Court File and Parties

COURT FILE NO.: 28/18 DATE: 2019-04-01 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Applicant – and – ROGER CRAIG SHORT Defendant/Respondent

Counsel: Nicole Godfrey, for the Crown/Applicant David G. Bayliss, for the Defendant/Respondent

HEARD: March 18 and 19, 2019

THOMAS, RSJ.:

Reasons on Hearsay Applications

[1] This is another in a line of pre-trial applications in the first degree murder trial of Craig Short.

Background

[2] Craig Short and Barbara Short married in 1980. They had two children daughters Bridgette and Robyn.

[3] At the time of her death, Barbara Short lived with her husband at 936 St. Clair Parkway, in Mooretown. Craig Short owned a construction business. Barbara Short was responsible for doing the bookkeeping for the business. She also operated a daycare out of their home. Barbara Short did not have a driver’s licence.

[4] From March of 2006 until the time of her death, Barbara Short was involved in an extramarital affair with Ken Robertson. In the months prior to her death, she had taken steps to initiate divorce proceedings. She retained counsel, George McFadyen. By the time of her death, Mrs. Short had instructed Mr. McFadyen to file, but not serve, an Application for divorce.

[5] Barbara Short discussed, with various people close to her, her view of the state of her marriage. It is clear from her conversations with others, that her marriage was not a happy one. She stated that her husband was often verbally and emotionally abusive towards her. She was aware that in early 2008 that Craig Short had another woman’s name tattooed on his arm, and suspected he was having an affair with her. She expressed to him and others a desire to leave the relationship. She retained a family law lawyer to initiate separation proceedings, and shared her efforts to gain independence from Craig Short with a number of people in her life; for example, by seeking to obtain a driver’s licence and employment outside of the residence. These statements to others were both verbal and by e-mail.

[6] Barbara Short also documented her marital difficulties as well as her affair with Mr. Robertson through poetry in a personal notebook and documents on her computer. She often shared poems, including with her daughters and Ken Robertson.

[7] On October 19, 2008 at 1:40 a.m. Craig Short called 911 to report he had found his wife in the backyard of their residence. He had been out for the evening. He was charged with her murder on October 24, 2008. The Crown’s case is entirely circumstantial.

The Application

[8] The Crown seeks an order admitting into evidence numerous statements made by Barbara Short to others including her poems, or other documents and electronic messages authored by Barbara Short. In addition the Crown seeks admission of the statements of Linda Short (now deceased) which were made to the Ontario Provincial Police documenting her conversations with her sister-in-law Barbara. These amount to double hearsay.

[9] In response to the application the defence contests the admission of most of the body of evidence but as well requests admission of several hearsay statements of its own.

[10] The Crown provides the following backdrop which in its view accurately sets out the circumstances within which the hearsay was created and justify its admission.

Barbara Short had been unhappy in her marriage to Craig Short for a number of years. She felt that he had demeaned and belittled her and that he did not share her interests. He did not respect or love her. He did not want her to have a driver’s licence or work outside of the home.

In the Spring of 2008, after years of discontent Barbara Short made the decision to leave her marriage. She had become aware that her husband had tattooed the name of a woman she believed he was in love with on his arm. As the bookkeeper for his business she was cognizant that they were facing significant financial difficulties.

Barbara Short advised a number of people of her decision to leave her marriage to Craig and the reasons thereof. She retained the legal assistance of George McFadyen to assist her in negotiating a divorce settlement and commence divorce proceedings. She provided Craig with a letter from George McFadyen on or about July 31, 2008 advising him that she had retained Mr. McFadyen’s services for division of property and spousal support and that she wanted to negotiate a settlement. After giving Craig the letter from Mr. McFadyen, Barbara Short advised numerous close friends and Mr. McFadyen that her husband would not agree to a divorce. She advised Mr. McFadyen in writing in a fax dated August 5, 2008 that Craig told Barb that he would hurt her before she would leave him.

[11] After July 31, 2008 the Shorts remained together leading a life consistent with their past practice. Barbara Short continued to look for a job and to seek her driver’s licence. Despite some mixed messages Barbara Short told several people including Ken Robertson that at some point she would move forward with the divorce.

