His Majesty the King v. Robert Sampson, 2023 ONSC 201

BARRIE COURT FILE NO.: CR- 22-025

DATE: 20230109

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ROBERT SAMPSON

Cameron Peters, for the Crown, Applicant

Eginhart Ehlers, for Robert Sampson, Respondent

HEARD: December 5, 6, 7, 8, 9, 14, and 15, 2022

PUBLICATION BAN PURSUANT TO SECTION 539 and

648 OF THE CRIMINAL CODE

rULING IN RELATION TO ADMISSIBILITY OF HEARSAY ANTE-MORTEM STATEMENTS AND PRIOR DISCREDITABLE CONDUCT

CHRISTIE V.

Overview

1Robert Sampson is charged with the first-degree murder of Tracy Reid. At trial, it will be the Crown’s position that Mr. Sampson committed first degree murder when he sexually assaulted and killed Ms. Reid, pursuant to section 231(5)(b) of the Criminal Code. The judge and jury trial is scheduled to commence on April 3, 2023 and continue for eight weeks.

2While Robert Sampson and Tracy Reid were known to each other, and both resided at the same housing complex in Orillia for a period of time, it is expected that, at trial, Mr. Sampson will deny any involvement in her death. Even further, it is expected that Mr. Sampson will advance an alternate suspect, Donald Kingsbury, for the consideration of the jury.

3In anticipation of the trial, the Crown has brought an application seeking a ruling from this court in relation to various hearsay ante mortem statements and alleged instances of prior conduct, most of which amounts to interactions between Mr. Sampson and Ms. Reid prior to Ms. Reid’s death. The Crown argued that Robert Sampson is the one who caused the devastating blunt force trauma to Tracy Reid, and a critical piece of circumstantial evidence stems from the relationship between the two and the manner in which Mr. Sampson treated Ms. Reid in the past. The Crown seeks to introduce things Tracy Reid allegedly said prior to her death as well as events others allegedly witnessed.

4The Crown’s stated purpose for seeking to adduce this evidence is:

a. To facilitate an understanding of the nature of the relationship between Mr. Sampson and Ms. Reid, and

b. To demonstrate motive or animus on the part of Mr. Sampson for committing the murder.

The Crown submitted that the evidence is necessary to allow the jury to understand the tumultuous relationship that existed between Mr. Sampson and Ms. Reid, as without this evidence, the jury would be deprived of understanding Mr. Sampson’s occasional anger towards Ms. Reid and how his anger manifested into violence. According to the Crown, the evidence is strong circumstantial evidence that demonstrates Mr. Sampson’s occasional animus towards Ms. Reid – animus that provides a foundation for his motive. It is argued that this circumstantial evidence goes to the critical issues of identity and intent, both of which will be central issues for the jury to determine.

Allegations

5It is alleged that a brutal beating contributed to the death of Tracy Reid during the early morning hours of July 19, 2019. She suffered over 60 blunt force injuries. The identity and motives of her attacker remain the question for this trial.

6Ms. Reid was found in this condition at the Silver Swan, which is a large property located at 114 Davey Drive, abutting Lake Couchiching in Orillia. The property contains a number of run-down buildings that offer short and long-term rentals, mostly to persons of limited means. It is expected that many witnesses at trial will describe this property in a negative manner, including that the buildings were in ill-repair and infested with bugs. There is also expected to be evidence that people bought and sold drugs at the property, and that police attended regularly.

7At the relevant time in July 2019, some of the residents of the Silver Swan included:

a. Al Kimmerly – Cabin C

b. Lorelei Sydney – Unit 8

c. Donald Kingsbury – Unit 10

d. Robert Sampson – Unit 17

8On Friday, July 19, 2019, at 5:49 a.m., a 9-1-1 call was placed by Al Kimmerly and Donald Kingsbury who were at the Silver Swan. They advised that Tracy Reid was found beaten and cool to the touch. Emergency responders were dispatched.

9Emergency personnel attended and found Tracy Reid in an outdoor, grassy alleyway at the Silver Swan. She was only wearing panties and a shirt. She had a number of bruises about her body. She had no vital signs. She was transported by ambulance to Soldier’s Memorial Hospital in Orillia where death was pronounced.

10Dr. Andrew Williams conducted a post-mortem examination on Tracy Reid on July 21, 2019 and released his report on December 13, 2019. He determined the cause of death to be a combination of three factors, all contributing to the cause of death, as follows:

Blunt head and neck injuries in a woman with atherosclerotic coronary artery disease and recent cocaine exposure.

Dr. Williams noted over 60 blunt force injuries to Ms. Reid’s head, neck, torso, arms, hands, and legs, with injuries mostly concentrated in the face and neck. No single injury could account for Ms. Reid’s death, in fact, the injuries by themselves did not cause her death.

11A toxicology screen was performed on Ms. Reid’s femoral blood. Her blood alcohol content was 126 mg of alcohol in 100 ml of blood. Her blood also contained cocaine, cocaine derivatives, lorazepam, pregabalin, and other narcotics.

Anticipated Issues at Trial

12There is no question that evidence which demonstrates a relationship or connection between the deceased and the accused will almost always be relevant. Frankly, Mr. Sampson is not suggesting otherwise. There would appear to be no dispute that Mr. Sampson and Ms. Reid had been in an intimate relationship in the year or so prior to her death, and that the relationship was continuing on and off in some form in July 2019. There is no secret about their relationship. Certainly, there is expected to be ample evidence in this case about how Mr. Sampson and Ms. Reid knew each other from the perspective of other parties. This is not contested.

13As a matter of fact, there are various pieces of evidence included in this application for which admissibility is not contested. This will be outlined in more detail below. In summary, much of the uncontested evidence is relatively innocuous, covering the background of Tracy Reid, the circumstances that brought her to the Silver Swan, and her relationship with Al Kimmerly, Robert Sampson and others. As for those uncontested pieces of evidence, this court agrees, for the most part, that the evidence should be admissible at this trial, and causes no prejudice to Mr. Sampson by its admission.

14The evidence for which admissibility is contested, however, goes beyond just general relationship evidence and background, and it is there that the parties diverge on the question of admissibility. All of the evidence sought for admission, which is contested, points to, or at least suggests, negative prior conduct of Mr. Sampson – conduct which was allegedly directed at Ms. Reid. Specifically, all of the hearsay and prior acts sought for admission by the Crown relate to prior acts of violence allegedly perpetrated by Mr. Sampson on Ms. Reid.

15To be discussed in further detail below, the case law is very clear that the admission of this evidence is very case specific and critically dependent upon the material issues in the case.

16As previously stated, Mr. Sampson is expected to deny any involvement in Ms. Reid’s death. Mr. Sampson is expected to deny any knowledge of how Ms. Reid received the numerous blunt force injuries that are said to have contributed to her death. According to Mr. Sampson’s statement to police on July 19, 2019, the admissibility of which is not disputed at this time:

a. He has denied any involvement in Ms. Reid’s death.

b. He told police, “I love her she’s my friend” and was emotional when told of her death. He said they were close.

c. He stated that Ms. Reid had been trespassed from the Silver Swan and had been “hiding out” at his place for the week prior to her death. He stated that Ms. Reid had nowhere to go.

d. When asked whether their relationship ever got physical, Mr. Sampson stated, “not really not with like well I would like when she got like that I would say well go please go go back to Al or whatever…push her out the door or whatever…trying to keep her out and she’d will fight to come back in or whatever and mean while…I just like I don’t I will ya know I don’t punch her or hit her or anything….so we don’t want to fight all the time like that so I just said well go on then get out and try to get her out the door.” Mr. Sampson suggested that they would argue when they drank alcohol.

e. He stated that he and Ms. Reid had spent the day together on July 18, 2019, and they returned to his residence in the evening. In the early evening, they had unprotected sex. They were drinking wine that night.

f. The two of them were together until the early morning hours of July 19, 2019. Ms. Reid was coming and going from the unit to smoke crack. At one point, around 3:20 or 3:30 a.m., she left and never returned. Mr. Sampson stated that he did not want her to go, but he could not stop her.

g. Mr. Sampson stated that he went to bed around 4:30 a.m.

h. Mr. Sampson said that he and Ms. Reid were yelling at each other a little bit.

17A key issue in this trial is: Did Robert Sampson apply force to Tracy Reid that contributed to her death?

18Even though the true nature of their relationship was somewhat uncertain in July 2019, according to the Crown, they were still in a domestic relationship at the time of Ms. Reid’s death, since they were essentially living together and being intimate. At trial, it will be the Crown’s position that Mr. Sampson committed first degree murder when he sexually assaulted and killed Ms. Reid, pursuant to section 231(5)(b). The Crown submits that in order for the jury to understand what occurred on July 19, 2019, it is necessary to look backward in time and understand the vulnerable place Ms. Reid was in, having no where else to live at that time. Given this alleged route to first degree murder, in the context of a sexual assault, the Crown argued that it is essential that the jury understand the intimate nature of the relationship. The way she was dressed when she was found, wearing panties and a shirt, a shirt pulled up and around her neck like a scarf, with bruises to her breasts and other areas, may suggest that this was an intimate partner involved in the assault on July 19, 2019.

19The Crown argued that the hearsay evidence and prior acts of violence are relevant and material to issues at trial, is necessary to understand the relationship between the two, and is vital to appreciate Mr. Sampson’s animus and motive towards Ms. Reid. The Crown submitted that the evidence shows that Mr. Sampson had no qualms about using violence toward Ms. Reid, often in her head and face area, and that the violence would occur at the Silver Swan, all of which is similar to the circumstances of July 19, 2019. The Crown summarized that:

a. In the thirteen months before her death, Mr. Sampson had been arrested twice for assaulting Ms. Reid.

b. Ms. Reid spoke to confidantes about the abuse, some of which was witnessed.

c. A mere few weeks before her death, Lorelei Sydney witnessed, first-hand, Mr. Sampson’s assaultive behaviour toward Ms. Reid.

According to the Crown, the evidence provides circumstantial evidence of who caused the blunt force trauma that contributed to the death of Ms. Reid.

20It is anticipated that the defence may suggest the following to the jury:

a. Tracy Reid freely left Mr. Sampson’s residence in the middle of the night on July 19, 2019, with no physical intervention by Mr. Sampson, even though he did not want her to leave.

b. Donald Kingsbury, another resident at the Silver Swan, killed Tracy Reid.

