Court File and Parties

COURT FILE NO.: CR-19-45 DATE: 20230227 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – MICHAEL WENTWORTH (a.k.a. MICHAEL VERNEY) Defendant

Counsel: Fraser Kelly and Holly Chiavetti, for the Crown John Kaldas and Raymond Wong, for the Defendant

HEARD: November 15, 2022 LACELLE j.

RULING ON CROWN APPLICATION TO ADMIT HEARSAY (STATEMENTS OF LORI PARKER)

Introduction

[1] Mr. Wentworth is accused of a number of offences committed between 1995 and 2001, including the manslaughter of 92 year old Henrietta Knight. The allegation is that the accused targeted Ms. Knight for a home invasion robbery in June of 1995. Once in Ms. Knight’s home, the accused is alleged to have beaten Ms. Knight. The Crown alleges that the accused’s conduct caused Ms. Knight’s death some months later.

[2] In relation to this allegation, the Crown applies to admit hearsay statements from Lori Parker (the hearsay declarant), who is now deceased, to her then husband, Robert Parker (the hearsay recipient). Because the evidence is tendered for the truth of its contents, it is hearsay and presumptively inadmissible.

The issue in this application

[3] It is common ground between the parties that the evidence is not admissible under any of the traditional exceptions to the hearsay rule and therefore the evidence is only admissible if it meets the test under the principled exception. Necessity is not an issue in the application since Lori Parker is deceased.

[4] The issue on the application is whether the Crown has proved the threshold reliability of each material aspect of the statements it seeks to tender on a balance of probabilities.

Overview

[5] The hearsay utterances by Ms. Parker were made in one conversation. There are two material aspects to her utterances.

[6] The first material aspect to the statement is that she gave information to the accused about Ms. Knight. In particular, it is alleged that Lori Parker said that she told the accused that Ms. Knight had money and that they had plotted to have the accused go and steal the money (“the first statement”).

[7] The second material aspect to the statement is that the accused made threats towards the Parkers’ children and their family if Lori told anyone (“the second statement”). For ease of reference, I refer to each set of utterances relating to each of the material issues as a statement.

[8] I have determined that the Crown has met its onus on the application as it relates to the first statement, but not the second. The first statement is admitted for the truth of its contents. The second statement may be considered only for the fact that it was said to Robert Parker.

[9] Counsel were advised of this ruling prior to closing submissions. These are my reasons for that decision.

[10] To summarize, I find that he admissibility of the statements turns on their substantive reliability since there are no markers of procedural reliability in the circumstances in which the statements were made. While there are some markers of reliability in the circumstances in which the statements are made, the most important marker is whether Lori had a motive to fabricate what she told Robert Parker. I have found she had no motive to lie about the first statement and to falsely implicate herself as a party in the robbery of Ms. Knight. She did have a plausible motive to lie about the second statement however, since it was in her interests that Robert Parker not go to the police with the information she disclosed.

[11] In respect of the first statement, I also find that:

a. there is corroborating evidence for Ms. Parker’s utterances within the meaning of Bradshaw in the form of similar statements made by the accused about Ms. Parker’s involvement in the offence while speaking with an undercover police officer;

b. there is no evidence which contradicts the material aspect of this statement;

c. the corroborating evidence overcomes the hearsay dangers relating to sincerity (because the corroborating evidence tends to show the truthfulness of the statement) and memory/narration or perception (because the corroborating evidence tends to show the accuracy of the statement);

d. the circumstances of the statement and the corroborative evidence provide a rational basis to reject, on a balance of probabilities, any alternative (but plausible) explanations for the statement other than the declarant’s truthfulness or accuracy;

e. the material aspect of the statement is not likely to change in cross-examination and the hearsay danger posed by the inability of the accused to cross-examine the declarant is thus overcome;

f. the evidence rises to the level that the presumption of inadmissibility is rebutted;

g. the evidence does not support the use of my residual discretion to exclude the statement.

Review of the evidence

Robert Parker’s evidence

[12] At the time of the robbery of Ms. Knight in June of 1995, Robert Parker was married to Lori Parker. For a time, between 1992 to 1994, they lived with Robert Parker’s grandparents, the Wiltsies. The Wiltsies lived at 155 MacDonnell while Ms. Knight lived at 172 MacDonnell. The houses were across the street from one another, a few houses apart.

