Her Majesty the Queen v. James Wise

COURT FILE NO.: 18-97

DATE: 20200224

ONTARIO SUPERIOR COURT OF JUSTICE

WARNING

S. 648(1) of the Criminal Code applies to all motions and applications heard and determined in this proceeding before trial pursuant to s. 645(5) of the Criminal Code, where the subject-matter of the motion or application is or relates to evidence to be heard at trial. Pursuant to s. 648(1), no information concerning any part of such motion or application or the reasons for ruling on such motion or application shall be published in any newspaper or broadcast by any means, including posting or distribution over the internet.

BETWEEN:

HER MAJESTY THE QUEEN

– and –

James Wise

Defendant

COUNSEL:

Jason Pilon and Jason Neubauer, counsel for the Crown

Ian Carter and Jon Doody, counsel for the Defendant

HEARD: January 16-17, 2020

REASONS FOR RULING – ADMISSIBILITY OF HEARSAY STATEMENTS

Lacelle, J.

Introduction

[1] The Crown applies for an order holding that various hearsay statements are admissible in the trial of James Wise on a charge of first degree murder in relation to the death of Raymond Collison. The defence concedes the admissibility of certain statements and opposes the admission of others.

[2] The Crown seeks to have two groups of hearsay statements admitted. The first are statements made by witnesses who are now deceased. The second includes statements that Raymond Collison made to others prior to his death. The Crown seeks their admission under the principled exception to the hearsay rule, or, where certain statements of Raymond Collison are at issue, under the state of mind exception to that rule.

[3] Since in all instances the Crown seeks to admit the statements of deceased persons, the legal issue of necessity is conceded by the defence. The central issues before me are therefore whether the Crown has proved the threshold reliability of the statements under the principled exception, and/or, the criteria for admissibility under the state of mind exception to the hearsay rule.

[4] By way of background, as I have indicated, the accused is charged with first degree murder in relation to the death of Raymond Collison. Both the accused and Mr. Collison were residents in a small rural community. They knew each other and had a number of acquaintances in common.

[5] Mr. Collison was last seen alive on August 28, 2009. In the timeframe before he went missing, he had been living in a trailer on a property near where the accused was living.

[6] Mr. Collison’s remains were found in a culvert in a rural area almost five years later on April 17^th, 2014. The remains were discovered by teen-agers who were biking in the area. The location of Mr. Collison’s remains was a few kilometres from where the accused was living at the time that Mr. Collison was last seen.

[7] When Mr. Collison’s remains were found, there was a fan belt around the neck area of his remains. It was ultimately determined that Mr. Collison had been shot in the head with a .22 calibre firearm. He had also been shot in other parts of his body.

[8] The central issue in this case is the identity of Mr. Collison’s killer.

The statements at issue

[9] The defence concedes the admissibility of the following statements:

i. The statement of Garnett Crump;

ii. The audio recorded statement of Betty Stewart;

iii. The statements of Freeman Bartholomew that: i) he was Raymond Collison’s uncle; ii) he did not see Mr. Collison after his disappearance; iii) the accused told him that a skull and bones of a skeleton were found in the Melvin settlement;

iv. The statement made by Raymond Collison to Bill Collison that he bought a truck from the accused;

v. The statement made by Raymond Collison to Tammy Smith that: i) when he left her residence he was going back to his trailer; and ii) that he had had sex with Betty Stewart and that Betty Stewart had lent him money.

[10] For its part, the Crown has abandoned its application to have certain statements made by Betty Stewart admitted. The defence had opposed those statements, which were recorded in an officer’s notebook, on the basis that they constituted opinion and demeanour evidence. Both parties agree a ruling on the admissibility of those statements is not necessary.

[11] What remains to be decided, then, is the admissibility of the following statements:

i. Freeman Bartholomew’s denial that he told the accused he had seen Mr. Collison in South Mountain in 2009;

ii. Further particulars from Raymond Collison’s statement to Tammy Smith;

iii. Raymond Collison’s statement to Andy Irven, as overheard by Aaron Finn;

iv. Raymond Collison’s statement to Bill Collison that he had paid for the truck purchased from the accused in full.

Overview of the evidence regarding the statements

The statement of witness Freeman Bartholomew

[12] Freeman Bartholomew provided a statement to police on May 6, 2014. The statement was audio recorded. Mr. Bartholomew was not under oath when the statement was given, nor was he warned about the consequences of lying to police. He has not been cross-examined on the statement. He is now deceased. The Crown’s factum indicates that Mr. Bartholomew died on May 18, 2016 of a brain tumor. He was 89 years old.

[13] Mr. Bartholomew was related to Raymond Collison and he also knew the accused. He was asked by the police if he had met the accused at a flea market in 2009 and told the accused that he had seen Raymond Collison in South Mountain. Mr. Bartholomew said no.

The statements made by Raymond Collison to Tammy Smith

[14] The information from Tammy Smith that is at issue in this application was obtained in two police interviews in 2014. She had also been interviewed in 2009.

[15] In her first interview in 2014, Ms. Smith told police she met Mr. Collison once when she moved to Chesterville in 2009. She did not know his last name. She said she met him at her sister Heidi’s and then again later at Andy and Rachel’s, where Mr. Collison was drinking. She described him as a stranger.

[16] After being confronted with her prior statement from 2009, Ms. Smith told police she had met Mr. Collison in August. She shot pool with him once or twice and he had stayed at her place for two nights. After that, her partner at the time asked her if Mr. Collison would leave “because he drank and he got weird”. As far as she knew, Mr. Collison lived at Betty’s house. She reported that Mr. Collison “used to say people were after him um he when he drank he did get uncomfortable like”.

[17] Ms. Smith recalled on occasion when she went to Betty’s house with Mr. Collison. She thought this was mid-August. Mr. Collison had asked her to stay outside while he went into Betty’s house. He came back outside and said something about the neighbour, who was mowing the lawn beside the house on a riding mower at the time (the Crown intends to adduce evidence during the trial showing that the man on the mower was the accused). Ms. Smith reported that Mr. Collison said, “you see that guy over there he said you won’t believe what he told me he says I’m going to go missing if I come back around here again or something”. When pressed for further details, she said “I guess he didn’t like Ray being there or something and he said that um he said that he he’d disappear or something”.

[18] Ms. Smith told police that in response she said to Mr. Collison, “but I thought you live here” and he said, “well he doesn’t want me living here he accuses me of stealing money from her [referencing Betty Stewart] and this and that”. She said Ray told her this conversation with the man on the mower had happened a couple weeks prior.

[19] When asked if Ray had said anything more to her about this conversation, she said “after that he just said oh just forget what I talked about never mind”. She said she wanted to know more about what he was talking about and she asked him “and he said uh he said that it was no big deal cause he was back living there”.

[20] Ms. Smith discussed her conversation with Mr. Collison about the man on the mower again with different officers a few weeks later. She told those officers that while she was waiting outside at Betty’s, Mr. Collison “had come out and he said that see that guy on the tractor he said that if I ever was to come back here um un I’d disappear or go missing or something so and then I said okay I don’t want to hear it because I don’t want no part of this”. She then asked him why the man would say that and Mr. Collison told her “I don’t know he just said he doesn’t want me around anymore”. Ms. Smith told police that at the time he told her about this, Mr. Collison “seemed frigid and stuff like worried”. She said “he did seem concerned like he seemed scared almost”.

[21] Ms. Smith also told police that “that’s why Ray came and stayed at my house for a couple days or whatever was because he said he had to get out of there”. She said that when he left her place, Mr. Collison said he had to go out to his trailer “and he was leaving he was going to the Maritimes wanted to catch big tuna”. In this interview with police, Ms. Smith described Mr. Collison as her friend.

The statements made by Raymond Collison to Andy Irven and overheard by Aaron Finn

[22] Mr. Finn is the step-son of Paul Bourgeois, who was friendly with both Mr. Collison and the accused, and whose own evidence on the voir dire is summarized below.

[23] For his part, Mr. Finn told police that he knew who Raymond Collison was, although he knew him only by his first name. He explained how he knew Mr. Collison by saying that “um seen him a long time ago at um Andy Irven’s they used to drink sometimes and stuff”. Mr. Finn said he also hung around and talked with Mr. Collison. He had also seen Mr. Collison at the accused’s property.

