COURT FILE NO.: 19-70

DATE: Oral Ruling 2021/05/13

Written Ruling 2021/07/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Brandon Smeltzer

Defendant

Isabel Blanchard and Elaine Evans, counsel for the Crown

Paolo Giancaterino, counsel for the Defendant

HEARD: January 7 and 8, 2021 February 16, 2021 March 1, 2021 April 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29 and 30, 2021 May 3, 4, 5, 6, 7, 10 and 11, 2021

Reasons for Decision – Admissibility of Ante Mortem Statements and Other Discreditable Conduct

Lacelle, j.

Introduction

[1] Brandon Smeltzer stands charged with the first degree murder of Emilie Maheu. Ms. Maheu and the accused were domestic partners who had been separated for a number of months at the time of the murder. They shared a young daughter, E., who was just shy of her 2nd birthday when Ms. Maheu was killed.

[2] Mr. Smeltzer admits that he killed Ms. Maheu and that he is guilty of second degree murder. The Crown has rejected his plea to second degree murder and seeks to prove its case for first degree murder on the basis that the killing was planned and deliberate, and also that it was committed in the course of an unlawful confinement.

[3] Accordingly, the central issues in the trial relate to whether the Crown has proved beyond a reasonable doubt either of these routes to a finding of first degree murder.

[4] The Crown has filed an application seeking the admission of various utterances by the victim, Ms. Maheu, to various individuals (since there is no doubt either that the victim was murdered or that Mr. Smeltzer is responsible for at least second degree murder in relation to her death, I will refer to Ms. Maheu throughout these reasons as the “the victim”). A number of the utterances involve allegations of bad character on the part of the accused, or “other discreditable conduct”.

[5] For a number of reasons, the voir dire on these issues ultimately proceeded as a blended voir dire during the trial, which both parties agreed to have heard by judge alone. I provided my ruling on the admissibility of the contested utterances at the close of the Crown’s case. These are my reasons for my ruling.

Background

[6] The victim was killed by the accused near the town of Alexandria, Ontario, on October 11, 2018.

[7] The victim and the accused met in Nova Scotia and lived together there for a period of time. Their daughter E. was born in December of 2016.

[8] The victim left Nova Scotia with E. in March of 2018, which was roughly 7 months before she was killed. She had obtained the accused’s permission to leave Nova Scotia with E.

[9] In the time the victim was in Ontario with E., the accused and the victim were in conflict over parenting issues relating to E., including the time the accused would have with E. and child support. In July of 2018, the victim filed an application in Family court seeking sole custody and child support. The victim and the accused ultimately agreed to terms for a final court order on their second court appearance on October 1, 2018.

[10] Once she returned to Ontario, the victim struggled financially. At the time of her death, she had credit card debt that was causing her significant stress. She was seeking the accused’s assistance in discharging that debt.

[11] In mid-August of 2018, the victim started a relationship with a friend from her high school days, Patrick Viau. Mr. Viau moved into the victim’s apartment with the victim and E. about a month after starting the relationship. The accused met Mr. Viau and was aware of the relationship. In and around the time of the final court appearance on October 1st, the accused, the victim, Mr. Viau and E. all went apple picking together. During the outing, E. at one point dropped the accused’s hand and took that of Mr. Viau.

[12] Around this time, the accused told the victim that he was dying of cancer and had only a few months to live. This was untrue.

[13] On October 10, 2018, the accused unexpectedly attended the victim’s apartment. Mr. Viau was present. The accused told them he had done something bad in Nova Scotia and was on the run from police. The accused had a knife, which Mr. Viau confronted him about while the victim was tending to E. After some time, everyone travelled into Cornwall so the accused could attend the bank with the victim to pay off the credit card debt. However, when they arrived at the bank, it had closed.

[14] The accused spent the night at the victim’s apartment. The plan was that he would stay over so that he and the victim could go to the bank the next day to deal with the credit card debt. The accused slept on the couch while the victim and Mr. Viau slept in their bedroom.

[15] The next day the accused went to the victim’s workplace. From there, he and the victim left her workplace in the accused’s vehicle. They travelled country roads. After driving about twenty minutes, the accused pulled the car over on a country road surrounded by farmland. He got out of the vehicle and opened the trunk. The accused smoked a joint sitting on the edge of the open trunk. The victim got out of the car. She went to the trunk area where the accused was located.

[16] The accused says he then hugged the victim and placed her in the trunk. At this point he tried to strangle her. Then, he took a sawed-off shotgun from the trunk of his car, loaded it and shot the victim in the chest, also hitting her hand. The accused then reloaded the gun and shot the victim in the head. He knew she was dead when her eye bulged out of her head.

[17] After killing the victim, the accused travelled directly to Nova Scotia with the victim’s body still in the trunk. He had left his cell phone in Nova Scotia and used a burner phone for his trip to Ontario so that he could not be traced. Upon returning to his residence, he replied to various calls he had received on his cell phone from the victim’s friends and family asking if he knew where the victim was. He returned those calls and said he did not know where the victim was.

[18] The accused then returned to Ontario in the same vehicle, with the victim’s body still in the trunk. Once in Ontario, he selected a cornfield not far from where he had killed the victim and disposed of her body. Then he attended at the police detachment where he gave a statement saying that he and the victim were supposed to meet at the bank. He said the victim had not shown up and he returned to Nova Scotia.

[19] The victim’s body was found the next day on October 13th, 2018.

[20] By October 16th, 2018, the accused had told his family he had killed the victim. On that date, while stating he was intending to commit suicide, he spoke to two different police officers. When speaking with the Sgt. Anderson of Cornwall Police, he said he had “blown Emilie’s brains out”. He denied it was a “spur of the moment thing”. Later, when speaking with the officer who had interviewed him earlier for the investigation, D/Sgt Fedele, he said that when he woke up that morning “it was done”.

[21] Later, on October 18th, 2018, when he spoke with D/Sgt Fedele on video after his arrest and detention, he said that he had snapped when the victim started talking during the car ride about having children with her new boyfriend.

[22] In the statements on October 16th and 18th, the accused spoke extensively about his relationship with Ms. Maheu and his feelings about their separation (a more complete summary of his comments is contained in the Reasons for Judgment for this trial).

[23] Other evidence in the trial includes a taped phone call between the accused and the victim’s best friend, Karina Quesnel, when police were still conducting a missing persons investigation and had not yet located the victim’s body. In that call, the accused denies knowing anything about the victim’s whereabouts. He acknowledges it “looks bad for him”, given that everyone knows how much he hated the victim in August, and how “he wouldn’t have pissed on her if she was on fire”.

The purpose and relevance of the contested evidence

[24] A preliminary issue raised by the defence in this matter was the admissibility of any of the contested evidence given that the central issue at trial was whether the accused was guilty of second or first degree murder. As far as the contested hearsay utterances are concerned, they have no bearing on the issue of whether the murder was also committed during the course of an unlawful confinement. Therefore, they may only be relevant to the issue of whether the murder was also planned and deliberate.

[25] Initially, the defence took the position that the utterances proffered by the Crown were inadmissible because they were not relevant to the issue of planning and deliberation. While it acknowledged some authorities to the contrary (e.g. R v Singh, 2016 ONSC 3136), the defence provided a number of authorities where courts have ruled that evidence of motive and opportunity are not enough, in themselves, to permit an accused to be committed to be tried on a count of first degree murder or found guilty of first degree murder on the basis that it was planned and deliberate: see e.g. R v Hall, 2021 ONSC 28 at paras 318-9; R v McKenzie, 2018 ONSC 2006 at paras 33-34; R v Evaloakjuk, 2001 39421 (NU CA), 2001 NUCA 1 at para 18. Otherwise, as noted by some of these authorities, where there was evidence of a motive and an opportunity to plan, “virtually every culpable homicide would potentially be first degree murder”: see McKenzie at para 34; Hall at para 319.

[26] For its part, the Crown submitted that planning and deliberation, like intent, relates to a state of mind that can be inferred from direct or circumstantial evidence: R v Dadshani, 2007 ONCA 493 at paras 3 and 5. The Crown highlighted various authorities that have held (implicitly or explicitly) that evidence of motive and animus are relevant to the issue of planning and deliberation. It cites: R v Bottineau, 2007 13358 (Ont. S.C.) at paras 23-29; R v Bablitz, 1996 ABCA 105 at paras 3-5; R v Riley, 2009 15451 (Ont. S.C.) at para 95; R v Osborne, 2012 ONSC 109 at para 27; R v Brooks, 2015 ONSC 7350 at paras 27 and 44; R v Dupe, 2010 ONSC 6423 at paras 21 and 57; R v Polimac, 2006 40107 (Ont. S.C.) at para 61; R v Pan 1999 3720 (ON CA), [1999] OJ No 1214 (C.A.) at paras 246-7; R v Coke, [1996] O.J. No. 808 (Gen. Div.) at paras 28-30; R v Bannash, [1991] M.J. No. 468 (C.A.); R v Odesho, 2016 ONSC 4631 at para 28.

[27] While the issue was ultimately resolved during submissions, I confirm now that I am satisfied that the authorities amply establish that evidence of motive and animus are relevant to the issue of planning and deliberation. For instance, in Bottineau, Watt J. (as he then was), held at para 28 that “evidence of animus or motive may be used prospectantly to help establish the planned and deliberate nature of a murder” [emphasis in original]. Similarly, in Singh, Fairburn J. (as she then was), relying on jurisprudence from the Court of Appeal for Ontario, held as follows at para. 81:

There is some evidence of animus and motive in this case. As O’Connor J.A. (as he then was) held in R. v. F.(D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609 (C.A.), at para. 23: “It is well established that evidence of motive is admissible to prove the doing of an act as well as the intent to which the act is done,” See also: R. v. Jackson (1980), 1980 2945 (ON CA), 57 C.C.C. (2d) 154 (Ont. C.A.) at p. 167. In addition to intent and identity, evidence of motive or animus can be probative on the issue of planning and deliberation: R. v. Riley, 2009 15451 (ON SC), [2009] O.J. No. 1374 (S.C.J.), at paras. 98-99; Bottineau, at para. 28.