[13] Robert Parker and Lori Parker had four children together and eventually separated in 1997 or 1998. Lori died after that in 2001. Robert Parker understood that she had died as a result of a brain aneurysm, since this is what he had been told by Lori’s father.

[14] According to Mr. Parker, his grandfather, Bob Wiltsie, and Ms. Knight were friends. His grandfather would stop by to see Ms. Knight a few times per week.

[15] At some point when Lori and Robert Parker were living with him, Bob Wiltsie talked about Ms. Knight being “kind of a hoarder”, but jokingly. Mr. Wiltsie was also reported to have said, again jokingly, that Ms. Knight probably had lots of money in her pillowcase or underneath her bed. Mr. Parker thought Lori would have been in a position to hear these comments since she stayed home to help his grandparents while they lived with them.

[16] Mr. Parker said he had met the accused through work they both did as tradespeople. They both did plumbing work, and Mr. Parker had worked on some jobs for the accused. He also socialized with the accused at the accused’s house on Cottage Farms Road. He said his wife Lori was friends with the accused’s then-wife, Sandra. Mr. Parker said that he and Lori also socialized with the accused and Sandra as couples, and had gone out for dinner together a few times.

The conversation at issue

[17] Robert Parker testified that at a point after Henrietta Knight had died (which was on November 4, 1995), and after their twins were born in August 1996, he had a conversation with Lori Parker about her role in the offence involving Henrietta Knight. Mr. Parker said Lori was upset when they had this conversation.

[18] Mr. Parker testified that Lori told him that she told the accused that Henrietta had money and that they had plotted to have Mike go and steal the money.

[19] Robert Parker said this was a very significant discussion to him. He recalls saying to Lori, “How could you do something so stupid? Why wouldn’t you talk to me? I would tell you not to do that. She doesn’t have any money”. Lori said that she didn’t want to tell him [Robert Parker] because the accused did not want Robert Parker to know. Lori said the accused had threatened their four children and their family. She said the accused told her it wouldn’t matter if he was behind bars or not, he’d make sure that he would kill their children, their family. Mr. Parker said he thought Lori was truly scared of the accused. She was shaking. He did not believe this to be an act.

[20] At the time of this conversation, Lori seemed extremely upset. She said to Robert, “You wouldn’t send your wife to jail?” And he said, “you can go in and plead, do something like that, and they would probably give you less time. But, no, that wasn’t going to happen. She said, “you wouldn’t send your wife, and the mother of your four children, to jail?” That was another thing that she was more upset with that, I think than with Henrietta dying”.

[21] Robert Parker testified that he had a brother in the police force, and he suggested to Lori that they could see him for guidance, but Lori wanted nothing to do with it and he could not tell his brother “no matter what”.

[22] In cross-examination, Mr. Parker was challenged about whether Lori Parker had said she and the accused had plotted or planned to rob Ms. Knight. He agreed he did not use the word “planning” in the police statement given in February of 2019. When it was suggested to him that Lori had not said this, he said: “It did happen. She told me that she had told Mike that she had money, and they planned to rob her … or, that Mike had planned to rob her … I forgot how it was said, but I didn’t forget to say it [to police] … I couldn’t remember the exact words, but it was stated that she told Mike that there was money in the house or that she had money”. When counsel put to him that this was not the same as planning a robbery together, Mr. Parker said “Those weren’t the right words, but that’s what they did”. Later still, he said “She told me that she had told Mike Verney that Henrietta had money in the house, and that Mike was … that they were going to rob her”. He ultimately agreed he made an assumption that they planned the robbery together based on Lori telling him she told the accused there was money in the house.

Lori’s infidelity

[23] The issue of Lori’s fidelity was raised with Mr. Parker. He was aware while they were together that she had had “a fling” with Rick Kimball (the alleged victim of a different offence) because she was charged with committing an indecent act. Other evidence in the trial confirms both Kimball and Lori Parker were arrested after having sex in public on a lawn outside an apartment building. Mr. Parker said Lori told him nothing had happened, but he was sure that something had.

[24] Mr. Parker said he was not aware that Lori had been involved with the accused or in any threesomes with the accused and his wife until he was told by police in an interview after the accused’s arrest in February of 2019. He said that during their marriage, he did not have concerns about Lori being unfaithful with the accused.