[12] Throughout this period Barbara Short wrote poetry in a notebook and on her computer. The poems were intimate views into a number of topics including her marriage and her relationship with Robertson. In September, 2008 McFadyen received instructions from Barbara Short to issue but not serve the divorce application and she signed a financial statement.

[13] Barbara Short was killed in the evening of October 18, 2008. Craig Short was out for the evening from 7:00 p.m. until approximately 1:30 a.m. attending a hockey game and socializing with a number of acquaintances.

[14] On October 19, 2008 Short met with Helen Tsaprailis, the woman whose name was tattooed on his arm. He had in his possession the letter from McFadyen regarding the marital separation. He asked that Tsaprailis shred it. She refused.

[15] In the morning of October 22, 2008 Craig Short attended at a local park with his wife’s notebook of poems which he had torn into pieces. The remnants were in a white plastic bag which he deposited in a garbage receptacle just ahead of the truck collecting the refuse. A police officer holding Short under surveillance retrieved the bag and the poems.

[16] It is the Crown theory that Craig Short killed his wife so that he would not be forced to equalize their assets and pay spousal support on divorce. He then spent the evening of her death speaking to as many people as possible about his wife and their day in an attempt to divert suspicion and create an alibi.

[17] This Crown application seeks to have me admit the evidence of twelve witnesses (including McFadyen and Robertson) concerning their conversations with Barbara Short including any electronic messages sent to them by Barbara Short. The Crown says this is admissible evidence going to the state of mind of Barbara Short concerning her marriage, her husband, Ken Robertson and her plans for the future. Further the Crown says it is evidence of animus, motive and therefore identity.

[18] In these conversations Barbara Short is said to have expressed her need to start a new life. She needed to start to drive, to find employment and somewhere to live. She was saving money for her lawyer. Her husband had a tattoo of Helen Tsaprailis’ name on his arm. Her husband did not respect or love her but did not want to lose his property and she was fearful of his reaction if served with divorce papers. Barbara Short messaged Ken Robertson professing her love for him and the sexual intimacies she desired. She told him of a tattoo on her ankle that was to remind her of him.

[19] The Crown proposes to tender three messages from Barbara Short to Robertson. The first from October 9, 2007 where she tells him the meaning of her ankle tattoo. Next from October 16, 2008 describing her love for him and the potential for anal intercourse. Lastly, October 17, 2008 where she is trying to arrange a time to meet with Robertson.

[20] Beyond the use above the Crown seeks several statements for the truth of their content. Excerpts from a number of those statements are detailed below:

A statement to her friend Julie Beatty in August/September, 2008 “Craig said she wasn’t worth losing all his money over…”

A statement to her friend Carrie Gauthier-Laukes in August, 2008 “… Craig said she will be dead before you get a job and leave.”

A statement to her neighbour Laura Lee Bowling in July/August, 2008 “… Craig told her she could not leave because he did not want to lose everything”.

A facsimile communication on August 5, 2008 to her lawyer McFadyen after showing McFadyen’s letter to her husband “… he said that before I give you half I would hurt you. I told him that if he did he would be in jail. He said he would then not care.”

The evidence of her sister-in-law Linda Short (now deceased) the afternoon of the date of her death when Barbara Short was having lunch after the cancer walk with Linda. “…he wanted her home but then he was going out for the night and probably wouldn’t be home until 2:00 – 2:30”.

Upon driving her home and arriving at the Short residence Linda Short said Craig Short seemed angry. Linda asked Barbara if she would be okay and Barbara replied “no [problem] I’ll call the cops…”

[21] The defence concedes much of the evidence of Ken Robertson as narrative evidence regarding the state of his relationship with Barbara Short but is concerned about the negative comments Barbara Short makes about her husband.

[22] The defence concedes the admissibility of the evidence of Bridgette Short as part of the narrative. She is able to chronicle the conversations with her mother regarding her unhappiness and her contact with a lawyer, Craig Short’s reaction and the creation of Barbara Short’s poetry.