[24] During his interview with police, Mr. Finn was asked whether Mr. Collison had said anything about having problems. Their interview continued:

FINN: I (unintelligible) heard that he had problems with uh before with uh Jim Wise kicked him off his property over some dispute I’m not sure about what it was

D/CST. HYNDMAN: When you say you heard who did you hear that from

FINN: um uh uh he’s I was sitting there when he was telling Andy the guy that passed away

D/CST. HYNDMAN: okay

FINN: He was oh Jim kicked me out blah blah something uh cause they were drinking so I didn’t really listen I just know Jim kicked him off the property over something and he got mad at him I don’t know why and I was just walking in gave (unintelligible) heard that walked out (unintelligible) sit around when people drink too much cause I don’t (laughs)

D/CST. HYNDMAN: yeah

FINN: I was just I overheard them talking about it

[25] This is the entirety of the record relating to what Mr. Finn overheard and the circumstances in which this statement by Mr. Collison was made.

The statements made by Raymond Collison to Bill Collison

[26] Bill Collison is Raymond Collison’s brother. Bill told police that two to three months before Raymond disappeared, Raymond told him that he had bought a truck from the accused and he had it paid off. Bill could not recall if Raymond had told him how much he had paid for the truck.

[27] Bill also told the police that the accused told him that Raymond didn’t pay him for the truck and the accused took the truck back. He had this conversation with the accused at a Tim Horton’s after Raymond had gone missing.

Other evidence on the voir dire

The accused’s statement to Paul Bourgeois

[28] Paul Bourgeois was friendly with both Raymond Collison and the accused. When he was interviewed by police, he was asked if the accused had ever “had words” with Raymond. He said, “could be I don’t know”.

[29] Mr. Bourgeois was asked if the accused ever talked about Raymond. Mr. Bourgeois told the police that the accused told him that Raymond “he come close there and bugs him sometimes stuff like that when he’s drinking”. The officer asked if the accused was angry about it. Mr. Bourgeois responded: “no he said I don’t want him around cuz he was drinking and that cuz [the accused] don’t drink and that and … you know what I mean he’s just like a pest whatever bugs him”. He told police that the accused “told [Raymond] not to go back so he probably didn’t go back at Jim’s you know what I’m saying Jim didn’t want him around”. He said the accused “just said I don’t want him around when he’s drinking and that cuz he’s yap yap yap you know what I’m saying”.

[30] He was asked about this conversation again later in the interview. Mr. Bourgeois told the police “he wasn’t really that mad you know what I mean he said he’s drinking and then then this wants to borrow money and this and that and all kinds of stuff you know what I mean so I’d rather not have him around you know what I mean”.

[31] Mr. Bourgeois recalled that this conversation with the accused occurred “maybe a month” before Raymond went missing.

Evidence relating to Raymond Collison’s mental health

[32] The evidentiary record for this voir dire includes statements from several people who describe Mr. Collison as paranoid, or as paranoid schizophrenic, or who have given other information relating to Mr. Collison’s mental health.

[33] Daryl Kennedy is Raymond Collison’s sister. She told the police that when Raymond was about forty-five years old, he was diagnosed with paranoid schizophrenia. She said he would not take his medication, or he would take it for a couple of days and then go off it. He thought it was bad for him so he wouldn’t take it. When asked what her brother’s life was like, she said he would sometimes get into brawls when he drank. She also said that he always thought somebody was after him, which she attributed to his sickness. He did not say who might have been after him. He would just “go away and he’d hide and stay away and he’d be afraid of everybody and everything”. She said he would “get ideas in his head and accuse people of things that weren’t right”. He would think they were out to get him. She said, “he’d point different ones out and but nobody in particular”. He thought her husband was in the mob one time. Ms. Kennedy also told police that their brother Allan was schizophrenic, but that he took his medication.

[34] Allan Collison is Raymond Collison’s older brother. He told police that Raymond suffered from paranoid schizophrenia and he used to hear voices. Allan Collison said that Raymond would drink to get rid of the voices. Allan told police that Raymond was always looking over his shoulder and thought somebody was going to kill him. A couple of times Raymond had asked Allan if their neighbours (two brothers) were going to kill him. Allan told police that Raymond had once lived in Manitoba. He was in a hospital there trying to get help for schizophrenia.

[35] Bill Collison is another of Raymond’s brothers. He told police his brother was schizophrenic. He described an occasion when Raymond was living in Nova Scotia in 1995 or 1996 when Raymond was “petrified and scared and he said somebody called him and threatened to kill him”. Bill was contacted by the RCMP who told him they had found Raymond in the middle of the TransCanada waving a knife. He agreed with police that Raymond should be taken to a psychiatric hospital in Nova Scotia.

[36] Tim Collison is Raymond Collison’s son. He reported that his mother had told him that Raymond was diagnosed with schizophrenia and was supposed to be taking medication for it. When he was asked how his father’s schizophrenia affected him, Tim said that when his father visited him, he would tell him that he thought the people next door were talking about him and saying they were going to kill him. Tim thought this was because of his schizophrenia, since the people next door were “just kids” and had a little baby. Tim laughed as he told police “he had nothing to worry about from them”. He said he kept telling his father that there was nobody after him. Tim also reported that his father had also accused one of his aunts of trying to poison him. He recalled a period of time about twenty years ago when his father “came back” really paranoid saying people were after him and stuff. Other family members thought Raymond had done drugs and this had messed him up.

[37] Linda Anderson did not know Mr. Collison personally. She met him for the first time in 2008 or 2007. Mr. Collison was outside her mother’s house on the sidewalk. She said he was in obvious distress. He looked confused, worried, and lost. She approached him and asked if he was looking for someone. He told her he was lost and did not know where he was. He said that he had been at a church service and he said the minister or pastor was trying to kill him. She thought he must have schizophrenia. She asked him if he had to take medication for anything and he said yes. Ms. Anderson called 911 to get an ambulance to attend because she thought he was “off his meds”. The 911 operator knew Mr. Collison and corrected her when she got his name wrong. After this incident, Ms. Anderson ran into Mr. Collison in the community. She asked him if he remembered her and he said he did not.

[38] Heather Parent had known Mr. Collison for about 10 years prior to his disappearance. He did handyman type work for her. She told police that the year before he went missing, Mr. Collison was always talking about somebody being after him. She thought he was having psychiatric problems. He told her that the safest place for him to be was in the bush because he felt most secure there. He never knew when somebody was going to be coming after him. She said she thought it was sort of a little bit delusional. She said that on the other hand, sometimes you have run ins with people or people have grudges against you for whatever reason and you just don’t know how to shake it.

[39] Andrew Irven was a friend of Mr. Collison’s in the few years before he disappeared. It was Mr. Irven who notified police that Mr. Collison was missing. Mr. Irven told police that Mr. Collison was on a pension “for a reason”. He said Mr. Collison had a “personality conflict” and that he had seen him go a little “flippy”. He reported that after a minute or two Mr. Collison would come right back to himself and everything would be fine. Mr. Irven thought that when Mr. Collison was drinking “the medication don’t work right”. He recalled one occasion when Mr. Collison told him the mafia was chasing him, but not even a minute later he was “back again” and “talking sensible”.

[40] A synopsis of the statement of Ivan Merkley, another associate of Mr. Collison’s, indicates that Mr. Merkley told police that Mr. Collison would “go through weird spells where he thought people were after him”. He also told police that Mr. Collison “had pills to take”.

[41] Betty Stewart had regular contact with Mr. Collison in the time prior to his disappearance. He would come to her place whenever he didn’t have anything to eat and he was hungry or needed a shower or a fresh change of clothes. She told police that she knew Mr. Collison “did have a mental problem” and said he was schizophrenic, though she acknowledged her understanding of what that meant was limited. She said she had never seen him take a pill or medication for that condition. She said he loved to drink. She told police that Mr. Collison was “on disability” and did not want it known that he had some carpentry jobs.

[42] Paul Bourgeois told police that Raymond was “always saying that somebody was uh after him somebody from Cornwall or something … he was always saying that all the time”. He never mentioned any names. Raymond mentioned it to him on a day when Mr. Bourgeois drove him to see his son. Raymond said he could not stay there too long because there were people looking for him.