The accused’s subsequent confession to Robert Parker

[25] Robert Parker also testified that he did not think Lori was convinced during their conversation that Mr. Parker wasn’t going to go and talk to someone. The next day, the accused showed up. Mr. Parker said the accused came in and sat at his dining room table and explained to him that he had robbed Henrietta Knight. The accused said he didn’t mean to kill her. He said he had tied her up and only slapped her, looking for money. Mr. Parker said he knew that the statement that the accused had “just slapped her” wasn’t true because he had talked to a detective about what happened. Mr. Parker says he asked the accused to leave and told him not to come back.

[26] After that, Lori told him that wasn’t a good idea because now the accused would consider them a threat and not trust them. As a result, later on, they continued to have a friendship and socialize. Mr. Parker said he did this because he did not want the accused to ever think he was a threat to him since he might try to harm Mr. Parker’s family.

The accused’s utterances

[27] During the course of an undercover investigation, the accused made utterances relevant to this alleged offence. He effectively said he had targeted Ms. Knight because he had been given a tip.

[28] His first conversation with the undercover officer (UC) about this offence was on January 31, 2019. It included the following exchange:

UC: Somebody was telling you they had a lot there Michael Wentworth: Yeah yeah UC: And they didn’t have Michael Wentworth: Yeah she was a hoarder and she’s you know don’t believe in bank and blah blah blah blah blah and the person that give me the tip she’s dead now not because of me… UC: Okay Michael Wentworth: She’s she’s the one that had the heart attack uh the brain aneurism UC: (laughs) Michael Wentworth: She’s the one that give me the tip UC: Ohh Michael Wentworth: Yeah but she thought so but uh uh and I talked to somebody else and they went who’d ever think she had money I mean she uh blah blah blah they take her grocery shopping and everything else and (unintelligible) so much for that tip (laughs) [emphasis added]

[29] At another point in the investigation, the accused had also referred to a person named “Lori” and his relationship with her. He had said that Lori’s husband was Rob Parker and that Lori died of a brain aneurism. Accordingly, the UC referred to Lori as the person who gave him the tip during their next conversation about this offence the next day. The accused did not correct the UC.

[30] During this conversation, the accused told the UC:

a. Lori was his wife’s best friend. The accused had had a sexual relationship with her;

b. Lori lived “in a pretty good area” and was “really straight”. When asked by the UC how she knew about Ms. Knight’s address, he said Lori had heard rumours and that there were rumours around when people are hoarders; and

c. Lori could keep a secret – “I mean she knew about (unintelligible) not details but she knew you know what I mean… It’s hard not to know because when something big goes down…”.

The positions of the parties

The Crown

[31] The Crown submits that the gist of the hearsay statements is that Lori said 1) “I gave him the tip” and 2) “he threatened me”. While the Crown submits that both statements are admissible under the principled approach, the second statement may also be considered for a non-hearsay purpose. Even if Lori made up the second part of the statement, it may still be used in assessing Robert Parker’s evidence about why he did not come forward about his knowledge about this offence.

[32] In respect of the admissibility of the first statement, the Crown says that the statement is admissible because the Crown has demonstrated its substantive reliability on a balance of probabilities. The Crown concedes there are no markers of procedural reliability here. The Crown submits there are circumstantial guarantees of trustworthiness which support the reliability of the statement, and there is a body of corroborative evidence which additionally supports reliability. This evidence includes the accused’s statements about this offence to the UC and evidence from the accused’s brother-in-law, Mike Tecchi about things the accused said about Lori.

The defence

[33] The defence argues that the evidence of Robert Parker is incredible and unreliable. It says the statements should not be admitted since the court cannot have confidence that Lori Parker actually made them. The caveat set out in R. v. Humaid, 2006 ONCA 400, [2006] O.J. No. 1507 (C.A.) should apply in this case, particularly since Mr. Parker’s testimony about the hearsay utterances is contradictory. It makes no sense that Lori reported to Robert Parker that the accused threatened to kill their children or harm their family if she told, and that the accused would then attend at Robert Parker’s house and tell him about his involvement in this offence. Robert Parker also had reason to believe he was a suspect in this offence, and police stirred up his potential animus towards the accused in interviewing Mr. Parker. He had motive to fabricate untruthful evidence to implicate the accused in this offence.

[34] The defence also emphasizes that the Crown bears a heavy onus in applications of this kind. It argues that the evidence is insufficient to permit the Crown to meet that onus on this application. The statements were not recorded in any way, and there is no way to ascertain whether the account given by Robert Parker is accurate. The statements were not given under oath. Mr. Parker provided no details on the context for why his wife decided to reveal these details to him.