21According to the Crown, these anticipated positions by the defence make the evidence sought for admission very relevant and probative at trial. It is argued that:

a. The defence position that Mr. Sampson did nothing to stop Tracy Reid from leaving that night can not be properly assessed by the jury without evidence that Mr. Sampson, frequently, would not allow Ms. Reid to freely leave him or his home without being aggressive in some manner.

b. Where the defence is squarely pointing the finger at a third-party suspect, it makes Mr. Sampson’s prior violence against Ms. Reid all the more relevant and admissible to prove identity – to understand what Mr. Sampson’s relationship was with Tracy Reid.

22The Crown argued that the hearsay statements are admissible under the “state of mind” traditional hearsay exception, as well as under the principled approach to hearsay evidence. The prior acts of violence are equally relevant and material, and the probative value outweighs any prejudicial effect.

Evidence Sought to be Admitted

23All of the alleged events at issue in this application would have occurred between December 2017, when Tracy Reid was believed to have moved to the Silver Swan, and July 19, 2019, the date of her death.

24The Crown seeks to admit and rely on several pieces of hearsay and prior conduct at the upcoming trial. The items of evidence include the following:

From Lorelei Sydney – Lorelei Sydney moved to Unit 8 at the Silver Swan in the spring of 2018 where she resided alone.

a. The Crown seeks to have Lorelei Sydney testify about an event she claims to have witnessed on May 27, 2018, at which time Mr. Sampson was allegedly yelling at Tracy Reid that she did not have his permission to go to the beach with her friends.

b. The Crown seeks to have Lorelei Sydney testify about an incident in the Spring or Summer of 2018, at which time Ms. Sydney claims that Ms. Reid told her that Mr. Sampson punched or hit Ms. Reid in the face, causing an injury to her eye, that required Ms. Reid to go to the hospital for medical attention. Ms. Sydney claims to have observed Ms. Reid with a black eye on this occasion and claims that it was the worst injury she had seen on Ms. Reid up to that point.

c. The Crown seeks to have Lorelei Sydney testify about an incident on Canada Day 2019 (July 1, 2019) during which Ms. Sydney claims that she saw a physical altercation between Mr. Sampson and Ms. Reid outside of Mr. Sampson’s unit.

d. The Crown seeks to have Lorelei Sydney testify about an incident on July 17, 2019, during which Ms. Sydney claims that Mr. Sampson was angry with Ms. Reid and Ms. Sydney and, ultimately, convinced Ms. Reid to return to his unit. The defence conceded the admissibility of this evidence.

e. The Crown seeks to have Lorelei Sydney testify about a conversation she had with Tracy Reid on July 18, 2019, the day before her death, during which Ms. Reid is purported to have been in a good mood and was showing off her new clothes.

f. The Crown seeks to have Lorelei Sydney testify that there were multiple times, between spring 2018 and July 2019, when Ms. Reid came to her and showed her bruises and injuries that Ms. Reid claimed were caused by Mr. Sampson hitting or punching her. Ms. Sydney claims that she and Ms. Reid discussed Ms. Reid going to the police.

g. The Crown seeks to have Ms. Sydney testify about an incident when she observed Mr. Sampson to not let Ms. Reid leave his home, despite Ms. Reid stating that she wanted to leave.

From Anne Reid – mother of Tracy Reid

h. The Crown seeks to have Anne Reid testify about Tracy Reid telling her the general day-to-day events in her life, including the problems with unit 11 at the Silver Swan, the relationship with Al Kimmerly, and good and bad things that happened in her life generally. The defence conceded the admissibility of this evidence.

i. The Crown seeks to have Anne Reid testify about Tracy Reid telling her things related to Rob Sampson, specifically, including:

i. Tracy Reid told Anne Reid that Rob was a bit jealous. The defence conceded the admissibility of this evidence.

ii. Tracy Reid told Anne Reid about being hit with a peanut butter jar by Mr. Sampson and showed Anne Reid a photo of her black right eye.

iii. Anne Reid told Tracy Reid, multiple times, that she was going to get hurt and Tracy Reid stated, “I’ll be okay”. The defence conceded the admissibility of this evidence.

iv. Tracy Reid reported to Anne Reid in the month or so before she died that Mr. Sampson pulled her by the hair and showed Anne Reid a photo of bruises to her back.

v. During phone calls between mother and daughter, Anne Reid would hear Mr. Sampson in the background asking for his phone back. The defence conceded the admissibility of this evidence.

vi. Anne Reid would tell Tracy Reid to “get out of there” and that they would get her a place to go. Tracy Reid would tell her mother that she was going to get a place, and Mr. Sampson would say he was “coming too”.

vii. Anne Reid asked Tracy Reid if she was dating Mr. Sampson and Tracy Reid said “no”. The defence conceded the admissibility of this evidence.

viii. Tracy Reid told Anne Reid that she was not supposed to be at the Silver Swan. The defence conceded the admissibility of this evidence.

j. The Crown seeks to have Anne Reid testify about a conversation that she had with Tracy Reid on the day prior to her death, July 18, 2019, by text and video chat. The evidence will include viva voce evidence from Anne Reid as well as screen shots and phone records. The defence conceded the admissibility of this evidence.

From Sgt. Atkinson

k. The Crown seeks to have Sgt. Jordan Atkinson testify about an incident that she claims to have witnessed on June 10, 2018, at the Silver Swan, between Rob Sampson and Tracy Reid, which resulted in the arrest of Mr. Sampson.

Other Evidence

l. The Crown seeks to admit and rely on the 9-1-1 call (audio and transcript) that Tracy Reid made on March 2019 in relation to the “peanut butter jar” incident.

m. The Crown seeks to admit and rely on the transcript of the criminal charge against Mr. Sampson being withdrawn in exchange for a peace bond (the charge laid by Sgt. Atkinson in June 2018) and a written revocable consent for contact signed by Tracy Reid in December 2018.

25It should also be noted that, in the Crown’s original written factum, they were also seeking to admit ante mortem statements of Tracy Reid through Al Kimmerly. Al Kimmerly testified at the preliminary hearing in this matter that he never witnessed Mr. Sampson physically assault Ms. Reid, but that he heard about it from Ms. Reid and saw bruises on Ms. Reid. During oral argument, the Crown indicated that they were not seeking admission of Mr. Kimmerly’s testimony at the preliminary hearing about the violence and injuries Ms. Reid relayed to him that were caused by Mr. Sampson. However, the Crown indicated that they may apply to admit the rest of his evidence under s. 715, as he passed away after the preliminary hearing. Dates have been set aside for this possibility. The Crown made it very clear that if this 715 application is pursued and the preliminary hearing evidence of Mr. Kimmerly is admitted at trial, their position would be that the transcript would need to be edited for these hearsay and prior discreditable conduct issues.

Legal Principles

Relevance and Materiality of Relationship Evidence

26In cases of alleged domestic violence or homicide, evidence about the nature of the relationship predating the culminating events can certainly be relevant. However, relevance is case dependent. As stated by Watt J.A. in R. v. Candir, 2009 ONCA 915, para. 47:

47Relevance is not an inherent characteristic of an item of evidence. Relevance exists as a relation between an item of evidence and a proposition of fact that the party adducing the evidence seeks to prove or disprove by the introduction of the evidence. Relevance is relative, not absolute, a function of and dependent on the circumstances of the case in which it is offered, including, but not only, the positions of the parties: R. v. Pilon (2009), 2009 ONCA 248, 243 C.C.C. (3d) 109 (Ont. C.A.), at para. 33.

Watt J.A held that “the threshold for relevance is not high”. (para. 48) As for materiality, Watt J.A., explained:

49Materiality is a legal concept. Materiality defines the status of the proposition a party seeks to establish by the introduction of (relevant) evidence to the case at large. What is material is determined by the governing substantive and procedural law and the allegations contained in the indictment. Evidence is material if what it is offered to prove is in issue according to the governing substantive and procedural law and the allegations contained in the indictment. Evidence is immaterial if what it is offered to prove is not in issue under the governing substantive and procedural law and the allegations contained in the indictment.

Evidence which is either irrelevant or immaterial is certainly not admissible.

27Specifically, as for relationship evidence in prosecutions of domestic homicide, Watt J.A. said this in Candir:

51In a prosecution for a crime of domestic homicide, evidence of the relationship between the principals, the persons charged and deceased, may be relevant and material: R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C (3d) 34 (Ont. C.A.), at para. 98. Evidence that shows or tends to show the relationship between the principals may help to establish a motive or animus on the part of the accused. And evidence of a person's animus or motive to unlawfully kill another may assist in proving the identity of the killer and the state of mind that accompanied the killing. Moo at para. 98; R. v. F. (S.D.) (1999), 1999 CanLII 3704 (ON CA), 43 O.R. (3d) 609 (C.A.), at para. 23; R. v. Jackson (1980), 1980 CanLII 2945 (ON CA), 57 C.C.C. (2d) 154 (Ont. C.A.), at p. 167; Plomp v. R. (1963), 110 C.L.R. 234 (H.C.A.) at pp. 243, 249-50.

52Motive or animus has to do with an accused's state of mind, not that of the deceased. Yet evidence of the deceased's state of mind may constitute a link in a chain of reasoning that could lead a trier of fact to conclude that an accused bore the deceased some animus or had a motive to kill the deceased: R. v. Foreman (2002), 2002 CanLII 6305 (ON CA), 62 O.R. (3d) 204 (C.A.), at para. 30; R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.), at p. 339.

28It is clear that relevance is not determined by the nature of the charge. It is only determined by drilling down into the specific circumstances of a case.

29It must also be remembered that relevance and materiality due not lead to automatic admissibility. While relevance and materiality are preconditions to admissibility, evidence which meets the first two criteria can certainly still be inadmissible for a variety of reasons.

Hearsay

30While the Crown’s application is broken down into two categories of evidence sought for admission – hearsay (ante mortem statements) and prior discreditable conduct – in reality, all of the evidence sought for admission, which is still being contested, amounts to prior discreditable conduct, whether reported or witnessed. Therefore, while of course, legal principles related to hearsay evidence must be considered with respect to the hearsay ante mortem statements of Tracy Reid, it must also be kept in mind that legal principles that apply to prior discreditable conduct must be applied to all of the contested evidence in this application. General principles of prior discreditable conduct will be addressed later in these reasons.