The legal principles

[43] Hearsay is an out-of-court statement tendered for the truth of its contents. It is presumptively inadmissible. This is because allowing a trier of fact to consider hearsay may compromise trial fairness and the truth-seeking process. As noted most recently by the Supreme Court of Canada in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 19, hearsay “may be inaccurately recorded, and the trier of fact cannot easily investigate the declarant’s perception, memory, narration, or sincerity”. Generally, a hearsay statement will not be taken under oath, the trier-of-fact cannot observe the declarant’s demeanor as he or she makes the statement, and the hearsay statement may not be tested through cross-examination.

[44] However, as re-iterated in Bradshaw at para. 22, “some hearsay evidence ‘presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding’”. Accordingly, exceptions to the hearsay rule have developed over time.

[45] Under our law, hearsay may be admitted under one of the traditional recognized exceptions to the hearsay rule at common law, or under the principled exception to the rule, which has been developed by the Supreme Court of Canada in its jurisprudence.

The state of mind exception to the hearsay rule

[46] The state of mind exception to the hearsay rule is one of the traditional exceptions at common law. It refers to circumstances when “the declarant’s statement is adduced in order to demonstrate the intentions, or state of mind, of the declarant at the time when the statement was made”: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 63. Since Starr, the party seeking to introduce the statement must show that the statement is of “a present existing state of mind, and must appear to have been made in a natural manner and not under circumstances of suspicion”: Starr, at para. 168; R. v. Cote, 2018 ONCA 870, 143 O.R. (3d) 333, at para. 22; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42.

[47] The declarant’s state of mind may be inferred from a statement. For instance, in Griffin, the Supreme Court accepted that the statement “[i]f anything happens to me it’s your cousin’s family” permitted the inference that the declarant feared the accused. The statement was admissible for proof of the fact that the declarant feared the accused under the state of mind exception to the hearsay rule.

[48] Statements admissible under this rule will only be admissible when the declarant’s state of mind is relevant: Griffin at para. 59. In Griffin, where the central issue was also the identification of the killer of the deceased declarant, the court held at para. 59 that the hearsay statement was relevant to motive “and, in turn to the issue of identification”.

[49] The court went on to explain the reasoning that supported its conclusion. In brief, it held that the state of the relationship between the deceased and an accused in the time period leading up to the former’s murder has been recognized as probative of the issue of motive: at para. 61. It cited with approval the conclusion in R. v. Foreman (2002), 2002 CanLII 6305 (ON CA), 6 C.R. (6th) 201 (Ont. C.A.), at para. 30 that “the deceased’s state of mind was one link in a chain of reasoning which could lead to a finding that the [accused] had a motive to kill [the deceased]. In that way, evidence of the deceased’s] state of mind had an indirect connection to the appellant’s state of mind.”

[50] The court further held at para. 63 that evidence of an acrimonious relationship or dispute in the period leading up to a murder are “highly relevant to the issue of motive because such information may afford evidence of the accused’s animus or intention to act against the victim”. The evidence of the deceased’s fear of the accused was “highly relevant to the question of identity”: at para. 65.

Circumstances of suspicion

[51] As indicated above, statements may only be admitted under the state of mind exception to the hearsay rule where they are made in a natural manner and not under “circumstances of suspicion”. The meaning of “circumstances of suspicion” has not received great attention in the jurisprudence since this criterion was confirmed to be part of the test in Starr. While the court revisited the exception in Griffin, there was no argument on the facts of that case that the statement was made under circumstances of suspicion.

[52] In R. v. Brooks, 2015 ONSC 7350, the court held at para. 25 that “[s]uspicious circumstances are circumstances that call into question the reliability of the out-of-court utterance or conduct”.

[53] The case law provides some examples of “circumstances of suspicion”. In Starr, the court held that the declarant’s statement (that he intended to go meet the accused) was inadmissible because it was made under circumstances of suspicion. The surrounding facts allowed for the possibility that the declarant was lying to the recipient. In the earlier case of R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, the Supreme Court similarly concluded that the deceased declarant may have had a motive to lie to the recipient of the statement and held that two of the four statements at issue were not admissible under the state of mind exception.

[54] In R. v. J.(T.), 2014 ONCA 321, 308 C.C.C. (3d) 307, the court was considering the admissibility of a hearsay statement made by the mother of the complainant in a sexual assault trial. The court held at para. 33:

Although S.C.'s knowledge of the alleged relationship between M.C. and the appellant may have been relevant, her statement was not made in circumstances free of suspicion. We do not know the foundation for her statement. It was made just a few months before S.C. and the appellant separated, at a time when their relationship was already strained. S.C. could have misperceived the relationship between her daughter and the appellant, or could even have impliedly lied about the relationship. In these circumstances, her statement was made under "circumstances of suspicion" and was not admissible under the state of mind exception.

[55] As to whether the declarant’s mental state may be considered in assessing whether a statement has been made under “circumstances of suspicion”, the court has been directed to no authority where admissibility was sought on the basis of the state of mind exception. However, the facts and judgments in R. v. Khelawon (2005), 2005 CanLII 4775 (ON CA), 195 O.A.C. 11 (C.A.), aff’d 2006 SCC 57, [2006] 2 S.C.R. 787 are of some assistance, even though admissibility of the hearsay statements at issue in that case was determined under the principled exception.

[56] Khelawon involved allegations of abusive conduct by the accused towards five elderly residents in a nursing home. The decisions in the Court of Appeal and Supreme Court focus on the videotaped statement of one of the complainants (Mr. Skupien). Writing for the majority of the Court of Appeal, Rosenberg J.A. considered the declarant’s mental state as admissible on the threshold reliability inquiry under the principled exception. At the time, the governing ruling from the Supreme Court was Starr, which prohibited consideration of any evidence extrinsic to the circumstances in which a statement was made.

[57] The trial court in Khelawon had a voir dire record which raised the issue of whether the declarant’s state of mind at the time he gave a videotaped statement to police was impacted by a history of confusion, paranoia, and possible dementia.

[58] In the Court of Appeal, Rosenberg J.A. considered whether the complainant’s mental health history was relevant on the admissibility inquiry given the direction in Starr, which had directed at para. 217 that a declarant’s general reputation could not be considered in determining the threshold reliability of a hearsay statement. Rosenberg J.A. wrote at para. 102 that it “would be inimical to the principled approach that certain types of declarants would be deprived of the protection of the law because of a general reputation for dishonesty. I point out, however, that what is prohibited is evidence of general reputation” (emphasis in original). He held that “specific evidence of the declarant’s mental state is admissible” (emphasis added), however, and that such evidence, especially expert evidence “does not run afoul of a rule prohibiting use of evidence of general reputation”: at para. 103. The majority thus accepted that the evidence tendered about the declarant’s mental health history, which included evidence of confusion and paranoia as well as a contested diagnosis of dementia, was relevant to the determination of threshold reliability because it was evidence of a circumstance in which the hearsay statement was made.

[59] The dissenting justice in the Court of Appeal indicated in his reasons that he had viewed the videotape of the complainant’s statement. He described the complainant’s speech as intelligible and relatively coherent and said that the complainant calmly and clearly described what he said the accused did to him and the injuries he sustained. Notwithstanding this conclusion that was available on the record before the court about the complainant’s mental state at the time he made the statement, the majority in the Court of Appeal held that the statement should not have been admitted into evidence.

[60] That conclusion was upheld by the Supreme Court. Writing for a unanimous court, Charron J. summarized at para. 7 that the circumstances in which the statement had come about were not sufficiently reliable to overcome the dangers it presented and did not provide “reasonable assurances of inherent reliability. To the contrary, they gave rise to a number of serious issues”, including whether the declarant was “mentally competent”.

[61] The factual record underpinning this concern included medical records for the declarant. The records indicated that five years prior to his complaint, the declarant had suffered a stroke. Thereafter, he suffered occasional periods of confusion. He was described from time to time in the medical notes as “paranoid”. A diagnosis of paranoid psychosis was made about a year prior to his complaint, and medication was prescribed. This resulted in “some improvement in paranoia”, according to the medical notes. However, subsequent notes indicate the declarant was confused, and the possibility of dementia was first noted.