[28] It is well established, particularly in the context of homicides involving the killing of an intimate partner, that the state of the relationship between an accused and a deceased in the time leading up to the homicide may demonstrate animus and motive on the part of the accused, and further, that this is relevant to not only identity, but to the state of mind that accompanied the homicide. It is also well established that a deceased’s mental state may be relevant to an accused’s motive to commit an offence. Statements of the deceased may also afford evidence of the deceased’s state of mind and thus be relevant to prove a motive and animus: see R v Carroll, 2014 ONCA 2 at para 104; R v Griffin, 2009 SCC 28 at paras 60-61; R v Moo, 2009 ONCA 645 at para 98.

[29] As noted by Doherty J.A. in R v Foreman, 2002 6305 (Ont. C.A.), the fact that the accused had entered a guilty plea to manslaughter when the Crown alleged murder, did not mean that the evidence of the victim’s state of mind was irrelevant. As he observed at para. 29, “[r]elevance depends on logic and human experience, not on the position of the parties”.

[30] While it is clear that intent does not equate to planning and deliberation (because it is possible to intend to kill someone without having planned and deliberated about the killing), and the issues of intent and planning and deliberation may be proved by different evidence, it does not follow that evidence that is relevant to intent has no relevance to the issue of planning and deliberation. With respect to the defence position, it mistook sufficiency of evidence of motive or animus to constitute “any evidence” that might justify a committal on a charge of first degree murder based on planning and deliberation, or to prove that element of the offence beyond a reasonable doubt, with the relevance of the evidence to the issue. Just because evidence of motive/animus may not be sufficient, on its own, to prove the issue, does not mean that is not relevant to proof of the issue.

[31] For these reasons, I find that, notwithstanding the narrowness of the central issue in this case, evidence that goes to motive/animus or proving the victim’s state of mind is not barred from admission in the trial simply because the accused has conceded the intent for murder, and the only remaining issue the evidence may relate to is planning and deliberation. During submissions, the defence accepted this position. I summarize the issue now to provide context for the remainder of these reasons, which will not further address the relevance, at large, of the issues of motive, animus or the victim’s state of mind in this trial.

The admissibility of hearsay

[32] I turn now to an overview of the principles that are relevant in determining the admissibility of hearsay, which may come in the form of an ante mortem statement by a deceased person.

[33] 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 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 they make the statement, and the hearsay statement may not be tested through cross-examination.

[34] 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.

[35] 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

[36] 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 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, citing Wigmore on Evidence, vol 6 (Chadbourn rev 1976), at § 1725, p 129 (emphasis in original); R v Cote, 2018 ONCA 870 at para 22; R v Griffin, 2009 SCC 28.

[37] 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.

[38] 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”.

[39] 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 6305 (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.”

[40] 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.

[41] In R v Millard, 2017 ONSC 5701, Code J. reviewed some of the leading authorities relating to this traditional exception and summarized the law as it related to the scope of the rule. In brief, it is only the “declarant’s contemporaneous state of mind, emotion, condition, or intention that is admissible and not ‘past acts or events referred to in the utterances’ or some ‘anterior factual assertion’ underlying the present state of mind or intention”: at para. 16, citing R v Pan (1990), 58 CCC (3d) 334 (Ont. H.C.J.) at p 344 and R v Smith (1992), 1992 79 (SCC), 75 CCC (3d) 257 at pp 266-7. Where the statement is proffered to prove “past acts or events”, or “anterior factual assertions”, it can only be admitted for its truth “by going beyond the scope of the traditional common law exceptions, that is, by relying on the modern principled exception to the hearsay rule”: Millard at para 16. See also R v Candir, 2009 ONCA 915 at para 56.

Circumstances of suspicion

[42] 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.

[43] 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.”

[44] 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 79 (SCC), [1992] 2 SCR 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.

[45] In R v J.T., 2014 ONCA 321, 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.

The principled exception to the hearsay rule

[46] 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: R v Khelawon, 2006 SCC 57 at para 3; R v Chretien, 2014 ONCA 403 at para 45. Necessity is made out in this case because the declarant is deceased. Consequently, I review the law only as it pertains to reliability.

[47] 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.

[48] 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. In this case, the analysis pertains to the second method for overcoming the hearsay dangers (substantive reliability), since there are insufficient markers of procedural reliability to the victim’s utterances. I therefore focus my further review of the law on the assessment of substantive reliability.

[49] 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.

[50] 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 Charron J.’s comments in R v Blackman, 2008 SCC 37 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.

[51] There has been some commentary in the jurisprudence and in legal commentary to the effect that Bradshaw “prescribes what is arguably a more exacting analysis of reliability” than was set out in Khelawon: R v Nurse, 2019 ONCA 260 at para 98. It is important to note, however, that while it does provide further guidance on how to analyze any extrinsic evidence tending to confirm or conflict with the material issue in the hearsay utterance, Bradshaw does not modify the overall structure of the analysis to be performed when analyzing substantive reliability under the principled exception: R v McGenn, 2018 BCSC 753 at para 24; R v Larue, 2018 YKCA 9 at para 98, affirmed in 2019 SCC 25. Accordingly, where, on a balance of probabilities, a court determines that there are sufficient guarantees of a statement’s inherent trustworthiness, a statement may be admitted because it meets the test for threshold reliability. Accordingly, Bradshaw has not necessarily undermined the results in cases decided under previous articulations of the law, particularly where the admissibility of the evidence did not involve consideration of any extrinsic evidence.

[52] Since Bradshaw, where the analysis of the admissibility of a hearsay utterance attracts consideration of extrinsic evidence, a trial judge must take certain analytical steps in determining whether the 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]

[53] Regardless of whether extrinsic evidence is relied upon, substantive reliability is established when the statement is found to be so reliable that it is unlikely to change under cross-examination. This expression of the test has been consistent since R v Smith, 1992 79 (SCC), [1992] 2 SCR 915, and was in operation during the pre-Bradshaw cases assessing the admissibility of hearsay: Khelawon at para 72; R v M.G.T., 2017 ONCA 736 at para 139; Bradshaw at para 31.

Assessing threshold reliability

[54] 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 12287 (Ont. C.A.), at para 57, leave to appeal refused, [2006] SCCA 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 at para 53; R v McMorris, 2020 ONCA 844 at paras 36-40.

[55] 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.

[56] The recent case of R v McMorris, 2020 ONCA 844, highlights the direction in Bradshaw that alternative explanations for the statement must be plausible. Writing for the court, Lauwers J.A. explained, at paras 33-34, the correct approach to assessing alternative explanations for the statement:

The trial judge is required to consider “alternative, even speculative, explanations for the statement” while thinking through the reliability analysis. But speculative explanations must survive scrutiny under the lens of para. 49 [of Bradshaw] in order to warrant a role in the determination of threshold reliability:

While the declarant’s truthfulness or accuracy must be more likely than any of the alternative explanations, that 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. [emphasis in original]

Any speculative explanation, in short, must be plausible on a balance of probabilities and any speculative explanation that does not survive such scrutiny must be rejected. Any explanation left over becomes the plausible candidate for assessment at step four; “the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement”. In other words, not just any speculative explanation or fanciful idea suffices to abort the threshold reliability analysis – only those that are, on reflection, reasonably plausible. I take this to have been the intention of Karaktsanis J. in Bradshaw. …

[57] As for the circumstances in which a statement is made, there may be a number which are relevant, including:

i. the timing of the statement in relation to the event reported;

ii. the presence or absence of a motive to lie on the part of the declarant, or any other reason to doubt the truthfulness of the statement;

iii. the presence or absence of leading questions or other forms of prompting;

iv. the nature of the event reported;

v. the likelihood of the declarant’s knowledge of the event, apart from its occurrence;

vi. whether there would be any difficulties with respect to the declarant’s capacity to perceive or remember events;

vii. the condition of the declarant at the time the statement was made;

viii. the amount of detail in the statement; and,

ix. the demeanour of the declarant at the time the statement was made.

See R v J.M., 2010 ONCA 117 at para 54 and R v McGenn, 2018 BCSC 753 at para 22, citing R v Hindessa, 2009 48836 (Ont. S.C.) at para 14.

The use of corroborative evidence

[58] 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 at para 26, cited in Nurse at para 103; Bradshaw at para 48.

[59] 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 importance of the purpose of the evidence to the analysis

[60] In R v Short, 2018 ONCA 1 at para 65, Doherty J.A. confirmed that the admissibility of out-of-court statements “depends, in part, on the purpose for which those statements are tendered”. Consequently, “[b]efore 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”: at para 65. Further, “[d]ifferent 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” [emphasis added]: at para 65. So where a statement is tendered both to show the state of mind of the declarant and the accused’s animus and motive, “the admissibility of the statement will have to be determined as it relates to each purpose”: Short at para 67. Admissibility for one purpose does not result in admissibility for all purposes: see Short at para 67, citing Foreman at paras 31-35.

"Double hearsay"

[61] Where an out-of-court statement contains two levels of hearsay, each must be admissible: Foreman at paras 33-35 and Starr at para 172.

[62] Again here, it is important to identify the purpose for which the utterance is being admitted. Where, for instance, a witness gives evidence of a threat made by the accused to a deceased declarant, the admissibility of the statement allegedly made by the accused must be addressed “separately and in addition to” the admissibility of the statement made by the declarant to the witness: Foreman at para 35.

[63] In that context, the law relating to admissions of litigants becomes important. Doherty J.A. explained it as follows at para 37 of Foreman:

Admissions, which in the broad sense refer to any statements made by a litigant and tendered in evidence at trial by the opposing party, are admitted without any necessity/reliability analysis … As Sopinka J. explained in R. v. Evans, …

The rational for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, “[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath” … [emphasis added]

[64] Consequently, where the second level of hearsay involves an admission, the hearsay rule poses “no obstruction to the admissibility of that statement”: Foreman at para 39.

The residual discretion to exclude evidence

[65] As observed by Watt J.A. in Candir, at para 59, trial judges retain a residual discretion to exclude otherwise admissible evidence “where its impact on the trial process (cost) exceeds its value to the correct disposal of the litigation at hand (benefit)”. This will be the case where the prejudicial effect of the evidence exceeds its probative value.

[66] However, the residual discretion is broader than that. As Watt J.A. explained at para 60 of Candir, the exclusionary rule

[i]s 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] Therefore, evidence may be excluded where it is repetitive or where its probative value is so minimal that it does not assist with a determination of the issues.

Hearsay and prior discreditable conduct applications in the context of homicides involving intimate partners

[68] While the law informing the analysis in this case is not restricted to cases of homicides involving intimate partners, the body of law that has developed in that context is helpful to consider given the facts in this case. Several decisions from our Court of Appeal continue to inform the analysis even where they were decided based on the law as it stood following Khelawon.