[35] Assuming the utterances were made, there is also a live risk that Lori was lying to Robert Parker. After all, her infidelity with Richard Kimball and the accused shows she had acted deceptively towards her husband in other significant ways. She might have been lying about what the accused said to conceal her affair with him or to generate sympathy from Mr. Parker should her infidelity be discovered. These are issues that warrant cross-examination. The chief hearsay danger is the inability to cross-examine the hearsay declarant, and it cannot be said that the only explanation is that her utterances are truthful.

[36] As for the similarity of the statements made by Lori and the accused’s utterances, the defence says that two unconfirmed utterances cannot confirm each other, and in any case, this apparent nexus is an issue which requires cross-examination.

The legal principles

[37] I have reviewed the law as it relates to the admissibility of hearsay under the principled exception in a previous ruling for this case (R. v. Wentworth, 2022 ONSC 5319). I rely on that summary for the purposes of this ruling. In my analysis, I will outline only the law that relates to additional issues raised in this application.

Analysis

[38] There are no markers of procedural reliability here. Accordingly, the statements are only admissible if the Crown proves their substantive reliability on a balance of probabilities.

The circumstances in which the statement was made

[39] There are some markers of reliability in the circumstances in which the statements were made. While there is no indication in the record as to how Lori and Robert Parker came to be having this conversation, there are other factors to be considered.

[40] The nature of the event being reported is significant. There is no reason to doubt the declarant’s capacity to perceive and remember these events. While the statement was made over a year after the alleged events, this is not so much time that the declarant’s recollection of what occurred may have been fallible.

[41] There is no indication that the condition of the declarant at the time she made the statement undermines its reliability. The demeanour of the declarant at the time the statement was made, to the extent it is described, is at least consistent with the statement’s reliability – she was concerned about her own legal jeopardy and reportedly appeared scared about the threat allegedly made by the accused.

[42] The detail in the statement, while not robust, is still specific. It is not a vague statement whose meaning is unclear.

[43] The declarant was also speaking to her husband, a person who had a close relationship with her. Case law suggests that disclosure to a person with whom the declarant had a significant relationship is supportive of reliability. However, I also consider that the evidence shows that the declarant had the capacity to deceive the hearsay recipient. This is demonstrated by her denial that she was having a sexual relationship with Richard Kimball even after being arrested for having sex with Kimball in public. It is also demonstrated by the deception involved in secretly having a sexual relationship with the accused.

[44] Even so, I am satisfied it is unlikely that she would have been dishonest regarding her involvement in this robbery. I see no purpose that might be served by implicating herself in this offence if it was not true. I see no reason why Lori would confess her own involvement as a party in this offence unless she was actually a party to it. Her comments to Robert Parker make it clear she was aware of her own legal jeopardy and the possibility that she could face jail time if her involvement in the home invasion were known.

[45] I do not see how implicating herself as a party to this offence assists her in covering up her relationship with the accused or how it would lead to Robert Parker’s sympathy for her if the affair was discovered. I can see no plausible motive for Lori Parker to falsely say that she had given the accused information and planned a robbery with him.

[46] My assessment is different regarding whether Lori had a motive to make the second statement and to say that the accused had threatened the Parkers’ family. Lying about a threat of this kind would serve the purpose of ensuring that Robert Parker did not go to the police with the information Lori disclosed or share it with his brother. This was in Lori’s interests. It is highly plausible that she might lie about the threat allegedly made by the accused.

There is corroborative evidence for the material aspect of the first statement

[47] For the most part, I am not persuaded that the evidence relied upon by the Crown is corroborative of the material aspects of the statements, as is required under the Bradshaw analysis. For the purposes of the admissibility analysis, I prefer not to rely on the evidence of the accused’s brother-in-law, Mike Tecchi. [1]

[48] I do consider the accused’s utterances during the undercover investigation, however. I find they are corroborative of the material aspect of the first statement. The statements are significantly similar in that both Lori and the accused give an account of Lori giving the accused information, or a “tip”, about Henrietta Knight having money.

[49] In finding that the accused’s utterances during the undercover investigation are corroborative, I have considered the position of the defence that because the accused’s utterances were obtained in the course of un undercover investigation attracting Hart concerns, the utterances are not sufficiently reliable to be used as corroborating evidence.