[23] The defence concedes the admissibility of the poetry as its creation is independently established by other evidence. Counsel is optimistic that a statement including some of the poetry will be agreed upon by the parties and produced to the jury. The defence does not dispute the admissibility of the three email messages to Robertson or the statement of account from McFadyen that Craig Short produces to Detective D.L. during the October 19, 2008 walkthrough of the Short residence.

[24] The balance of the statements by Barbara Short the defence argues are made in circumstances of suspicion which undermines their reliability. The state of mind of Barbara Short will be clear from other evidence thereby reducing significantly the probative value. The quantity of this unnecessary evidence makes it exceedingly prejudicial.

[25] The defence seeks to lead the evidence of Dino Tsaprailis who was killed in a motorcycle accident prior to the preliminary hearing. Dino Tsaprailis’ evidence confirms that Short stopped at the Corunna restaurant at about 7:30 p.m. to pick up a payment for some construction work he had done. He told Dino he would be going to deposit the money and then to the hockey game. He described Craig Short as acting normal.

[26] The Crown concedes the admissibility of the Dino Tsaprailis evidence but for the comment about Short’s demeanor.

[27] The defence offers the evidence of Kim Shelley a neighbour of the Shorts as a response to the ante-mortem statements of Barbara Short to others that she wanted a driver’s licence and to leave Craig. As a result of my ruling here it is conceded this evidence is unnecessary.

[28] Natalie Clements, a client of Barbara Short’s daycare, said that a week before the murder Barbara Short told her that she and Craig heard noises in the backyard and thought people were stealing their gas. Bridgette Short said that her mother had concerns about gas being stolen. The Crown does not contest the admissibility of these hearsay statements.

[29] Carrie Gauthier-Laakes said that Barbara Short told her she gave Craig some of her poems to read and he threw them back at her saying “I’m not reading that shit”. The defence argues this evidence is admissible to respond to the Crown theory that Craig Short found the poems shortly before the murder and the content of them caused him to kill her. The Crown does not dispute admissibility.

[30] Helen Tsaprailis would say that on Friday, October 17, 2008 Barbara Short told her that she would not be attending the hockey game the next night. The defence suggests this is admissible as a statement of Barbara Short’s intention and to respond to the Crown suggestion that she did not attend only because she was dead. The Crown does not dispute the admissibility of this evidence.

[31] Finally the Crown is content to admit the evidence of Dr. O’Mahoney who prescribed an antibiotic for Barbara Short on October 16, 2008 as she told him she was suffering from a chest cold. It is suggested this evidence corroborates Craig Short’s statement to police that his wife was not feeling well and decided not to attend the game.

The Analysis

[32] The context of this analysis is simply this; identity is the overriding issue and the Crown’s case is entirely circumstantial. There is no evidence of previous physical violence in their domestic relationship. The hearsay statements sought to be introduced take on great significance for both Crown and defence.

[33] Hearsay evidence is presumptively inadmissible unless an exception to the hearsay rule applies. The primary reason being the inability to test the reliability of the evidence (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787).

[34] Here the Crown seeks to lead evidence from a myriad of witnesses about the ante-mortem statements of Barbara Short. Depending on the statement it relies upon the need to present the jury with an informed narrative, in some instances for the truth of the comment pursuant to the principled approach, but in the majority it offers that the comments provide evidence of the state of mind of Barbara Short related to her marriage, her husband and her intentions for the future. The state of mind purpose is potentially an exception to the rule prohibiting the admission of hearsay. Understanding the purpose for which the statements are being offered is essential to determining admissibility.

[35] Doherty J.A. made that observation at paragraphs 64 and 65 in the appeal decision in this matter (R. v. Short 2018 ONCA 1). I have reproduced paragraphs 63-67 below because they are instructive for this analysis.

I do not propose to review the entirety of the evidentiary rulings. I will, however, make two observations. First, to the extent that the statements were tendered as admissible hearsay under the principled exception, for example, the statements of Linda Short, the admissibility of those statements may be affected by the judgment in R. v. Bradshaw, 2017 SCC 35, 349 C.C.C. (3d) 429. That decision, released after the trial, may impact the assessment of the threshold reliability of some of the out-court-statements.