R v Pasqualino, 2008 ONCA 554

[69] In Pasqualino, the trial judge admitted hearsay utterances containing references to prior discreditable conduct by the accused. The utterances were made by the victim to her relatives and a close friend. The content of the utterances concerned the victim’s intention to leave the accused and her fear of the consequences. It included statements regarding threats and abuse by the accused against the victim, a threatening discussion with the accused’s brother, and the victim’s discovery of a gun in the accused’s car: at para 35.

[70] On appeal, the defence argued that the utterances had been improperly admitted because their reliability could not be sufficiently established since the victim had several possible motives to fabricate stories of fear and abuse. The victim may have wanted to create a record in contemplation of family law litigation, or to obtain moral or material support from the hearsay recipients.

[71] The Court of Appeal noted that in a prior case, R v Czibulka, 2004 22985 (Ont. C.A.) at para 57, it had stated that a “statement made in contemplation of litigation is a classic reason to suspect that the statement was contrived”. Writing for the court, LaForme J.A. noted that in Czibulka, the complainant had attended her doctor’s office with bruises and said that she had attended to display her bruises to the physician “for the record”. At the time, the complainant was also engaged in a “bitter custody dispute”. However, in Pasqualino, the court found that the content and circumstances of the utterances did not present “any overt indication” that the victim was contemplating the creation of a record for litigation when she made the utterances to her close friends and relatives. The court arrived at this conclusion notwithstanding that the victim had consulted a lawyer because actual litigation, “nevermind the bitter custody dispute that formed the backdrop to Czibulka – was only a speculative possibility”: at para 41.

[72] The court went on to decline to set down “a broad rule of presumptive exclusion” to ante-mortem hearsay statements uttered during the context of marital difficulties or imminent divorce proceedings because such statements are presumptively unreliable under the principled exception: at para 42.

[73] The court also rejected the submission that the victim may have fabricated her statements for moral and material support and held that this submission was speculative at best. In the result, the court noted that the trial judge had assessed the available corroborating evidence and the circumstances in which the statements were made. The trial judge had also considered the personal and potentially embarrassing nature of some of the revelations. The Court of Appeal upheld the trial judge’s conclusion that the utterances were sufficiently reliable to warrant admission under the principled exception. The court noted that “the context of a ‘special’ relationship can constitute an indicator of reliability” and that, in this instance, the statements were made in the context of “everyday intimate conversations between close relatives and friends where there was no motive to fabricate”: para. 43.

R v Moo, 2009 ONCA 645

[74] In Moo, the court upheld the trial judge’s decision to admit various hearsay utterances whose content included reference to prior discreditable conduct by the accused. The hearsay recipients included two ministers who had counseled the victim, a friend, a co-worker, as well as the victim’s aunt and mother. These witnesses gave evidence about conversations where the victim told them about conflicts in the relationship between her and the accused, as well as the allegation that the accused had forced sex on the victim, that he had hit her on the head, and that he had told her he would kill her if she left the marriage. None of the conversations were recorded in any fashion. While some of the recipients of the hearsay were able to pinpoint the conversation in which the information was given to them, in some instances, the evidence about when the utterance was made was as broad as a certain month (e.g. July 2000 and April 2001 in the case of the utterances to the victim’s friend). The utterances to the aunt were made in a conversation during July 2001, and similar complaints were reportedly made by the victim in 3-4 later telephone calls.

[75] In finding that the evidence was admissible, the trial judge emphasized the contemporaneity of most of the utterances with the time frame of the victim’s death, the fact that they were unprompted, and the fact that the victim had no motive to lie about the subject matter or to any of the recipients. In upholding the trial judge’s ruling, the Court of Appeal referenced the absence of any improper influence by the recipients of the hearsay, and the fact that the statements were not made during the contemplation of legal proceedings: see para 104. The court also noted that the utterances admitted by the trial judge were confined to discussions within a reasonable time before the victim’s death.

[76] Echoing the trial judge’s conclusion that “the evidence was unrevealing of any motive on the deceased’s part to lie in her statements to others”, the court buttressed its support of the trial judge’s decision by noting that, in many respects, “the appellant’s own statement to investigators contains much of what the deceased said to others”: at paras 104-5. Insofar as the evidence of prior discreditable conduct was concerned, the court held that “the extrinsic misconduct paled by comparison to the conduct charged” and upheld its admission: at para 108.

R v Candir, 2009 ONCA 915

[77] In Candir, the trial judge found that 39 of 57 contested hearsay statements from a dozen witnesses were admissible in the trial (the prosecution had sought to introduce about 150 statements through 16 recipients). On appeal, the challenge related, in part, to the fact that the defence had acknowledged “basic facts” underlying the hearsay statements, and in particular, that the victim was unhappy in her marriage, planned to leave it, and that she executed that plan with the intention that her move would be permanent. On appeal, the defence argued that the evidence was immaterial in view of the accused’s admissions, and that the trial judge should have exercised his discretion to control the court’s process and prohibit the needless presentation of cumulative evidence.

[78] As noted above, the court confirmed that a trial judge has residual discretion to prohibit or reduce the needless presentation of cumulative evidence: at paras 60-65. See also Foreman at para 29. However, it upheld the trial judge’s ruling on the admissibility of the evidence presented in that case. The informal acknowledgement of “basic facts” was, at its highest, a factor for the trial judge to consider in determining whether to exclude the hearsay evidence on the ground that its prejudicial effect exceeded the probative value. The court held at paras 81-2:

It was of no little importance to the case for the Crown to show the pervasive nature of [the victim’s] dissatisfaction with the marital relationship and the firmness of her resolve to end it on a permanent basis. That her state of mind persisted and was shared with several over many months went some way towards proof of what the Crown sought. These facts, in their turn, made it more probable that the appellant had the motive assigned to him than would have been the case without the evidence of the deceased’s state of mind.

The value added by her hearsay statements was of the continuity of her state of mind, the deep-seated nature of her complaints and the firmness of her resolve to permanently end the marriage. It is doubtful whether such evidence could be available from any other source.

[79] Noting that no assaultive behavior was alleged in the statements, the court found that the moral prejudice associated with the evidence was not high. At trial, the defence had not requested that the judge exclude the contested evidence on the ground of needless presentation of cumulative evidence. The court held at para 84: “That the same purpose could have been achieved by the introduction of fewer statements does not mean that the number adduced called for the invocation of the exclusionary discretion. The line between enough and too much is not always easy to fathom, even with hindsight. But it was not crossed here”.

R v Polimac, 2010 ONCA 346

[80] In Polimac, the trial judge admitted hearsay statements from the victim to a number of her friends. The statements recounted verbal and physical abuse by the appellant as well as threats he made against the victim. The Crown sought to have the statements admitted under either the state of mind exception or the principled approach to the admissibility of hearsay evidence.

[81] In upholding the trial judge’s determinations of admissibility, the court noted that the trial judge had made several significant findings of fact which were available to her on the evidence. These included that the recipients of the hearsay statements were very close to the victim and that she shared with them very personal and embarrassing details about her relationship with the appellant. The statements were spontaneous and made at a time close to the events. The victim’s emotional state when she made the statements was consistent with their reliability and the detail provided in some of the statements was significant. In further assessing the trial judge’s ruling, the court noted the similarity between some of the utterances to different hearsay recipients: see para 67.

[82] The court did note that at least one of the statements which may have been made as much as two years prior to the victim’s death could have been excluded, since it had little probative value with respect to the victim’s state of mind at the time of her death. However, the court found that this utterance caused no prejudice in view of the properly admitted evidence: at para 72.

[83] With respect to the defence argument that the victim may have had a motive to lie to her friends, writing for the court, Doherty J.A. wrote at paras. 81-82:

Counsel’s argument comes down to the contention that because the relationship was failing, [the victim] must have had a motive to lie about the appellant’s conduct. This argument is based on a generalized assumption about failing relationships rather than any specific evidence heard on this voir dire. A similar argument in a factually similar case was rejected by this court in R. v. Pasqualino [citation omitted].

On the voir dire record, it was open to counsel to argue that the deteriorating nature of the relationship between [the victim] and the appellant could give rise to suspicions about the truthfulness of the allegations made against the appellant by [the victim] in her statements. It was, however, for the trial judge to decide whether those suspicions were justified in the circumstances revealed by the evidence. She concluded, having regard to the entirety of the circumstances in which the statements were made, that the deteriorating nature of their relationship did not constitute a motive on [the victim’s] part to lie to her friends.

R v Carroll, 2014 ONCA 2

[84] The Court of Appeal described the statements in Carroll as coming within two broad categories: the first group involved statements in which the victim recounted her fear of the appellant but did not explain the basis for that fear. The second group included statements that described the appellant’s words or conduct that underpinned the victim’s fear.

[85] The defence on appeal contended that some of the statements that had been admitted were conclusory, lacked detail, and were not contextualized by the recipients sufficiently to permit the jury to evaluate their true probative value. Some statements were described as “amorphous, bereft of any detail”. The nature of the “threats” was never disclosed. In one instance, the recipient reported information that had not been given to other individuals who appeared to have closer relationships to the victim.

[86] The court rejected these arguments. It found that the victim’s disclosures were spontaneous and contemporaneous with the events reported. It found that “for the most part at least” the statements, while “not always expansive or brimming with the minutiae of a disintegrating relationship” contained sufficient detail to permit a reasoned assessment of their probative worth by the trier of fact. The circumstances in which the statements were made “stamped them with sufficient reliability to warrant their admission”: at paras 108 and 110.

[87] The appellate court found that the complaints on appeal related in large measure to the ultimate reliability of the utterances and not their threshold reliability. The court confirmed that as the proponent of the hearsay in this case, the Crown “need not eliminate all possible sources of doubt about the perception, memory or sincerity of the declarant. All that was required in this case was that the circumstances in which the statements were made and any relevant extrinsic evidence provided the trier of fact with the means to critically evaluate the honesty and accuracy of the declarant”: at para 11.

R v Short, 2018 ONCA 1

[88] The admissibility of various out-of-court statements by the victim were considered in this appeal, which was decided post-Bradshaw. The appeal was allowed on unrelated grounds.