[62] The voir dire also included expert evidence from a geriatric psychiatrist called by the Crown: see Khelawon (SCC), at para. 22. She had observed the complainant’s videotaped statement and reviewed his medical records. Based on this, she concluded that the complainant did not reveal any signs of “impaired judgment, delusions or hallucinations, or intellectual pathology” during the videotaped statement. She took issue with the diagnosis of “dementia” and believed the declarant’s symptoms, noted in the medical records, were more likely side-effects of the anti-psychotic medication he was taking at the time.

[63] In considering these circumstances, Charron J. made two comments at para. 23 which are relevant to the issue before me. First, she wrote that the mental capacity of the hearsay declarant is a relevant factor on an inquiry into the statement’s admissibility as it may impact on the reliability of the hearsay statement. Second, in confirming the competency inquiry under s. 16 of the Canada Evidence Act, R.S.C., 1985, c. C-5 had no application in this context, she directed that the inquiry into the admissibility of a hearsay statement may require more extensive probing into the declarant’s mental competency at the time of making the statement when there is no opportunity to cross-examine the declarant.

[64] Importantly, the court in Khelawon also clarified at paras. 55 and 93 that its direction in Starr at paras. 215 and 217 should no longer be followed. The factors that may be considered on the admissibility enquiry are no longer limited by the language in those paragraphs.

[65] Ultimately, the Supreme Court held in Khelawon that there were no adequate substitutes for testing the evidence. In order to meet the reliability requirement, the Crown could only rely on the inherent trustworthiness of the statement: at para. 106. While the declarant’s mental health history was only one of a number of circumstances that led the court to its conclusion, it did figure in the analysis. Charron J. wrote at para. 107:

In my respectful view, there was no case to be made on [the basis of the inherent trustworthiness of the statement] either. This was not a situation as in Khan where the cogency of the evidence was such that, in the words of Wigmore, it would be “pedantic to insist on a test whose chief object is already secured” … To the contrary, much as in the case of the third statement ruled inadmissible in Smith, the circumstances raised a number of serious issues such that it would be impossible to say that the evidence was unlikely to change under cross-examination. Mr. Skupien was elderly and frail. His mental capacity was at issue – the medical records contained repeated diagnoses of paranoia and dementia. … In these circumstances, Mr. Skupien’s unavailability for cross-examination posed significant limitations on the accused’s ability to test the evidence and, in turn, on the trier of fact’s ability to properly assess its worth.

[66] I take from these analyses in the Court of Appeal and Supreme Court that a hearsay declarant’s mental health may be a relevant consideration in assessing the circumstances in which a statement is made. The court in Starr held, in effect, that there is a symmetry to the reliability analysis in the state of mind exception and the principled exception to the hearsay rule. Their functional equivalence was affirmed post-Bradshaw by the Court of Appeal for Ontario in Cote. I see no reason, then, that the mental health of a declarant should not be considered in assessing whether a statement is made in “circumstances of suspicion”, a criterion which functions to filter statements that are not sufficiently reliable for admission.

[67] If the court in Brooks is correct, as I think it must be, that suspicious circumstances are circumstances that call into question the reliability of the out-of-court utterance, then I conclude that the possibility that a mental health issue might impact upon a declarant’s perception of events is a circumstance that the court can consider in determining the admissibility of the utterance under this traditional exception to the hearsay rule. There would be some irony to a conclusion that a declarant’s mental health is irrelevant to this analysis given that the exception is focused on the declarant’s “state of mind”.

The principled exception to the hearsay rule

[68] Where a party seeks to have hearsay admitted under the principled exception to the hearsay rule, that party must prove, on a balance of probabilities, the criteria of necessity and reliability. Since the criterion of necessity is conceded in this case, I review the law only as it pertains to reliability.

[69] The issue for a judge ruling on admissibility is the threshold reliability of the statements and not its ultimate reliability. Threshold reliability will be established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficulty in its testing. The dangers relate to assessing the declarant’s perception, memory, narration, or sincerity: Bradshaw at para. 26.

[70] These dangers may be overcome where “(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)”: Bradshaw at para. 27; Khelawon at paras. 61-63.

[71] The standard for substantive reliability is high, but it does not require that reliability be established with absolute certainty. The trial judge must, however, “be satisfied that the statement is ‘so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process’”: Bradshaw at para. 31, citing Khelawon at para. 49.

[72] Corroborative evidence may be considered in assessing the substantive reliability of hearsay. Bradshaw directs how this should be done, and why courts must limit what evidence is used as corroborative evidence for the purposes of admitting hearsay. It reviewed its jurisprudence on this point, including Charon J.’s comments in R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 57, where the court held: “The admissibility voir dire must remain focused on the hearsay evidence in question. It is not intended, and cannot be allowed by trial judges, to become a full trial on the merits.” The Bradshaw court’s reasoning continued at paras. 42 and 44:

Limiting the use of corroborative evidence as a basis for admitting hearsay also mitigates the risk that inculpatory hearsay will be admitted simply because evidence of the accused’s guilt is strong.

The rationale for the rule against hearsay and the jurisprudence of this Court make clear that not all evidence that corroborates the declarant’s credibility, the accused’s guilt, or one party’s theory of the case, is of assistance in assessing threshold reliability. A trial judge can only rely on corroborative evidence to establish threshold reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. If the hearsay dangers relate to the declarant’s sincerity, truthfulness will be the issue. If the hearsay danger is memory, narration, or perception, accuracy will be the issue.

[73] As was noted by Trotter J.A. in R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 24, at para. 98, Bradshaw “prescribes what is arguably a more exacting analysis of reliability” than was set out in Khelawon. Since Bradshaw, a trial judge must take certain analytical steps in determining whether corroborative evidence is of assistance in determining the substantive reliability of hearsay. As per para. 57 of Bradshaw, a trial judge should:

1. Identify the material aspects of the hearsay statement that are tendered for their truth;

2. Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;

3. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and

4. Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

[Emphasis added.]

[74] Ultimately, substantive reliability is established when the statement is found to be so reliable that it is unlikely to change under cross-examination: Khelawon at para. 72; R. v. M.G.T., 2017 ONCA 736, 357 C.C.C. (3d) 109, at para. 139; Bradshaw at para. 31.

Assessing threshold reliability

[75] The inquiry into threshold reliability is not focused on the reliability of the witness testifying to the hearsay statements. The reliability or credibility of that witness “is not relevant to the threshold reliability inquiry because the threshold reliability inquiry is meant to serve as a substitute for cross-examination of the declarant, and because the hearsay witness is fully available to be cross-examined at trial”: Cote at para. 30. In the relatively rare cases “where the credibility or reliability of the narrator of the out-of-court statement is so deficient that it robs the out-of-court statement of any potential probative value”, a trial judge may determine that this necessitates exclusion of the statement based on the exercise of her residual discretion: R. v. Humaid (2006), 2006 CanLII 12287 (ON CA), 81 O.R. (3d) 456 (C.A.), at para. 57, leave to appeal refused, [2006] S.C.C.A. No. 232. However, it would be an “exceedingly rare case” where this caveat might be applied without the opportunity to see and hear the narrator’s testimony on the admissibility voir dire: R. v. Berry, 2017 ONCA 17, 345 C.C.C. (3d) 32, at para. 53.

[76] The assessment of the substantive reliability of a hearsay statement is therefore only concerned with the hearsay declarant’s reliability. Since Bradshaw, and as explained in Nurse at para. 102, substantive reliability is “gauged by the circumstances in which the statement was made, and any evidence that corroborates or conflicts with the statement” (see also Bradshaw at para. 30 and Blackman at para. 55). Bradshaw directs at para. 40 that “substantive reliability is concerned with whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy”. The evidence must “substantially” negate the possibility raised in the alternative explanation: Bradshaw at para. 6.

