COURT FILE NO.: CR-21-50000225-0000
DATE: 20220606
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
AUSTIN TAN LE
Respondent
Shane Hobson and Brady Donohue, for the Applicant Crown
D. Sid Freeman, for Respondent Mr. Le
HEARD: May 30, 31 and June 3, 2022
M. Forestell J.:
Reasons for RULINGS ON HEARSAY AND BARTON
I overview of the case
[1] On January 24, 2019, the deceased, Hanh Nguyen, was found dead in the basement apartment she shared with the Respondent person, Austin Tan Le. Ms. Nguyen had been stabbed to death. Mr. Le was with her in the apartment. He had called 911 for help, telling the 911 operator that he had killed his girlfriend and stabbed himself. When first responders arrived, they discovered the body of Ms. Nguyen beside Mr. Le. Mr. Le had stabbed himself and appeared to have attempted self-evisceration.
[2] Mr. Le and Ms. Nguyen were domestic partners for a period of time leading up to January 24, 2019. They had lived at 37 Mould Avenue in Toronto in a basement apartment for just over a year. The apartment was in the basement of the home owned by Ms. Nguyen's estranged husband, Nhat Do. Nhat Do and Nathalie Do (the daughter of Mr. Do and Ms. Nguyen) lived in the main part of the home. Ms. Nguyen's parents shared the basement apartment with Ms. Nguyen and Mr. Le.
[3] Ms. Nguyen and Mr. Le were both experienced gamblers. Ms. Nguyen, prior to her death, had used a substantial settlement from her estranged husband to gamble. At the time of her death, she was in financial trouble.
[4] Mr. Le is charged with first degree murder. The Crown theory is that Ms. Nguyen had decided to break up with Mr. Le in January of 2019 and had communicated this intent to Mr. Le. The Crown alleges that Mr. Le killed Ms. Nguyen and attempted to kill himself because of the breakup.
[5] The Respondent has indicated that the issue in this trial will be the intent of Mr. Le at the time of the killing of Ms. Nguyen.
II nature of the applications
[6] The Crown brings an application for direction in relation to text messages exchanged on January 22, 2019 between the deceased and a witness, Mr. Enright, that relate to the arrangement of a sexual encounter. The Crown seeks to introduce evidence of the content of the text messages, evidence that the messages were sent and received by the deceased and the witness, the time frame during which they were sent and received and evidence that there was a photo of the messages on the phone of the Respondent. In accordance with the direction provided by the Supreme Court of Canada in R. v. Barton,[^1] the Crown has brought an application to be permitted to introduce this evidence because it is evidence of other sexual conduct.
[7] With respect to the application for direction, the Respondent's position is that Barton and s. 276 pose no impediment to the introduction of the text messages. There is no bar to the admission of evidence of other sexual activity as long as the evidence is relevant and not excluded by a rule of evidence. However, the Respondent's position is that the text messages are not admissible because they are not relevant to a material issue at trial.
[8] The Crown also brings an application to introduce various out of court utterances by the Respondent and the deceased (including the text messages) for the truth of their contents. The utterances and the position of the Respondent on each utterance are set out below:
(1) The text messages from January between the deceased and Mr. Enright arranging a sexual encounter as evidence falling under the state of mind exception to the hearsay rule.
The Respondent opposes the admission of the messages for any purpose, including as evidence of state of mind of the deceased and takes the position that the messages are not relevant to any issue in the trial.
(2) A statement made sometime in January 2019 in which the deceased told her estranged husband, Nhat Do, that she was arranging to meet up with a man who really liked her.
The Crown position is that this evidence falls under the state of mind exception to the hearsay rule. The Respondent's position is that the utterances concerning the encounter are not relevant and are therefore inadmissible.
(3) A statement made by the deceased to her estranged husband in January 2019 (as part of the same conversation as (2) above), that the Respondent had access to her phone and knew her password; he had read the messages between her and the man and got really upset.
The Crown position is that the evidence is admissible under the principled exception to the hearsay rule. The Respondent's position is that this evidence does not satisfy requirement of threshold reliability.