[89] With respect to the hearsay issues, writing for the court, Doherty J.A. raised at para 63 the possibility that the hearsay rulings might be impacted by the judgment in Bradshaw. He also provided the direction, outlined above, that before admissibility can be determined, the party tendering the evidence must clearly articulate the precise purpose for which the out-of-court statement is being tendered. Further, where different parts of the same out-of-court statement are offered for different evidentiary purposes, a different analysis may be required, possibly leading to a different admissibility ruling: at para 65.

[90] In the subsequent trial, R v Short, 2019 ONSC 2006, the trial judge excluded a great deal of the contested evidence for a number of reasons, including that:

a. The state of mind of the victim would be clear from other evidence thereby reducing significantly the probative value. The quantity of this unnecessary evidence makes it exceedingly prejudicial: at para 24;

b. Without most of the hearsay evidence sought by the Crown the jury would be armed with ample evidence describing the state of mind of the deceased and her views of her marriage and her life going forward: at para 48;

c. Beyond concerns about the amount of evidence are concerns about its reliability – the trial judge was alive to the possibility that the deceased had engaged in “impression management” with family and friends, and found that the close relationship of the recipients and the declarant did not mean much where the declarant had told 43 people that her marriage was in trouble: at paras 52-55;

d. There were “circumstances of suspicion” with respect to utterances said to come within the state of mind exception – the deceased was unhappy and felt controlled and unloved. She was also involved with a lawyer drafting divorce documents: at para 57;

e. The evidence was of diminished probative value where it was repetitive: at para 65.

Other discreditable conduct - the legal principles

[91] In our law, guilt is established by proof of conduct, not by proof of character: Moo at para 96.

[92] Accordingly, the general rule is that evidence of the accused’s discreditable conduct is inadmissible unless it is the subject matter of the charge: R v Tsigirlash, 2019 ONCA 650 at para 23; R v Johnson, 2010 ONCA 646 at paras 83-84. This rule will not apply where the evidence of discreditable conduct meets the test for similar fact evidence: Tsigirlash at para 24.

[93] The test for the admissibility of similar fact evidence is set out in R. v. Handy, 2002 SCC 56. Handy provides a framework for analyzing admissibility having regard to various factors. Ultimately, to admit evidence of similar facts or other discreditable conduct on the part of the accused, the Crown bears the onus of satisfying the trial judge on a balance of probabilities that the probative value of the evidence outweighs its prejudicial effect.

[94] Where the proposed evidence is said to be relevant to motive, as noted in R v Johnson at paras 97 and 98, “a somewhat different analysis [than consideration of the factors in Handy] is required”, since the probative value of the evidence does not necessarily arise from its similarity to the offence charged.

[95] The court went on to clarify the approach to admissibility when the proposed evidence is said to be relevant to motive at paras 99-101:

It is not sufficient for the Crown to identify some past conflict between an accused and a victim, and then speculate that it establishes animus and therefore motive. The Supreme Court in R. v. Barbour, 1938 29 (SCC), [1938] S.C.R. 465, at p. 469, warned that “it is rather important that the court should not slip into a habit of admitting evidence which, reasonably viewed, cannot tend to prove motive or explain the acts charged merely because it discloses some incident in the history of the relations of the parties.”

Thus, evidence of past misconduct that is woven in to a speculative theory of motive does nothing more than bring in the bad character of the accused, and ought to be excluded on the basis that its prejudicial value exceeds any small probative value it might have: see, e.g. R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, at pp. 938-941.

On the other hand, evidence that provides the trier of fact with real insight into the background and relationship between the accused and the victim, and which genuinely helps to establish a bona fide theory of motive is highly probative, even in the absence of similarity with the charged offence: see, e.g. R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 (Ont. C.A.), at paras. 70-109.

[96] In cases of domestic homicide, “evidence may be admitted during the case for the Crown, including evidence of extrinsic misconduct, that elucidates the nature of the relationship between the spouses”: Carroll at para 122. This evidence is admissible to demonstrate animus or motive towards the very person killed, which may in turn be relevant to the identity of the killer and the state of mind with which the killing was done: Moo at para 98. In these cases, the usual caution to the jury associated with such evidence is not required: Carroll at para 123, citing Moo at para 100 and Pasqualino at para 65.

Analysis of the proposed evidence

[97] The positions of the parties in respect of each utterance have been summarized in various materials that are exhibits to this proceeding. I will not extensively review the positions of each party as I proceed with my analysis of the disputed pieces of evidence. I will also refer to the utterances at issue as they have been numbered or otherwise identified by the parties in their materials.

[98] Where both parties agree evidence is admissible (as summarized in my Ruling Summary – Exhibit MM or as otherwise indicated in the defence materials or oral submissions), I am satisfied that the evidence is properly admitted and will not further address it in these reasons.

[99] I also note that in all instances, the hearsay danger to be overcome is the inability to test the evidence by cross-examining the declarant: Khelawon at para 105. In that regard, the central concern relates to whether the victim has been truthful in her comments to various individuals. That is, the hearsay danger relates to her sincerity: Bradshaw at para 44. I do not understand the defence to be raising any concerns about the victim’s memory or perception at the time she made the utterances.

Texts between the victim and the accused

[100] The accused and the victim exchanged a large volume of text messages after the victim moved to Ontario with E. A series of their exchanges has been entered into evidence. The accused’s utterances in the texts are admissible and may be considered for the truth of their contents.

[101] The defence concedes that the victim’s utterances in these text conversations are admissible for context to the accused’s utterances and does not contest the admissibility of many for the truth of their contents or as evidence of the victim’s state of mind. The defence opposes the admission of certain utterances for the truth of their contents.

[102] The summary of the texts between the victim and the accused is set out in Exhibit DD.

[103] To the extent that the context of the texts outlined at 2A and 7A are understood to relate to financial issues, the defence concedes they are admissible on a threshold basis and they will be so admitted. Any argument as to meaning of the texts given their context is left to be addressed in final submissions.

[104] The utterances set out in 6A are in texts sent on May 24 and 25, 2018. The larger context is an argument about summertime access for E. with the accused. At one point, the victim texts: “We need a break from one another because your angry and giving me dead threats so we’re not agreeing to anything and that’s it!!”.

[105] I am satisfied that this utterance is admissible under both the traditional exception and the principled exception. The full context and record of the discussion is available to be analyzed and considered. It discloses no circumstances of suspicion, nor are any others raised in the evidence. It is part of an everyday conversation between the victim and the accused. There is no plausible reason for the victim to have been making this utterance to the accused other than this is how she was feeling and perceiving events. The accused responds to this by saying “K bye”, which does not suggest that he felt what the victim had said was inaccurate. While the ultimate weight of the evidence to the issues given the context is yet to be determined, the evidence has sufficient circumstantial guarantees of trustworthiness to meet the test for admissibility. It is admissible under both the traditional and principled exceptions.

[106] I also find that the evidence warrants admission following its analysis as other discreditable conduct. In context, it is not clear that the threats relate to anything other than plans for E. and the dispute about parenting. In any event, the evidence relates to a dispute between the parties and is part of the evidence that discloses the nature of their relationship leading up to the victim’s murder. The nature of this evidence pales in comparison to the conduct charged and its probative value exceeds its prejudicial effect.

[107] The utterances at 14A relate to threats the accused is alleged to have made to Lucie Prince, E.’s babysitter. This evidence is excluded for the same reasons as given below in relation to similar utterances to others, since the hearsay utterance is also evidence of other discreditable conduct involving someone other than the victim and the probative value of the evidence does not exceed its prejudicial effect.

The evidence of Karina Quesnel

[108] Karina Quesnel and the victim were best friends and had been since high school. They remained in touch when the victim lived in Nova Scotia, including by text message, IMS messenger, telephone calls and FaceTime. The victim and Ms. Quesnel confided in one another, and they were in touch with each other almost every day.

[109] The utterances at issue from this witness’s evidence are contained in Exhibits AA, BB and CC. The defence has conceded the admissibility of various utterances in materials filed in response as well as during oral submissions.

[110] In oral submissions, the Crown agreed that at least some of the utterances which relate to the victim’s time in Nova Scotia were less probative to the issues in the trial. I took the Crown’s comments during submissions to mean it was not continuing to press for the admission of those utterances. In any case, I respond to the application as framed in the materials filed on the blended voir dire.

The utterances summarized in Exhibit AA

[111] In my view, the following evidence set out in AA is not sufficiently probative of the issues to warrant admission, and further analysis of the admissibility of the evidence is therefore unnecessary:

a. EM tells KQ “mostly by self, didn’t have a lot of support”;

b. “EM told her CC debt on BS, EM took into her name”;

c. Christmas 2017 EM to KQ “She didn’t want to leave (Alexandria), told me she was trying to get away from stress”;

d. “She would talk about how she preferred to move back to Ontario”;

e. “shared that it was up and down” – convo about arguments and stressed about finances, parenting issues and money;

f. Started telling KQ “she felt like she needed to leave”;

[112] The text message of June 28, 2018 regarding financial issues is admitted under the principled exception (it is also listed in Exhibit CC at 5A). There are sufficient circumstantial guarantees of trustworthiness to warrant its admission. The utterances are made by the victim to her best friend in the context of everyday conversation. The victim is describing events that are proximate in time to her utterances. There is also corroborative evidence in the form of text messages from the accused to the victim where the accused says he will not send child support to the victim (see text messages from June 1, 2018).

[113] Ms. Quesnel’s evidence that the victim told her she was concerned about what would happen if the accused found out about her relationship with Mr. Viau, and the text messages on that topic are admitted, for the reasons given regarding the summary of evidence below from 1K of Exhibit BB. The text message is identified as 9A in Exhibit CC and is dated August 10, 2018. In it, the victim texts Ms. Quesnel that “Alexandria does talk … think part of me doesn’t want to get annoyed by Brandon”. This text and the utterances to Ms. Quesnel are admitted under the state of mind exception.

The utterances summarized in Exhibit BB

[114] I exclude the evidence summarized in 1A. Even if this evidence is admissible hearsay, it is not sufficiently probative of the issues to warrant admission.