The use of corroborative evidence

[77] Bradshaw and other cases provide further guidance as to what evidence is corroborative, and how corroborative evidence may be used in the analysis of threshold reliability. For instance, the cases direct that:

i. “[N]ot all evidence that corroborates the declarant’s credibility, the accused’s guilt, or one party’s theory of the case, is of assistance in assessing threshold reliability. A trial judge can only rely on corroborative evidence to establish threshold reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement” : Bradshaw at para. 44 (emphasis added);

ii. “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 the hearsay is tendered to prove”: Bradshaw at para. 45 (emphasis added);

iii. Corroborative evidence must work in conjunction with the circumstances to overcome the specific hearsay dangers raised by the hearsay statement. It must show that the material aspects of the statement are unlikely to change under cross-examination. It 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 material aspects of the statement… Otherwise, alternative explanations for the statement that could have been elicited or probed through cross-examination, and the hearsay dangers, persist”: Bradshaw at para. 47;

iv. Corroborative evidence must itself be trustworthy. Untrustworthy evidence is not relevant to the inquiry. “Trustworthiness concerns are particularly acute when the corroborative evidence is a statement, rather than physical evidence”: Bradshaw at para. 50;

v. The standard set out in Bradshaw “will not be met where the corroborative evidence is equally consistent with another explanation. The corroborative evidence must show on a balance of probabilities that the only likely explanation for the statement is the truth or accuracy of the material aspects of the statement”: R. v. Tsega, 2019 ONCA 111, 144 O.R. (3d) 561, at para. 26, cited in Nurse at para. 103; Bradshaw at para. 48.

[78] With respect to the standard of proof, the court in Bradshaw cautioned at para. 49:

While the declarant’s truthfulness or accuracy must be more likely than any of the alternative explanations, this is not sufficient. Rather, the fact that the threshold reliability analysis takes place on a balance of probabilities means that, based on the circumstances and any evidence led on voir dire, the trial judge must be able to rule out any plausible alternative explanations on a balance of probabilities.

The analysis where the hearsay statement is said to be admissible under both a common-law exception and the principled exception to the hearsay rule

[79] In Nurse at para. 59, Trotter J.A. re-iterated the direction given by Charon J. in Khelawon at para. 60 that if a trial judge determines that evidence falls within one of the common law exceptions to the hearsay rule, this finding is “conclusive”, and the evidence is admissible.

[80] The defence may displace the conclusion that the evidence is admissible by challenging the exception itself: Nurse at para. 60, citing R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15. Alternatively, in “rare cases”, “evidence that would otherwise fall within a valid hearsay exception may be excluded if it does not meet the requirements of necessity and reliability in the particular circumstances of the case”: Nurse at para. 61.

[81] In those instances, the onus will be on the party challenging the admissibility of evidence falling within a traditional exception to show that the evidence should nevertheless be inadmissible: Nurse at paras. 61 and 110; Mapara at para. 60. As directed in Starr, in the event of a conflict between the principled approach and a traditional exception, “it is the principled approach that must prevail”: Starr at para. 155, Nurse at para. 64.

[82] A trial judge determining the admissibility of a hearsay statement should explain why a case meets the “rare case” threshold before considering the otherwise admissible hearsay evidence under the principled approach: Nurse at para. 65. Proceeding to the principled analysis is “not automatic”. The occasions on which this will be appropriate are “rare” or “unusual”: Nurse at para. 89.

[83] Unfortunately, as noted in Nurse at para. 90, there is little guidance in the case law as to what constitutes a “rare case”. Following his review of the existing jurisprudence from the Supreme Court and the Court of Appeal for Ontario, Trotter J.A. suggested this analytical lens at para. 92:

[T]he basis for asserting a “rare case” must extend beyond the reliability concerns inherently captured in the hearsay exception itself. It must be unique to the case at hand. Further, the reliability concerns must be issues that go to threshold reliability, rather than weaknesses in the evidence that go to weight and can properly be assessed by the trier of fact in determining ultimate reliability.

The admissibility of the statement of Freeman Bartholomew

[84] The Crown argues that Mr. Bartholomew’s statement was made in circumstances that do not disclose a plausible position he was being anything but honest. While not under oath, the statement was audio recorded. Mr. Bartholomew was aware that he was speaking with police who were investigating the death of Mr. Collison. Further, the Crown submits there is sufficient corroboration of material aspects of his utterances to establish the substantive reliability of his statement. It submits the hearsay dangers are effectively answered by the substantive reliability of the statement and it should be admitted under the principled exception to the hearsay rule.

[85] While the defence does not object to the admissibility of certain parts of the statement, it does object to the statement that Mr. Freeman did not speak to James Wise in 2009 and tell him he had seen Raymond Collison in South Mountain. For the purposes of step one of the Bradshaw analysis, this is the material aspect of the statement. The defence argues that there is insufficient evidence to make out the inherent trustworthiness of this portion of the statement.

Analysis

[86] The hearsay danger with Mr. Bartholomew’s statement relates to the declarant’s memory. Accordingly, accuracy is the issue.

[87] The defence submits that an alternative explanation for Mr. Freeman’s denial that he spoke to James Wise in 2009 and said he saw Raymond in South Mountain is that he forgot. At the time he gave his statement, Mr. Freeman was 87 years old. He died two years later as a result of a brain tumour. The defence submits that it is a very real possibility that an 87 year old man forgot a short conversation from 5 years earlier that would not have had any significance to him at the time. The defence points out that in his statement, Mr. Freeman states that he cannot recall the last time that he saw Raymond. He states at one point that the last place he saw Raymond was at the flea market, but then later says it was at his dad’s wake. The defence submits that since both these statements cannot be true, concerns about Mr. Freeman’s memory are readily apparent in the statement.

[88] The Crown submits that the evidence that is corroborative of the material aspect of this statement is twofold: first, James Wise spoke to the father of the teen-ager who found Mr. Collison’s remains in the culvert and he asked about the remains, and second, Mr. Collison routinely withdrew his disability cheque at the end of the month and failed to do so on August 31, 2009. The Crown also emphasizes that the defence has conceded that Mr. Bartholomew did not see Mr. Collison after the date he was last seen by others.

[89] The defence submits that none of the evidence advanced by the Crown as corroborative can exclude the alternative explanation that Mr. Bartholomew simply forgot about a conversation he had had five years ago. I agree. The evidence cited by the Crown is incapable of materially corroborating the fact that Mr. Bartholomew did not tell the accused he had seen Mr. Collison in South Mountain.

[90] I am not satisfied that the inherent trustworthiness of the disputed portion of Mr. Bartholomew’s statement has been demonstrated. The evidence has not been shown to be sufficiently reliable to overcome the dangers arising from the difficulty in testing it at trial. The accuracy of the declarant’s memory may not be tested and there are no adequate substitutes for that process. The corroborative evidence cited by the Crown does not assist in the admissibility enquiry, because the issue is not whether it was possible that Mr. Bartholomew saw Mr. Collison in South Mountain in 2009, but whether Mr. Bartholomew told the accused that he did.

[91] The circumstances in which the statement was made are not sufficient to overcome the hearsay dangers. I cannot conclude that on the totality of the evidence, the statement would be unlikely to change under cross-examination. Given this conclusion, the statement will not be admitted into evidence.

The admissibility of statements made by Raymond Collison

[92] The Crown seeks to admit statements that Mr. Collison made to three individuals: his brother Bill Collison, Andy Irven (as overheard by Aaron Finn), and Tammy Smith.

[93] Admissibility of the statement to Bill Collison is sought on the basis of the principled exception. The Crown seeks admission of the statements to Tammy Smith and Andy Irven on the basis of the state of mind exception to the hearsay rule, or alternatively, under the principled exception. Applying the direction in Nurse, I consider admissibility under the state of mind exception to the hearsay rule as the starting point for the analysis in respect of the statements to Tammy Smith and Andy Irven.

Raymond Collison’s statements to Tammy Smith

Admissibility under the “state of mind” exception to the hearsay rule

The positions of the parties

####### The defence

[94] The defence opposes admission of Raymond Collison’s statements to Ms. Smith based on reliability concerns. The defence argues that the fact that several people described Mr. Collison as paranoid, or as paranoid schizophrenic, is relevant to the admissibility of his statements. This is relevant to the state of mind exception to the hearsay rule because it could serve as evidence of “circumstances of suspicion”.

[95] The defence submits that the fact that Raymond Collison was paranoid, or possibly paranoid schizophrenic, means statements where he expresses concerns that people are mad at him or want to hurt him cannot be trusted as they could be paranoid delusions. The defence does not assert that nothing Mr. Collison said is reliable because of his illness, but points to the need for caution where Mr. Collison reports concerns for his safety, or that people are mad at him, since his perception of events is questionable given his mental health history. The possibility that he is mistaken in his perception, which cannot be explored in cross-examination, raises a circumstance of suspicion that should prohibit the statement from being admissible under the declaration of emotional state or intention exception.