My second observation is a more general one. The various out-of-court statements were offered for different purposes. Some were presented as evidence of the state of the marriage, Mrs. Short’s state of mind prior to her death, or her intended course of conduct. Other statements were offered as evidence of what the appellant said to Mrs. Short, and others in support of inferences concerning the appellant’s state of mind, his animus towards Mrs. Short, and his motive for killing her.

The admissibility of out-of-court statements depends, in part, on the purpose for which those statements are tendered. Before admissibility can be properly determined, the party tendering the evidence must clearly articulate the precise purpose for which the out-of-court statement is being tendered: R. v. Bridgman, 2017 ONCA 940, at para. 32. Different parts of the same out-of-court statement may be offered for different evidentiary purposes requiring a different analysis and possibly leading to a different admissibility ruling.

I offer one example. The Crown led evidence of a statement Mrs. Short made to her divorce lawyer. In the statement, Mrs. Short said various things that were admissible to show her state of mind and her attitude toward the marriage. She also referred to a threat the appellant made to her. That part of the statement was relevant to Mrs. Short’s state of mind. However, it was apparently also admitted as evidence of a threat made by the appellant demonstrating his state of mind.

If at the new trial, the statement is offered again as evidence of Mrs. Short’s state of mind and evidence of the appellant’s animus and motive, the admissibility of the statement will have to be determined as it relates to each purpose. It does not follow that because the statement is admissible to show Mrs. Short’s state of mind, or intended course of conduct, that it is necessarily admissible as a threat made by the appellant showing his state of mind: R v. Foreman (2002), 62 O.R. (3d) 204 (C.A.), at paras. 31-35.

[36] In R. v. Griffin 2009 SCC 28 (Griffin) the Court considered a statement made by the deceased to his girlfriend “If anything happens to me it’s your cousin’s family”. The majority agreed with the admission of the statement as part of the traditional “state of mind” exception. It was relevant, made in a natural manner, and not under circumstances of suspicion. The Court went on to hold that the declarant’s concerns may also offer evidence of the accused’s animus, might be relevant to motive, and in turn to the issue of identification (Griffin paras. 60-65; R v. Pasqualino, 2008 ONCA 554, para.31 (Pasqualino); R. v. Lemky, [1996] 1 S.C.R. 757).

[37] In R. v. Bradshaw 2017 SCC 35 (Bradshaw) the Court considered the principled exception to the rule against hearsay and particularly the role corroborative evidence could play in determining reliability.

[38] Admissibility is determined through a consideration of threshold reliability. Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it” (Khelawon para. 49).

The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, at para. 30).

[39] At paragraphs 45, 47 and 48 in Bradshaw, Karakatsanis J. directs when corroborative evidence is of assistance in determining threshold reliability.

First, corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement (see Couture, at paras. 83-84; Blackman, at para. 57). Hearsay is tendered for the truth of its contents and corroborative evidence must go to the truthfulness or accuracy of the content of the hearsay statement that the moving party seeks to rely on. Because threshold reliability is about admissibility of evidence, the focus must be on the aspect of the statement that is tendered for its truth. 2 The function of corroborative evidence at the threshold reliability stage is to mitigate the need for cross-examination, not generally, but on the point that he hearsay is tendered to prove.

Second, at the threshold reliability stage, corroborative evidence must work in conjunction with the circumstances to overcome the specific hearsay dangers raised by the tendered statement. When assessing the admissibility of hearsay evidence, “the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility” (Khelawon, at para. 4). Thus, to overcome the hearsay dangers and establish substantive reliability, corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination (Khelawon, at para. 107; Smith, at p. 937). Corroborative evidence does so if its combined effect, when considered in the circumstances of the case, shows that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the materials aspects of the statement (see U. (F.J.), at para. 40). Otherwise, alternative explanations for the statement that could have been elicited or probed through cross-examination, and the hearsay dangers, persist.

