessity and reliability.
5.1.2 The Principled Exception
[53] As I noted above, even though the move out statements are covered by a traditional exception to the hearsay rule, it remains open to the defendant to challenge their admissibility on the basis that the indicia of reliability are lacking. In other words, even though a traditional exception applies, the statement may yet be excluded if it fails to satisfy the requirements of the principled approach. Indeed, Mr. Johnson’s counsel make such a challenge. Their challenge centres on concerns about Mr. Skupien’s reliability generally, as well as concerns about the particular circumstances in which the impugned statements were made.
[54] In the result, I will analyze both the move out statements as well as the hard punch statement within the framework of the principled approach. In this instance, that requires only that I examine the prevailing circumstances for the presence or absence of the indicia of reliability.
[55] I note that my finding regarding the applicability of the present state of mind exception theoretically changes the onus in terms of establishing the absence of indicia of reliability with respect to the move out statements. That said, nothing turns on the onus issue in my analysis.
[56] I will begin with some observations about Mr. Skupien’s general reliability.
5.1.2.1 General Reliability Concerns
[57] The first, and perhaps most noteworthy, issue with Mr. Skupien is that he had a significant problem with alcohol abuse. His disease had progressed to the point where he suffered from cirrhosis of the liver.
[58] A number of witnesses referred to Mr. Skupien’s alcohol consumption. Some said that when he was drunk he was aggressive and “lippy”.
[59] Mr. Thompson described Mr. Skupien as having an obvious problem with alcohol abuse. He said Mr. Skupien was “smashed all the time”; sometimes being inebriated to the point of having difficulty walking.
[60] Mr. Simon referred to Mr. Skupien as an alcoholic. He said Mr. Skupien was consistently highly inebriated. He described Mr. Skupien as being in a drunken stupor on the occasion he purportedly said he wanted to move out of his apartment. He said that Mr. Skupien had a different personality when he’d been drinking. He was mouthy and confrontational.
[61] Mr. Amodeo testified that Mr. Skupien had both drug and alcohol problems. According to his testimony, Mr. Skupien “liked doin the odd bit of crack”. He said he also saw Mr. Skupien taking oxycontin.
[62] Mr. Skupien had a documented medical history of falls and other accidents that led to injuries. He also had a documented history of taking pain medications and of seeking out more medications before existing prescriptions should have run out.
[63] Mr. Skupien’s drug and alcohol problems raise concerns about the veracity and reliability of anything he said to anyone at any time. Apart from these general concerns, there are specific concerns raised by the circumstances in which ante mortem statements were purportedly uttered.
5.1.2.2 The Hard Punch Utterance
[64] Mr. Amodeo testified at the preliminary hearing that Mr. Skupien showed him some bruising on his ribs. That observation is direct evidence of an injury to Mr. Skupien. The cause of the injury remains a live issue. The Crown offers Mr. Amodeo’s testimony as evidence that Mr. Skupien said it was a punch from Mr. Johnson that caused the injury. But that is far from clear as I read Mr. Amodeo’s transcript. First, Mr. Skupien said the cause was falling off his bike, or down the stairs. But according to Mr. Amodeo, Mr. Skupien winked at the time he attributed the cause to his bike or the stairs. Mr. Amodeo said that it was later that he learned Mr. Skupien said “Kenny has a hard punch” and he put two and two together.
[65] Mr. Skupien was drinking at the time he showed Mr. Amodeo his ribs. How that affected what he said is not clear. It is not clear whether he was serious or joking. Neither is it clear that Mr. Skupien said “Kenny has a hard punch” contemporaneously with the wink. At the preliminary hearing, Mr. Amodeo was thoroughly questioned about whether the hard punch comment was contemporaneous to the wink. Having read the transcript, I confess that I am still unclear as to whether the wink and the comment were part of a single, ongoing transaction, or whether the hard punch comment came later and Mr. Amodeo did his own math to connect it to the rib injuries he observed.
[66] Cross-examination of the declarant would, in my view, be important in this area. This is not a case where one could reasonably suggest that cross-examination would not make an appreciable difference to the evidence.
[67] The incident with Mr. Amodeo occurred reasonably close to the time of Mr. Skupien’s death. The cause of the rib injuries is very much in issue. It might have been different had Mr. Skupien clearly told someone he was assaulted by Mr. Johnson. But that is not the evidence. Instead, what we have is evidence that is unclear as to whether the injuries were the result of a fall or an assault. The innuendo involved in the wink is not particularly reassuring.
[68] In my view, there are not sufficient indicia of reliability associated with the circumstances surrounding the hard punch, when coupled with Mr. Skupien’s personal frailties, to admit the hard punch statement into evidence under the principled exception.
5.1.2.3 The Move Out Utterances
[69] Mr. Simon testified at the preliminary hearing that Mr. Skupien told him that he wanted to move out of his apartment. There are cogent reasons to wonder about the reliability of this purported utterance.
[70] First, there are the concerns I have outlined regarding Mr. Skupien’s reliability generally. Second, Mr. Simon testified that Mr. Skupien was drunk at the time he made the move out statement. Third, Mr. Simon was not particularly close to Mr. Skupien. They were not friends.