[115] The evidence summarized in 1B contains three different material points. The victim’s utterance to Ms. Quesnel that the accused had kicked her in the leg and pushed her is admitted. I am satisfied it was made in circumstances that demonstrate circumstantial guarantees of trustworthiness. These include the fact that Ms. Quesnel was a close confidante of the victim and routinely confided in her. Ms. Quesnel was able to provide specific evidence as to what she was told by the victim about the violence, including that the victim had a bruise on her leg as a result. She was also able to confirm the time frame during which the victim told her about the violence (which she recalled was shortly before the victim moved to Ontario). She produced a text message where the victim asked her to call her (dated February 8, 2018) and referenced pain in her leg on February 14, 2018, which further assisted the witness in respect of her recollections about how they had communicated when the victim made this disclosure. The statement was made by the declarant at a time proximate to the event and so is more likely to be accurate. The statement was also made at a time when no litigation was underway in family court. I see no plausible reason for the victim to have fabricated this event when speaking with her close friend.

[116] I am also satisfied that this evidence is admissible notwithstanding that it refers to other discreditable conduct. Prior violence in the relationship between the parties is highly probative to proof of animus or motive, which in turn is relevant to whether the homicide was planned or deliberate: Carroll at para 125; Moo at para 108. The prejudicial impact of this evidence is diminished since this is a judge alone trial. In any case, I am satisfied that the probative value of the evidence exceeds its prejudicial effect.

[117] The remaining material points in 1B are not admitted. It is not clear what was said by the victim and what the witness concluded on her own about the victim’s feelings.

[118] I exclude the evidence summarized at 1C. This is a summary of evidence about information given to Ms. Quesnel about conflict in the relationship and name calling by the accused. There are no specific utterances attributed to the victim and the time frame to which these events relate is not clear. In context with other evidence given by the witness, it seems as though some of the conduct was occurring at the time of Ms. Quesnel’s wedding, which was in the summer of 2017. This was more than a year prior to the victim’s death and in the context of this case, of little probative value. In any case, the evidence of conflict in the relationship is admissible in other evidence and this evidence, given its lack of precision, does little to advance the issues in the trial.

[119] The evidence summarized at 1D relates to the time the victim was in Nova Scotia. It is not clear what was said to Ms. Quesnel by the victim and when, and Ms. Quesnel’s evidence was equivocal on this point. When asked if the victim said why she was concerned for her safety, what had happened, Ms. Quesnel said “again there are so many things, she was mostly fed up with everything that was going on, I can’t narrow it down to anything specific”. I am not satisfied that the information attributed to the victim is sufficiently specific to be admissible. I exclude this evidence on this basis.

[120] The evidence summarized at 1E is excluded. It relates to the victim’s state of mind when she lived in Nova Scotia. It is not sufficiently probative of the issues to warrant admission.

[121] The evidence summarized at 1F is excluded. This evidence relates to arguments the couple would have had when they lived in Nova Scotia. The evidence given on the issues is very general. In any case, the evidence is of marginal probative value to the issues at trial, particularly given the considerable evidence as to the actual conflicts in the relationship when the victim was killed.

[122] The evidence summarized at 1G relates to a threat reportedly made by the accused to the victim, in which he is alleged to have said after an argument that he wished she was six feet underground. Ms. Quesnel was not able to provide any other details about when the victim told her about this. She had no recollection as to the context in which the accused was alleged to have made this comment, though she recalled that the victim had shared a text with her at the time supporting the comments. She was unable to confirm the time frame in which the victim told her about this threat (other than it was after the victim returned to Ontario), or when the threat was made. Ms. Quesnel was unable to recall the victim’s state when she received the text, she just remembered that she tried to “hang up or delete the conversation”. There is no corroboration for the utterance.

[123] Even assuming this evidence is admissible on the hearsay analysis, I would exclude it as prior discreditable conduct. The evidence is clearly prejudicial. Its probative value is significantly diminished by the lack of information about the issues outlined above, particularly the complete lack of context for the utterance or any precision about when it was made. In these circumstances, the probative value of the evidence does not exceed its prejudicial effect.

[124] The evidence at 1H is excluded. It relates to comments made about the accused’s feelings towards Lucie Prince, the neighbour who babysat E. The evidence about the conflict between the victim and the accused relating to Ms. Prince babysitting E. is available from other sources, including the accused’s own statements. To the extent this conflict relates to motive and animus, it is already well established by other admissible evidence. I exclude the evidence on the cost/benefit analysis.

[125] The evidence at 1J relates to conversations in the summer of 2018, including by text on August 3, 2018, where the victim expressed that the accused was scaring her and that she was worried about what the accused was capable of in relation to their dispute about the parenting plans for E. Ms. Quesnel said she did not recall any discussions with the victim about safety. She said that the victim told her that the accused was unpredictable, and that her fear was mostly about E. and custody and not knowing what was going to happen. The defence argues that the context for this evidence is the conflict over E., and to that extent, the evidence is “accepted”. The evidence is at least admissible on this point. It remains open to the parties to make further arguments about whether these comments relate to more than that conflict, given the totality of the witness’s evidence and the contents of the text messages.

[126] In any case, I am satisfied that the evidence may be admitted under both the state of mind and the principled exceptions. To the extent these conversations are captured by text, there is a complete record of the conversation. In any case, the accuracy of the utterances is not disputed based on the hearsay danger, but the sincerity of the declarant. I find that the circumstances in which the statements are made provide them with sufficient guarantees of trustworthiness for the following reasons.

[127] First, the statements are made by the victim to her close friend and confidante, with whom she routinely shared her feelings and concerns. The utterances relate to the victim’s state of mind at the time and are proximate to the events that have produced that state of mind. While litigation in family court had started by this point, the pleadings filed by the victim do not support the theory that she was making comments to her friends or family in contemplation of creating a litigation record. That the victim ultimately agreed to a consent order for joint custody with the accused within 6 weeks of the first court date contradicts any agenda she may be said to have had in family court. I also rule out, on a balance of probabilities, the alternative possibility that the victim told her friend these things to “frame the narrative” as part of an agenda to get their mutual friends onside. This theory is speculative and there is nothing in the evidence to suggest the victim had such an agenda. Finally, there is nothing in the record that makes it implausible that the victim actually said or felt the concerns expressed in her utterances, including her willingness to travel to Nova Scotia with E. to permit the accused to spend time with her.

[128] The summary of the evidence at 1K relates to conversations and a series of texts between Ms. Quesnel and the victim on August 10, 2018, where the victim expresses her concern about the accused finding out about her relationship with Mr. Viau. Contrary to the Crown’s summary, my recollection of the evidence is that Ms. Quesnel said that the victim believed that if the accused found out it would make things worse and she did not want to make things worse. The evidence summarized at this point also includes the victim’s belief that she was being watched by the accused and was stressed about that. The Crown seeks admission of these utterances under the state of mind exception.

[129] I find the evidence is admissible for the purposes sought by the Crown. The evidence demonstrates the victim’s state of mind at the time the utterances were made in the summer of 2018. Her state of mind about the relationship with the accused in the few months prior to her killing are highly relevant to the issues to be determined at trial. There are no circumstances of suspicion that call into question the reliability of the utterances. I rely here on my earlier analysis, finding there are no plausible alternative theories for the victim to have been lying to Ms. Quesnel, which applies equally to this set of utterances.

The text messages

[130] The text messages the Crown seeks to introduce under either the principled or traditional exception to the hearsay rule are listed in Exhibit CC. The admission of a number of texts is not opposed by the defence and are admitted as part of the narrative. I have determined that the remainder of the contested text messages are admissible.

[131] In the reasons above, I have provided the reasons for admitting 5A and 9A.

[132] Text exchanges from March 24, 2018 (1A), March 28, 2018 (2A and 2B), April 10, 2018 (3A) and August 3, 2018 (8A and B) are all admitted.

[133] Where the evidence is sought under the principled exception, I am satisfied that there are circumstantial guarantees of trustworthiness that render the texts admissible. Those circumstances include the following. There is a complete record of the conversations. The utterances are made to a close friend and confidante. The utterances relate to proximate events. I am satisfied that there is no plausible alternative theory for why the victim would state these things if she did not sincerely believe them to be true. There is corroborative evidence that supports the admissibility of a number of texts, particularly text messages between the accused and the victim which are very similar in their contents on the material issues (e.g. 2A, 2B, 3A, 8A and 8B) and which provide additional reassurance that the hearsay dangers are sufficiently overcome to warrant admission of the evidence.

[134] The Crown position is that some of the contents of these series of texts are also admissible under the traditional exception (e.g. 2B, 8A and 8B). I agree. I am satisfied that the criteria for admission have been met, and in particular, that the contents of the messages reflect the victim’s state of mind at the time. I am satisfied that there are no circumstances of suspicion that bar the admission of the texts, which occurred in everyday conversation between the victim and her best friend.

The evidence of Diane Brossoit

[135] Diane Brossoit is the mother of the victim. The utterances at issue in her evidence are set out in Exhibits AA and BB.

[136] The weight of the evidence on the voir dire supports the conclusion that Ms. Brossoit and the victim had a conflictual relationship. According to the victim’s step-mother, Ms. Lemieux, Ms. Brossoit came to her when the victim was moving into her new apartment in June 2018 to caution her not to assist the victim as much as she was. Ms. Brossoit is reported to have told Ms. Lemieux that the victim would manipulate her for the victim’s financial benefit. It appears that Ms. Brossoit had felt manipulated by the victim in the past.

[137] Other evidence shows that when the victim moved to Ontario, she did not let her mother know, and had to be encouraged by others to tell Ms. Brossoit before she learned her daughter was home from someone else.

[138] I also note that, in respect of some of the reported utterances, the witness’s evidence was far from clear as to what was said by the victim as opposed to what was assumed by the witness. This is particularly true for the utterances set out in “A”.

[139] In any case, on the cost/benefit analysis, even if the evidence from this witness meets the standard of threshold reliability, the material issues in the utterances at issue are advanced by other admissible evidence that is more reliable. I would exclude the evidence because it is largely repetitive. I exclude the evidence of this witness summarized in Exhibit BB because it relates to circumstances when the victim and the accused lived in Nova Scotia that are not sufficiently probative of the issues in this case to warrant admission.

The evidence of Jacques Lamarche

[140] Jacques Lamarche is the victim’s step-father. He is the spouse of Diane Brossoit, the victim’s mother. He had known the victim for over 10 years. She was 9 or 10 when they first met, and they started living in the same home in 2010.

[141] By all accounts, the relationship between the victim and Mr. Lamarche was very good. She confided in him and discussed issues – on occasion she would ask that he not share the discussion with her mother. Mr. Lamarche, along with the victim’s mother, kept in touch with the victim while she was in Nova Scotia. When she returned to the Alexandria area, she would visit them with some regularity.