In assessing substantive reliability, the trial judge must therefore identify alternative, even speculative, explanations for the hearsay statement (Smith, at pp. 936-37). Corroborative evidence is of assistance in establishing substantive reliability if it shows that these alternative explanations are unavailable, if it “eliminate[s] the hypotheses that cause suspicion” (S. Akhtar, “Hearsay: The Denial of Confirmation” (2005) 26 C.R. (6th) 46, at p. 56 (emphasis deleted)). In contrast, corroborative evidence that is “equally consistent” with the truthfulness and accuracy of the statement as well as another hypothesis is of no assistance (R. v. R. (D.), [1996] 2 S.C.R. 291, at paras. 34-35). Adding evidence that is supportive of the truth of the statement, but that is also consistent with alternative explanations, does not add to the statement’s inherent trustworthiness.

[40] The Crown is entitled to establish the state of mind of Barbara Short subject to other considerations I will comment upon later. It is important, as part of the analysis, to consider what the jury will hear about her state of mind, her relationship with the accused and her plans for the future without the benefit of this contested evidence.

[41] The parties have prepared an agreed statement of facts with respect to prior discreditable conduct. That statement describes that Craig Short was verbally and emotionally abusive towards his wife. He was heard calling her disrespectful names and being over critical of mundane tasks she had attempted. Witnesses described him as controlling. Barbara Short told witnesses that Craig was verbally abusive and did not respect or love her. She said her husband did not want her to obtain a driver’s licence but she told friends it was her intention to acquire a licence to gain independence.

[42] There will be evidence from Norman Lepine the nephew of Barbara Short. He will say that Craig Short told him that he would rather kill her than let her take half of all he had worked for.

[43] The jury will hear that Barbara Short retained a family lawyer, George McFadyen, who prepared a letter for Craig Short which described his client’s intention to separate and the need for Craig to obtain a lawyer to discuss equalization of their property and spousal support.

[44] The jury will see the letter. They will hear from Helen Tsaprailis that, after the murder of Barbara Short, Craig came to her and requested she shred the letter.

[45] They will hear from Bridgette Short her observations of her parents’ relationship. The discussions she had with her mother about Craig Short’s tattoo and her mother’s resolve to acquire a driver’s licence and job. Bridgette Short picked up the letter from McFadyen’s office. She was aware of the content and asked her mother if she wanted someone to be around when she gave it to Craig.

[46] Ken Robertson will testify about the extra-marital affair he had with Barbara Short for two years before her death. He will describe her apparent love for him and her hope of a future together obviously after her separation from her husband.

[47] The jury will also be able to consider a number of poems written by Barbara Short and discarded by Craig Short. The poems describe her love for Robertson and her dislike for her present marital relationship.

[48] Without most of the hearsay evidence sought by the Crown the jury will be armed with ample evidence describing the state of mind of Barbara Short and her views of her marriage and her life going forward.

[49] Beyond concerns about the amount of evidence sought there are as well strong considerations about the reliability of the evidence that encroach on both the proposed Griffin analysis and the Bradshaw considerations of substantive reliability.

[50] In Griffin the Court comments on the fact that the hearsay statement “is made in a natural manner and not under circumstances of suspicion” (para. 59). In Griffin there was no argument regarding circumstances of suspicion.

[51] In 2008 it is clear that Barbara Short wanted to separate from her husband and enter a long-term relationship with Ken Robertson. Her comments to her friends Julie Beattie, Carrie Gauthier-Laakes, her sister Linda Buckingham, her sister-in-law Linda Short, and her daughter Bridgette are all consistent with her distress with her marriage. To none of these people does she hint of a relationship with Ken Robertson nor does she mention her ankle tattoo that she acquired to remind her of Robertson.

[52] This observation is equally true of her communications with her lawyer, George McFadyen. I must be alive to the possibility that Barbara Short is, at least to some extent, engaged in “impression management”. If a separation is to happen does she want her version of the breakdown to influence the views of friends and family?

[53] There are also inconsistencies. Barbara Short told Linda Buckingham that Craig was content that she obtain a job outside the home and would drive her to her job. Her friend Michelle Gladwish testified at the second trial that Barbara Short told her she did not want to drive as the insurance premiums were too high.