(4) A statement made on January 23, 2019, the day before her death, in which the deceased told Mr. Do that she gave the Respondent money to hold and not to play, but that the Respondent spent all of the money. She said that she was upset with the Respondent because he never went to work and spent all her money. She also said that she screamed at the Respondent to go back to the U.S.A.
This evidence is said to be admissible under the state of mind exception to the hearsay rule. The Respondent does not oppose the introduction of this evidence for the stated purpose. Because the admission of the evidence is not contested, I need not address this statement in detail. I note that the portion of the statement in which the deceased said that she was very upset with the Respondent is admissible under the state of mind exception to the hearsay rule. The balance of the statement, in which she described events that had occurred, is admissible under the principled exception to the hearsay rule. The deceased made the statement spontaneously and close in time to the events. The material aspects of the statements are corroborated by other evidence. The Respondent acknowledged the events relating to the money in a subsequent conversation with Mr. Do and the Respondent told Chien Nguyen later that day that the deceased did not want him to stay anymore.
(5) A conversation between the Respondent and Mr. Do in which Mr. Do told the Respondent that the deceased complained about him and the money that he lost. The Respondent said that it was not a big deal and that they would have lost the money anyway.
The Crown submits that this evidence is admissible as an admission. The Respondent does not oppose the admission of this evidence for the stated purpose. Given the position of the Respondent, I need not address this statement in detail. It clearly falls within the admission exception to the hearsay rule as an utterance of the accused.
(6) A conversation between the Respondent and Chien Nguyen, the father of the deceased, on January 23, 2019, in which the Respondent told the father of the deceased: (a) that he was leaving and returning to the U.S.; (b) that the deceased did not want him to stay with her anymore; and (c) that this was probably because she had someone else.
The Respondent does not oppose the admission of the evidence of the statements that the Respondent was returning to the U.S. and that the deceased did not want him to stay anymore. The Respondent submits that the utterance that the deceased probably had someone else is not admissible because it is unreliable and because the full context of the utterance is unavailable.
(7) An argument between the deceased and the Respondent in July of 2018 that was overheard by the aunt of the deceased, Tam Nguyen, in which the deceased threatened to break up with the Respondent and the Respondent said, 'If you break up with me, I will kill you and I will kill myself.'
The Crown submits that this utterance is admissible as an admission of the Respondent. The Respondent's position is that the utterance is not admissible because the context of the utterance is not available, the statement was not proximate to the death, the utterance was made during a heated argument and did not constitute a threat. The prejudicial effect outweighs the probative value.
(8) The statements of the Respondent to the 911 operator, including the statements indicating that he had killed his girlfriend and stabbed himself. The Crown submits that the utterances are admissions.
The Respondent concedes the admissibility of the 911 utterances.
III issues to be determined
[9] The issues that I therefore must determine are:
Do the principles enunciated in R. v. Barton bar the admission of the proposed evidence of the exchange of text messages between the deceased and Mr. Enright?
Is the evidence of the exchange of the text messages, their content and the possession of a photo of the messages relevant and admissible as original evidence going to the Respondent's state of mind, knowledge and motive?
Is the content of the text messages admissible for its truth as evidence of the state of mind of the deceased?
Are the out of court utterances of the deceased to her estranged husband concerning her planned encounter with a man who liked her admissible as evidence of the state of mind of the deceased?
Are the out of court utterances of the deceased to her estranged husband that the Respondent had access to her phone and password, saw the messages with the other man and was upset, admissible under the principled exception to the hearsay rule?
Is the utterance of the Respondent to Chien Nguyen that "probably [the deceased] had someone else, that's why she didn't want [him] to stay there anymore" admissible as an admission?
Is the statement of the Respondent to the deceased, made in the presence of Tam Nguyen, that if she broke up with the Respondent, he would kill her and kill himself admissible as an admission?
IV analysis
1. Do the principles enunciated in R. v. Barton bar the admission of the proposed evidence of the exchange of text messages between the deceased and Mr. Enright?
