COURT FILE NO.: 375/20
DATE: September 17, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Kevin Kim and Tyler Shuster, for the Crown
- and -
Riley Kostuk
Mary Cremer, for Mr. Kostuk
HEARD: July 6, 2021
The Honourable Mr. Justice H. S. Arrell
JUDGMENT re ADMISSIBILITY OF ANTE MORTEM STATEMENTS
INTRODUCTION:
[1] The accused is charged with second degree murder in the death of Jacob Peets on June 29, 2019, in the City of St. Catharines, contrary to section 235(1) of the Criminal Code of Canada.
[2] The Crown brings this application seeking an order to allow the admission of certain ante mortem statements made by the deceased.
[3] The accused opposes the admission of these statements.
THE FACTS:
[4] The background facts are more fully set out in R. v. Kostuk, 2021 ONSC 6123.
[5] The Crown wishes the following ante mortem statements ruled admissible:
a) Mr. Peets Facebook post at 1:07 on June 28, 2019: “Your boyfriend getting mad I told him he can take you back”.
b) Mr. Newton’s alleged evidence that Mr. Peets told him to stop drinking with the accused as he was overly drinking at the Fiddler’s Pour House.
c) Text messages to Ms. Terryberry and his telephone conversation with her urging her to pick him up quickly at 45 Plymouth Ave. as the accused was quite intoxicated.
d) Comments by Mr. Peets to the accused in the Kitchen at 45 Plymouth just prior to the alleged murder after he intervened in the assault by the accused on Ms. Raymond.
[6] I have ruled that the Crown may call evidence of prior extrinsic misconduct on the part of the accused towards Ms. Raymond, his former girlfriend, to advance the Crown theory that the accused developed an animus towards her. There will also be evidence led that Mr. Peets and Ms. Raymond had sex after she and the accused broke up and that the accused found out about it.
[7] On June 28, 2019, in the afternoon the accused, Emily Raymond, Jacob Peets and Randee Martin decide to meet at the accused’s home at 45 Plymouth Ave in the evening to socialize and later go to a downtown bar called the Fiddlers Pour House where they met up with other friends.
[8] It appears that three of the four individuals at the accused home were drinking various amounts of alcohol and smoking marijuana before they attended the pub just after midnight. It appears Ms. Martin may not have been consuming anything while at the accused’s home before attending the pub. While at the pub further alcohol was consumed in various levels.
[9] While at the pub, it is alleged that Mr. Peets took aside Mr. Newton, one of the friends the group met at the pub and asked him to stop drinking with the accused as Mr. Peets thought he was overindulging.
[10] After leaving the pub the four individuals being Mr. Peets, the accused, Ms. Raymond and Ms. Martin took a taxi back to 45 Plymouth Ave. Mr. Peets had made prior arrangements with a friend, Ms. Terryberry, to pick him up that evening after the pub at 45 Plymouth Ave. While in the taxi on the way back to 45 Plymouth Ave. from the pub it is alleged that Mr. Peets texted Ms. Terryberry to hurry and pick him up. As well, he attempted to phone her at some point but the conversation according to Ms. Terryberry was garbled and she was unable to understand what he was really saying.
[11] While at the accused’s home and standing in the kitchen Emily Raymond and Jacob Peets were about to smoke some marijuana when the accused again called her a “whore” and threw a marijuana bong at her. Jacob Peets intervened. It is at this point that the Crown wishes the comments of Mr. Peets ruled admissible. These comments are allegedly as follows:
a) Telling the accused to stop assaulting Ms. Raymond.
b) Telling the accused to calm down and that everything was going to be ok.
c) Telling the accused “what the fuck. What the fuck”.
d) Telling the accused “fuck you”.
e) Telling the accused “screw you”.
f) Asking the accused if he was on his medication.
POSITION OF THE PARTIES:
[12] The Crown argues that even though this evidence may be considered hearsay it is admissible as a principled exception to the hearsay rule because these statements are reliable, material, necessary and probative of issues in this trial. They show the state of mind of the deceased just prior to the murder and are a vital part of the narrative. The statements also show the progression and escalation of the actions of the accused. The statements, the Crown argues, will assist the jury on the issue of intent of the accused and as well on the issue of identity of the perpetrator of the murder.
[13] In the alternative, the Crown argues that the statements are not hearsay but are part of the narrative, original circumstantial evidence from which Mr. Peets state of mind may be inferred.
[14] Finally, the Crown concludes that the probative value of this evidence outweighs any prejudicial effect it may have especially after appropriate instructions are given to the jury in my charge as to how this evidence can be used.
