Court File and Parties
Court File No.: 235/18 Date: 2018/08/20 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Prosecution/Applicant – and – Michael John William Ball, Accused/Respondent
Counsel: R. Dietrich and T. Shuster, for the Prosecution/Applicant A. Bryant and A.M. Morphew, for the Accused/Respondent
Heard: June 18-22, 2018
Pre-Trial Application No. 7 (Ante Mortem Statements)
Pursuant to section 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, or until further order of the court.
The Honourable Justice J. R. Henderson
Introduction
[1] The accused, Michael Ball (“Ball”), is charged with the first degree murder of his former girlfriend Erin Howlett (“Howlett”). In this pre-trial application, the Crown requests a ruling with respect to the admissibility of ante mortem statements made by Howlett in the months leading up to her death. These statements can be divided into two broad categories, namely, text messages between Ball and Howlett, and statements made by Howlett, either orally or by text message, to Howlett’s friends and family.
[2] The Crown and defence counsel have reached an agreement, which I accept, regarding much of the proposed evidence. It is agreed that the text messages between Ball and Howlett are admissible, provided that certain other text messages are also admitted into evidence. It is also agreed that Howlett’s statements made to friends and family are admissible.
[3] The only remaining issue is a request by the defence for a ruling that certain other statements made by Howlett are admissible. The defence submits that some of these statements are hearsay statements that are admissible for the truth of their contents, and that others are admissible for a non-hearsay purpose as original evidence. A summary of Howlett’s out-of-court statements tendered by the defence is set out in Exhibit 32, which I will reference throughout this decision.
[4] The Crown contends that many of the statements tendered by the defence are not admissible. It is the Crown’s position that some of these statements made by Howlett are not relevant or material. The Crown also submits that, in some instances, the defence proposes to use the statements for improper purposes.
The Law
[5] The defence tenders some of Howlett’s out-of-court statements for the truth of the contents of the statements. An ante mortem statement made by a deceased victim of an alleged crime that is tendered for the truth of the contents of the statement constitutes hearsay evidence. Hearsay evidence is presumptively inadmissible. See the decisions in R. v. Candir, 2009 ONCA 915, [2009] O.J. No 5485 at para. 54 and R. v. Khelawon, 2006 SCC 57, [2006] S.C.R. 787, [2006] S.C.J. No. 57 at para. 42.
[6] The onus is on the party seeking to introduce a hearsay statement to prove on a balance of probabilities that the statement is admissible pursuant to a traditional exception to the hearsay rule, or pursuant to the principled exception to the hearsay rule. See Khelawon at paras. 2, 34-36, and 42.
[7] In this pre-trial application, the parties rely upon both the traditional state of mind exception to the hearsay rule (as discussed in R. v. P.(R.), [1990] O.J. No. 3418 at para. 16) and the principled exception to the hearsay rule (as discussed in Khelawon at paras. 2, 3, and 42).
[8] It is important to keep in mind the reasons for the hearsay exclusionary rule. In that respect, Charron J. in Khelawon wrote the following at para. 2:
While no single rationale underlies its historical development, the central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability. Without the maker of the statement in court, it may be impossible to inquire into that person’s perception, memory, narration or sincerity. The statement itself may not be accurately recorded. Mistakes, exaggerations or deliberate falsehoods may go undetected and lead to unjust verdicts.
[9] Charron J. further confirmed at para. 2 that hearsay evidence is generally admissible if it meets the twin criteria of necessity and reliability. This has been called the principled exception to the hearsay rule.
[10] In the present case, the necessity criterion is met as the declarant, Howlett, is deceased. Therefore, the primary issue in the present case is whether the proposed statements meet the criterion of reliability. It must be noted that at this stage, the court is acting as a gatekeeper, and therefore the court must determine threshold reliability. The issue of ultimate reliability is the purview of the trier of fact. See Khelawon at paras. 2-3.