[71] Having said that, I must acknowledge that there are important temporal and content links between the statement purportedly made to Mr. Simon and statements Mr. Skupien purportedly made to another witness, Denise Sherk.
[72] Mr. Simon testified at the preliminary hearing that Mr. Skupien told him he needed to get out of his apartment about 3 to 4 months prior to his death.
[73] Ms. Sherk testified at the preliminary hearing that Mr. Skupien told her “lots” of times that he wanted to move out. She put the last time he told her that about 4 months before his death.
[74] There are a number of indicia of reliability present with respect to the move out statements purportedly uttered to Ms. Sherk that are perhaps not present elsewhere. For instance:
(a) Mr. Skupien’s relationship was closer with Ms. Sherk than it was with the other recipients of his out-of-court utterances. She testified that they had been friends for 7-8 years and that they were quite close;
(b) Ms. Sherk testified that Mr. Skupien consumed less alcohol when he was around her. She was a recovering alcoholic and he knew she did not like it when he drank;
(c) Unlike the general statement purportedly made to Mr. Simon that Mr. Skupien wanted to move out, Ms. Sherk testified that Mr. Skupien told her he wanted to move out because he was afraid of Mr. Johnson;
(d) Mr. Skupien purportedly repeated the statement on many different occasions to Ms. Sherk. While it is axiomatic that repetition does not enhance veracity (a lie told 100 times is still a lie), the repetition here is indicative that the desire to move out was a persistent state of mind; and,
(e) There is corroborative evidence that supports the reliability of the utterances. First, Ms. Sherk will say she witnessed Mr. Johnson assault Mr. Skupien on at least two occasions. Second, she will say that she let Mr. Skupien stay at her apartment on occasions when he expressed a fear of going home.
[75] I conclude that the statements to Ms. Sherk (moving out and fearfulness) are sufficiently reliable to justify their admission. Moreover, they are consistent with the statement purportedly uttered to Mr. Simon and proximate in time to that statement. This consistency of content and timing lends a great deal of reliability to the utterance to Mr. Simon, which might otherwise be suspect.
[76] I have found that the move out statements to both Mr. Simon and Ms. Sherk are admissible under the present state of mind exception to the hearsay rule. To be fair, Crown counsel did not argue the present state of mind exception and accordingly, defence counsel did not address it either. In my view it clearly applies. There is always the risk of unfairness when the court renders a decision on a basis not addressed in argument. That risk is attenuated in this instance, however, by the fact that I would also admit the move out statements under the principled exception. Obviously necessity is made out. Reliability is made out as well, in my view, based on the factors I have described above.
[77] Ms. Cremer urged the court to consider, as part of the assessment of threshold reliability, the frailties with respect to the recipients of Mr. Skupien’s utterances, including Mr. Simon and Ms. Sherk. In my view, those frailties – and there clearly are a number – may be addressed through cross-examination. They are not compelling in the context of an assessment of threshold reliability: see R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298 at paras. 47-50. They are factors best left to the ultimate trier of fact.
[78] I will move on to consider the broader issue of propensity evidence.
5.2 Propensity Evidence
[79] I have already concluded, as noted above, that the proffered evidence is relevant and material. It goes to the live issues of animus, motive and, ultimately, to causation and identity. I am not yet persuaded that it goes to intent, but that issue will be reserved until the evidence is all in.
[80] I agree with Crown counsel’s submission that this case falls squarely within the reasoning of DSF. I do not agree that DSF is, or should be, restricted to cases of romantic cohabitation. Its principles are applicable whenever there is an alleged criminal act occurring in an ongoing relationship, where the context of the relationship is relevant. The absence of a romantic dimension to the relationship between Mr. Skupien and Mr. Johnson does nothing to diminish the relevance and probity of the evidence.
[81] It remains necessary to examine and balance the probative value of the evidence against its tendency to prejudice Mr. Johnson. I will undertake that exercise now.
5.2.1 Probity
[82] The proffered evidence is all circumstantial in nature. The probative value of any one piece of circumstantial evidence may be quite slight. But of course circumstantial evidence must not be considered in a piecemeal fashion. It must be considered globally and not in an isolated or compartmentalized way: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345; R. v. Chaing, 2014 ONCA 870.
[83] A pathologist will testify that the injuries that caused Mr. Skupien’s death are consistent with a severe beating. They are blunt force trauma injuries. Nevertheless, the cause of death remains a live issue. Mr. Skupien did have a history of injuring himself as a result of falls and bicycle accidents.
[84] If the jury concludes that Mr. Skupien did die as a result of a severe beating, the issue of identity – who perpetrated the beating – will take centre stage.
[85] The proffered evidence is tendered to establish that Mr. Johnson had an exhibited pattern of behaviour towards Mr. Skupien; that Mr. Johnson was physically abusive to Mr. Skupien over the period of time that they cohabited.
[86] The evidence, as O’Connor J.A. observed in DSF, is important to put the alleged offences into the context of the overall relationship. Without it, the jury may have a misleading view of the relationship; particularly if all they hear about is Mr. Johnson’s concerned call to 911. The evidence is capable of demonstrating an animus on the part of Mr. Johnson consistent with the offence he is charged with.