[142] On occasion, Mr. Lamarche gave advice to the victim. For instance, he told her that she would be provided with a lawyer to address the family court issues between her and the accused if she filed for social assistance. To his knowledge, she took that advice. He also told her she should get her own apartment because she needed a place of her own. He helped her move in when she got her apartment in June of 2018.

[143] It appears that after the separation between the victim and the accused, Mr. Lamarche also maintained at least a civil relationship with the accused. Mr. Lamarche recounted that on the accused’s birthday, while he had E. in his care, the accused came to visit him and Ms. Brossoit. He said his impression at that time was that the accused was heartbroken about the end of his relationship with the victim. During that visit, Mr. Lamarche said the accused told him that he was planning to move to the area so he could see E. more often. Mr. Lamarche said his response to this information was that the accused was E.’s father, so it would be great if he could see his daughter.

[144] During this visit, Mr. Lamarche also recalled that the accused spoke to Ms. Brossoit. The accused asked when she had started seeing Mr. Lamarche after separating from the victim’s father, and how things went after she got a new boyfriend. Mr. Lamarche recalled that the conversation was interrupted because E. needed attention.

The hearsay utterances

[145] The utterances at issue from this witness’s evidence are also summarized in Exhibit BB.

[146] Before addressing the admissibility of each, I confirm that what I am addressing in this analysis is not Mr. Lamarche’s credibility and reliability since he is the recipient of the statement. Whatever inconsistencies there are in his evidence, I do not find they warrant invoking the Humaid caveat. Indeed, the facts in Humaid, where the concerns relating to inconsistencies in the hearsay recipient’s evidence did not bar the admissibility of the evidence, reinforce that conclusion. While there are a number of reliability issues with this witness’s evidence, they will be addressed in the assessment of the ultimate reliability of the utterances.

[147] I have admitted a modified version of what is summarized at 3A to reflect the totality of the evidence given by Mr. Lamarche as to what he actually heard the victim say while she was on the phone with her mother. For instance, as regards the utterances about holes in the wall, Mr. Lamarche ultimately confirmed that he had received that information from Ms. Brossoit, not the victim herself. I have confined the admissible evidence to what Mr. Lamarche heard directly from the victim.

[148] I am satisfied that there are circumstantial guarantees of trustworthiness that support the admissibility of the more restricted version of the utterances set out in 3A, which I have described in my summary of the Ruling. In this regard, I consider the nature of the relationship between the victim and Mr. Lamarche and Ms. Brossoit, to whom the victim was appealing for assistance. I consider that the state of mind the victim was describing was contemporaneous with the utterances. There are no circumstances of suspicion surrounding the making of the statement, or any plausible reason for the victim to have been fabricating what she was feeling. There was no litigation at the time. Further, in the subsequent litigation, there is no evidence that whatever led to this call to her parents played a part. I find it is safe to conclude the victim was not “creating a record” in contemplation of litigation with the accused. In asking for her mother and step-father to come and get her because she was scared, there is nothing but speculation to support the contention of the defence that she may have been doing so to get a free ride back to Ontario or gain financial assistance. The evidence is admissible under both the traditional exception and under the principled analysis.

[149] The utterances set out in 3B are also admissible. These utterances relate to the victim’s utterances to the effect that the accused was controlling her life, that the accused needed to know everywhere she went, and that this was annoying her. In conjunction with this, the witness testified that the victim’s phone was constantly buzzing when she visited, and that the victim said it was Brandon.

[150] I am satisfied that the evidence discloses that these events would have been while the victim was in Ontario, and that some of the witness’s evidence places this activity in the time after the victim started working, a time frame that is relevant to the determination of the issues. I find that the evidence is specific enough that its admission is not barred. There are circumstantial guarantees of trustworthiness given the nature of the relationship between the victim and Mr. Lamarche, and utterances relate to proximate events. In assessing whether there is any other plausible alternative reason for which the victim might have been saying these things, I consider that there is some corroboration on the material point that the accused wanted to know where the victim was for controlling reasons. The accused’s text messages to the victim contain such comments. Given all the above, I am satisfied of the threshold reliability of the utterances and they are admitted under the principled exception.

[151] The utterances at 3C related to a comment the victim said the accused had made to her to the effect that if he could not have E., no one else would. While his evidence on this point will attract scrutiny under the ultimate reliability analysis, I find the evidence has sufficient circumstantial guarantees of trustworthiness to be admitted. In this regard, I note that the witness gave specific evidence about two distinct time frames when the victim made comments like this to him, once in the summer after she had started seeing Mr. Viau, and earlier in the spring. The close nature of the relationship between the victim and her step-father goes some way in providing reassurance about the trustworthiness of the utterance, particularly since there is no reason for her to have misrepresented these comments to her step-father.

[152] There is also some corroboration for this utterance insofar as there is corroboration for the material point that the accused did feel this way. In the accused’s statement to D/Sgt Fedele on October 16, 2018 (at lines 208-213) he tells the officer that “he made sure that if [he] wasn’t gonna have his daughter or [his] girls, neither of us were gonna and now I said that for uh for a fucking long while I said it in my head and said it in my head …”.

[153] As for plausible alternative theories for the utterances, there is no evidence that the comments ever made their way into the family law litigation record, and I reject the notion that the comments may have been made to assist the victim in litigation. I also reject the suggestion that the comments may have been made to garner sympathy and support from Mr. Lamarche or her family by framing the accused in an unfavourable light. On this point, I note that even in late August, Mr. Lamarche was engaging with the accused in a friendly and civil way, since the accused visited him and Ms. Brossoit with E. There is no evidence that any information the victim was sharing with her family about her difficulties with the accused was impacting how they treated either the victim or the accused.

[154] Further, the victim had obtained no obvious assistance from Mr. Lamarche or Ms. Brossoit when she called them in February saying she wanted to come home – the couple was limited by their means and there is no reason to think the victim did not understand that. Whatever her history with her mother relating to financial issues, I can see no benefit to her in making this comment to Mr. Lamarche in terms of the nature of the support she would obtain from her family.

[155] In all the circumstances, I am satisfied that the hearsay danger regarding the sincerity of the victim when she made these remarks are sufficiently overcome that the evidence is admissible.

[156] The evidence contained at 3D is not admitted. It relates to a conversation Mr. Lamarche says he had with the victim on October 6 or 7th (e.g. days before her death) when she told him that the accused was not happy with the final outcome at court and she was going to pay for this. The accused was reportedly upset that he would not be permitted to take E. back to Halifax and that he had to pay back money to the victim.

[157] I agree entirely with the position of the defence regarding this utterance. To the extent there is extrinsic evidence that can be considered in assessing the issue, it casts doubt on the likelihood that these utterances are reliable. The family court documents and the evidence during the voir dire all show that the parties ultimately reached an agreement on consent whose terms were incorporated into the final court order obtained on October 1st, 2018. The order permitted the accused to have time with E. in Nova Scotia. It was silent on any repayment of money by the accused to the victim. There is no other evidence that any other agreement for the repayment of money by the accused had been made in conjunction with the court order to resolve any other financial issues. The final terms of the order were largely consistent with the position taken by the accused in his pleadings. In all the circumstances, I am not satisfied that the hearsay dangers are overcome as regards this set of utterances.

[158] While it is not relevant to the threshold admissibility analysis, and I have not considered it during that portion of my analysis, it is worth noting that the statement would not have survived the ultimate reliability analysis in any event. This evidence was given for the first time at trial. Mr. Lamarche did not mention these events when he was interviewed on October 15, 2018, which was about a week after he says the victim told him these things, and a few days after he would have known she had been murdered. He says that he was overcome with guilt and his brain would not allow him to process this information at the time he spoke to police. Even though the topic of the accused seeking vengeance was discussed during the police interview (the witness placed that event in the spring, not days before the victim was killed), the witness did not describe this conversation from a week earlier in October. It would be unsafe to rely on this evidence in the trial in all the circumstances.

[159] I reach a different conclusion about the utterances relating to the accused saying he would get vengeance on the victim in the spring, which I find are admissible under the principled exception. While not detailed, the witness’s account places these comments in the spring when the victim and the accused were having difficulties negotiating issues relating to E. There are text messages from this time frame from the accused to the victim in which he says things to the effect that she “will get what’s coming to her”. Given the nature of the relationship between the victim and Mr. Lamarche, the proximity of the utterances to the events they are describing, and the evidence capable of corroborating the material issue, I find these utterances meet the test for threshold reliability.

The evidence of other discreditable conduct

[160] The utterances in which the accused said that if he couldn’t have E., no one else would are arguably evidence of other discreditable conduct. This is the position taken by the defence.

[161] To the extent that this evidence is bad character evidence, it is highly probative to both animus and motive. It goes to the heart of one of the central disputes between the victim and the accused in the time leading up to the victim’s murder. The prejudicial impact of the evidence is diminished to the extent that the accused expressed this sentiment to D/Sgt Fedele and very similar evidence is already admissible in the trial. The probative value of the evidence far exceeds its prejudicial effect and it is admitted under this analysis as well.

The evidence of Carole Lemieux

[162] Carole Lemieux is the victim’s step-mother. Ms. Lemieux is the partner to the victim’s father, Claude Maheu, and has been since 2009. Ms. Lemieux has known the victim since 2009 and considers her to be her daughter. They had a very good relationship. Ms. Lemieux said the victim shared a lot and was very open with her. She believes this was because, unlike with her parents, there was no judgment from Ms. Lemieux.

[163] Ms. Lemieux and the victim’s father went to pick the victim up in Halifax in March 2018 and brought her and E. back to their house in Maxville. The victim and E. lived there for the next four months until the victim got her own apartment.

[164] While Ms. Lemieux’s evidence contained descriptions of her own observations of the relationship between the victim and the accused, she also provided evidence about a number of things the victim told her. These utterances are outlined in Exhibit BB.

The hearsay utterances

[165] I exclude some of the contested utterances. The utterances set out at 8A are not sufficiently probative of the issues to be admitted. The utterances at 8F are repetitive and the material aspects are in evidence in any event. I rely on my residual discretion to exclude them on the cost/benefit analysis.

[166] With respect to the remaining contested utterances, I begin with 8B. I find there are sufficient circumstantial guarantees of trustworthiness to support the admissibility of the utterance under the principled exception. The utterance relates to an allegation that the accused had hit the victim. The witness gave evidence that she received this disclosure when the victim was visiting her over the Christmas holidays in 2017. She did not ask the victim for more detail about where she was hit since that did not matter to her.