[11] The admissibility of ante mortem statements for the truth of the contents in domestic homicides has been considered by our courts in several previous decisions. In general, our courts have held that evidence of the nature of the relationship between the accused and the deceased may be relevant and material to a criminal prosecution. Evidence of the nature of the relationship may tend to show the state of mind of the accused, animus, or motive, all of which are relevant to the case. Further, evidence of the state of mind of the deceased can explain the nature of the relationship, and therefore can be a link in a chain of reasoning that could lead a trier of fact to make findings regarding animus and motive. See Candir at paras. 51-56, R. v. Griffin, 2009 SCC 28, [2009] S.C.R. 42, [2009] S.C.J. No. 28 at para. 63, and R. v. Carroll, 2014 ONCA 2, [2014] O.J. No. 2 at para. 104.
[12] The defence also tenders some of Howlett’s statements as original evidence that is admissible for non-hearsay purposes. I accept that the aforementioned hearsay rules only apply if the statements are adduced for the truth of the contents and there is no opportunity to cross-examine the declarant. See Khelawon at paras. 56-58.
[13] The admissibility of out-of-court statements that are not adduced for the truth of the contents, but only as evidence that the statements were made, does not depend upon an exception to the hearsay rule. To be admissible for a non-hearsay purpose, these statements must satisfy the general evidentiary rule that the evidence must be relevant and material and not otherwise excluded by any other evidentiary rule. See Candir at para. 46-50.
[14] Finally, whether the evidence is admissible for hearsay or non-hearsay purposes, the court retains a discretion to exclude otherwise admissible evidence if the prejudicial effect of the evidence outweighs its probative value. See Candir at para. 59, Carroll at para. 105, and Khelawon at para. 3. In the case of evidence tendered by the defence, evidence that is relevant to the defence in a criminal proceeding should not be excluded unless the prejudicial effect of that evidence substantially outweighs its probative value. See R. v. Seaboyer, 1991 SCC 76, [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62 at para. 43.
Background
[15] The contentious evidence proposed by the defence consists of statements made by Howlett to seven different people, namely, her brother Dane Howlett, her mother Catherine Howlett, and five friends, J.P. Walton, Ian Turgoose, Benjamin Fink, Brian Bettridge, and Leah Walter.
[16] These statements are tendered as evidence either for a hearsay purpose or for a non-hearsay purpose. Exhibit 32 contains a summary of the proposed statements and the purpose for which each statement is tendered.
[17] In general, the defence submits that these statements are admissible because they relate to issues in dispute in this proceeding. Those issues include the nature of the relationship between Ball and Howlett, Howlett’s credibility, Howlett’s alleged drug use or addiction, and Howlett’s tendency to lie about her whereabouts by using a false story about studying to be a financial planner. I accept that these matters are all contentious issues in this proceeding.
[18] More specifically, I find that there is a significant issue in this proceeding as to the cause of Howlett’s death. The forensic pathologist was unable to determine the precise cause of death, and could not rule out the possibility of a drug overdose. Thus, there remains a possibility that Howlett’s death may have been caused by a drug overdose. Evidence of her drug use is therefore highly relevant.
[19] There is also a factual issue about the nature of the relationship between Ball and Howlett. The Crown will submit that Ball and Howlett had a meaningful relationship and that Ball became upset when he discovered evidence that Howlett may have been seeing someone else. It is the defence position that the relationship between Ball and Howlett was a very casual one. Thus, I accept that evidence that goes to the nature of the relationship is relevant to motive and/or animus.
[20] There is another factual issue as to whether Howlett left Ball’s residence on Chestnut Street after she was dropped off there in the evening of June 27, 2013, the day she disappeared. The Crown submits that Howlett did not leave Ball’s residence alive, but the defence submits that Howlett left his residence and that she had plans to be with someone else. Therefore, evidence as to Howlett’s plans for the evening and the following weekend is also relevant to this case.