[50] As a preliminary matter, I note that the threshold reliability of the accused’s utterances has been demonstrated by the Crown. The accused’s statements are admissible evidence in the trial. As stated in Larue, infra, the accused’s statements are “sufficiently trustworthy to assist in establishing the only likely explanation for [the hearsay declarant’s] statements is their truthfulness”: at para. 120.

[51] I have also carefully considered the law on this issue. I am aware of the important reasons for using only reliable evidence as corroborative evidence in the Bradshaw analysis. As noted in Bradshaw and Khelawon, corroborative evidence must itself be trustworthy: R. v. Bradshaw, 2017 SCC 35 at para. 74, R. v. Khelawon, 2006 SCC 57 at para. 108.

[52] Ultimately, the case law is instructive, particularly where the facts of the case involve the use of statements from the accused or other witnesses in the admissibility analysis.

R. v. Bradshaw

[53] For instance, the facts in Bradshaw involved a hearsay declarant, Mr. Thielen, who himself was involved in the murder at issue. The trial judge relied on admissions made by the accused in admitting the hearsay evidence. This ruling was overturned on appeal.

[54] The accused’s statements had been made in the context of the Mr. Big investigation initially targeting Mr. Thielen. Thielen was then apparently recruited to participate in the operation in an endeavour to elicit evidence of the accused’s possible participation in two murders.

[55] An important and lengthy part of the preliminary interaction between Mr. Thielen and the accused leading up to the utterances used to corroborate Thielen’s hearsay statement could not be heard on the recording. The accused ultimately testified that during the time their conversation could not be heard, Thielen asked him to lie and say he was involved in the murders.

[56] Mr. Thielen was also a Vetrovec witness who had powerful motives for diminishing his own involvement in the offences and augmenting the role played by the accused. The court noted as well that other parts of the accused’s admissions during the operation effectively contradicted the admissions he had made earlier.

[57] In these circumstances, the majority of the court found that the accused’s admissions were not of such a nature to justify the admission of Thielen’s “highly suspect hearsay statements” implicating the accused in the murder. The admissions made by the accused were insufficient to rule out the alternative explanation that Thielen had lied about Bradshaw’s involvement in the murder: see paras. 71-83.

R. v. Larue

[58] The result in the more recent case of R. v. Larue, 2018 YKCA 9, aff’d 2019 SCC 25 was different. Larue confirms there is no bright line rule about the use of statements by an accused made during a Mr. Big operation, or other investigations attracting similar reliability concerns.

[59] Larue also involved a hearsay declarant who was a co-participant in the murder in question. As in Bradshaw, the trial judge relied on statements made by the accused during a Mr. Big operation as corroborating evidence in finding the hearsay statement was admissible. In an analysis approved of by the majority of the Supreme Court, the Yukon Court of Appeal found that the trial judge was correct in doing so.

[60] The admissibility of the accused’s statements had not been challenged. The Court of Appeal considered the Mr. Big concerns and held that they did not “detract significantly from the trustworthiness of [the accused’s] statements to the undercover operators”. The accused’s statements were “sufficiently trustworthy to assist in establishing the only likely explanation for [the hearsay declarant’s] statements [was] their truthfulness”: at para. 120.

[61] In distinguishing the case from Bradshaw, the Court of Appeal noted that the circumstances in which Mr. Thielen had made his statement were “highly significant with respect to its substantive reliability”. Mr. Thielen had made the statement to police after he was arrested. He also initially denied his own involvement in the murder and implicated Mr. Bradshaw only after he learned that he had been targeted in the Mr. Big operation. His statement was also inconsistent with a prior statement he made to an undercover officer in which he claimed he committed the murders but did not implicate Mr. Bradshaw. At the time he made the statement sought to be admitted in the hearsay application, “[Mr. Thielen] had a clear motive to lie, minimize his role in the murders and attempt to shift blame to Mr. Bradshaw”: at paras. 99-100.

[62] The court found the facts in Larue to be quite different as they related to the circumstances in which the hearsay declarant gave her statement. For instance, the hearsay declarant had already implicated herself in the murder of her ex-boyfriend and there was no benefit to bringing up any involvement in the murder in question, nor to falsely implicate the accused. The court noted the hearsay declarant did not know she was speaking with police at the time she made the statement and she had brought up the topic of this particular murder on her own volition. The court found there was no reason, “however speculative, for her to attempt to mitigate her own conduct or lessen her own culpability” and that “an alternative explanation for her statements to this effect is not plausible, much less very compelling”: at paras. 114-116.