31Out of court statements adduced for the truth are presumptively inadmissible. However, a number of common law exceptions have developed, in addition to the principled exception. In this case, the Crown relied on both the state-of-mind exception and principled exception to argue for the admissibility of various ante mortem statements of Tracy Reid, however, the focus of the Crown’s oral submissions was on the principled exception.

State of Mind

32A statement declaring a person’s present state of mind or emotion is admissible to show that the person in fact held that emotional state. The evidence can be direct or circumstantial. This exception does not allow for the admission of the reasons for that state of mind.

33The Crown relied on R. v. Griffin, 2009 SCC 28, to argue the ways in which ante mortem statements about a state of mind are relevant on the issue of identification. In Griffin, the sole statement at issue was the deceased’s statement to a witness by the name of Williams when the deceased was hiding out in the weeks leading up to his death that, "[i]f anything happens to me it's your cousin's family." The Crown argued on the voir dire that the statement explained the deceased’s state of mind or conduct at the time spoken and was, therefore, admissible under the traditional "state of mind" or "present intentions" exception to the hearsay rule. The Crown also relied on the principled exception to the hearsay rule. It is to be noted that there was minimal argument against admissibility at trial. The trial judge ruled the statement admissible. On appeal, the court found that the statement was tendered and properly admitted for the truth of the fact that the deceased feared Griffin, a purpose captured by the “state of mind” exception to the hearsay rule. The Court held:

60As stated earlier, the sole issue at trial was the identity of Poirier's killer. Although Poirier's state of mind may have no direct bearing on the resolution of the identity of his murderer, it is well established that a deceased's mental state may be relevant to the question of an accused's motive. As Doherty J. explained in the oft-approved judgment in P.(R.), at p. 339:

... the deceased's mental state may bear no direct relevance to the ultimate issue of identification but it will none the less be relevant to that issue if it is relevant to another fact (e.g., motive) which is directly relevant to the ultimate issue of identification.

In turn, that evidence of motive is relevant and admissible particularly where, on the issues of identity and intention, the evidence is purely circumstantial, is equally well established at law: Lewis v. The Queen, 1979 CanLII 19 (SCC), [1979] 2 S.C.R. 821, at pp. 834-38.

61The state of the relationship between a deceased and an accused in the time period leading up to the former's murder has been recognized as probative of the issue of motive. For example, in R. v. Assoun, 2006 NSCA 47, 244 N.S.R. (2d) 96, identity was the crucial issue at trial. The trial judge admitted statements made by the deceased expressing fear of the accused on the basis that such statements were probative of the issues of "malice, motive, [and] state of mind" (para. 104) which in turn were relevant to identity. The Nova Scotia Court of Appeal agreed (at para. 133):

[The deceased's] state of mind and [the accused's] state of mind are probative of the relationship between them at the time of [the deceased's] murder. Therefore, they are probative of motive, which is relevant to identity.

62The conclusion in Assoun echoes that of the Ontario Court of Appeal in R. v. Foreman (2002), 2002 CanLII 6305 (ON CA), 6 C.R. (6th) 201, where the court considered the relationship between a deceased's state of mind and the issue of motive. Upholding the trial judge's admission of statements made by the deceased shortly before her death in which she expressed fear of the accused, the court stated as follows (at para. 30):

Motive refers to an accused's state of mind. ... [T]he deceased's state of mind was one link in a chain of reasoning which could lead to a finding that the [accused] had a motive to kill [the deceased]. In that way, evidence of [the deceased's] state of mind had an indirect connection to the appellant's state of mind.

63The connection between a deceased's state of mind and that of an accused arises by virtue of a pre-existing relationship between the two; if a deceased and accused are unknown to one another, this course of logic can find no application. That the relationship between a deceased and an accused was acrimonious or that the two had engaged in a dispute in the period leading up to a murder are highly relevant to the issue of motive because such information may afford evidence of the accused's animus or intention to act against the victim: R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319, at para. 31. See also R. v. Lemky (1992), 1992 CanLII 431 (BC CA), 17 B.C.A.C. 71, aff'd 1996 CanLII 235 (SCC), [1996] 1 S.C.R. 757. This is not to say that a deceased's state of mind alone is capable of proving motive. Insofar as it affords evidence of the nature of the relationship between a deceased and an accused, however, a deceased's state of mind is one piece of evidence that may be relevant to the issue of motive.

In Griffin, the deceased’s fearful state of mind was said to be probative of the nature of the relationship between he and the appellant. The deceased sensed that that animus was increasing toward him. The court held that even though this expressed fear was not conclusive evidence, it was highly relevant to the issue of identity.

34In R v. Millard, 2017 ONSC 5701, Code J. reviewed some of the leading authorities on this traditional exception and stated:

16The above authorities make it clear that it is only the declarant's contemporaneous state of mind, emotion, condition, or intention that is admissible and not "past acts or events referred to in the utterances" or some "anterior factual assertion" underlying the present state of mind or intention, as Doherty J. and Lamer C.J.C. put it in Pan, supra at p. 344 and in Smith, supra at pp. 266-7. These "past acts or events" or "anterior factual assertions" can only be admitted for their truth by going beyond the scope of the traditional common law exceptions, that is, by relying on the modern principled exception to the hearsay rule…

See also R v. Candir, 2009 ONCA 915 at para. 56.

Principled Approach

35Applying the principled approach is another way to argue for the admissibility of hearsay evidence and was the focus of the Crown’s oral submissions. Using this approach, a hearsay statement may be admitted where it is both necessary and reliable, and the restrictions applicable to the state of mind exception do not apply.

36The necessity factor is clearly made out given that Tracy Reid is deceased. There is no issue about this factor.

37With respect to reliability, the consideration is one of “circumstantial guarantee or probability of trustworthiness”. It is threshold reliability that the court is considering, not ultimate reliability. The question is whether the hearsay statement evidences sufficient indicia of reliability to afford the trier of fact a satisfactory basis for evaluating the truth. See R. v. Bradshaw (2017), 249 C.C.C. (3d) 429 (S.C.C.); R. v. Youvarajah (2013), 2013 SCC 41, 300 C.C.C. (3d) 1 (S.C.C.); R .v Blackman (2008), 2008 SCC 37, 232 C.C.C. (3d) 233 (S.C.C.); R. v. Hawkins, (1996), 1996 CanLII 154 (SCC), 111 C.C.C. (3d) 129 (S.C.C.)

38In R. v. Khelawon, 2006 SCC 57, a seminal decision providing guidance to the court on the application of the principled exception, the court stated:

61Since the central underlying concern is the inability to test hearsay evidence, it follows that under the principled approach the reliability requirement is aimed at identifying those cases where this difficulty is sufficiently overcome to justify receiving the evidence as an exception to the general exclusionary rule. As some courts and commentators have expressly noted, the reliability requirement is usually met in two different ways: see, for example, R. v. Wilcox (2001), 152 C.C.C. (3d) 157, 2001 NSCA 45; R. v. Czibulka (2004), 2004 CanLII 22985 (ON CA), 189 C.C.C. (3d) 199 (Ont. C.A.); D. M. Paciocco, "The Hearsay Exceptions: A Game of 'Rock, Paper, Scissors'", in Special Lectures of the Law Society of Upper Canada 2003: The Law of Evidence (2004), 17, at p. 29.

62One way is to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about. 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. Wigmore explained it this way:

There are many situations in which it can be easily seen that such a required test [i.e., cross-examination] would add little as a security, because its purposes had been already substantially accomplished. If a statement has been made under such circumstances that even a sceptical caution would look upon it as trustworthy (in the ordinary instance), in a high degree of probability, it would be pedantic to insist on a test whose chief object is already secured. [s. 1420, p. 154]

63Another 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. Recall that the optimal way of testing evidence adopted by our adversarial system is to have the declarant state the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination. This preferred method is not just a vestige of past traditions. It remains a tried and true method, particularly when credibility issues must be resolved. It is one thing for a person to make a damaging statement about another in a context where it may not really matter. It is quite another for that person to repeat the statement in the course of formal proceedings where he or she must commit to its truth and accuracy, be observed and heard, and be called upon to explain or defend it. The latter situation, in addition to providing an accurate record of what was actually said by the witness, gives us a much higher degree of comfort in the statement's trustworthiness. However, in some cases it is not possible to put the evidence to the optimal test, but the circumstances are such that the trier of fact will nonetheless be able to sufficiently test its truth and accuracy. Again, common sense tells us that we should not lose the benefit of the evidence when there are adequate substitutes for testing the evidence.

39The case law has provided some guidance as to indicia of trustworthiness which might suffice to permit reception of the evidence:

1. the presence of an oath or affirmation to tell the truth;

2. an audio or video recording of the statement, or in some other form, a verbatim account of what was said;

3. the fact that the statement was subjected to cross-examination;

4. the presence of an identified officer taking the statement;

5. the statement being taken in a relaxed, non-intimidating atmosphere;

6. the statement being given to a person in authority within a reasonable time of the alleged commission of the offence;

7. the inclusion of a discussion about the difference between the truth and a lie;

8. any corroboration for the statements made;

9. the absence of motive to fabricate

See: R. v. B.(K.G.) (1993), 1993 CanLII 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.); R. v. SS, 2017 ONSC 5459; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915 (S.C.C.)

40Specifically, in the context of ante mortem statements, other factors have been cited as indicia of trustworthiness, such as:

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

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

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

d. the nature of the event reported;

e. the likelihood of the declarant's knowledge of the event, apart from its occurrence;

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

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

h. the amount of detail in the statement;

i. the demeanour of the declarant at the time the statement was made;

j. the possibility of mistake by the declarant;

k. the spontaneity of the declaration;

l. the relationship between the declarant and the recipient;

m. evidence of collusion; and

n. the fact that some of the utterances would be embarrassing to the declarant

R. v. Smeltzer, 2021 ONSC 4927 at para. 57; R. v. Mendez-Romero, [2008] O.J. No. 512 at para. 10; R. v. Pasqualino, 2008 ONCA 554, [2008] O.J. No. 2737 at para. 57

Ante Mortem Statements in the Domestic Context

41It is true that a review of the case law suggests that ante mortem statements are often admitted to demonstrate the nature of the relationship between the accused and deceased. However, each case is decided in the context of its own factual matrix.