Analysis
[21] I will analyze the out-of-court statements tendered by defence by considering three different objections raised by the Crown.
[22] First, the Crown objects to Howlett’s brother, Dane Howlett, giving evidence that his mother told him that Howlett had told her that she was going to Toronto on the weekend that she disappeared to write an exam for a financial designation.
[23] This evidence constitutes double hearsay. It is not a statement from Howlett to her brother. As such, I accept the Crown’s submission that this statement does not meet the test of threshold reliability and should be excluded from the evidence. The caveat to this ruling is that if Howlett’s mother, Catherine Howlett, provides evidence to this effect, then Dane Howlett may be asked questions about this statement, subject to my ruling contained herein about the use that can be made about Howlett’s statements on this topic.
[24] Second, the Crown objects to the proposed evidence from Benjamin Fink about why Howlett lost her job at the Sip & Bite. His evidence will be that Howlett told him that the reason she lost her job “had something to do with money gone missing”. The defence submits that this is relevant evidence from which a jury can infer that Howlett was fired for stealing money from her employer, and that a jury could further infer that this theft of money related to Howlett’s drug use.
[25] In my view, this statement cannot be used as evidence that Howlett was stealing money or that she was fired for stealing money. It is not clear from this statement that Howlett was ever accused of stealing money; that Howlett acknowledged that she was stealing money; or that she was fired for it. Therefore, the foundation for the intended use of this statement does not exist.
[26] Moreover, it is a great leap to ask a trier of fact to infer from this evidence that Howlett had a drug problem. There are many possible interpretations that may be made from a statement that someone left a job because of “something to do with money gone missing”. A drug problem is not necessarily a logical inference.
[27] Further, I find that this evidence is highly prejudicial given the suggestion that Howlett may be a thief. I find that the prejudicial effect of this evidence far exceeds its probative value. It is not admissible.
[28] Third, the Crown objects to all evidence that Howlett falsely told friends and family that she was studying to become a financial planner; that she was writing an exam to become a financial planner; or that she was going to Toronto that weekend to write such an exam. She gave various versions of this false story to five different people.
[29] The Crown submits that these statements are clearly false and therefore cannot be admitted for the truth of their contents. The defence agrees that the statements are false and that they cannot be admitted for the truth of their contents; however, the defence submits that these statements are admissible for several non-hearsay purposes.
[30] The defence first submits that these statements are admissible for the non-hearsay purpose of testing Howlett’s credibility. I agree. The statements show that Howlett lied about studying to become a financial planner to several of the witnesses who will testify about other out-of-court statements made by Howlett. The fact that she lied to her friends and family can be used to assess her overall credibility.
[31] In my view, the defence must be given some latitude in its ability to test the credibility of a person whose evidence is provided through hearsay evidence. One of the concerns associated with the admission of hearsay statements is that it is difficult for a trier of fact to weigh the statements as there has been no cross-examination of the declarant. Thus, if ante mortem statements are admitted during the Crown’s case, it is appropriate to balance these statements by permitting the defence to tender other ante mortem statements that may assist the jury in assessing the credibility of the declarant and the reliability of the statements.
[32] The defence also submits that these statements are admissible to corroborate Ball’s statement to police. On July 6, 2013, Ball gave a statement to police in which Ball was asked about Howlett’s whereabouts on the weekend that she disappeared. Ball told police that Howlett told him that she was going to Toronto that weekend. I agree that if Howlett’s statements about going to Toronto or becoming a financial planner are not admitted, it is possible that Ball’s statement to police could be interpreted as an attempt by Ball to mislead police. Accordingly, I find that these statements are also admissible for the non-hearsay purpose of corroborating Ball’s statement to police.
[33] The difficult point of contention is the defence submission that these statements are admissible as evidence that Howlett had plans that did not involve being with Ball. The defence submits that the jury may use this evidence to infer that Howlett had other plans on the weekend that she disappeared; that Howlett lied to Ball about her true plans; and that Howlett planned to leave Ball’s residence on the evening of June 27, 2013.