[96] If Mr. Collison’s mental health history is irrelevant to whether his statements were made in “circumstances of suspicion”, the defence argues that the circumstances relating to Mr. Collison’s mental health make it one of the “rare” cases that require the court to go on to consider admissibility under the principled exception to the hearsay rule. The rare case exception would be triggered if the test for admissibility under this traditional exception does not permit the court to screen out a statement where there are reliability concerns.

####### The Crown

[97] The Crown argues that Mr. Collison’s statements are admissible under the state of mind exception because all the criteria for admission have been met: Mr. Collison’s state of mind is relevant to the issues in this case, and his statements were made in a natural manner and not under circumstances of suspicion. The Crown disputes the suggestion that the evidence on the voir dire justifies the conclusion that Mr. Collison suffered from schizophrenia and that this amounts to a circumstance of suspicion in respect of the statements he made to Ms. Smith.

[98] The Crown agrees that the evidentiary record does show that Mr. Collison suffered from a mental health issue. It further agrees that it is a live possibility that part of the theory of the Crown case at trial will include reference to Mr. Collison suffering from schizophrenia. However, the Crown does not agree that the court can conclude that Mr. Collison was schizophrenic, or that a person who is schizophrenic suffers from delusions. There is no expert evidence before the court to permit the conclusions sought by the defence.

[99] The Crown emphasizes the need to ensure that myth reasoning about the impact of mental illness does not infect the court’s analysis. The Crown argues that the fact that a person suffers from a mental health issue does not affect their credibility or reliability. It cautions against carving out an exception to the admission of hearsay statements for persons with mental illness. It emphasizes the important point that there is a distinction between having a mental health issue and not being a credible or reliable reporter of facts. The Crown submits that in this case, the question is whether Mr. Collison’s particular issues impacted on his ability to be an honest or reliable reporter of facts.

[100] The Crown argues that just because various individuals had the impression that Mr. Collison suffered from schizophrenia or was paranoid does not mean this was true. Further, even if it was true, this does not mean that his statements to others are not inherently trustworthy. The Crown points out that many of the individuals who provide information about Mr. Collison’s mental health have provided dated information. The Crown submits that the more contemporaneous information is that Mr. Collison was well and functioning.

The contents of Raymond Collison’s statements to Tammy Smith

[101] The evidence on the voir dire is that Tammy Smith was told a number of things by Raymond Collison a month or a couple of weeks before he disappeared while they were outside at Betty Stewart’s house. The content of the disputed statements is as follows:

i. The guy on the mower told him that Mr. Collison would go missing or he’d disappear if he came back “around here again”.

ii. When she asked him why the man on the mower would say that, Mr. Collison said “I don’t know he just said he doesn’t want me around anymore”;

iii. Mr. Collison came to stay with her for a few days afterwards because he said he “had to get out of there for a while”.

Admissibility under the state of mind exception to the hearsay rule

[102] I am not satisfied that these statements may be admitted under the state of mind exception to the hearsay rule. This is because I am not satisfied that the statements were made in circumstances free of suspicion.

[103] I have considered very carefully the limits of the evidentiary record before me, which does not include medical evidence or expert evidence regarding Mr. Collison’s mental health, or schizophrenia more generally. However, the weight of the evidence points to the very live possibility, if not the conclusion, that Mr. Collison suffered from schizophrenia. More specifically, the record leaves open the very real possibility that he experienced delusional thinking and paranoia about others harming him.

[104] I agree with the Crown that a fair amount of the information provided by some of the witnesses, for instance his family members, is dated. However, there is also evidence from persons who had known Mr. Collison in the time frame prior to his disappearance which confirms that his mental health issues were ongoing. Each of Tammy Smith, Betty Stewart, Paul Bourgeois, and Andy Irven, all of whom had contact with Mr. Collison at a time relatively proximate to his disappearance, describe what appeared to them to be disordered thinking.

[105] Heather Parent, who employed Mr. Collison, told police that Mr. Collison was “very nervous the year before”, and that he was “always talking about the year before he died um that somebody was after him”. She thought he was having psychiatric problems and his thinking seemed “a bit delusional”. It is not clear from this statement whether she meant this occurred during the year before he went missing, or whether this behaviour was confined to a period that ended the year before Mr. Collison disappeared. In either case, her information is part of a compelling record that Mr. Collison’s mental health issues were long-standing and ongoing. On this point, I note that the record here is based on information at least as contemporaneous to the time Mr. Collison’s statements were made as was the case in Khelawon, where the declarant’s mental health history was found to undermine the reliability of the hearsay statements.

[106] As to what impact any of Mr. Collison’s mental health issues were having upon him at the specific time he made the statements at issue in this application, that is impossible to say on this record. The court has even less information available in considering this issue than the court in Khelawon, since Mr. Collison’s statements were not recorded in any fashion. In any event, it is not the court’s function to arrive at a conclusion on that point. The issue to be determined is whether the Crown has proved, on a balance of probabilities, that the statements were not made in “circumstances of suspicion”. I am not satisfied that it has.

[107] The specific and consistent observations noted by Mr. Collison’s family members and his friends and acquaintances of what appear to have been incredible claims that someone wanted to harm him gives rise to a suspicion that his utterances about the man on the mower are not reliable. This finding is based on the cogent evidentiary record before the court, and not on stereotypes about persons with mental illness, including persons who are diagnosed with schizophrenia. Mr. Collison’s mental health history as reported by persons who knew him is a circumstance that calls into question the reliability of the statement.

[108] If I am incorrect in that conclusion because Mr. Collison’s mental health history is not a relevant factor in assessing whether the statement was made under “circumstances of suspicion”, I would find that this is one of the rare cases that requires consideration of the admissibility of the hearsay statements under the principled approach. In this scenario, the reliability concern is not inherently captured by the exception itself. As I understand the direction in Nurse, this would place it within the type of case that might be characterized as “rare”.

[109] In other words, I find that if the reliability concerns pertaining to Mr. Collison’s statements are not properly considered under the traditional exception, they must be addressed under the principled exception before the evidence may be safely admitted. The fair trial rights of the accused would otherwise be compromised.

Admissibility under the principled exception to the hearsay rule

The Crown

[110] The Crown submits that all statements made to Tammy Smith by Raymond Collison are admissible under the principled exception to the hearsay rule. It says that the statements were made by Mr. Collison to his friend in circumstances that do not disclose a plausible position that he was being anything but honest. Further, there is corroboration of material aspects of the utterances sufficient to establish their threshold reliability. The Crown submits that there is specificity to the threats made here that distinguishes them from other occasions where Mr. Collison has expressed a concern that others might harm him, and that the evidence shows that Mr. Collison was well at the time he made the statements.

[111] The Crown argues that the issues relating to Mr. Collison’s mental health should ultimately be determined by the trier of fact at the ultimate reliability stage of the analysis. The Crown submits that cross-examination in this instance “wouldn’t move the yardstick” because the jury could hear about the issues with Mr. Collison’s mental health from other witnesses. The defence may cross-examine other witnesses on their perceptions of Mr. Collison to elicit the evidence it would otherwise raise if it were able to cross-examine Mr. Collison himself. Consequently, the jury will have the tools to properly assess any reliability issues arising from Mr. Collison’s mental health.

The defence

[112] The defence argues that the fact several people described Mr. Collison as paranoid, or as paranoid schizophrenic, is also relevant to the admissibility of his statements under the principled exception to the hearsay rule. The defence argues that an alternative explanation for the statements is that Raymond Collison’s beliefs that he had been threatened and needed to “get out of there” were the result of delusional thinking. The defence further argues that Mr. Collison might have told Ms. Smith he needed to get out of there for a while to manipulate her into letting him stay with her. He might have been interested in doing so to obtain better accommodations than his trailer, or because he was interested in Ms. Smith and hoped to kindle a sexual relationship with her. The defence disputes the sufficiency of the corroborative evidence to overcome the hearsay dangers and submits the evidence should not be admitted.

Analysis

[113] There are no markers of procedural reliability relating to the statements. Accordingly, they are admissible only if they are inherently trustworthy.

[114] In assessing the substantive reliability of the statements, I consider that there are several material aspects. They include: 1) that the man on the mower told Raymond Collison that he did not want him around anymore; 2) the man on the mower told Raymond Collison that if he came back he would disappear or go missing; and 3) that when Raymond Collison went to Ms. Smith’s residence to stay for a few days he did so because he needed to get out of there for a while.