42In R. v. Pasqualino, 2008 ONCA 554, the accused appealed against his conviction for second degree murder in the shooting death of his wife. It was alleged that in the course of the marriage, the accused had repeatedly subjected his wife to physical and verbal abuse, including threats that he would kill her if she ever tried to leave him. Two days before her death, the wife informed his brother that she would be leaving the accused and demanded that her husband repay monies which she had loaned him. At trial, the accused did not dispute that he shot his wife, rather he claimed that he had been provoked by his wife immediately prior to the shooting and therefore lacked the requisite intent for second degree murder.

43At issue on the appeal was the admission into evidence at trial of a number of ante mortem statements of the wife and evidence of previous threats and acts of violence by the accused toward his wife. As for the ante mortem statements, these included statements the victim had made to her relatives and a close friend which concerned her intent to leave her husband and her fear of the consequences, threats and abuse by the appellant against her, a threatening discussion with the appellant’s brother, and the victim’s discovery of a gun in the appellant’s car. In upholding the decision of the trial judge, the court stated in part:

31Contrary to the appellant's submissions, it is highly relevant to the issues of motive and intent that the appellant may have engaged in recent threats and other discreditable conduct that were specifically targeted against the victim, and that his animus toward the victim had been increasing during the time leading up to the killing. Such evidence of threatening or abusive behaviour by an accused against a victim possesses probative value precisely because it demonstrates that the accused possessed a specific tendency or intention to act against the victim. Although such evidence potentially causes the appellant prejudice due to the risk that the jury might use it to unfairly convict the appellant on the basis that he is a bad or frightening person simpliciter, as stated above, it is the trial judge who bears the principal responsibility in deciding whether the probative value of evidence outweighs its prejudicial risk.

The Court considered that the conversations were between close relatives and friends where there were no motives to fabricate, and that these types of relationships “can constitute an indicator of reliability”. (para. 43) It should be noted that in Pasqualino the Court of Appeal upheld the admissibility of the ante mortem statements that had been made 18 months prior to the death.

44In R. v. Moo, 2009 ONCA 645, the accused appealed against his conviction for the second degree murder of his wife. At trial, the Crown tendered the evidence of several witnesses to whom the deceased spoke before her death about the state of the marriage and the nature of her relationship. Some of the evidence recounted prior events involving physically and emotionally abusive conduct by Mr. Moo. At trial, Mr. Moo admitted that he caused the death of his wife, but argued that his crime was manslaughter, not murder. The Crown tendered the evidence of the deceased’s ante mortem statements for several purposes: to establish motive, intent and animus; to rebut the appellant’s claim that the killing was unintentional; and to challenge the appellant’s credibility, should he testify as a witness in his own defence. The evidence included:

a. The deceased spoke to two ministers about the relationship with her husband and the need to find alternate accommodation for her parents because of her husband’s refusal to permit the parents to remain with them.

b. The deceased told a friend about the issues involving her parents, in addition to the fact that her husband forced sex on her and would kill her if she ever left the marriage.

c. A week before her death, the deceased told a co-worker that her husband had hit her on the head with his knuckle. The co-worker saw and felt the bump.

d. The deceased’s aunt reported that the deceased described many problems in the marriage, including the issues involving her parents.

e. The deceased’s mother was permitted to give evidence of her conversation with the deceased two days before her death, wherein the deceased recounted a fight she had with her husband about buying a house, their money problems, and the need for the deceased to sell her jewelry.

The Crown in Moo relied on the principled approach to argue for the admission of the evidence. The Court stated in part as follows:

94In the end, the inquiry into reliability is at once functional and case-specific, not formulaic or subject to a priori rules. In each case, the focus of the inquiry into reliability is on the particular dangers raised by the hearsay evidence tendered for reception, and on those attributes or circumstances relied upon by the proponent to overcome those dangers: Khelawon, at para. 93; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 54.

95Satisfaction of the necessity and reliability requirements of the principled approach to hearsay removes the hearsay rule as a barrier to admissibility, but does not guarantee that the hearsay statements will be admitted. Trial fairness may encompass factors beyond the narrow inquiry into necessity and reliability mandated by the principled approach to the admissibility of hearsay. Despite satisfaction of these two criteria, a trial judge has a discretion to exclude otherwise admissible hearsay evidence where its probative value is outweighed by its prejudicial effect: Khelawon, at para. 49.

96The second admissibility rule that the appellant invokes looks to the substance of the hearsay declarations, in particular their disclosure of the appellant's bad character. The character rule generally prohibits the use of character evidence as circumstantial proof of conduct: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31. This exclusionary rule equally bars evidence of similar acts or extrinsic misconduct to support an inference that an accused has the propensity or disposition, in other words, character, to do the type of acts charged and, accordingly, is guilty of the offence: Handy, at para. 31. We establish guilt by proof of conduct, not by proof of character.

97Despite this general rule excluding character evidence as circumstantial proof of guilt, we recognize that, sometimes, evidence of prior misconduct, which tends to show bad character, may be so highly relevant and cogent that its probative value in the search for the truth outweighs any potential for misuse: Handy, at para. 41. Thus, we permit admission of this evidence by exception where its probative value exceeds its prejudicial effect.

98In prosecutions for domestic homicide, evidence is frequently admitted to elucidate the nature of the relationship between the accused and the deceased. This evidence, which often discloses misconduct other than that charged, not only demonstrates the nature of the relationship between the parties, but also may afford evidence of motive and animus relevant to establish the identity of the deceased's killer and the state of mind with which the killing was done: R. v. Chapman (2006), 204 C.C.C. (3d) 449 (Ont. C.A.), at para. 27; R. v. Cudjoe 2009 ONCA 543, at para. 64; R. v. Van Osselaer (2002), 2002 BCCA 464, 167 C.C.C. (3d) 225 (B.C. C.A.), at para. 23, leave to appeal refused, [2002] S.C.C.A. No. 444, 313 N.R. 199n (S.C.C.).

99Evidence of extrinsic misconduct comes with baggage - moral prejudice (the potential stigma of "bad personhood") and reasoning prejudice (including potential confusion and distraction of the jury from the actual crime charged): Handy, at para. 100.

100Where evidence of extrinsic misconduct is admitted, one antidote to ensure that prejudice does not substitute for proof are mid-trial and final cautions that educate jurors about the permitted and prohibited use of the evidence. This general rule does not apply, however, where the extrinsic misconduct evidence is offered to demonstrate motive or animus towards the victim in a prosecution for unlawful homicide: R. v. Jackson (1980), 1980 CanLII 2945 (ON CA), 57 C.C.C. (2d) 154 (Ont. C.A.), at pp. 168-169; R. v. Merz (1999), 1999 CanLII 1647 (ON CA), 140 C.C.C. (3d) 259 (Ont. C.A.), at para. 59; R. v. Pasqualino (2008), 2008 ONCA 554, 233 C.C.C. (3d) 319 (Ont. C.A.), at paras. 65-68.

108While moral and reasoning prejudice is inherent in any evidence of extrinsic misconduct, its influence may vary significantly from one case to the next, depending, in part at least, on the nature and extent of the misconduct. Here, the extrinsic misconduct paled by comparison to the conduct charged. In some instances, it reflected more badly on others, for example, the deceased's father, than on the appellant. The sting of any prejudice was largely alleviated by the limiting instructions given by the trial judge forbidding propensity reasoning, instructions that were more favourable than those to which the appellant was entitled.

The decision of the trial judge was upheld. It should be noted that some of the ante mortem statements were over a year prior to the death.

45In R. v. Candir, 2009 ONCA 915, the accused appealed against his conviction for the first degree murder of his wife. There was evidence that, for several years prior to her death, she had sought to leave the marriage due to Mr. Candir’s abusive nature and household clutter. Eight days before her death, Mrs. Candir left the marriage and moved into an apartment in a building with several security features, taking a number of precautions to try to ensure that her husband could not find her. When Mr. Candir returned from a trip four days later, he found a note from his wife stating that she had left and her reasons for doing so, but did not disclose her whereabouts. Four days later, Mrs. Candir was shot to death in her car in the parking lot of a school. Mr. Candir denied any involvement in his wife’s death.

46To prove that it was Mr. Candir who unlawfully killed his wife and that the unlawful killing was a planned and deliberate murder, the Crown introduced evidence to support a finding that Mr. Candir bore an animus towards the deceased because she had left him, thus had a motive to kill her in circumstances that amounted to first degree murder. This evidence was mostly comments made by the deceased to friends, neighbours and colleagues in the months preceding her death about her unhappiness and desire to leave the marriage because of her husband’s possessive and controlling nature. It was suggested that these facts made it more probable that the appellant bore his wife an animus, thus had the motive to kill her.

47At trial, the Crown proposed to introduce, through sixteen recipients, numerous statements attributed to the deceased by the recipients in the months, weeks and days before her death. The statements were tendered as narrative, as statements disclosing the deceased's state of mind, and as statements that satisfied the requirements of necessity and reliability under the principled approach to hearsay. Trial counsel for the appellant conceded that many of the deceased's contemporaneous ante mortem statements were properly admissible, some subject to editing to delete some words or descriptions that revealed prior misconduct by the appellant. The trial judge admitted 39 of the 57 contested statements into evidence, some in edited form. A dozen witnesses recounted their recollections of what the deceased had told them. The recipients gave their evidence during the first week of an eight-week trial.

48One of the grounds of appeal in Candir was that the trial judge erred in admitting ante mortem statements of the deceased and in instructing the jury on the use it could make of hearsay. Watt J.A. explained how hearsay could be used to prove the nature of the relationship and stated in part as follows:

53Evidence that discloses the nature of the relationship between spouses who are the principals in an allegation of domestic homicide, more particularly evidence that discloses animus and motive on the part of one to kill the other, must not contravene an admissibility rule if it is to be received as evidence in the proceedings.