[34] It is the Crown’s position that using these statements in this way is in fact using the statements for the truth of the contents, and that is not a permissible use as the proposed statements are clearly false. It is the defence position that this use would not constitute using the statements for the truth of the contents, but only to show that Howlett made false statements about her plans and that she used this cover story to explain her unavailability to Ball.
[35] In order to resolve this dispute it is appropriate to separate Howlett’s statements about studying to become a financial planner and going to Toronto into two component parts, namely the component that Howlett had other plans that weekend that excluded Ball, and the component that the other plans involved going to Toronto to write an exam.
[36] I find that the defence wants to use the first component of Howlett’s statements for the truth of the contents. That is, the defence wants to use Howlett’s statements as evidence that she had other plans. The second component of the statements is clearly false and cannot be used for the truth of the contents.
[37] The issue then is whether the first component of the statements, that Howlett had other plans, is admissible as hearsay evidence for the truth of the contents. The state of mind exception to the hearsay rule does not apply. If this component of Howlett’s statements is admissible for the truth (i.e. that she had other plans) it must fall within the principled exception to the hearsay rule.
[38] To fulfil the reliability criterion of the principled exception to the hearsay rule, Howlett’s statements that she had other plans must meet the relatively low standard of threshold reliability. In the present case I find that this component of Howlett’s statements is extremely unreliable because it is closely linked with her false story about studying for an exam or going to Toronto to write an exam.
[39] It is not possible for this court to accept that parts of Howlett’s statements meet the test of threshold reliability in circumstances in which those parts of the statements are closely linked to other false statements. In my view the linkage between the parts of the statements that might be true and the parts of the statements that are clearly false makes all aspects of the statements unreliable.
[40] For these reasons I find that Howlett’s out-of-court statements about studying to be a financial planner or going to Toronto to write an exam are not admissible as evidence that Howlett had other plans or that she planned to be with someone other than Ball on that weekend.
[41] In summary, I find that the proposed defence evidence that Howlett told friends and family, falsely, that she was studying to become a financial planner, or that she was going to Toronto to write an exam is only admissible for the non-hearsay purposes of assessing Howlett’s credibility and corroborating Ball’s statement to police. The jury will be instructed accordingly.
Summary and Conclusion
[42] Referring to Exhibit 32, I make the following findings as discussed in this decision.
[43] Regarding Dane Howlett, the proposed evidence is double hearsay evidence and is not admissible unless Catherine Howlett testifies and provides the foundation for Dane Howlett’s evidence on this point, subject to the restrictions set out herein.
[44] Regarding J.P. Walton, I find that the proposed evidence is admissible for the purposes set out in Exhibit 32, except that the proposed use of the statements about studying to be a financial planner and writing exams is subject to the restrictions set out herein.
[45] Regarding Catherine Howlett, the evidence is admissible for the purposes set out in Exhibit 32, except that the proposed use of the statements about studying to be a financial planner and going to Toronto is subject to the restrictions set out herein.
[46] Regarding Ian Turgoose, the evidence is admissible for the purposes set out in Exhibit 32, except that the proposed use of the statements about studying to be a financial planner is subject to the restrictions set out herein.
[47] Regarding Benjamin Fink, the first statement set out in Exhibit 32 that Howlett told him she would be home by Saturday at 10:00 a.m. is admissible for the truth of its contents. The statements about the Sip & Bite are not admissible.
[48] Regarding Brian Bettridge, the evidence is admissible for the purposes as set out in Exhibit 32, except that the proposed use of the statements about studying and going to Toronto to write an exam is subject to the restrictions set out herein.
[49] Regarding Leah Walter, the evidence is admissible for the purposes set out in Exhibit 32, except that the proposed use of the statements about studying for “a life insurance thing” and going to Toronto to write an exam is subject to the restrictions set out herein.