[10] In R. v. Barton,[^2] the Supreme Court of Canada directed that "going forward, where there is uncertainty about whether the s. 276 regime applies to the proceeding in question, the trial judge should raise that issue with the parties at the earliest opportunity and after giving the parties the opportunity to make submissions, issue a ruling on the matter."
[11] The Court went on to consider the procedure to be adopted where the Crown seeks to introduce evidence of other sexual activity of the victim or witness and observed that "given that the reasoning dangers inherent in prior sexual activity evidence are potentially present regardless of which party adduces the evidence, trial judges should follow this Court's guidance in Seaboyer to determine the admissibility of Crown-led prior sexual activity."[^3]
[12] In R. v. R.V.[^4] the Court, citing Barton and R. v. Seaboyer; R. v. Gayme,[^5] noted "the importance of the trial judge's gatekeeper role in ensuring that sexual history evidence 'possesses probative value on an issue in the trial ... [that] is not substantially outweighed by the danger of unfair prejudice flowing from the evidence': p.635. Irrespective of which party adduces evidence of the complainant's sexual history, the trial judge must guard against twin-myth reasoning as well as prejudice to the complainant, the trial process, and the administration of justice".
[13] In accordance with the direction of the Supreme Court of Canada, the Crown applied in this case for direction with respect to a series of text messages exchanged between the deceased and a proposed witness, Neil Enright. The messages refer to the prior work of the deceased as a sex worker and they refer to the arrangement of a future sexual encounter. A photograph of the messages was found on the phone of the Respondent.
[14] The Crown seeks to rely on the messages as motive. The Crown concedes that standing alone, the messages would not be relevant but viewed in conjunction with the photograph on Mr. Le's phone they are relevant to motive and animus.
[15] This evidence potentially impacts on the dignity and privacy of the victim in this case. However, the evidence does not engage twin-myth or stereotypical reasoning. The possession of the photograph of the messages by the Respondent is evidence capable of supporting an inference that the Respondent had knowledge of the messages. The state of mind and intention of the Respondent is the issue in this trial. The probative value of the evidence is not substantially outweighed by the danger of unfair prejudice in these circumstances.
[16] The principles in Barton pose no impediment to the introduction of the messages for the stated purpose.
2. Is the evidence of the exchange of text messages relevant and admissible as evidence of the state of mind, knowledge and motive of the Respondent?
[17] The Crown seeks to introduce the text messages for two purposes: (1) as circumstantial evidence of the motive, knowledge and state of mind of the Respondent because he possessed a photo of the messages; and (2) as evidence of the state of mind of the deceased demonstrating a settled intention to end her relationship with the Respondent – a matter relevant to motive.
[18] The Respondent opposes the admission of the evidence of the text messages for either purpose on the grounds that they are not relevant.
[19] An out-of-court statement which is admitted for the truth of its contents is hearsay. An out-of-court statement offered simply as proof that the statement was made is not hearsay and is admissible as long as it has some probative value.[^6]
[20] I have concluded that the messages are relevant and admissible for the fact that they were made.
[21] Evidence that is relevant to a material issue at trial is generally admissible if it is not subject to an exclusionary rule. The material issue to which the text message evidence relates is the state of mind, knowledge and motive of the Respondent. Motive, animus and intention are material issues in the trial.
[22] Evidence is relevant "where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence".[^7]
[23] The chain of inferential reasoning from the existence and timing of the text messages and the Respondent's possession of them to the proposition that the Respondent had a motive to kill the deceased is a sound one. The text messages, on their face, indicate that the deceased and Mr. Enright formulated a plan to meet for a sexual encounter. The possession by the Respondent of a photograph of the messages supports an inference that he was aware of the plan. The utterances of the Respondent to Chien Nguyen the evening before the Respondent killed the deceased support an inference that the Respondent believed that the deceased had asked him to leave because the deceased 'probably had someone else'.
[24] The existence, timing and possession of the messages, considered in the context of the other evidence 'as a matter of logic and human experience' makes it more likely that the Respondent had a motive to kill the deceased.
[25] Counsel for the Respondent has pointed to alternative possible inferences to be drawn from the Respondent's possession of the messages, including an intention to use them to embarrass the deceased. The existence of alternative inferences flowing from the same piece of evidence is not a bar to the admissibility of that evidence.