[54] The Crown in its submissions suggests that a measure of reliability can be found in the fact that many of these recipients of Barbara Short’s comments were close friends and relatives. The Court of Appeal at para. 43 of Pasqualino suggested reliability might be found in “the context of everyday intimate conversations between close relatives and friends where there was no motive to fabricate”.

[55] The Crown here seeks to have the evidence of close friends and relatives ruled admissible but that argument must be tempered by the fact that unlike the situation in Pasqualino Barbara Short speaks to many others about her marital problems and her intention to divorce. The defence factum at para. 20 lists 43 persons that the evidence before me discloses were told by Barbara Short that her marriage was in trouble. Those persons include acquaintances from motorcycle excursions, a waitress, a personal trainer, a hairdresser and a housecleaner. The repetition about her marital concerns of course does not make them true.

[56] Justice Iacobucci in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 208 rejected the hearsay statement considered there as both a present intentions exception and a principled exception. He rested his concerns on “circumstances of suspicion” in the absence of other circumstantial guarantees of trustworthiness.

[57] There are “circumstances of suspicion” present in the statements considered here. Barbara Short was unhappy and felt controlled and unloved. She wanted to separate and form a relationship with her new intimate partner, a partner she disclosed to no one. She was actively involved with a lawyer drafting divorce documents and Craig Short knew of her intention. Active litigation was the same reason that prompted Rosenberg J.A. in R. v. Czibulka, [2004] O.J. No. 3723 to reject the admissibility of comments made to a doctor by a declarant who wanted her doctor to create a “record” at the same time that she was involved in a heated custody dispute. Justice Rosenberg saw this as a reason to fabricate.

[58] In the fax communication to McFadyen mentioned above, Barbara Short tells her lawyer she doesn’t want anything done she just wants it “known”. There is a reason to be concerned about the reliability of messages to counsel in a divorce proceeding.

[59] There are reasons to be suspicious of the statements made to friends Gauthier-Laakes and Bowling referenced above. The messages speak of her being forbidden to leave the marriage and of the potential for physical harm. These comments are inconsistent with the prior testimony of Bridgette Short and Linda Buckingham who testified that Barbara Short’s fear of leaving was not due to physical concerns, as Craig had never touched her, but rather to a fear of “starting over”.

[60] In Bradshaw the Court considered the use of corroborating evidence to support the substantive reliability of the hearsay statement. The conclusion reached was that the Court needed to consider alternative, even speculative, explanations for the statement. I have set these out above. There are circumstances of suspicion present here. The Crown has offered corroborative pieces of evidence but for the most part they amount to a house of cards, statements and actions, perhaps lacking in sincerity, used to prop up statements bearing the same frailties.

[61] I cannot say in considering the potential corroborative evidence that “the only remaining likely explanation for this statement is the declarant’s truthfulness…” (Bradshaw para. 47). In addition I cannot say that the material aspects of the statement are not likely to change under cross-examination (Khelawon para. 107).

[62] Having set out my concerns about the reliability generally let me consider two more specific pieces of offered evidence. It has been conceded that Ken Robertson should be able to testify about his relationship with Barbara Short. This is part of an important narrative. However Barbara Short’s complaints about her husband relayed to her new intimate partner carry with them acute concerns about reliability.

[63] The evidence of Linda Short is double hearsay. Her statement about the events of the last day of Barbara Short’s life are not significantly probative. At most it suggests that Craig Short was angry when Barbara returned home and may have suggested that he would be out late that night. Leaving aside the probative value Linda Short gives a video recorded statement to Detective D.L. on October 22, 2008 and then calls D.L. on October 28, 2008, the day after Craig Short’s arrest, to say that the “Lord said look you missed a piece and you need to tell you know whether it means anything to this investigation...”. It was at that time that she disclosed that Craig Short was angry when she took Barbara home after the cancer walk. This second statement was only audio-recorded. I have serious concerns for the reliability of this evidence especially considering the way in which it would have to come to the jury.