[87] In my view, the proffered evidence is highly probative of the issues of causation and identity.
[88] With respect to causation, evidence that establishes a pattern of assaultive behaviour on Mr. Johnson’s part towards Mr. Skupien may make it more likely that the injuries observed by the pathologist were caused by a beating as opposed to a fall or an accident.
[89] With respect to identity, evidence that Mr. Johnson held an animus towards Mr. Skupien is supportive of a motive to harm him, which in turn supports an inference that it was Mr. Johnson who beat him prior to his death.
5.2.2. Prejudice
[90] Prejudice is usually characterized as either reasoning prejudice or moral prejudice: see R. v. Handy, as above. Reasoning prejudice describes the risk that the jury may use the evidence of prior disreputable conduct for a reason other than its permitted purpose, or that a disproportionate amount of time, effort and resources may be directed at the evidence, relative to its value in the trial. Moral prejudice describes the risk that the jury might wrongly convict based on a finding that the accused is a bad person who is deserving of punishment.
[91] Risks of both moral and reasoning prejudice arise in this instance. They overlap somewhat.
[92] Nobody likes a bully. And the prior disreputable conduct evidence offered by the Crown tends to paint Mr. Johnson out as a bully. Moreover, the issues of causation and identity will require careful consideration by the jury. The Crown’s case appears to rest entirely on circumstantial evidence. If that is the case, the jury will have to be satisfied, beyond a reasonable doubt, that the only rational inference arising on the evidence is that Mr. Johnson is guilty: R. v. Griffin, 2009 SCC 28.
[93] There is a genuine risk that, upon hearing the evidence of Mr. Johnson’s prior physical abuse of Mr. Skupien, the jury will abandon the careful analysis that the evidence requires and take a shortcut to conviction just because Mr. Johnson is a bully.
[94] I mentioned earlier the concern expressed by defence counsel that the jury may also conclude that numerous visits made by Mr. Skupien to local doctors were the result of injuries sustained in beatings, as opposed to injuries sustained through falls or other accidents. Obviously Mr. Skupien’s documented history of injuries through misadventure has a tendency to make it more likely that the injuries that caused his death were the result of mishap as opposed to criminality. The defence are right to be concerned about any tendency that propensity evidence has to undermine that documented history.
[95] In the final analysis, however, I am not satisfied that the potential for prejudice outweighs the significant probative value of the evidence. I must take into account that much of the prejudicial impact of the evidence of prior disreputable conduct may be attenuated through a carefully worded jury instruction on the limited use of such evidence. In particular, the jury can be instructed that they must not use this evidence to conclude that Mr. Johnson is the type of person who would commit the offence he is charged with. They can further be warned not to speculate about any reason why Mr. Skupien visited the hospital so often and, assuming there is no evidence to the contrary, they must accept as true the content of the hospital’s notes and records.
[96] While jury instruction as a remedy for prejudice is frequently looked upon with some suspicion by defendants, so long as we continue to conduct criminal trials in accordance with the jury model, we must presume that juries will understand and adhere to the instructions of the trial judge: see R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at para. 128, R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 at para. 128, and R. v. Luciano, as above, at para. 258.
[97] While I have ruled on the body of evidence of prior disreputable conduct as a whole, there are two aspects of it that I must carve out as inadmissible. They are similar. The first is Mr. Amodeo’s evidence to the effect that he saw bruising on Mr. Skupien’s ribs a couple of weeks before his death. The second is Mr. Thompson’s evidence that he saw bruising on Mr. Skupien’s torso a few months before his death.
[98] The difficulty with the observations of Mr. Thompson and Mr. Amodeo is that there is no admissible evidence linking the injuries to assaultive behaviour by Mr. Johnson. Compounding the problem is that Mr. Skupien had a history of injuring himself through misadventure.
[99] Mr. Thompson testified that he asked Mr. Skupien how he got injured and he would not answer. Mr. Thompson heard on the street that Mr. Johnson had a habit of beating people up and he therefore connected the injuries he saw to Mr. Johnson’s violence. And therein lies the prejudice to Mr. Johnson.
[100] In my view, the jury could only speculate about the cause of the injuries observed by Mr. Thompson and Mr. Amodeo. Speculation is improper reasoning and it is prejudicial to Mr. Johnson. That type of prejudice cannot be cured and the evidence must be excluded.
6. CONCLUSION
[101] In the result, I am satisfied that the move out statements are admissible, under either of two exceptions to the rule excluding hearsay: the exception for present state of mind and the principled exception. I am not satisfied that the hard punch statement is admissible. It does not fall within any traditional exception and it is not sufficiently reliable to permit entry under the principled approach.
[102] I am otherwise satisfied, for the reasons expressed, that all of the identified propensity evidence (including the move out statements) is admissible on the basis that its probative value exceeds its prejudicial effect, save for the observations of Mr. Thompson and Mr. Amodeo regarding bruising on Mr. Skupien’s torso.
Boswell J.
Released: February 7, 2017