[167] While I do not find any of the evidence about holes in the wall of the home in Nova Scotia observed by this witness corroborate the material issue in this statement, I do find that the circumstances in which the statement was made provide sufficient guarantees about its trustworthiness. The relationship between the victim and Ms. Lemieux was very close. The victim routinely shared things with Ms. Lemieux. There is no reason disclosed in the evidence to find that the victim had any reason to mislead Ms. Lemieux about having been hit by the accused. No litigation was contemplated at the time of the statement. There is no reason to think the victim was trying to garner sympathy from Ms. Lemieux – given the close relationship (Ms. Lemieux testified that she never told the victim “no”), it was clear that Ms. Lemieux was supportive of the victim in any event. To suggest that making this statement somehow significantly changed the nature of that support is speculation. I similarly reject the suggestion that the victim was trying to manipulate Ms. Lemieux or control the narrative of her relationship with the accused and so she falsely told Ms. Lemieux he had hit her.

[168] The utterance set out at 8C is the same utterance as in 8B, with the added detail that the victim said she did not know if she could defend herself since the accused was so much bigger than her. My recollection of the evidence is that it relates to the same conversation as in 8B and it is admitted for the same reasons.

[169] As for 8D, 8E, and 8H, I understand from the oral submissions of the defence that no issue is taken with the admissibility of the hearsay portions of the evidence summarized, since in large measure those facts are in evidence from other sources in any event.

[170] The contested utterance in 8G relates to the victim saying that she was scared to let the accused be alone with E. because of the screaming. The defence points out that, during this time, the victim had offered to go to Nova Scotia to accompany E. while she was with the accused, and this runs contrary to the sentiment expressed in the statement. While the probative value of this evidence is borderline, there are sufficient circumstantial guarantees of trustworthiness to admit the utterance under the principled exception. Here again I rely on the nature of the relationship between the recipient and the declarant, and the fact that the declarant is expressing her state of mind about her current circumstances. As for whether there is an alternative theory that might explain the utterance, I do not see any that are plausible. I do not view any discussion about the victim going to Nova Scotia with E. to allow her to spend time with the accused as so at odds with the utterance that its trustworthiness is undermined.

[171] I come to a similar conclusion in regards to the utterance at 8I, to the effect that the victim was afraid that the accused would take E. away and not bring her back, and that she would never see her again. I find the utterance is admissible under the state of mind exception. Here the defence argues that the reliability of the utterance is undercut by fact that the accused had visits with E. without incident, and she later suggested to Mr. Viau that she was hopeful that the accused might come up so that he could take E. for the weekend. I do not view these facts as undermining the reliability of the utterance, such that it might be said that it was made in circumstances of suspicion.

[172] I do note, however, that Ms. Lemieux gave no clear evidence about when the victim told her this, although in the context of her evidence, it appears it may have been in the period of time leading up to her getting a lawyer and initiating family court proceedings and while she was still living with Ms. Lemieux (e.g. between March and June of 2018). The weight the evidence can be given in proving any of the issues will be further considered in the final analysis of the trial issues.

Evidence of other discreditable conduct

[173] Given my conclusion on the hearsay rulings, the evidence of Ms. Lemieux about the victim telling her the accused had hit her raises admissibility issues as other discreditable conduct. I admit the evidence here for the same reasons as the evidence of Ms. Quesnel about the victim disclosing an incidence of violence in the relationship.

The evidence of Lucie Prince

[174] Lucie Prince is married to Paul Charbonneau. The couple lived in the same apartment complex as the victim. Ms. Prince baby-sat the victim’s daughter E. when the victim went to work. Ms. Prince testified that she and the victim became friendly with one another in the time after the victim moved in and that the victim told her various things about the accused. The utterances at issue in respect of Ms. Prince’s evidence are summarized in Exhibit BB.

[175] Even assuming the evidence meets the standard for threshold reliability, I do not find that the utterances made to this witness are admissible.

[176] The utterances summarized in A related to prior violence in the relationship between the victim and the accused. This evidence is available from other witnesses who received more proximate and specific accounts of prior violence in the relationship. The reliability of those utterances is superior to the utterance at issue here. The evidence from Ms. Prince is repetitive and prejudicial. On the cost/benefit analysis, the repetition of the evidence will add nothing further to an assessment of the contested issues. While the prejudicial impact of the evidence is reduced because this is a judge alone proceeding, in all the circumstances, there is little if any value to admitting the evidence and its exclusion is appropriate.

[177] The utterances summarized in B relate to threatening comments made by the accused towards Ms. Prince. The relevance of this evidence is marginal since the threatening conduct described is directed at Ms. Prince. While it is evidence which could be said to show there was acrimony in the relationship between the victim and the accused about choices the victim was making, evidence about that conflict is available from other sources. Further, the fact that the proposed evidence relates to the accused’s alleged threats to Ms. Prince is bad character evidence which increases its prejudicial effect and thus weighs against the admissibility of the evidence. Any probative value of the evidence does not outweigh its prejudicial effect. This evidence is excluded.

The evidence of Richard Quesnel

[178] Richard Quesnel is a person with whom the victim worked. They had worked together twice a week (and sometimes three times) since July of 2018 through to October 2018 when the victim was killed. When they were at work together, the victim spoke to Mr. Quesnel about her life, including her relationship with the accused while in Nova Scotia and since she had returned to Alexandria.

[179] Mr. Quesnel testified that the victim told him the accused had been harsh and aggressive towards her, that the accused had made threatening comments, and that she did not feel comfortable or safe around the accused. The Crown seeks to have these statements admitted under the principled exception. The defence opposes admission because of lack of specificity. For instance, the witness was unable to identify language that was used by the accused that was harsh and aggressive and was coming to his own conclusions. The defence also says there are alternative explanations to account for why the victim would make these utterances to this witness which make them unreliable.

[180] I have considered the degree of specificity that the witness is able to provide with respect to the utterances made by the victim. While weaknesses in this regard will also be considered in the assessment of the ultimate reliability of the statements, I am satisfied that the witness’s evidence contains sufficient specificity about what the victim told him to be capable of admissibility at the threshold admissibility stage. The witness was firm about being told various things by the victim, and on the evidence, I am satisfied that he is not merely describing his own conclusions about the subjects she spoke about based on his own assumptions or observations.

[181] For instance, Mr. Quesnel said the victim told him the accused was “harsh and aggressive” when he spoke to her. He could not recall examples, but he was firm in his evidence that the victim used the words “harsh and aggressive”. Similarly, the witness said that the victim had used the word “threatened” and related to him that the threats related to not participating or withdrawing from parenting E. He was firm that the victim had told him that she did not feel comfortable around the accused, that she talked to him about how she didn’t feel safe, and that she was not comfortable with E. being alone with the accused. While he also described her body language while she was saying these things, he said that her words were consistent with her body language and denied that he was drawing his own conclusions about her feelings based on her body language. He testified that he spoke with the victim within the two weeks prior to her death and that she said that she didn’t feel safe around the accused and that she never knew how he was going to react.

[182] I have also considered that, for the most part, the witness was unable to be more precise in his evidence about the timing of the various utterances. However, it is clear that all utterances made to him by the victim were between July and October 2018. The inability to be more precise about timing of the conversation in which certain things were said by the victim is more likely when the hearsay declarant and the recipient have many conversations, as is the case here. While it is a factor to consider, it does not bar admissibility: R v Hammond, 1998 5026 (B.C.S.C.) at para 19, affirmed 2000 BCCA 165.

[183] As for the victim’s utterance to the effect that she did not feel comfortable or safe around the accused, this utterance is made during a time frame (July to October 2018) where the relationship between the parties is relevant to and highly probative of the issues of the victim’s state of mind, animus and motive. The evidence establishes this utterance was made in the context of a conversation where the victim was sharing information about her life with a co-worker. There is no plausible reason for the victim to have been lying or exaggerating about the material issues in this or other utterances when speaking with her co-worker. On the evidence presented, I fail to see any benefit to the victim from an attempt to “frame the narrative” about her relationship with the accused with this witness, who did not even know the accused.

[184] While there are issues regarding the ultimate reliability of the evidence since some of the utterances were not disclosed by the witness prior to his testimony at trial, the evidence meets the test for substantive reliability.

The evidence of other discreditable conduct

[185] To the extent that the witness described threatening comments reported to him by the victim, these appear to relate to threats made about issues relating to parenting issues regarding E. Insofar as the harsh and aggressive treatment of the victim is alleged, the witness’s evidence is that this related to how the accused spoke to her. There is corroboration for such conduct in the texts exchanged between the victim and the accused, and this both supports its admissibility and diminishes the prejudicial impact of the evidence from this witness. Even if this evidence meets the threshold for other discreditable conduct, I find the evidence is admissible. The prejudicial impact of the evidence is very low, while the probity of the evidence is high, since it relates to a live conflict in the relationship that is relevant to motive and animus.

The evidence of Patrick Viau

Background

[186] Patrick Viau was the accused’s boyfriend at the time of her death. He had been in a relationship with the victim since August 19, 2018. They had known each other since high school, where they first met. In September 2018, Mr. Viau moved into the victim’s apartment with her and E. Mr. Viau testified that he was thinking of marrying the victim.

[187] Mr. Viau testified that the victim was having financial difficulties and this was causing stress for the victim. At one point, he asked his parents for money so she could buy groceries. Mr. Viau was also helping her financially. Mr. Viau was aware that the victim believed the accused should be assisting her financially with a credit card debt that had led to her bank account being frozen.

[188] Mr. Viau was aware that the accused and the victim were involved in a court case regarding E. He understood that the victim wanted the accused to be involved with E. and that custody “was supposed to be 50/50”. He did not know the terms of the final court order. He appeared to think the victim and the accused had attended a court appearance once “on the 26th”, which accords with the family court documents showing a first appearance on August 26th, 2018.

[189] Over the course of their relationship, Mr. Viau met the victim’s best friend, Karina. He also met the accused.

[190] The first time they met, the victim, the accused, E. and Mr. Viau went apple picking together. Following that, all four went out for dinner together.

[191] Mr. Viau was present when the accused said he wanted to buy a house for the victim and E. He was aware that the accused told the victim that he had stage IV cancer.