[15] The Defence argues that these ante mortem statements are pure hearsay and therefore presumptively inadmissible. As these are ante mortem statements they cannot be tested by cross- examination and, potentially, the jury may give more weight to these statements than they deserve because they are allegedly spoken by the deceased.
[16] The Defence also submits that in reality the Crown wants these statements before the jury for the truth of their contents. This is especially true of the Facebook post which the Defence argues the Crown wants admitted for the truth of its contents that the accused was angry about the relationship between Mr. Peets and Ms. Raymond. The Defence says the comments by Mr. Newton attributed to Mr. Peets are simply to show that the accused was intoxicated, and that Mr. Peets was concerned about his behaviour. This is not necessary according to the Defence as there is ample evidence of the drinking and drugs being consumed which can be given by others.
[17] The Defence concedes that all of the comments attributed to Mr. Peets in the kitchen at 45 Plymouth Ave. after intervening in the assault against Ms. Raymond are admissible except for the comment about whether the accused was on his medication. The Defence argues this comment clearly raises the mental health of the accused and is highly prejudicial with very limited probative value. It will also likely be used by the jury, says the Defence, for the truth of its contents that the accused did have a mental health issue which would make it more likely in their eyes that he was the killer.
[18] Finally, the Defence submits that the texts to Ms. Terryberry are admissible but the phone call should not go in given its unreliability and lack of necessity. As well it is mere speculation, says the Defence, to allow Ms. Terryberry to conclude that Mr. Peets was very upset and almost ready to cry when she admits she could not properly hear what he was saying or see his emotional state.
THE LAW:
[19] Hearsay evidence is presumptively inadmissible absent an exception. As Justice Charron stated in R. v. Khelawon, 2006 SCC 57 at para. 35:
Our adversary system puts a premium on the calling of witnesses, who testify under oath or solemn affirmation, whose demeanour can be observed by the trier of fact, and whose testimony can be tested by cross-examination. We regard this process as the optimal way of testing testimonial evidence. Because hearsay evidence comes in a different form, it raises particular concerns. The general exclusionary rule is a recognition of the difficulty for a trier of fact to assess what weight, if any, is to be given to a statement made by a person who has not been seen or heard, and who has not been subject to the test of cross-examination. The fear is that untested hearsay evidence may be afforded more weight than it deserves. The essential defining features of hearsay are therefore the following: (1) the fact that the statement is adduced to prove the truth of its contents and (2) the absence of a contemporaneous opportunity to cross-examine the declarant. I will deal with each defining feature in turn.
[20] The traditional hearsay exceptions, such as the “state of mind” or present intentions exception, remain presumptively in place. Declarations of present intentions or state of mind are admissible under the traditional exception to the hearsay rule where the declarant’s state of mind is relevant, and the statement is made in a natural manner and not under circumstances of suspicion.
R. v. Griffin, 2009 SCC 28, [2009] S.C.J. No. 28 (S.C.C.) at para. 59.
[21] As was stated in R. v. Khelawon, supra at para 42:
“It has long been recognized that a rigid application of the exclusionary rule would result in the unwarranted loss of much valuable evidence. The hearsay statement, because of the way in which it came about, may be inherently reliable, or there may be sufficient means of testing it despite its hearsay form. Hence, a number of common law exceptions were gradually created. A rigid application of these exceptions, in turn, proved problematic leading to the needless exclusion of evidence in some cases, or its unwarranted admission in others. Wigmore urged greater flexibility in the application of the rule based on the two guiding principles that underlie the traditional common law exceptions: necessity and reliability (Wigmore on Evidence (2nd ed. 1923), vol. III, — 1420, at p. 153). This Court first accepted this approach in Khan and later recognized its primacy in Starr. The governing framework, based on Starr, was recently summarized in R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, 2005 SCC 23, at para. 15:
(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.
(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.
(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.
(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.”
[22] The Court always has the power to exclude a statement that is reliable and necessary if the probative value is outweighed by its prejudicial effect. Prejudice refers to the accused or to the trial process.
R. v. Khelawon, supra at paras. 48-49.
R. v. Hawkins & Morin, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043 (S.C.C.) at p. 3
[23] A statement will be necessary if the declarant is unavailable to testify and if similar evidence cannot be obtained from a different witness, but necessity does not mean “necessary to the prosecution’s case.”
R. v. Hawkins & Morin, supra at para. 71.
R. v. Smith, supra at para. 35.
[24] If the witness has died, necessity is met, assuming the statement is not mere repetition and the evidence cannot be found elsewhere.