R. v. U.(F.J.)

[63] In U.(F.J.), [1995] 3 SCR 764, the accused’s statement to police was used in the analysis holding that the complainant’s out of court statement to police was substantively admissible at trial. The accused’s statements, whose admissibility appears to have been challenged (as in this case) had been admitted following a voir dire and was itself substantively admissible: paras. 47 and 53).

[64] The court outlined a logical framework for analyzing the potential reasons for the similarities between the statements (at paras. 40-43) and outlined the importance of finding that there was neither reason nor opportunity for the declarants to collude and no improper influence by interrogators or other third parties. As regards the similarities between them, the court held that “the similar factual assertion must be so striking that it is highly unlikely two people would have independently fabricated it. If the similarities between two statements are not sufficiently striking, comparing them will not provide the circumstantial guarantee of trustworthiness necessary to meet the threshold requirement of reliability since coincidence will not have been ruled out as an explanation”: at para. 41.

R. v. Khelawon

[65] Finally, in Khelawon, the declarant’s statement was found to be admissible at trial. This ruling was based, in part, on similarities between the declarant’s statements and statements made by other complainants about the same accused.

[66] While the trial judge’s ruling on this issue was overturned on appeal, the court confirmed that statements could be used as corroborative evidence. Writing for the Court, Charon J. wrote: “As Rosenberg J.A., I too would not reject the possibility that the presence of a striking similarity between statements from different complainants could well provide sufficient cogency to warrant the admission of hearsay evidence in an appropriate case”: at para. 108.

[67] The case law therefore supports the proposition that similar statements, including from the accused, may be used as corroborating evidence in determining whether a statement is substantively reliable for the purposes of admission in a trial.

[68] In this case, the accused’s utterances and the first statement by Lori about giving the accused information about Henrietta Knight are strikingly similar. Recall that the accused said: a person gave him a “tip” (his word); that “she was supposed to have a lotta money in the house”; and someone told him “she was a hoarder” and didn’t believe in banks. That the tipster the accused was describing was Lori is confirmed by his adoption of the UC’s comments on February 14, 2019, and the details he provided about the tipster at an earlier date, including that she died of a brain aneurism.

[69] That Lori and the accused provided such similar accounts of the information Lori gave him about Henrietta Knight is a highly improbable coincidence if the account is not true. It is the fact that this is an unlikely product of coincidence that gives the evidence its force. It is not plausible that the similarities are the product of collusion, since this account is in neither of their interests.

Conclusion on substantive reliability

The first statement

[70] In addition to the factors outlined above, in determining whether the first statement is substantively reliable, I also consider that there is no evidence which contradicts the material aspect of this statement.

[71] On the totality of the evidence, I find that the circumstances in which the statement was made and the corroborating evidence function together to provide a rational basis to reject, on a balance of probabilities, any plausible alternative explanation for the statement other than the declarant’s truthfulness or accuracy.

[72] I am satisfied that the similarity in what each of Lori and the accused said about her involvement tends to show the truthfulness of the statement and overcomes the hearsay danger relating to the hearsay declarant’s sincerity or truthfulness. The similarity in the statements also overcomes the dangers relating to memory/narration and perception because the corroborating evidence tends to show the accuracy of the statement.

[73] I am satisfied that the material aspect of the statement is not likely to change in cross-examination and the hearsay danger posed by the inability of the accused to cross-examine the declarant is thus overcome. I am satisfied that the evidence rises to the level that, as suggested in Bradshaw at para. 71, referring to Wigmore, “even a sceptical caution would look upon [the statement] as trustworthy”. The presumption of inadmissibility is thus rebutted.

The second statement

[74] I reach a different conclusion in respect of the second statement. There is a motive for the hearsay declarant to have lied about being threatened by the accused. There is also no corroboration for the material aspect of the statement. The evidence does not provide a rational basis to reject the plausible possibility that Lori was not truthful about the accused’s threat. I am not satisfied that substantive reliability has been made out in these circumstances. This evidence is not admissible for its truth.

The residual discretion to exclude and the Humaid caveat

[75] The defence argues that given the deficiencies in the evidence of Robert Parker, I should exercise my residual discretion and exclude the statements in accordance with Humaid.