[64] To this point I have not considered the final resting place for the analysis of the admissibility of all Crown evidence. Even if admissible, does its probative value outweigh its prejudicial effect? In considering similar hearsay evidence in R. v. Maciel, 2007 ONCA 196 at para. 77 Doherty J.A. said the following:

I think the potential admissibility of evidence of a declarant’s intention to do something with a third party as a piece of circumstantial evidence to be considered with other relevant circumstantial evidence on the issue of whether that event took place, remains an open question after R. v. Starr, supra. However, even if that evidence of the declarant’s state of mind has some value as a piece of circumstantial evidence, its probative value will often be slight. If there is a serious risk that the evidence of the declarant’s intention will be misused by the jury, the trial judge may, in the exercise of his or her discretion, exclude the evidence of the declarant’s intention.

[65] Apart for reliability concerns, the probative value of the evidence considered above must be considered while acknowledging the other admissible evidence the jury will hear regarding Barbara Short’s state of mind and the nature of her relationship with Craig Short. There is little need to overwhelm the jury with repetitive evidence on the same theme.

[66] In Candir 2009 ONCA 915 at paras. 59 and 60 Watt J.A. recognized the danger present in this type of evidence:

A party who meets the requirements of a listed or the principled exception to the hearsay rule removes its exclusionary features as a barrier to admissibility. But ascension over one barrier to admissibility does not preordain reception. A trial judge has a residual discretion to exclude otherwise admissible evidence, including admissible hearsay, where its impact on the trial process (cost) exceeds its value to the correct disposal of the litigation at hand (benefit). The prejudicial effect of the evidence may overwhelm its probative value. Introduction of the evidence may involve a significant expenditure in time, not commensurate with the value of the evidence. The evidence may mislead because its effect on a trier of fact, especially a jury, may be disproportionate to its reliability: R. v. Mohan, [1994] 2 S.C.R. 9, at pp. 20-21; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3; R. v. Humaid (2006), 81 O.R. (3d) 456 (C.A.), at para. 57.

The general exclusionary rule described in the preceding paragraph is sufficiently expansive to permit exclusion in order to prohibit or reduce the needless presentation of cumulative evidence. This forensic piling on of evidence by the acre unnecessarily lengthens trials, diffuses their focus and diverts the attention of the trier of fact. Cumulative evidence, whether testimony, exhibits or both, often occupies a borderland around the periphery of the case, adding nothing to the contested issues, preferring instead to suffocate the trier of fact with the uncontroversial or marginal.

[67] With the evidence already ruled admissible this significant body of repetitive evidence about Craig Short’s failings and his vitriolic response to the idea of separation “begs to be used by the jury for the prohibited purpose” and “assumes an almost superstitious significance” (Griffin, Justices Fish and Lebel in dissent para. 107).

Conclusion

[68] The evidence of Ken Robertson is admissible including the three messages from Barbara Short to Robertson considered in para. 19 above. His evidence will not include comments made by Barbara Short to him demeaning and criticizing her husband. He will be so directed.

[69] The evidence of George McFadyen will be admitted as part of the narrative only. His evidence will consist of the dates Barbara Short met with him, the documents he prepared, the directions he took and the account he rendered for his services. Hopefully this evidence may come through on agreed statement.

[70] The evidence of Bridgette Short is admitted. I will seek direction from counsel on the use the jury can put to her evidence.

[71] The relevant poetry of Barbara Short will be admitted with the expectation that it can pass to the jury as part of an agreed statement on its origins and meaning.

[72] The proposed defence lead hearsay evidence considered by me in paras. 25, 26, 28, 29, 30 and 31 will be admitted for the purposes described there. However Dino Tsaprailis in his statement advises police he doesn’t know Craig Short “that well” and doesn’t hang out with him “that much” and so his opinion of normalcy is of no value. The balances of the evidence in the Crown’s hearsay application will not be admitted into evidence before the jury. For the most part it lacks substantive reliability and/or was created in circumstances of suspicion. Where portions of the evidence might be considered admissible the probative value is outweighed by its prejudicial effect.

“Original signed B. Thomas” Regional Senior Justice B.G. Thomas

Released: April 1, 2019

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Applicant – and – ROGER CRAIG SHORT Defendant/Respondent REASONS ON HEARSAY APPLICATIONS Regional Senior Justice B.G. Thomas

Released: April 1, 2019