[26] Counsel for the Respondent also argued that the prejudicial effect of the proposed evidence exceeds its probative value and that I should exercise my residual discretion to exclude the evidence on that basis.
[27] Probative value of evidence depends on the "strength of the connection or nexus"[^8] between the evidence and the factual inference it is said to support. The probative value of evidence lies "in its ability to advance or refute a live issue pending before the trier of fact".[^9]
[28] The probative value of the evidence of the text messages as evidence of the state of mind, knowledge and motive of the Respondent, viewed in the context of the other evidence is reasonably strong. The potential prejudicial effect of the evidence is the impact on the privacy and dignity of the deceased in revealing that she was a sex worker. I have considered the potential impact on the privacy of the deceased. I find that the probative value of the evidence exceeds the prejudicial effect. The evidence of other sexual conduct can, and will, be limited. It is, however, necessary to the narrative and context of the case. I therefore find that the text messages are relevant and admissible as evidence going to the state of mind and motive of the Respondent.
3. Is the content of the text messages admissible as evidence of the state of mind of the deceased?
[29] I do not find that the messages are admissible as evidence of the state of mind of the deceased.
[30] Utterances made by a deceased person which provide evidence of the state of mind of the deceased are admissible if that state of mind is relevant to a fact in issue.
[31] Such utterances may be explicit statements describing the declarant's state of mind (for example, "I am afraid of John") or they may be statements that permit an inference as to the speaker's state of mind (for example, "Don't tell John that I am here").[^10] As Doherty J. explained in R. v. P.R., if the statements are explicit statements of a state of mind or intention, they are admitted as exceptions to the hearsay rule. If the statements permit an inference as to the speaker's state of mind "they are regarded as original testimonial evidence and admitted as circumstantial evidence from which a state of mind may be inferred".
[32] The state of mind of the deceased, as disclosed by utterances before her death, may be relevant to the question of the motive or animus of the accused and the state of mind of the accused at the time of the killing.[^11]
[33] As Doherty J. explained in R. v. P.(R.), relevance in the context of this type of evidence "has two aspects: Are the statements relevant to the deceased's state of mind in that they permit one to draw a reasonable conclusion as to her state of mind? If so, is her state of mind relevant directly or indirectly to a fact in issue?"[^12]
[34] In the case before me, I find that the statements contained in the text messages, considered in the context of the other evidence, do not permit one to draw a reasonable conclusion as to the state of mind of the deceased. More specifically, unlike P.(R.), the utterances do not support the inference of a determination to end the relationship.
[35] The messages, considered in conjunction with the utterance to Mr. Do, are capable of supporting the inference that the deceased intended to meet with Mr. Enright and that she believed that Mr. Enright 'really liked her'. The intention and belief do not as a matter of logic, common sense and experience make it more likely that she was determined to end the relationship with the Respondent. The messages and their contents must be considered in the context of the previous history of the deceased with Mr. Enright and in the context of her occupation. The planning of a transactional encounter with a person who had been a client for some period of time does not make it more probable that the deceased intended to end her domestic relationship.
[36] Even if I am wrong in this conclusion, I would have used my residual discretion to bar the use of this evidence as evidence of the state of mind of the deceased on the basis that its potential prejudicial effect on the trial process outweighs its limited probative value. The assessment of the strength of the proposed inference would necessitate an exploration of the past relationship between the deceased and her customer and potentially an examination of her prior employment in the sex trade generally. This would not only impact on the privacy and dignity of the deceased, but it would risk the undue consumption of time on distracting side issues.[^13]
4. Are the out of court utterances of the deceased to her estranged husband concerning her planned encounter with a man who liked her admissible as evidence of the state of mind of the deceased?
[37] For the same reasons that I have enunciated for rejecting the evidence of the text messages as being irrelevant to the state of mind of the deceased, I also rule that the utterances of the deceased to Mr. Do, that she planned an encounter with a man who 'really liked her' are not relevant to the state of mind of the deceased.