54Where by choice or force of circumstances the prosecutor seeks to establish the nature of the relationship between the principals, thus to demonstrate animus or motive, by the introduction of ante mortem statements of the deceased, the prosecutor is confronted by the hearsay rule. Sometimes, the statements escape the reach of the hearsay rule because they are not offered to prove the truth of their contents. But in other instances, the rule is implicated and the prosecutor must demonstrate compliance with a listed or the principled exception to the exclusionary rule to have the evidence received.

55In cases like this, where the prosecutor alleges that the murder charged was motivated by the appellant's anger in the deceased's decision to end the relationship, the prosecutor is entitled to adduce evidence to prove the deceased's contemporaneous mental or emotional state with respect to the accused, such as dislike, hatred or fear of the accused. From the deceased's state of mind, the trier of fact will be asked to infer and can conclude that the deceased acted in accordance with his or her emotional state and that his or her conduct supplied the accused with his or her own motivation to act: P. (R.) at p. 339; R. v. Bari (2006), 2006 NBCA 119, 215 C.C.C. (3d) 346 (N.B.C.A.), at para. 23; R. v. Lemky (1992), 1992 CanLII 431 (BC CA), 17 B.C.A.C. 71, at para. 24; Foreman at para. 28.

56The prosecutor may tender explicit statements of the declarant's state of mind or statements that give rise to an inference about the declarant's state of mind. The former are hearsay and require an exception to establish their admissibility. The latter are not hearsay and are admitted as circumstantial evidence from which the declarant's state of mind may be inferred: P. (R.) at p. 341. Whether admitted by exception or as beyond the exclusionary reach of the hearsay rule, the statements should be contemporaneous with the state of mind of which they are evidence.

Watt J.A. also explained the discretionary exclusion of otherwise admissible evidence as follows:

59A party who meets the requirements of a listed or the principled exception to the hearsay rule removes its exclusionary features as a barrier to admissibility. But ascension over one barrier to admissibility does not preordain reception. A trial judge has a residual discretion to exclude otherwise admissible evidence, including admissible hearsay, where its impact on the trial process (cost) exceeds its value to the correct disposal of the litigation at hand (benefit). The prejudicial effect of the evidence may overwhelm its probative value. Introduction of the evidence may involve a significant expenditure in time, not commensurate with the value of the evidence. The evidence may mislead because its effect on a trier of fact, especially a jury, may be disproportionate to its reliability: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-21; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3; R. v. Humaid (2006), 2006 CanLII 12287 (ON CA), 81 O.R. (3d) 456 (C.A.), at para. 57.

60The general exclusionary rule described in the preceding paragraph is sufficiently expansive to permit exclusion in order to prohibit or reduce the needless presentation of cumulative evidence. This forensic piling on of evidence by the acre unnecessarily lengthens trials, diffuses their focus and diverts the attention of the trier of fact. Cumulative evidence, whether testimony, exhibits or both, often occupies a borderland around the periphery of the case, adding nothing to the contested issues, preferring instead to suffocate the trier of fact with the uncontroversial or marginal.

61A general exclusionary discretion to prohibit or reduce the needless presentation of cumulative evidence sits comfortably with the cost benefit analysis of Mohan that balances time expended (the cost) against value received (the benefit). In some instances, appellate courts, including this court, appear to have recognized an exclusionary discretion to insulate the trial process against needless presentation of cumulative evidence. See e.g. R. v. Parsons (1996), 1996 CanLII 11073 (NL CA), 146 Nfld. & P.E.I.R. 210 (Nfld. C.A.), at para. 41; R. v. Proctor (1992), 1992 CanLII 2763 (MB CA), 69 C.C.C. (3d) 436 (Man. C.A.) at pp. 447-48; R. v. C. (R.) (2005), 2005 CanLII 27316 (ON CA), 77 O.R. (3d) 364 (C.A.), at paras. 20-21; R. v. Assoun (2006), 2006 NSCA 47, 207 C.C.C. (3d) 372 (N.S.C.A.), at paras. 106-09.

49Ultimately, the Court of Appeal held that the evidence in Candir was properly admitted as the statements offered proof of the deceased’s state of mind about the relationship, that she intended to end the relationship and did end the relationship, facts which made it more probable that the appellant had a motive to kill her than would be the case without the evidence. The following comments from Watt J.A., however are important to note:

78Whether introduced through the testimony of recipients of hearsay statements made by a deceased declarant before death or from some other sources, evidence exposing the nature of the relationship between the principals in a prosecution for domestic homicide often discloses incidents or a pattern of extrinsic misconduct by the surviving partner, the accused. The capacity of this evidence to generate both moral and reasoning prejudice is well recognized. And so it is that the trial judge has a discretion to exclude the evidence where its prejudicial effect exceeds its probative value. That said, where the evidence is admitted and relied upon to establish motive, it may not be necessary for the trial judge to give the usual warning against propensity reasoning in final instructions: Jackson at pp. 168-69.

79This case does not involve evidence of prior physical abuse of the deceased by the appellant, a feature that was emphasized by the appellant's trial counsel in his closing address. Without minimizing the inherent potential of emotional abuse to generate moral prejudice, the risk of misuse seems of a different magnitude and lesser likelihood than where the evidence reveals a prolonged pattern of physical abuse and threats.

83The moral prejudice asserted with this evidence was not high. It involved no complaint of any assaultive behaviour. Boorish. Cheap. Messy. The statements revealed little more about the nature of the appellant than the "Dear John" note left for the appellant.

50In R. v. Carroll, 2014 ONCA 2, the accused appealed against his conviction for the first degree murder of his estranged wife and her new partner. The trial judge admitted into evidence hearsay statements made by Mr. Carroll’s wife to others about her fear of him and the reasons for that fear. At trial, counsel for the Crown invoked both the common law state of mind exception and the principled approach to support the case for admissibility. The trial judge admitted some statements but not others, using the state of mind exception and the principled exception. Crown counsel at trial also sought to introduce a wide range of evidence that showed that the appellant was controlling in the marital relationship and mistreated his spouse especially in the late stages of the marriage. The principal sources of this evidence were two close friends of the deceased who were eyewitnesses to the conduct. The trial judge excluded some of the evidence of extrinsic misconduct and admitted others. He excluded Marlene Leroux's evidence about the appellant's drug use, and about his possession and discharge of guns during the marriage. Ms. Leroux was permitted to give evidence, however, that was relevant to establish motive, animus, the state of the marital relationship, and harassment. The trial judge followed a similar path of reasoning in connection with the testimony of Gail Boivin-Tremblay, a confidant of the deceased, who provided her with emotional support prior to and during her separation from the appellant. The trial judge excluded evidence that the appellant threatened to kill the deceased by drowning her, but did allow other evidence offered to prove motive, animus, and the nature of the marital relationship. The appeal against conviction was dismissed. Watt J.A. made the following points:

111…in large measure, the appellant's complaints about the inadequate showing of reliability relate to ultimate rather than threshold reliability. As proponent of otherwise inadmissible hearsay, Crown counsel need not eliminate all possible sources of doubt about the perception, memory or sincerity of the declarant. All that was required in this case was that the circumstances in which the statements were made and any relevant extrinsic evidence provided the trier of fact with the means to critically evaluate the honesty and accuracy of the declarant: R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 56; Khelawon, at para. 50; R. v. M.(J), 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 54.

122First, in cases of domestic homicide, evidence may be admitted during the case for the Crown, including evidence of extrinsic misconduct, that elucidates the nature of the relationship between the spouses. This evidence may tend to establish animus or motive on the part of one spouse, and thus be relevant to prove that the killer of the deceased was the spouse with the animus or motive, rather than someone else, and that the killing was murder: Moo, at para. 98; R. v. Cudjoe, 2009 ONCA 543, 251 O.A.C. 163, at para. 64; and R. v. Van Osselaer, 2002 BCCA 464, 5 B.C.L.R. (4th) 73, at para. 23.

Prior Discreditable Conduct - Generally

51As previously stated, while the Crown’s application is broken down into two categories of evidence sought for admission – hearsay (ante mortem statements) and prior discreditable conduct – in reality, all of the evidence sought for admission, which is still being contested, amounts to prior discreditable conduct, whether reported or witnessed.

52Prior discreditable conduct is presumptively inadmissible. This is the starting point in all cases, whether involving allegations of intimate partner violence or otherwise. This court acknowledges that there are many case-specific examples where this evidence is admitted in situations of alleged domestic violence or alleged domestic homicide, however, this does not change the principle starting point. The evidence is not deemed admissible because of the general nature of the case alleged. A careful review of the case law shows that the evidence becomes admissible for a very specific purpose in relation to the very specific facts and circumstances of a case.

53Such evidence has certainly been found to be admissible in cases where identity is the main issue. In R. v. Cain, 2015 ONCA 815, a murder trial, identification was the central issue to be determined. The case concerned three masked men who invaded the deceased’s home, shot him, and fled. The Crown was permitted to tender evidence about an incident that occurred a few months prior when one of the accused was with the victim, became angry, and pointed a gun at his stomach. In upholding the admission of the prior incident, the Court stated:

67In our view, evidence that Mark Cain pressed a gun into the deceased's stomach a few months prior to the shooting was plainly admissible. It was highly probative of the nature of the relationship between Mark Cain and the deceased; it showed some animus between the deceased and Mark Cain, which relates to motive; it was evidence of Mark Cain's means to commit the offence; and it is some circumstantial evidence suggesting a disposition for the act in issue.

68Further, the trial judge reasonably concluded that any prejudice flowing from admission of the evidence was limited. That limited prejudice was further reduced by the trial judge's clear instruction to the jury that, if believed, the evidence was just one piece of evidence about the relationship between Mark Cain and the deceased and was to be assessed in light of its frailties.

54In R. v. J.H., 2020 ONCA 165, the court was considering an appeal by the accused from a conviction for two instances of sexual assault in relation to his wife. At trial, there was evidence that, throughout the marriage, the accused abused alcohol, his wife, and his children. The admitted evidence that was challenged on appeal consisted of the accused’s rifle on the freezer, his running from police, absentee parenting, and pushing or shoving one of the children. A mistrial was requested due to the admission of this evidence but was denied. Watt J.A. for the Court stated in part as follows:

53When evidence of uncharged disreputable conduct is tendered by the Crown, the evidence is generally, but not always, inadmissible: R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918, at p. 941; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31, 36; and R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 221. The general prohibition arises because of the baggage - moral and reasoning prejudice - this evidence brings with it. We prohibit prosecutorial use of character evidence, and thus evidence of uncharged disreputable conduct to establish character, as circumstantial proof of conduct: Luciano, at paras. 116, 221; Handy, at para. 31.