R. v. Khelawon, supra.
R. v. Backhouse, 2005 CanLII 4937 (ON CA), [2005] O.J. No. 754 (C.A.) at para.176.
R. v. Walker, 2002 BCCA 89, [2002] B.C.J. No. 239 (B.C.C.A.); appln. for leave to appeal dismissed [2002]
SCCA No 267 (S.C.C.).
R. v. Foreman, 2002 CanLII 6305 (ON CA), [2002] O.J. No. 4332 (Ont. C.A.), leave to appeal to S.C.C. refused [2003]
S.C.C.A. No. 199.
[25] In order to admit an out of court statement for its truth, it must be sufficiently reliable to overcome the dangers arising from the difficulty of testing it. This reliability requirement will generally be met on the basis of two grounds:
(1) In some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that cross-examination of the witness would add little if anything to the process. “Common sense dictates that if we can put sufficient trust in the truth and accuracy of the statement, it should be considered by the fact finder regardless of its hearsay form.” R. v. Khelawon, supra, at para. 62.
(2) In other cases, the evidence may not be so cogent, but the circumstances will allow for sufficient testing of evidence by means other than contemporaneous cross-examination. “Another way of fulfilling the reliability requirement is to show that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested.” The optimal way to do this is to have the declarant state the evidence in court, under oath and under contemporaneous cross-examination.
R. v. B.(K.G.), supra.
R. v. Hawkins & Morin, supra.
[26] In other cases, the evidence may be a combination of the two such as was found in R. v. F.J.U., 1995 CanLII 74 (SCC), [1995] S.C.J. No. 82.
R. v. Khelawon, supra at paras 49, 62-63.
[27] The Supreme Court of Canada noted:
“The criterion of “reliability” – or, in Wigmore’s terminology, the circumstantial guarantee of trustworthiness – is a function of the circumstances under which the statement in question was made. If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be “reliable”, ie., a circumstantial guarantee of trustworthiness is established.”
R. v. Smith, supra at para. 33
[28] Reliability, however, does not have to be established with absolute certainty but rather that the circumstances do not give rise to traditional hearsay apprehensions.
R. v. Smith, supra, at para. 30.
[29] A flexible approach is to be used to determine reliability. The Court is to determine at the voir dire threshold reliability. This is different than the ultimate reliability of the statement which is for the trier of fact to decide. The Supreme Court stated:
“The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact.”
R. v. Smith, supra, at para. 75.
[30] The party seeking to have the evidence admitted must prove reliability on a balance of probabilities.
R. v. F.J.U., supra.
[31] In assessing threshold reliability, Khelawon empowers a trial judge to look at any evidence that is relevant.
[32] Factors that cases have indicated could be used to establish the inherent trustworthiness of the hearsay evidence include but are not limited to:
- The presence or absence of a motive to fabricate (R. v. J.M., [2000] O.J. 585 (Ont.C.A.); R. v. Foreman, supra at para. 39 (Ont. C.A.); R. v. Walker supra at p. 45.
- Information in the statement that would not likely be in the possession of the declarant unless it were true (R. v. Khan, supra; R. v. Bannert, [2009] A.J. No. 15 (Alta. C.A.)
- The existence of corroborative evidence to confirm the truth or accuracy of the declarant’s statement (Khan, supra, R. v. Little, 2007 ONCA 288, [2007] O.J. No. 1467 (C.A.)
- The availability of a strikingly similar referent statement, (R. v.F.J.U.), supra, and the application of F.J.U. in R. v. Trieu, 2005 CanLII 7884 (ON CA), [2005] O.J. No. 1083 (Ont. C.A.) at paras. 38-42.
- The existence of prior inconsistent statements; or, in support of threshold reliability prior consistent statements (Khelawon, supra at para. 108; R. v. Baldree, 2013 SCC 35, [2013] S.C.J. No. 35 (S.C.C.) at para.71.
- Location of where the statement was made and the associated influences related to truth telling; R. v. Luke, [1993] O.J. No. 1986 (Ont. C.A.) at para. 42.
- Where the statement was made in “spontaneous and contemporaneous” circumstances that might serve a “reliability-enhancing” role; R. v. Polimac, 2010 ONCA 346, [2010] O.J. No. 1983 (Ont. C.A.) at p. 12, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 263.
- Where the statement was made before the litigation arose; R. v. Paqualino, 2008 ONCA 554, [2008] O.J. No. 2737 (Ont. C.A.) at paras. 38-41.
ANALYSIS:
a. STATEMENT TO NEWTON:
[33] The Defence concedes the statements of the deceased in question generally meet the criteria of necessity as the declarant is dead. However, necessity is also governed by whether the evidence is available elsewhere and therefore not required to advance the case. (See, R. v. Hawkins & Morin, at para. 71; R. v. Smith, at para. 35).