5. Are the out of court utterances of the deceased to her estranged husband that the Respondent had access to her phone and password, saw the messages with the other man and was upset admissible under the principled exception to the hearsay rule?
[38] The Crown seeks the admission of the utterance of the deceased to Mr. Do, her estranged her husband, that the Respondent accessed her phone, saw her messages and was upset. The evidence is hearsay, and it is presumptively inadmissible. It does not fall within any of the traditional exceptions to the hearsay rule. Under the principled exception to the hearsay rule, hearsay evidence that does not fall under a hearsay exception may still be admitted if reliability and necessity are established. The Crown seeks the admission of this utterance under the principled exception to the hearsay rule. Necessity is established because the declarant is deceased. Reliability is the only issue.
[39] Threshold reliability is established when a hearsay statement "is sufficiently reliable to overcome the dangers arising from the difficulty of testing" the statement.[^14]
[40] In assessing threshold reliability, I must identify the specific hearsay dangers and consider any means of overcoming them. Hearsay dangers may be overcome by showing procedural reliability or substantive reliability.
[41] Procedural reliability is established by adequate substitutes for testing the evidence such as videorecording, an oath or a warning to tell the truth. Procedural reliability cannot be established in the case of the statement at issue before me.
[42] Substantive reliability is established if the statement is inherently trustworthy. In determining if a statement is inherently trustworthy, I can consider the circumstances in which it was made and evidence, if any, that corroborates or conflicts with the statement.
[43] As Karakatsanis J. wrote in R. v. Bradshaw, "Substantive reliability is established when the statement 'is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken' (Smith, at p. 933); 'under such circumstances that even a skeptical caution would look upon it as trustworthy' (Khelawon, at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is 'unlikely to change under cross-examination' (Khelawon, at para. 107; Smith, at p. 937); when 'there is no real concern about whether the statement is true or not because of the circumstances in which it came about' (Khelawon, at para. 62); when the only likely explanation is that the statement is true (U. (F.J.), at para. 40)."[^15]
[44] The Crown points to the following factors as providing the necessary 'circumstantial guarantees of trustworthiness':
(1) the statement was made to the estranged husband of the deceased with whom she shared a close relationship;
(2) the statement was made close in time to her death and soon after she exchanged messages with Mr. Enright;
(3) there is no concern about the memory or perception of the deceased;
(4) the statement was spontaneous; and
(5) there is extrinsic evidence that supports the statement.
[45] I do not accept that the nature of the relationship between the deceased and her estranged husband provides circumstantial guarantee of trustworthiness. In the record before me there is evidence that the relationship was complex. Although they were estranged, the deceased lived in the basement of the matrimonial home with the Respondent and the parents of the deceased. The deceased had complained to Mr. Enright about Mr. Do's treatment of her. The deceased relied upon Mr. Do for financial support. The statement appears to have been spontaneous, but this is a weak indicium of reliability in the context of the relationship and the fact that this was a discussion with a former domestic partner about a current partner.
[46] I agree that the statement was made close in time to the text message exchange with Mr. Enright and that there is no concern about the memory and perception of the deceased, all of which could provide some circumstantial guarantee of trustworthiness. The spontaneity of the statement is difficult to assess on the record before me and in light of the relationship between the deceased and Mr. Do.
[47] Corroborative evidence is said to be present in this case. Corroborative evidence may be used to determine substantive reliability, but only after engaging in the analysis set out at paragraph 57 of Bradshaw:
[T]o determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should
identify the material aspects of the hearsay statement that are tendered for their truth;
identify the specific hearsay dangers raised by those aspects of statement in the particular circumstances of the case;
based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
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.
[48] The material aspects of the evidence tendered for their truth are that the Respondent accessed the text messages on the phone of the deceased relating to a sexual encounter and that the Respondent was upset by the messages. The hearsay dangers are that the deceased may have been lying or exaggerating when she recounted the incident to Mr. Do; that the statement that the Respondent was 'upset' could refer to a range of emotions from sadness to disappointment to frustration to anger; and the lack of clarity around which specific messages caused the 'upset'.