[192] Mr. Viau agreed there was some jealousy on his part vis-à-vis the victim’s relationship with the accused. Given things she had told him about the accused, Mr. Viau told her he didn’t want her to be alone with him. He said he wanted to be there on occasions when they were co-parenting E. He says she agreed.

[193] Mr. Viau also testified that the accused had asked him over text to be E.’s step-father if something happened to him.

[194] Mr. Viau testified about the accused’s unexpected arrival at the victim’s apartment on October 10, 2018, the day before she was killed. The accused told the victim and Mr. Viau that he had done something bad and he was hiding from the police. The accused was dressed all in black. He had a knife.

[195] Following the accused’s arrival, Mr. Viau says he suggested that since the accused was there, they should deal with the credit card. Mr. Viau, the victim, the accused and E. went to the bank in Cornwall, which was closed. Then they went for dinner. Following this, they returned to the victim’s apartment. Mr. Viau suggested at some point that the victim and the accused could go to the bank the next day after she finished work. Mr. Viau agreed that it was the victim who suggested that the accused stay over at her apartment to facilitate this. That night, which was the night before she was killed, the accused slept on the couch in the living room while Mr. Viau and the victim slept in the victim’s bedroom.

[196] Mr. Viau testified that, after they returned to the apartment, the victim asked the accused why he had a knife and gloves. He said the accused didn’t want to tell her. When Mr. Viau and the victim went to bed, he told her that the door would be closed and she would sleep near the wall. He said he did that because things were “a bit sketchy”.

The hearsay utterances and the circumstances in which they were made

[197] Mr. Viau got up the next morning at 5 a.m. to go to work. This was the day the victim was killed. He says that he and the victim talked about her plans for the day, which were to go to work, finish at 1 p.m., meet the accused at Tim Hortons, go to the bank and come home. The plan was that she would take her car and the accused would take his. This evidence is summarized at 7C in Exhibit BB.

[198] During this conversation, Mr. Viau says the victim asked him to stay home. She said she was scared about being around the accused alone. Mr. Viau told her he could not stay as he had to work. Emilie said ok but asked him to text her. This evidence is summarized at 7B in Exhibit BB.

[199] Thereafter, the couple communicated by text between 8:23 a.m. and 1:05 p.m. while the victim was at work. In the texts, the victim says a number of things, including: that the victim is scared and she thinks the accused knows it; that her stomach is full of knots; that she is meeting the accused at Tim Hortons at 1 p.m.; that she is scared to be around the accused; and that she feels like puking. At 1:05 pm she texts that she is leaving work.

[200] The Crown seeks the admission of further evidence from this witness relating to the victim’s disclosure to him that the accused had been violent and abusive. The witness testified that the victim told him this after she and the accused had been to court. No other details about the abuse or when it occurred were provided by the victim. This evidence is summarized at 7A in Exhibit BB.

Analysis

[201] I have ruled that the utterance relating to prior violence by the accused toward the victim is not admissible. Assuming the evidence meets the test for threshold reliability, I exclude it under the cost/benefit analysis since the nature of the evidence is repetitive and a more specific and proximate account of prior violence in the relationship is available from other witnesses. While the utterance is not admitted for its truth, the fact that this disclosure was made is admissible to the extent that it informs the narrative for other issues.

[202] The utterances made on the date the victim was killed are admissible, however.

[203] The Crown seeks the admission of the conversation before Mr. Viau went to work set out in 7B under the state of mind exception to the hearsay rule. I am satisfied on a balance of probabilities that this statement meets the criteria for admissibility under this traditional exception. In particular, I am satisfied that the utterance was not made under circumstances of suspicion.

[204] I have considered the argument by the defence that the statement was made in suspicious circumstances because the victim suggested the night before that the accused should stay over and that she was well aware that Mr. Viau would need to leave in the morning. As I understand the defence position, it is that it makes no sense that the victim would express this state of mind given these facts, so the circumstances in which she said she was fearful are suspicious.

[205] I disagree. The totality of the circumstances leading up to the victim’s expression of feeling fearful and reluctant to be alone with the accused does not support the conclusion that her utterances were made in circumstances of suspicion. The accused had arrived unexpectedly at her apartment reporting he had done something “bad” that had resulted in the police trying to find him.

[206] There is also evidence from the accused about his arrival at the apartment and what he told the victim and Mr. Viau. In his statement to police after his arrest, the accused said he told the victim upon arriving unexpectedly at her place that he got in a fight and the cops were looking for him. He said he only had two months left to live, that he “went out swinging” and he didn’t care who it was. He told the victim that he “curb stomped someone” and this person was in the hospital.

[207] Further, there is evidence that the accused had a knife and gloves, and when confronted by the victim about the reason for that, he would not tell her why. Quite apart from the evidence at issue in this ruling, there is ample evidence which establishes that the victim had experienced a lot of conflict to that point in her relationship with the accused. As she went to bed, Mr. Viau told her the door would be closed and she would sleep next to the wall. While the plan to go to the bank the next day may have been important enough for the victim to allow the accused to stay over night, I do not think given all these circumstances that it follows that her comments about being fearful the next morning when Mr. Viau was leaving for work are suspicious and of questionable reliability.

[208] Ultimately, I see no plausible reason for the victim to have been misleading Mr. Viau about her feelings that morning. To the extent that the possible reason is that Mr. Viau had previously told the victim that he did not want her to be alone with the accused and she might have been misrepresenting her feelings to somehow reassure or please Mr. Viau, this makes little sense when Mr. Viau was clearly prepared to leave her alone with the accused to go to work and the victim knew that. In all the circumstances, I find that it is more likely than not that the victim said these things to Mr. Viau because this was how she was feeling at the time.

[209] It is also worth noting that the evidence is that the jealousy and control issues were those of Mr. Viau. The suggestion that the victim misled Mr. Viau because he had those issues, while arguable, does not find any support in the remaining evidentiary record.

[210] The Crown seeks the admission of the remainder of the contested evidence under the principled exception. I find that the evidence meets the test for threshold admissibility. There are sufficient indicia of reliability to admit the utterances.

[211] In arriving at this conclusion, I have considered that the issue here is not the accuracy of the statements, but the sincerity of the declarant. Accordingly, it is relevant that these comments were made to the victim’s boyfriend, with whom she had been living and with whom she had a close relationship. There is no suggestion that any of the contents of the hearsay was the product of leading questions or other influence – indeed, insofar as the texts are concerned, the record of the conversation is completely available and there is no evidence of anything other than a conversation that proceeded naturally. There is no reason to find that the victim would have been unable to accurately perceive or remember what she said – the utterances in the morning conversation about her plans for the day and in the texts are an expression of her state of mind and not an account of prior events.

[212] Insofar as the victim’s plans for the day are concerned, there is more detail in the texts which is persuasive as to their reliability as a genuine expression of the victim’s plans. In the text messages, the victim says: “I’m meeting him at 1 at Tim’s then following him to Cornwall to get that and I have to stop at welfare office to get a paper for the child day care and then coming back I’ll tell u when I leave when I get there and when I’m back”. She also later says “I’ll come back for the car seat cause he’s got to go right after so ya no time”. The details in the text, considered together with the remaining circumstances, rule out any plausible alternative explanation for this message on a balance of probabilities. If the victim was simply telling Mr. Viau she was travelling separately from the accused because he had expressed concerns about her being alone with the accused and she wanted to reassure or please Mr. Viau, it seems very unlikely that she would also fabricate having to go into the welfare office to get paperwork related to daycare for E. It is also unlikely that if she was fabricating for the benefit of Mr. Viau she would later reference the fact that the accused had to “go right after”, which I take to be an indication that she understood the accused would be leaving for Nova Scotia right after they had gone to the bank. This is a detail that is also consistent with the plan for each of the victim and the accused to travel in their own vehicles.

[213] In finding this evidence meets the test for threshold reliability, I also consider that the accused himself at one point presented a scenario to police that involved the accused and the victim travelling in separate cars to the bank. In his exculpatory version of events, the accused said he had gone to the bank and waited for the victim to attend, but she had not shown up. This evidence gives me further confidence that, at least at some point, the plan that was discussed involved the victim travelling to the bank in her own car.

[214] As for the remainder of the text messages, I see no reason for the victim to have been misleading Mr. Viau about feeling scared to be around the accused, her belief the accused was aware of that, the fact that she was feeling ill, or any of the remaining content in her text messages. I make this finding fully alive to the trust, jealousy and control issues between Mr. Viau and the victim that have been adduced in evidence, and the arguments by defence that the victim may have made these utterances when they were not sincere to reassure Mr. Viau or for some other reason. That argument has to be assessed with full consideration of the contents of the utterances and the circumstances in which they are made. I am satisfied on a balance of probabilities that alternative explanations do not explain the utterances made here. The victim could have appeased Mr. Viau by simply saying to him that she would not be alone with the accused. I fail to see how it reassures Mr. Viau to say she is fearful or feeling ill – this would do little to appease or reassure Mr. Viau, let alone calm him down, as the alternative theories for the utterances would suggest.

[215] Similarly to the analysis under the state of mind exception, I also find that the totality of the circumstances, including the fact that the victim had slapped the accused the night before and allowed him to stay at her apartment, does not undermine the sincerity of her later utterances about her plans and feelings while in a private conversation with her partner.

[216] Finally, I have arrived at this conclusion having considered that there is some evidence that the victim had agreed not to disclose certain facts to Mr. Viau’s parents about him taking a day off work (which the defence raises as an act of dishonesty on the part of the victim), that there is evidence that suggests the victim’s mother felt the victim had manipulated her for financial gain, and that the victim did not share her plans or feelings with her best friend Karina that day. I am not persuaded that any of this evidence, or any other evidence adduced, renders the victim so manifestly unreliable that it would be unsafe to admit her utterances.

Conclusion

[217] For these reasons, the Crown’s application to admit the ante-mortem statements of Ms. Maheu, including those containing evidence of other discreditable conduct, is allowed in part.

Justice Laurie Lacelle

The Honourable Justice Laurie Lacelle

Released: Oral Ruling May 13, 2021

Written Ruling July 16, 2021

COURT FILE NO.: 19-70

DATE: Oral Ruling on 2021/05/13

Written Ruling on 2021/07/16

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Brandon Smeltzer

Reasons for Decision – Admissibility of Ante Mortem Statements and Other Discreditable Conduct

The Honourable Justice Laurie Lacelle

Released: Oral Ruling May 13, 2021

Written Ruling July 16, 2021