54Like other admissibility rules, this general rule of exclusion capitulates on occasion. It yields where the probative value of the proposed evidence exceeds its prejudicial effect: Handy, at para. 55; Luciano, at para. 222; and J.A.T., at paras. 51, 54. Whether the evidence will be admitted by exception or excluded under the general rule is a function of the circumstances of each case. These circumstances determine where the balance as between probative value and prejudicial effect will settle, not some prefabricated rule or exclusive list of exceptions: J.A.T., at para. 54.

55Despite the absence of any such rule or list of exceptions, evidence of uncharged disreputable conduct has often been received in prosecutions alleging assaultive behaviour in a domestic relationship, including charges of sexual assault. Among the issues upon which this evidence has been admitted are these:

i. as part of the narrative of relevant events;

ii. to provide context for other evidence;

iii. to facilitate understanding of the nature of the relationship between the principals;

iv. to demonstrate motive or animus on the part of the accused for committing the offences;

v. to explain the failure of the complainant to leave the relationship or to report the abuse earlier; and

vi. to rebut a claim of fabrication.

See R. v. F., D.S. (1999), 1999 CanLII 3704 (ON CA), 43 O.R. (3d) 609 (C.A.), at pp. 616-17; R. v. R., B.S. (2006), 2006 CanLII 29082 (ON CA), 81 O.R. (3d) 641 (C.A.), at para. 38.

Ultimately, while the Court of Appeal found that an admissibility voir dire should have been held where the Crown had the burden to establish a case for admissibility and for the trial judge to settle the issue after inquiry, the Court was not persuaded that the failure to conduct an admissibility inquiry resulted in the introduction of inadmissible evidence that tainted the validity of the jury's verdict or otherwise compromised the fairness of the trial.

55Even more recently, in R. v. Z.W.C., 2021 ONCA 116, the Ontario Court of Appeal cautioned against the admissibility of prior discreditable conduct evidence. In this case, the accused appealed from a conviction for multiple sexual offences involving his wife and daughter. At trial, the judge admitted evidence of uncharged prior discreditable conduct, including additional sexual abuse, violence, and threats toward the wife and daughter. A new trial was ordered on the basis that neither the mid-trial instruction nor the final instruction identified the serious risk of reasoning prejudice or explained how it could be avoided. The Court stated as follows:

94One of the greatest challenges faced by a trial judge is a request by the Crown to introduce evidence of an accused's uncharged prior discreditable conduct - sometimes called "extrinsic" discreditable conduct evidence, because it is extrinsic to the conduct on which the indictment is based. In a judge-alone trial, experience and training enables the judge to appreciate the purposes for which such evidence is proffered, and to self-instruct on its limited use(s). A jury obviously does not have the benefit of that training and experience to assist them in discriminating between permitted and prohibited logical thought processes when judging the conduct of an accused. The jury can all too readily use the evidence for an improper purpose. For example, the jury may conclude that the accused is a bad person who did bad things and ought to be punished, whether or not they committed the offences with which they are charged. And, as will be described below, there is a risk that evidence of uncharged allegations will confuse the jury and cause them to lose track of what the trial is all about - whether the prosecution has proven each of the counts on the indictment beyond a reasonable doubt.

95For these reasons, a trial judge must take great care to ensure that such evidence goes before the jury only after a determination that its probative value outweighs its prejudicial effect. If the evidence is admitted, the jury must be instructed, in an appropriate and timely way, about the proper and improper use(s) of the evidence. In order to make that distinction, the jury must be clearly informed of the purpose for which specific pieces of evidence may be used.

96The starting point, however, is that evidence of the accused's uncharged prior discreditable conduct is presumptively inadmissible. This is due to the exclusionary rule against evidence of general propensity, disposition, or bad character: Handy, at para. 36. See also Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, at pp. 201-2, per Lamer J. (dissenting, but not on this point); R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 367-68; R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at pp. 734-35; and R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 40. Evidence of general propensity, disposition, or bad character is inadmissible if it only goes to establishing that the accused is the type of person likely to have committed the offence(s) in question: Handy, at para. 53, citing Arp, at para. 41. See also J.A.T., at para. 51; R. v. R.O., 2015 ONCA 814, 333 C.C.C. (3d) 367, at para. 15. Such evidence is also generally inadmissible when it is tendered to establish character, as circumstantial proof of the accused's conduct: Handy, at para. 31; R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 221.

97This rule of exclusion does, however, yield on "exceptional" occasions: Handy, at paras. 60, 64. Evidence of uncharged prior discreditable conduct may be admitted if it is relevant, material, and the Crown establishes, on the balance of probabilities, that its probative value outweighs its prejudicial effect: J.H., at para. 54, citing Handy, at para. 55; Luciano, at para. 222; and J.A.T., at para. 51. In J.H., at paras. 56-60, Watt J.A. described the procedure to determine the admissibility of such evidence on a Crown application.

98The assessment of the probative value of the evidence requires the trial judge to consider: (a) the strength of the evidence that the extrinsic acts in question occurred; (b) the connection between the accused and the similar acts, and the extent to which the proposed evidence supports the inferences the Crown seeks to make (sometimes referred to as the "connectedness" between the similar act evidence and the "questions in issue"); and (c) the materiality of the evidence - that is, the extent to which the matters the evidence tends to prove are live issues in the proceeding: see David Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at pp. 74-75.

99The second and third factors must not be glossed over. The Crown must be prepared to establish exactly what inferences it will be asking the jury to draw from the evidence, and the extent to which the evidence tends to permit those inferences.

100Defence counsel should also be prepared to identify, to the extent possible, the issues that will actually be in play at trial. This may serve to eliminate the Crown's need to adduce the evidence, or to limit the evidence required.

101Having assessed the probative value of the evidence, and the issues to which it is relevant, the trial judge must examine the prejudicial effect of the proffered evidence and balance it against its probative value. It is well-established that "prejudice" in this context comes in two forms: so-called "moral prejudice" and "reasoning prejudice."

102Moral prejudice refers to the risk that the jury may convict the accused on the basis of "bad personhood": R. v. McDonald, 2017 ONCA 568, 351 C.C.C. (3d) 486, at para. 83, citing Handy, at paras. 31, 71, 100, and 139. That is, not on the basis of the evidence, but on the basis that the accused is a bad person who is likely to have committed the offences with which they are charged. There is a related concern that the jury may punish the accused for their "prior bad acts" as revealed in the evidence of the uncharged prior discreditable conduct: R. v. D.(L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, at pp. 127-28.

103Reasoning prejudice, in contrast, diverts the jury from its task, and describes the risk that the jury will give the evidence more weight than is logically justified: see R. v. Bent, 2016 ONCA 651, 342 C.C.C. (3d) 343, at para. 46; R. v. Lo, 2020 ONCA 622, at para. 111; Handy, at para. 31. Reasoning prejudice may include the following:

• The jury becomes confused by evidence extrinsic to the charges on the indictment. Specifically, the jury "may become confused by the multiplicity of incidents, and become distracted by the cumulative force of so many allegations from their task of deciding carefully each charge one by one": R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 68;

• The jury is distracted from the actual charges, and confused about which evidence relates to the crime charged and which evidence relates to the "similar fact" incidents: Handy, at para. 100;

• The evidence awakens in the jury sentiments of revulsion and condemnation that deflect them from "the rational, dispassionate analysis upon which the criminal process should rest": Calnen, at paras. 176, 180, per Martin J. (dissenting in part, but not on this point);

• The accused cannot properly respond to the extrinsic evidence due to the passage of time, surprise, and/or the collateral nature of the inquiry: Paciocco, at p. 70; and

• Trial time is consumed by unduly focusing on whether the similar acts occurred: Handy, at paras. 83, 144. See also R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 39.

104In assessing the prejudicial effect of the evidence, the trial judge may consider a variety of factors, including: (a) how discreditable the conduct is - the more inflammatory and egregious the conduct, the greater the likelihood of moral prejudice: Lo, at para. 114, citing Handy, at paras. 83, 100, and 140; (b) the extent to which the evidence may support an inference of guilt based solely on bad character; (c) the extent to which the evidence may confuse the jury; and (d) the ability of the accused to respond to the evidence: Luciano, at para. 233, citing R. v. B. (L.) (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35 (C.A.), leave to appeal refused, [1997] S.C.C.A. No. 254.

105After considering the prejudicial effect of the evidence, the trial judge is required to engage in the familiar task of balancing the prejudicial effect against the probative value.

(2) Uncharged prior discreditable conduct evidence in intimate partner violence cases

106As the trial judge accurately observed, evidence of uncharged prior discreditable conduct has frequently been admitted in domestic violence cases to describe the nature of the parties' relationship, sometimes referred to as "context" or "background." It is on this basis that the evidence is said to have probative value.

107Evidence of uncharged prior discreditable conduct has also been used to establish "animus," which may be relevant to both the actus reus and the mens rea of the offence(s). As described by the authors in the Law of Evidence, at p. 90:

Where such evidence demonstrates a "strong disposition" to act violently or sexually towards the victim, it is not being used to prove the bad character of the accused but, as R. v. Batte explained, to support the specific inferences that the accused is disposed to act violently (or sexually) towards the victim and that the accused had that disposition on the occasion in question.

108In J.H., at paras. 54-55, Watt J.A. observed that the exercise of whether or not to admit the uncharged prior discreditable conduct evidence in domestic assault trials is inherently case-specific…

111There may be situations where, having assessed the prejudicial effect of the proposed evidence, the trial judge determines that the evidence is so prejudicial that it must be excluded in its entirety. If, however, the trial judge determines that the probative value of the evidence outweighs its prejudicial effect, then the trial judge is required to take measures to minimize the prejudicial effect of the evidence and to prevent its misuse. In addition to a limiting instruction, there are several options.

112The trial judge does not have to admit all the evidence tendered by the Crown. As the trial judge here noted, one "must consider whether the issue to be proven by the evidence can be established by evidence of a lesser prejudicial nature": see Handy, at para. 83. The trial judge may thus limit the volume and extent of evidence that the Crown is permitted to adduce.