[115] Insofar as the hearsay dangers are concerned, where they relate to the declarant’s perception, the issue is the accuracy of the statements. Where they relate to the possibility that the declarant was lying to Ms. Smith, the hearsay danger relates to sincerity and the concern is with the truthfulness of the statement.

[116] The circumstances in which the statements were made provide some indications of reliability. It appears the statements were made spontaneously, and that Mr. Collison raised these topics. While there are some inconsistencies in her account, for the purposes of the voir dire, it is sufficient that there is evidence that Ms. Smith was a friend of Mr. Collison’s at the time the statements were made, and that Mr. Collison had no obvious motive to lie to her. The statements were also made within weeks of the event Mr. Collison was describing. While enhancing the reliability of the statements, these circumstances do not allow the court to reject the alternative explanations for the statement suggested by the defence. However, there is additional corroborating evidence that is properly considered because it relates to a material aspect of the statements.

[117] The Crown points to the statement of Paul Bourgeois regarding his conversation with the accused as powerfully corroborative evidence that supports admission of the statements. Mr. Bourgeois said that a month before Mr. Collison went missing, the accused told him that:

i. Raymond Collison goes there and bugs him when he is drinking and tries to borrow money;

ii. He did not want Raymond Collison around because he was like a pest;

iii. He told Raymond Collison not to go back.

[118] On the other hand, Mr. Bourgeois’ statement provides no corroboration that the accused threatened Mr. Collison in any fashion if he did “go back”.

[119] The defence says that Mr. Bourgeois’ statement is not corroborative of any aspect of what Raymond Collison told Ms. Smith because Mr. Collison did not allege that the man on the mower was the accused. Because Mr. Collison did not identify who threatened him, the accused’s statement to Paul Bourgeois is not materially corroborative.

[120] The case law does not support the defence position. Utterances whose meaning is derived from other evidence adduced in the case have been admitted in other circumstances (see for instance Blackman, at paras. 18 and 32-33; Mapara, at para. 5; and Griffin, at para. 18). The Crown has provided evidence on this voir dire that, if accepted, could establish that the accused was the man on the mower. The fact that Mr. Collison did not identify the name of the man on the mower is not a bar to considering the evidence of Paul Bourgeois as corroborating evidence, nor to the admission of the utterance, whose ultimate significance would be decided by the jury.

[121] I find that the Crown has demonstrated the threshold reliability of Mr. Collison’s statement to Ms. Smith that the accused told him he did not want him around anymore. The evidence of Paul Bourgeois is powerfully corroborative on this material point. Given this admissible evidence in the trial, I am satisfied that cross-examination of the declarant on this point, were it possible, would add little of value. I find the hearsay dangers are overcome as regards this utterance.

[122] However, I am not satisfied that the remaining utterances are sufficiently reliable that the hearsay dangers are overcome. The accused’s statement to Paul Bourgeois does not corroborate that he told Mr. Collison that if he came back he would go missing, or that he made any other type of threat. Cross-examination on the issues identified by the defence, particularly whether the declarant’s recollections have been impacted by delusional thinking, could reasonably affect the trier of fact’s assessment of this evidence. On this issue, I have considered the Crown’s argument that Mr. Collison’s comments about the man on the mower are specific and can be distinguished from generic statements to others about people wanting to harm him. I do not find that there is such compelling specificity in the allegation that I can reject the alternative explanation advanced by the defence and conclude that the only likely explanation for the utterances are that they are likely accurate.

[123] I am also mindful of the distinction between threshold and ultimate reliability, and the Crown’s arguments that the jury will have the tools necessary to properly assess the utterances. I am not persuaded that this argument overcomes the admissibility issues in this case. I find that it is an insufficient substitute that the persons who have described Mr. Collison’s mental health history may be cross-examined by the defence at trial. A similar conclusion was reached in Bradshaw at para. 89 where the court held that giving the jury an evidentiary record to permit it to assess the issues was an inadequate response to the hearsay dangers: “Putting Thielen’s inconsistencies into evidence did not provide the jury with a sufficient substitute basis for evaluating the truth of the re-enactment statement”. The court also cautioned that “[j]ury warnings do not provide an adequate substitute for the traditional safeguards. They are no substitute for other conditions of admissibility”.

[124] Ultimately, I conclude that it is impossible to say that the evidence would be unlikely to change under cross-examination: Khelawon (SCC), at para. 72, citing Smith. As I have stated, the point of the analysis at this stage is not to make a finding that the declarant was mistaken in his perception or that he lied. On the admissibility inquiry, it is sufficient that the circumstances in which the statement was made gives rise to these issues to bar its admission: Khelawon (SCC), at para. 72.

[125] As I have indicated, the defence bears the onus under the principled exception analysis for the “rare” cases where the evidence is admissible under the state of mind exception but nevertheless warrants analysis under the principled exception. My conclusion would be the same even if the burden of persuasion on this issue rested with the defence.

The statements to Andy Irven overheard by Aaron Finn

Admissibility under the state of mind exception to the hearsay rule

The Crown

[126] The Crown argues that the statement overheard by Mr. Finn meets the pre-conditions to admissibility since it was provided in a natural manner, and not under circumstances of suspicion. The Crown emphasizes this was a conversation between friends and submits there was no leading questioning by Mr. Irven, or any other indication of improper influence on Mr. Collison. The Crown argues that there were no circumstances of suspicion surrounding the statement for the same reasons as the statements made to Tammy Smith.

The defence

[127] The defence argues that none of the criteria for admissibility under the state of mind exception are made out given the lack of information that is available about the statement. The defence says that the account given by Mr. Finn is wanting, and further information from Andy Irven is not available because Mr. Irven is deceased. The defence says there is no basis on this record to conclude that Mr. Collison was speaking about a “present state of mind” as opposed to an event from years ago. Further, the defence argues that the record is so bare that the court cannot conclude that the statement was made “in a natural manner”. The court cannot conclude that the statements were made spontaneously since Mr. Finn’s account reveals nothing about whether anyone else participated in the conversation, what questions were asked and by whom, or anything else about how the utterances came about. The defence also submits that the statement was made in “circumstances of suspicion” for the same reasons advanced regarding Mr. Collison’s statements to Tammy Smith.

Analysis

[128] The evidentiary record regarding the circumstances in which this statement was made is poor. The transcript that contains the statement has important gaps where the comments of Mr. Finn are “unintelligible”. From what is discernible in the transcript of the statement, it appears Mr. Finn “didn’t really listen” to the conversation. He says, “they were drinking”. His statement goes on: “I just know Jim kicked him off the property over something and he got mad at him I don’t know why and I was just walking in gave (unintelligible) heard that walked out (unintelligible) sit around when people drink too much cause I don’t (laughs)”. The statement contains so little detail it is not even clear where this conversation took place.

[129] The evidence does not permit me to conclude, on a balance of probabilities, that the statement was made “in a natural manner”. It provides no satisfactory basis to conclude that the statement was made spontaneously. It leaves open the possibility that Mr. Finn did not observe significant parts of the interaction between Mr. Irven and Mr. Collison, either because he “didn’t really listen”, or because he came into the conversation part way through. I have no confidence as to what the circumstances were when the statement was made, apart from the fact that Mr. Collison and Mr. Irven were drinking.

[130] Insofar as whether the statement was made in circumstances free of suspicion, my conclusions regarding this issue as regards the statement to Tammy Smith apply equally here.

[131] Because the Crown has not satisfied me the statement was made in a natural manner or in circumstances free of suspicion, the statement will not be admitted under the state of mind exception to the hearsay rule.

Admissibility under the principled exception to the hearsay rule

[132] The Crown submits that nothing in the circumstances in which the statement was made discloses a plausible position that Mr. Collison was being anything but honest in his comment to Mr. Irven. Further, the Crown says there is sufficient corroboration for the material aspects of the utterance to find that it is inherently reliable. On that point, the Crown cites the accused’s statement to Paul Bourgeois and Mr. Collison’s statement to Tammy Smith.

[133] In addition to its emphasis on the lack of information about the circumstances in which the statement was made, the defence argues that there is insufficient evidence to permit the court to rule out the alternative explanations for the statement. They include the possibility that Mr. Collison was not being truthful because he was lying, or his perceptions were not accurate because he was experiencing delusional thinking. The defence submits the evidence is insufficient to overcome the hearsay dangers relating to the truthfulness and accuracy of the statement.