[49] Alternative explanations for the deceased making the statement to Mr. Do could be that the deceased was lying or exaggerating to ensure that Mr. Do continued to support her emotionally and financially or that the deceased wanted Mr. Do to be unsympathetic to the Respondent.
[50] The corroborative evidence that the Respondent possessed a photo of some of the messages from the phone of the deceased does not rule out these alternative explanations. The corroborative evidence confirms the portion of the statement describing the actions of the Respondent in accessing the phone of the deceased, but it does not assist in corroborating or clarifying the reaction of the Respondent.
[51] The evidence that the Respondent accessed the phone messages of the deceased is already established by the evidence of his possession of the photograph. The statement of the deceased has value only in tying the alleged reaction of the Respondent to the accessing of the messages.
[52] I find that these utterances do not meet the reliability requirement. They are not admissible.
6. Are the utterances of the Respondent to Chien Nguyen that "probably [the deceased] had someone else, that's why she didn't want him to stay there anymore" admissible as an admission?
[53] The law with respect to admissions was set out succinctly by Sopinka J. writing for the majority in the case of R. v. Dipietro and Evans, at para. 28:
The rationale 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' (Morgan, 'Basic Problems of Evidence' (1963), pp. 265-66, quoted in McCormick on Evidence, at p. 140). The rule is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases.
[54] In R. v. T.(S.G.), the Supreme Court of Canada explained the difference between an admission and a confession:
The distinction between an admission and a confession is apposite here. Under the rules of evidence, statements made by an accused are admissions by an opposing party and, as such, fall into an exception to the hearsay rule. They are admissible for the truth of their contents. When statements are made by an accused to ordinary persons, such as friends or family members, they are presumptively admissible without the necessity of a voir dire. It is only where the accused makes a statement to a "person in authority", that the Crown bears the onus of proving the voluntariness of the statement as a prerequisite to its admission. This, of course, is the confessions rule.[^16]
[55] An admission may be excluded if its prejudicial effect exceeds its probative value.[^17]
[56] In this case, the statement of the Respondent to Chien Nguyen falls clearly into the category of admission. The Respondent argues that the statement should be excluded for two reasons: (1) it is not reliable; and (2) the context of the full discussion between the Respondent and Chien Nguyen has been lost because the statement was not memorialized by the police close in time to the death of the deceased.
[57] The framework for considering the admissibility of hearsay evidence was set out in the judgment of McLachlin C.J.C. in R. v. Mapara:
The principled approach to the admission of hearsay evidence which has emerged in this Court over the past two decades attempts to introduce a measure of flexibility into the hearsay rule to avoid these negative outcomes. Based on the Starr decision, the following framework emerges for considering the admissibility of hearsay evidence:
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.[^18]
[58] The Court of Appeal in R. v. Humaid, held that,
A trial judge has a residual discretion to exclude evidence where its potential probative value is exceeded by the potential prejudicial effect of that evidence. This discretion extends to what would otherwise be admissible hearsay evidence: R. v. Ferris (1994), 1994 CanLII 31 (SCC), 27 C.R. (4th) 141 (Alta. C.A.), at 155-56, aff'd, 1994 CanLII 31 (SCC), [1994] 3 S.C.R. 756 (S.C.C.); R. v. Starr, supra, at para. 188. There may be 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. In such cases, and I think they would be relatively rare, a trial judge could conclude that the narrator's evidence was so incredible or unreliable as to necessitate the exclusion of the evidence based on the exercise of his or her residual discretion.[^19]
[59] The submission of the Respondent, as I understand it, is that this is one of those 'rare cases' falling within an existing exception where the evidence should be excluded because the indicia of reliability are lacking. Alternatively, the Respondent argues that the unreliability of the narrator of the statement, the unreliability of the declarant and the absence of contemporaneous recording considered cumulatively should result in the exclusion of the utterance on the basis that the prejudicial effect outweighs the limited probative value.
[60] The Respondent submits that the lack of reliability flows from the fact that the witness had been drinking at the time and the lack of a contemporaneous record, resulting in a loss of context. The record before me discloses that the Respondent had been drinking at the time that he spoke to Mr. Nguyen. It does not disclose that Mr. Nguyen was drinking. There is nothing in the record before me to suggest the witness, Mr. Nguyen, was unreliable.