113In addition, or alternatively, the trial judge may admit the evidence, but only on the condition that it is edited, or it is adduced in a more restricted form, such as a statement or through excerpts of evidence at the preliminary hearing: see Paciocco, at p. 95, referring to Shearing, at para. 142; R. v. McLean (2002), 2002 CanLII 11684 (ON CA), 170 CCC (3d) 330 (Ont. C.A.), at para. 20.

(3) Application of the Principles

114While evidence of uncharged prior discreditable conduct has been routinely and properly admitted in cases of intimate partner violence, this is not by way of a categorical exception to the presumptive inadmissibility of such evidence: see J.H., at para. 55. Its well-known dangers must be kept front and centre in a case-specific analysis, balancing the probative value and the prejudicial effect of the evidence. This analysis requires a close look at the evidence the Crown proposes to admit, the issues to which it will be directed, and the manner in which it will be presented.

56Case law suggests that, in conducting the probative-prejudicial balancing, the court should consider the relative comparison between the alleged extrinsic act(s) and the act(s) at issue in the trial. For example, in R. v. Faria, 2022 ONCA 608, the admissible prior discreditable conduct consisted of an incident where Mr. Faria “boxed” the ears of the victim and shoved her onto a bed. The court held that the prior act was not of a nature that would lead a jury to conclude that the appellant was likely to commit murder several weeks later, therefore, the prejudice remained low.

57In the view of this court, there is often a very fine line being drawn in the case law between evidence that is admissible as probative and evidence which is not admissible due to its prejudice. The notion that evidence is admissible to demonstrate narrative, the nature of the relationship, motive or animus, but is not admissible for the line of reasoning that someone is the type of person to have carried out the murder, would seem to be a crafted distinction without a true difference in many circumstances. The court must be very careful to ensure that prejudicial evidence is not simply disguised as something it is not.

58During the hearing of this application, this court raised a concern about the amount of evidence being sought for introduction – in the sense that one incident may not overwhelm the jury and lead to impermissible reasoning, but at some point, perhaps, the magnitude of the evidence could overwhelm the jury, thereby leading to prejudice.

59Clearly, this court has the ability to allow in some, but not all, of the evidence for this reason. The case law is replete with examples of where the court carefully parses out which pieces of evidence go to the jury, and which does not. Having said that, however, there are case law examples where a very large volume of evidence has been found to be admissible before a jury.

60In R. v. Pasqualino, 2008 ONCA 554, which this court will refer to later in these reasons, the evidence included numerous instances of physical and verbal abuse over the years, including repeated threats to kill her if she attempted to leave him. At trial, the judge admitted into evidence a number of ante-mortem statements of the wife and evidence of previous threats and acts of violence by the accused toward the wife. At paragraph 29, the court outlined the evidence admitted, which included: testimony by the victim's children concerning an altercation that involved the appellant slapping the victim and concluded with the appellant engaging in a fistfight with his son when he intervened; testimony by the victim's children, brother, and father of threats by the appellant against the victim; testimony by the victim's daughter concerning a demeaning and threatening statement the appellant made against the victim; and testimony by the victim's brother concerning a loan by the victim to the appellant and his brothers, which the victim wanted repaid. This was a fairly substantial body of evidence that was admitted in a case where identity was admitted, the act was admitted, and the issue was mens rea / provocation.

61In R. v. Thomas, 2013 ONSC 8032, there was a substantial body of evidence admitted of all different types. The case involved an accused facing a charge of second degree murder for the death of his girlfriend and there was an alleged history of abuse. The evidence admitted included: some of the hospital records with respect to the deceased’s admissions, which included reported descriptions of assaults and threats, notes made of physical injuries, and photographic evidence; facts on a guilty plea to assault bodily harm; a handwritten letter from the deceased to the accused wherein there was a discussion of ongoing issues in the relationship, including physical, mental and emotional abuse; many journal entries from the deceased that spoke of abuse; evidence from a co-worker who observed injuries and received reports of abuse; some of the evidence from the mother of the deceased about observations of injuries and reports of fear; evidence from a friend of the deceased about observing injuries and reports of assault by the deceased. It is also worth noting that identity was an issue in this case and the case was largely circumstantial.

62In R. v. Salifu, 2018 ONSC 5606, the end result was that very little evidence was admitted due to the issues in the case. Mr. Salifu was charged with the second degree murder of his mother. The defence conceded that Mr. Salifu assaulted his mother and caused her death. The live issue was the mental element for murder. Harris J. referred to R. v. Moo, 2009 ONCA 645, which will be referred to later in these reasons, wherein six witnesses were permitted to testify about the few months preceding the killing and detailed Mr. Moo’s past verbal abuse, threats and the conflict with respect to the deceased’s parents. In Salifu, the evidence that was tendered for admission included: 911 calls made by the deceased a few years earlier; evidence from a friend of the accused who witnessed several arguments between them and saw the accused punch a hole in the wall and flip a table; evidence from a friend of the deceased who heard from the deceased about how the accused disrespected her at times, was told about altercations between the two, and witnessed an argument; evidence from a hairdresser who heard from the deceased about her son’s bad temper; and evidence from the superintendent of the building who heard from the deceased that she and her son fought all the time and she could not take it anymore. Harris J. found that only the evidence of the deceased’s friend was admissible and of sufficient quality because she witnessed one of the fights and was closer to the deceased than some others. The trial judge made it clear that this ruling was based on the anticipated evidence in this trial and the issues at play.

63Certainly, there are case examples where a large volume of this type of evidence has been admitted. There are cases where the court allows some. There are cases where the court allows none. Ultimately, it will depend on the issues in the particular case.

Application in this Case

64While this court will be dealing with each incident one at a time as to its admissibility, it must be understood that this court has considered the totality of the evidence when coming to its conclusions.

65As a general comment, it is the view of this court that there is nothing about the comments or conduct at issue here that suggest obvious motive to kill in the classic sense. Motive is a reason why somebody does something. Frankly, based on the information this court has, this case might seem completely lacking in motive to kill as the defence argued. This is not a case like some of the others referred to where there had been prior comments or threats that provided a possible motive to kill, such as:

a. Moo – comments that the accused would kill her if she ever left the marriage;

b. Pasqualino – numerous instances of physical and verbal abuse over the years, including repeated threats to kill her if she attempted to leave him;

c. Thomas – evidence of threats and reports of fear;

d. Griffin – where the deceased was hiding out in the weeks leading up to his death and said, "[i]f anything happens to me it's your cousin's family.";

e. Candir - the Crown introduced evidence to support a finding that Mr. Candir bore an animus towards the deceased because she had left him, thus had a motive to kill her in circumstances that amounted to first degree murder;

f. Carroll – the statements of the deceased recounted her fear of the accused, and also described the accused’s words and conduct that underpinned her fear.

66There is no evidence of motive similar to that alluded to in these cases. There is no suggestion that Mr. Sampson verbally threatened Ms. Reid in the ways described above. There is no suggestion that Mr. Sampson had warned Ms. Reid about the consequences of leaving him. Evidence of past misconduct should not be admitted to build a theoretical or speculative theory of motive.

67Having said that, however, animus is a feeling of ill-will or hostility. As for animus that Mr. Sampson had toward Tracy Reid, it is clear from the alleged prior conduct that Mr. Sampson may have acted aggressively or even violently toward Ms. Reid in the past, thereby demonstrating animosity toward her on occasion. Given the fact that Mr. Sampson may have chosen to demonstrate his hostility, ill-will, animosity toward Ms. Reid in the past by aggressive or physical means, there may have been a motive for him to conduct himself that way on this occasion, given that Ms. Reid was, according to Mr. Sampson, acting in a way that night that he disagreed with. It is in this sense that this evidence of prior conduct, both reported and witnessed, could become evidence of animus or motive. Evidence of motive is often circumstantial. Such evidence may help to establish not only the identity of the person who caused the blunt force trauma to Tracy Reid, but also the state of mind that attached to this conduct.

Evidence from Lorelei Sydney

Background Information about Tracy Reid

68Lorelei Sydney moved into unit 8 at the Silver Swan in the spring of 2018, where she resided alone. The front door of her unit faced Lake Couchiching, while her rear window gave her a partial view of the front stoop to Robert Sampson’s unit, unit 17.

69Tracy Reid and Robert Sampson were already living in separate units at the Silver Swan when Ms. Sydney moved in. It appeared to her that Ms. Reid and Mr. Sampson were in a relationship.

70After a time, Ms. Sydney and Ms. Reid became friends. According to Ms. Sydney, Ms. Reid would confide in her, because she was not judgmental.

71Ms. Sydney believed that Ms. Reid and Mr. Sampson broke up at some point and that Ms. Reid started a relationship with Al Kimmerly, and in fact, moved in with Al Kimmerly. While Ms. Sydney never claimed to witness any physical abuse between Mr. Kimmerly and Ms. Reid, she became aware of a “blowout” resulting in police involvement and Ms. Reid’s removal from the Silver Swan. According to Ms. Sydney, Ms. Reid returned to the Silver Swan to live with Robert Sampson. In the days prior to her death, Ms. Reid had been trespassed from the Silver Swan, however, she continued to attend at the property

72This court accepts that Ms. Sydney appears to have been one of the closer people to Ms. Reid in the last year of her life. While Ms. Sydney was unaware of significant aspects of Ms. Reid’s life, such as alleged drug use, Ms. Sydney was a friendly ear for Ms. Reid, and a person in whom she would confide. The relationship, most of the time, was welcoming and natural. While there was one physical incident between them that this court was made aware of, for the most part, the relationship was free from conflict.

73The defence conceded that Ms. Sydney can testify as to this background of Tracy Reid, including that:

a. Ms. Reid lived in Unit 11 at the Silver Swan when Ms. Sydney moved to the property.

b. Ms. Reid had three children living with her.

c. Ms. Sydney got to know Ms. Reid when she was still living in Unit 11, which was close to Unit 8 where Ms. Sydney lived.

d. Ms. Sydney was not sure when Ms. Reid left Unit 11, but thought it might have been in the later part of 2018. Her understanding was that Ms. Reid left Unit 11 because of the condition of the unit.

e. Sometime after Ms. Reid moved out of Unit 11, Ms. Sydney knew that Ms. Reid was not supposed to be on the property because the landlord issued a trespass notice against Ms. Reid.

f. Ms. Sydney knew that Ms. Reid would sneak into the Silver Swan property and stay with Mr. Sampson sometimes.