Analysis

[134] There are no hallmarks of procedural reliability to this statement. Nor can I conclude that the circumstances in which the statement was made provide circumstantial guarantees of its trustworthiness. I arrive at this conclusion for the same reasons I provided relating to admissibility under the state of mind exception. I further adopt the analysis of Watt J.A. in M.G.T., where he held at para. 140 that

[t]he circumstances in which the statement proposed for admission here is said to have been made simply cannot satisfy the requirements of substantive reliability. The report by the recipient sheds little light on the context in which the statement was made, apart from the fact that both the declarant and the recipient were drinking and the declarant may have taken drugs earlier. By his own admission in cross-examination, the recipient has a poor recollection of what was said. We cannot be sure we have the complete statement of the declarant. [Emphasis added.]

[135] The admissibility of the statement therefore turns on whether there is sufficient corroborating evidence to overcome the hearsay dangers. While the accused’s statement to Paul Bourgeois has some similarity to the tenor of what Mr. Collison said to Mr. Irven, it is different insofar as Mr. Finn says that Mr. Collison said that the accused was mad at Mr. Collison. This is different from the accused’s account that he did not want Mr. Collison around when he was drinking and that he told Mr. Collison not to go back. The differences and the reasons for them, including the possibility that Mr. Collison has misperceived events, would certainly be explored in cross-examination were that possible, and might affect the trier-of-fact’s assessment of the evidence. In any event, the absence of a clear record of what was said and in what circumstances also weakens the case for admission based on the strength of the corroborative evidence because without greater clarity about the hearsay statement, an assessment of how the hearsay statement compares to other evidence is fraught with uncertainty.

[136] What is known about the circumstances in which the statement was made and the corroborating evidence are not sufficient to satisfy me that the only likely explanation for the statement is its truthfulness or accuracy. I arrive at this conclusion having considered whether the portion of the statements Mr. Collison made to Tammy Smith that are admissible (e.g. that the accused told Mr. Collison he did not want him around anymore) adds to the force of the corroborating evidence such that cross-examination would add nothing of value. I am not satisfied that this additional statement would make cross-examination on the differences in the accounts of Mr. Collison (as overheard by Mr. Finn) and the accused redundant. Accordingly, the statement will not be admitted.

Raymond Collison’s statement to Bill Collison

[137] The Crown seeks to admit the statement made by Raymond Collison to Bill Collison about having purchased a truck from the accused and having paid for it. This statement does not go to Raymond Collison’s state of mind. Admission is sought under the principled exception to the hearsay rule.

[138] The defence submits that there are two material aspects to this statement: first, that Raymond Collison purchased a truck from the accused, and second, that he had paid for it in full. The defence position is that there is sufficient corroborative evidence to confirm the purchase of the truck and that portion of the statement is admissible. As to the second material aspect, that Raymond Collison had paid for the truck in full, the defence disputes the sufficiency of the evidence to overcome the hearsay dangers. It says that portion of the statement should not be admitted.

[139] The Crown argues that the circumstances in which Raymond Collison made this statement to his brother do not disclose a plausible position that he was being anything but honest. The Crown further argues that there is sufficient corroboration of material aspects of the statement to establish its substantive reliability.

Analysis

[140] In this instance, the hearsay danger relates to the declarant’s sincerity and the truthfulness of the statement.

[141] The defence submits that if Raymond Collison had not fully paid off the truck, he might not have wanted his brother to know this. This could be for any number of reasons, including being ashamed of having a low income, wanting to impress his brother, or not wanting his brother to offer him a handout. I take the direction in Bradshaw to mean that even these speculative alternative explanations for the statement should be considered in determining the admissibility of the statement.

[142] Insofar as the last step in the Bradshaw analysis is concerned, I am unable to conclude on this record that the corroborative evidence rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about having paid for the truck in full.

[143] The corroborative evidence cited by the Crown in its factum includes the fact that the accused told others that he took the truck back because Raymond Collison had not paid for it, another individual bought the truck from the accused for approximately $1, 000, and Raymond Collison had a regular source of income. In oral submissions, the Crown invites the court to conclude that: Raymond Collison was the kind of person who would ask when he needed something; he was not the kind of person who would lie when he needed something; he was a resourceful and industrious person who found a way to make ends meet; and he was a person who paid his debts.

[144] The submissions of the Crown invite the court to consider evidence that is far from being capable of corroborating the material point in issue here, that Raymond Collison had paid the accused in full for the truck. Further, the voir dire record contains many references that support inferences contrary to those sought by the Crown. Betty Stewart told police that when Raymond got his cheque “it was gone within the first forty-eight hours … all in booze and women”.

[145] Further, various witnesses refer to Mr. Collison borrowing money from persons other than the accused. In one instance, there is reference to conflict arising from the fact that Mr. Collison owed money. Paul Bourgeois reports that Crump said, “he wasn’t paying his rent or something he was supposed to pay”. Aaron Finn told police that Ivan “pulled a guy on Raymond one time cause he owed him money”. Tammy Smith was asked by police if she had heard rumours around town that Raymond owed people money and she said she had. She also said that on the day she and Mr. Collison were at Betty Stewart’s house he had gone there to borrow money “or do whatever”. The statement of Andrew Irven recorded in the notes of D/Cst. Martel indicates that Mr. Collison owed money to people, including Gil Stein. The statement of Charlie Smith, also recorded in the notes of D/Cst. Martel, states that “Ray owed Ivan for 18 pints of beer – always paid him”, and that he owed Gil Stein money too.

[146] Nor am I able to support the conclusion that Raymond Collison was not the kind of person who would lie when he needed something. There is some evidence to the contrary on this record. At least one witness, Betty Stewart, suggested Mr. Collison had some capacity for dishonesty, insofar as she said that Raymond Collison did not want it known that he had some carpentry jobs since he was on a disability pension.

[147] There is nothing in the evidence that permits the court to conclude what the cost of the truck was. As argued by the defence, having a regular source of income does not logically mean a person is capable of paying for something in full, or that they in fact did so. In any case, I decline to engage in an analysis of what would have been affordable to Raymond Collison, or what he likely paid for the truck, as the basis to conclude the statement was likely reliable. The corroborative evidence is insufficient to establish the inherent trustworthiness of the statement.

[148] Nor are the circumstances in which the statement was made sufficient to establish its inherent trustworthiness. There is very little information about the circumstances in which this conversation came about. There are no markers of procedural reliability. The circumstances in which the statement was made do not rise to the level of making out, on their own, the substantive reliability of the statement. I am not satisfied that the statement is sufficiently trustworthy to be admitted into evidence.

Conclusion

[149] As noted in Bradshaw at para. 40, “in assessing threshold reliability, the trial judge’s preoccupation is whether in-court, contemporaneous cross-examination of the hearsay declarant would add anything to the trial process”.

[150] With the exception of Raymond Collison’s statement to Tammy Smith that the accused did not want him around, I am not satisfied that the hearsay dangers in the statements reviewed above may be overcome given the absence of contemporaneous cross-examination of the declarant. This is not a case where the hearsay “presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding”: Khelawon at para. 2 (emphasis in original). Rather, I conclude that in the instances I have indicated, admitting the statements, without adequate substitutes for testing the evidence before the trier of fact, would undermine the truth-seeking process and trial fairness.

The Honourable Justice Laurie Lacelle

Released: February 24^th, 2020

COURT FILE NO.: 18-97

DATE: 20200224

ONTARIO

SUPERIOR COURT OF JUSTICE

WARNING

S. 648(1) of the Criminal Code applies to all motions and applications heard and determined in this proceeding before trial pursuant to s. 645(5) of the Criminal Code, where the subject-matter of the motion or application is or relates to evidence to be heard at trial. Pursuant to s. 648(1), no information concerning any part of such motion or application or the reasons for ruling on such motion or application shall be published in any newspaper or broadcast by any means, including posting or distribution over the internet.

HER MAJESTY THE QUEEN

– and –

James Wise

reasons for RULING – ADMISSIBILITY OF HEARSAY STATEMENTS

The Honourable Justice Laurie Lacelle

Released: February 24^th, 2020