[76] As explained in Humaid by Doherty J.A., generally, when the recipient of the hearsay statement is available for cross-examination, the admissibility inquiry is not concerned with the credibility of that witness since the trier of fact will be in a position to assess that issue itself.

[77] This is subject to the caveat set out in Humaid and subsequently adopted by the Supreme Court in R. v. Blackman, 2008 SCC 37 at para. 51. In Humaid, Doherty J.A. wrote at para. 57:

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.

[78] It appears that Doherty J.A.’s view that the circumstances where this caveat might apply would likely be relatively rare has been born out.

[79] In Humaid, the trial judge held that he had “such grave and serious reservations” as to the testimony of the [hearsay recipient] that he could not consider allowing it to be the basis for admitting the statement of the hearsay declarant. He found the recipient’s evidence was “fraught with inconsistency and contradictions” and was “utterly untrustworthy”. Even in these circumstances, the Court of Appeal held that the hearsay statements were admissible and the trial judge had erred in making the reliability of the hearsay recipient a precondition to their admissibility. This was because the hearsay recipient’s credibility and reliability were not part of the circumstances surrounding the making of the statements, which was the focus of the admissibility inquiry. The recipient’s credibility and reliability would, however, be important to the trier of fact in determining the ultimate issue of whether the statements had been made.

[80] In Blackman, the difficulties with the hearsay recipient’s evidence related to inconsistencies in her evidence about the precise content and timing of the statements allegedly made to her by her son, the hearsay declarant. The hearsay recipient had also received information from others. The trial judge noted that the hearsay recipient’s recollection of what she was told by her son “may have been mixed with the many rumours she had heard in the community about these events”. The relationship between the hearsay recipient and the declarant had also been conflictual – she had contacted police following disputes with him, and on one occasion, asked him to move out of the house. The police report documenting this incident noted that the hearsay recipient was “frustrated with having to put up with [her son] and his disrespectful attitude and unruly behaviour”: para. 17.

[81] The Supreme Court held at para. 50 that the trial judge was correct in finding that the difficulties with the evidence of the hearsay recipient were properly left to the trier of fact because she was available to be cross-examined at trial, and the triers of fact could fully assess the truthfulness and accuracy of her testimony.

[82] In arriving at this conclusion, the court noted that the trial judge found that the hearsay declarant had nothing to gain by giving the account he did to his mother, and that his statements were sufficiently contemporaneous to the events to provide some measure of reliability. The trial judge also considered the hearsay declarant’s propensity to be untruthful with his mother, but held that while this distracted from reliability, it was “not conclusive”. The trial judge found that the declarant’s “specific veracity” to his mother and any possible motives to lie could be tested “at least indirectly” by cross-examination of the hearsay recipient.

[83] I arrive at a similar conclusion here. While there are legitimate issues taken with the credibility and reliability of Robert Parker by the defence, in my view, these are issues for the trier of fact. The issues with his credibility and reliability do not rise to the threshold of warranting the exclusion of the evidence under the Humaid caveat.

[84] Robert Parker has been fully cross-examined about what he says Lori told him. The trier of fact is in a position to assess his credibility and reliability and to determine what to accept or reject from his evidence, including whether or not Lori did make the statements he says she did. It will be for the trier of fact to consider the inconsistencies in his account, his motive to implicate the accused, and other evidence that bears on the assessment of the credibility and reliability of his evidence. To the extent that there is an issue with whether Lori said she planned the robbery with the accused, it is for the trier of fact to determine whether this was said or not, and to then consider the implications of that finding.

[85] Nor would I exercise my residual discretion on the basis that the prejudicial effect of the evidence outweigh its probative value. The evidence is highly probative and significantly outweighs any prejudicial effect the evidence could be said to have.

Conclusion

[86] The Crown’s application to admit hearsay statements of Lori Parker to Robert Parker is allowed in part. Ms. Parker’s utterance to the effect that she told the accused that Ms. Knight had money and that they had plotted to have Mike go and steal the money is admitted for its truth.

[87] Ms. Parker’s utterance relating to threats allegedly made by the accused towards the Parkers’ children and their family will not be admitted for its truth. It is only admissible for the fact that it was said.

Lacelle J.

Released: February 27, 2023

Footnote

[1] Mike Tecchi testified that the accused spoke to him about his affair with Lori. When she died, the accused commented that there was one person less who knows about his life.