[34] I conclude that the alleged statement to Mr. Newton falls under the Smith category. The statement is not necessary as there will be copious amounts of evidence by various witnesses as to the alcohol consumption both at the accused’s home and at the pub. Everyone involved that night at those locations will testify as to what all the participants were drinking and likely their best recollection as to how much. This will include both the accused and the deceased. It is also clear that there will be ample evidence before the jury to confirm that the deceased was present during the entire time the accused was likely consuming alcohol. The jury will have no difficulty in concluding that the deceased would have had ample opportunity to observe the accused’s consumption of alcohol that evening and been able to form his own opinion, or state of mind, as the sobriety of the accused.
b. FACEBOOK POST:
[35] I conclude that the Facebook post of the accused does not meet the threshold of reliability. It is clear it was posted by Mr. Peets but there is no evidence as to who, or in fact if anyone, saw it prior to the murder. There is no evidence as to who the post was directed at nor is there any evidence as to who this post refers to. There is no evidence to indicate this post was referring to the accused as being mad or if the girlfriend was Ms. Raymond. It is mere speculation on the part of the Crown that the post means the accused is mad and/or jealous and wants Ms. Raymond back.
[36] It appears that the real purpose of introducing this post is for the truth of its contents and for the Crown to be able to argue that this post shows that the accused was angry and jealous of the relationship between the deceased and Ms. Raymond shortly before the murder. In my view this is evidence that potentially could be seriously altered by cross-examination.
[37] I also conclude that this post is highly prejudicial and of limited probative value. The relationship between Mr. Peets and Ms. Raymond will be established through other evidence. The impact that relationship may or may not have had on the accused regarding Ms. Raymond will also be established by the accused’s prior discredible conduct that I have already ruled on. This highly speculative post adds nothing to the narrative or anyone’s state of mind that will not already be before the jury by other evidence.
c. PHONE CALL TO MS. TERRYBERRY:
[38] The Defence concedes that the text messages by the deceased to Ms. Terryberry requesting that she pick him up as soon as possible are admissible. I agree.
[39] The Crown also wishes that the phone call to Ms. Terryberry by the deceased admitted into evidence to show the emotional state of the deceased and supposedly his fear of the accused at that point in time. I conclude this phone call and the potential evidence of Ms. Terryberry as to her opinion as to the emotional state of mind of the deceased is not admissible as it is unreliable, and it is highly speculative as to her conclusions. It is not really necessary in any event.
[40] Ms. Terryberry, who is certainly not an expert in human emotions, agrees that the call was garbled and that she could not make out what the deceased was saying given the connection and the wind blowing into her car through the open windows. She obviously could not see him or his demeanour. I conclude that she is simply speculating as to the emotional state of the deceased given the texts she received and the subsequent tragic events.
[41] The texts clearly show that the deceased was anxious to be picked up as soon as possible. The jury will be quite capable of forming their own conclusions on why he wished to be picked up as soon as possible by Ms. Terryberry.
[42] The evidence Ms. Terryberry supposedly will give about the phone call is also the type that could be significantly altered if the declarant was available for cross-examination. The proposed evidence is also highly prejudicial and as explained of limited probative value as well as being unreliable.
d. MEDICATION:
[43] I conclude that the statement alleged to have been made by the deceased asking the accused if he was on his medication is not admissible. It is highly prejudicial and of no real probative value. The issue of N.C.R. will not be raised by either party in this case. There will be ample evidence before the jury that the accused may have had some mental health issues and the jury will know from his video statant that his medication was delivered to him at the jail. Whether he was on his medication that night is therefore not necessary nor probative. The statement according to the Defence is really being tendered to show that the deceased gave this insult to the accused just prior to the murder adding fuel to the fire. I agree.
[44] The statement could also be interpreted by the jury as putting the accused in a bad light with mental health issues. As well, this statement may well send the jury into the direction of mental health being a primary issue in this trial which it is not according to counsel. It also appears to me that there may be several different interpretations of what the declarant meant by this statement if he was available for cross-examination.
CONCLUSION:
[45] For the reasons given in this decision only the following ante mortem statements given by the deceased will be admissible:
a) The text messages to Ms. Terryberry to hurry and pick up the deceased at the accused’s house.
b) All of the utterances by the deceased after he intervened on behalf of Ms. Raymond in the kitchen and outside of 45 Plymouth after the group returned from the pub up until the comment by the deceased allegedly asking the accused if he was on his medication.
Arrell, J.
Released: September 17, 2021
COURT FILE NO.: 375/20
DATE: September 17, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and -
Riley Kostuk
JUDGMENT
Released: September 17, 2021