[61] The impairment of the Respondent, if his consumption of alcohol could be found to have caused impairment, is a factor going to the reliability of his utterances.
[62] Lack of context for a statement may result in the statement being inadmissible because without context, the meaning of the statement cannot be determined, or the meaning is so speculative that the prejudicial effect outweighs the tenuous probative value of the evidence.[^20]
[63] In this case, the verbal context of the contested utterance is not lost. This was not, as in Ferris[^21] and Hunter,[^22] an overheard utterance where the witness hears only one side of the conversation. Mr. Nguyen will testify and is in a position to provide the verbal context. The failure of the police to record the evidence of Mr. Nguyen at an early date is a matter that may impact on the ultimate weight to be assigned to the evidence, but it does not impact on its admissibility.
[64] On the record before me, therefore, there is only the evidence of the Respondent consuming alcohol at the time of the utterance that would impact on the reliability of the declarant. This circumstance does not bring this case into the category of 'rare cases' where evidence can be excluded as unreliable even though it falls within a traditional exception to the hearsay rule.
[65] I have considered my residual discretion to exclude the evidence on the basis that its prejudicial effect outweighs its probative value because of the absence of a contemporaneous record and the reliability concerns. I find that the evidence has probative value. It is relevant and material to the issue of the knowledge of the Respondent, that the deceased wanted him to leave and his belief that this was because she 'probably had someone else.' I do not find that there is any appreciable prejudicial effect. Mr. Nguyen will be available for cross-examination and any weaknesses in his account can be tested.
[66] I find that the evidence is admissible.
7. Are the utterances of the Respondent in the presence of Tam Nguyen that if the deceased broke up with him, he would kill her and kill himself admissible as an admission?
[67] In opposing the introduction of the evidence of the July 2018 utterance of the Respondent, counsel for the Respondent argues that the context of the full discussion has been lost with the passage of time, that the statement was not made sufficiently proximate in time to the death of the deceased, the statement was made in the heat of an argument and the prejudicial effect outweighs the probative value of the evidence.
[68] The Court of Appeal for Ontario held in R. v. Jackson[^23] that:
Motive, in the sense of an emotion or feeling such as anger, fear, jealousy and desire, which are likely to lead to the doing of an act, is a relevant circumstance to prove the doing of an act as well as the intent with which an act is done. The relevant emotion may be evidenced by
(a) conduct or utterances expressing the emotion,
(b) external circumstances which have probative value to show the probable excitement of the relevant emotion, and
(c) by its prior or subsequent existence (if sufficiently proximate): see Wigmore On Evidence, 3rd ed., Vol. I, pp. 557-61; Vol. II, pp. 328-29.
A previous threat to kill the victim is admissible to show animus or feelings of hostility. Utterances, however, which cannot be regarded as other than the venting of feelings of temporary annoyance, and which on any reasonable view, are not capable of evidencing feelings of ill will constituting a motive for the murder of the deceased, are inadmissible. See R. v. Barbour, 1938 CanLII 29 (SCC), [1938] S.C.R. 465 at pp. 468-470; R. v. Robertson (1975), 1975 CanLII 1436 (ON CA), 21 C.C.C. 385 at pp. 410-11.
[69] Similarly, in R. v. Assoun,[^24] R. v. Pasqualino,[^25] R. v. Polimac[^26] and R. v. Hindessa,[^27] previous threats to kill in the context of domestic homicides have been received as evidence of motive, animus, state of mind and planning and deliberation.
[70] As set out above, this evidence, as an utterance of the accused, falls within the traditional hearsay exception as an admission.
[71] I have considered my residual discretion to exclude this otherwise admissible hearsay. The prejudicial effect of any loss of detail and context with the passage of time is limited. The witness who overheard the statement is available for cross-examination. The circumstances and emotional context can be explored through cross-examination. The probative value of the evidence is not significantly attenuated by the fact that the utterance was made about six months before the death of the deceased. The gap in time is only one factor to be considered in weighing the probative value of the utterance. I find that the probative value is not outweighed by any potential prejudice.
[72] I find that the evidence is admissible.
V conclusions
[73] I therefore find as follows:
The Crown is permitted to introduce the evidence of other sexual conduct of the deceased in the text message exchange between the deceased and the witness Neil Enright. The introduction of this evidence does not offend the principles in R. v. Barton.
The text message exchange between the deceased and Neil Enright is admissible for the fact that the messages were exchanged and the timing of the messages as evidence of the state of mind of the Respondent.
The text message exchange is not admissible as evidence of the state of mind of the deceased.
The utterance of the deceased to her estranged husband, Mr. Do, concerning her plan to meet a man who 'really liked' her is not admissible.
The utterance of the deceased to Mr. Do describing the Respondent accessing her messages about the planned encounter and becoming upset is not admissible.
The utterances of the Respondent to Chien Nguyen on January 23, 2019, are admissible.
The utterances of the Respondent overheard by Tam Nguyen in July of 2018, are admissible.
M. Forestell J.
Released: June 6, 2022
COURT FILE NO.: CR-21-50000225-0000
DATE: 20220606
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
AUSTIN TAN LE
Reasons for RULINGS ON HEARSAY AND BARTON
M.Forestell J.
Released: June 6, 2022
[^1]: R. v. Barton, 2009 SCC 41
[^2]: R. v. Barton 2009 SCC 41 at para. 78
[^3]: Barton, at para. 80
[^4]: R. v. R.V., 2019 SCC 41 at para 78
[^5]: R. v. Seaboyer; R. v. Gayme, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577
[^6]: R. v. O'Brien, 1977 CanLII 168 (SCC), [1978] 1 S.C.R. 591, at p. 593
[^7]: R. v. J.J., 2000 SCC 51, at para. 47 citing D.M. Pacioccco and L. Steusser, The Law of Evidence (1996) at p. 19
[^8]: R. v. Grant, 2015 SCC 9 at para. 38
[^9]: R. v. Handy, 2002 SCC 56 at para. 73
[^10]: R. v. P.(R.), 1990 CarswellOnt 2696 at para. 16
[^11]: R. v. Griffin, 2009 SCC 28 at para. 56; R. v. Smith, [1992] 2 S.C.R. 91; R. v. Carroll, 2014 ONCA 2 at paras. 108-109; R. v. Moo, 2009 ONCA 645; R. v. P.R. (1990) 58 C.C.C. (3d) 334 (Ont. H.C.)
[^12]: R. v. P.(R.), 1990 CarswellOnt 2696
[^13]: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9; R. v. Handy, at para. 41
[^14]: R. v. Khelawon, at para. 49; R. v. Bradshaw, 2017 SCC 35 at para. 24
[^15]: Bradshaw, at para. 31
[^16]: T.(S.G.), 2010 SCC 20 at para. 20
[^17]: R. v. Terry, 1996 CanLII 199 (SCC), [1996] 2 S.C.R. 207 at para. 28
[^18]: R. v. Mapara, 2005 SCC 23 at para. 15
[^19]: R. v. Humaid, 2006 CanLII 12287 (ON CA), [2006] O.J. No. 1507 at para. 57
[^20]: R. v. Ferris (1994), 1994 CanLII 31 (SCC), 34 C.R. (4th) 26 (S.C.C.); R. v. Hunter, 2001 CanLII 5637 (ON CA), [2001] O.J. No. 2388, at para. 14
[^21]: Ferris, supra, note 20
[^22]: Hunter, supra, note 20
[^23]: R. v. Jackson (1980), 1980 CanLII 2945 (ON CA), 57 C.C.C. (2d) 154 (Ont. C.A.)
[^24]: 2006 NSCA 47 at para. 199
[^25]: 2008 ONCA 554 Reviewing [2005] O.J. No. 427 (Ont. SCJ)
[^26]: 2010 ONCA 346
[^27]: 2009 CanLII 48836 (ON SC), [2009] O.J. No. 3837 (Ont. SCJ) at para. 84