This evidence is all basic narrative that the jury will need to know in order to understand the circumstances of the case. While some of this information may rely on hearsay statements of Ms. Reid to Ms. Sydney, the evidence is non-contentious and reliable. This evidence is admissible.

May 27, 2018 - Beach Incident

74The Crown seeks to have Lorelei Sydney testify about an event she claims to have witnessed on May 27, 2018, at which time Mr. Sampson was allegedly yelling at Tracy Reid that she did not have his permission to go to the beach with her friends.

75The evidence of Lorelei Sydney which the Crown wishes to adduce can be summarized as follows:

a. This was Tracy Reid’s birthday. She was 43 or 44 years old at the time.

b. Mr. Sampson was supposed to be going to buy steak for her birthday dinner.

c. Some of the other people at the Silver Swan decided that they were going to go to the Couchiching Beach Park and asked if Ms. Reid wanted to come along.

d. Ms. Reid went along.

e. When Mr. Sampson returned from shopping, he discovered that Ms. Reid had gone to the park and started yelling at Ms. Reid, stating that she did not have his permission to go, or something to that effect. Ms. Sydney was not certain of the exact words.

f. Ms. Sydney did not recall hearing Ms. Reid say anything in particular.

76It is the view of this court that the evidence from Lorelei Sydney in relation to this incident is admissible for the following reasons:

a. This is something that Ms. Sydney claims to have witnessed herself as opposed to something she heard about from someone else.

b. Ms. Sydney has a reasonably detailed recollection of the event. A verbatim account recollection is not required.

c. There was no suggestion Ms. Sydney was mistaken about what she saw and heard. Rather, cross examination and argument seemed focused on a justification of Mr. Sampson’s behaviour given that he had gone to some lengths to put together a nice dinner for Ms. Reid on her birthday. Any negative views held by Ms. Sydney toward Mr. Sampson that may have impacted her perception of this event can be dealt with in cross-examination and ultimate reliability and credibility will be for the jury to decide.

d. This is probative of the nature of the relationship between Ms. Reid and Mr. Sampson. This may demonstrate controlling behaviour on the part of Mr. Sampson toward Ms. Reid, which may be used by the jury to assess the defence position of whether Mr. Sampson would have stood idly by while Ms. Reid left his unit in the wee hours of July 19, 2019, contrary to his wishes.

e. While controlling behaviour in the context of a domestic relationship can certainly be seen as bad character, this incident is relatively innocuous, certainly when compared to the alleged blunt force trauma that is said to have contributed to Ms. Reid’s death.

f. This is a discreet event that is not likely to overwhelm the trial.

g. There is no risk that this evidence will give rise to moral or reasoning prejudice that would outweigh the probative value.

77This evidence will be admissible.

Black eye in the spring / summer of 2018

78The Crown seeks to have Lorelei Sydney testify about a conversation she had with Ms. Reid in the spring / summer of 2018, in which it is alleged that Ms. Reid told Ms. Sydney that Mr. Sampson punched or hit her in the face, causing an injury to her eye that required Ms. Reid to go to the hospital for medical attention. The Crown also seeks to have Ms. Sydney discuss her observations of Ms. Reid’s injury.

79The evidence of Lorelei Sydney which the Crown wishes to adduce can be summarized as follows:

a. Tracy Reid was still living in unit 11 at the time of this occurrence.

b. Ms. Sydney stated that Ms. Reid told her that Mr. Sampson punched her in the face or hit her in the face.

c. Ms. Reid told Ms. Sydney that she had been at the hospital. [It should be noted that the Crown is not seeking to tender evidence from Ms. Sydney about the fact that Ms. Reid was advised at the hospital that she had a broken orbital bone, however, if this incident is admitted, the defence intends to question Ms. Sydney about the broken orbital bone to demonstrate a willingness on the part of Ms. Sydney or Ms. Reid to exaggerate.]

d. Ms. Sydney did not get a specific date for this incident from Ms. Reid, but understood it was in the “near past”.

e. Ms. Sydney described the injury as a black eye, all the way around her eye, including the cheek bone, and all the way up around her eyebrow.

f. Ms. Sydney opined that it looked like she had been punched.

g. Ms. Sydney said that this was the worst injury she had seen to that point, although Ms. Sydney recalled there were lots of incidents before this one.

80This court accepts that this evidence would satisfy threshold reliability considering the following:

a. While Ms. Sydney did not witness an incident herself, she saw an injury on Ms. Reid that, to her, seemed consistent with what she was being told. The observed injury adds to the reliability.

b. This court accepts that there is no indication that Tracy Reid was contemplating the creation of a record for any purpose when making this unprompted statement about a significant, perhaps embarrassing, event to a close friend and confidante – also adding to its reliability.

c. The narrative of Ms. Sydney in relation to this incident was not seriously challenged. While there was this general notion that Ms. Sydney harbours negative views of Mr. Sampson, this can easily be dealt with in cross-examination and allow the jury to assess for themselves the ultimate reliability and credibility of Ms. Sydney.

d. While the time of the statement in relation to the event reported was somewhat unclear, it would appear that the event was suggested to have occurred in the recent past.

81Having concluded that the evidence would meet threshold reliability, however, it is the view of this court that this evidence from Lorelei Sydney in relation to this incident is not admissible for the following reasons:

a. There was no evidence provided by Ms. Sydney as to what was alleged to have led up to Mr. Sampson’s alleged behaviour. It is not clear whether this was purposeful or by accident. It is not clear whether this was done out of anger. Without some context as to why and how this incident is supposed to have occurred, this court is not able to determine what it is relevant and material to in the trial.

b. While this evidence may show a general willingness on the part of Mr. Sampson to hit Ms. Reid in the head and face area, this evidence only demonstrates bad character on the part of Mr. Sampson without any context whatsoever. Given the lack of detail, it is probative of nothing and highly prejudicial.

c. When considered in the context of the entirety of the evidence in this case, including the evidence that this court is willing to admit, this incident offers nothing that will not otherwise be available to the jury.

82Considering the incident in the context of the case as a whole, it is the view of this court that its probative value is outweighed by the prejudicial impact. This evidence is not admissible.

Canada Day 2019

83The Crown seeks to have Lorelei Sydney testify about an incident on Canada Day 2019 (July 1, 2019) during which Ms. Sydney claims that she saw a physical altercation between Mr. Sampson and Ms. Reid outside of Mr. Sampson’s unit.

84The evidence in relation to this event can be summarized as follows:

a. In the early morning hours of July 1, 2019, Ms. Sydney was standing in her kitchen making coffee. She heard a commotion and looked out her rear window.

b. She heard Ms. Reid yelling for Mr. Sampson to either “give me back my shoes” or “give me my shoes”.

c. Through the window, Ms. Sydney saw Ms. Reid standing on Mr. Sampson’s stoop as she was yelling.

d. Mr. Sampson emerged from the doorway with his hands raised as if he was going to push Ms. Reid. [There was some evidence during the pre-trial application that in fact Mr. Sampson pushed Ms. Reid.]

e. Ms. Reid reached out to grab Mr. Sampson and the two of them went tumbling off the stoop together.

f. It was then that Ms. Sydney realized that Mr. Sampson was naked.

g. It appeared that Ms. Reid was trying to get back towards the door when Mr. Sampson grabbed her hair and started smacking her to the face and head.

h. Ms. Sydney yelled out the window. Mr. Sampson looked around then went back to smacking her across the head.

i. Ms. Reid cowered, lifted her arms to cover herself, and grunted in pain.

j. Eventually, Mr. Sampson stopped and returned to his unit.

k. Later that day, Ms. Sydney noticed bruises on Ms. Reid’s face, arms, and back – at least according to her evidence at the preliminary hearing.

85There is some question about the view Ms. Sydney would have had from the window of her unit, especially as events were occurring closer to, or in the doorway of, Mr. Sampson’s unit. Also, Ms. Sydney admitted to having some difficulties seeing the entirety of their bodies once they tumbled off the stoop. However, as Ms. Reid proceeded back to the door and Mr. Sampson was allegedly smacking her in the head, Ms. Sydney claims to have had a clear view at this point. Either way, these are issues that the jury can be asked to assess in determining the ultimate reliability or credibility of Ms. Sydney’s evidence about what she says she saw. It is not for this court to determine at this admissibility stage.

86It is the view of this court that the evidence from Lorelei Sydney in relation to this incident is admissible for the following reasons:

a. This is something that Ms. Sydney claims to have witnessed herself as opposed to something she heard about from someone else. After the fact, she saw injuries consistent with what she claims to have seen.

b. This event is very proximate to Ms. Sydney’s death, making the evidence more probative.

c. Ms. Sydney has a reasonably detailed recollection of the event. Any issues with respect to her ability to see what she claimed can be effectively dealt with in cross-examination.

d. This is probative of the nature of the relationship between Ms. Reid and Mr. Sampson. There is some suggestion that Ms. Reid is being denied her shoes. This may demonstrate controlling behaviour on the part of Mr. Sampson toward Ms. Reid, which may be used by the jury to assess the defence position of whether Mr. Sampson would have stood idly by while Ms. Reid left his unit in the wee hours of July 19, 2019, contrary to his wishes.

e. This evidence suggests that Mr. Sampson was willing to hit Ms. Reid in the head and face area, which is relevant to the injuries that are apparent at autopsy.

f. This evidence suggests that Mr. Sampson was willing to be violent toward Ms. Reid at his residence.

g. This incident is alleged to have occurred in the early morning hours, which is similar to the time of day it is believed that Tracy Reid received the blunt force trauma that is alleged to have contributed to her death.

h. The fact that Mr. Sampson was naked may suggest an intimate nature to the relationship.

i. While this alleged event is certainly serious, it pales in comparison to the blunt force trauma that is said to have contributed to Ms. Reid’s death, and, therefore, it is unlikely that the jury will be overwhelmed by this discreet event.

j. The probative value of this evidence outweighs any prejudicial impact.

87This evidence is admissible.

Beer Incident – July 17, 2019

88The Crown seeks to have Lorelei Sydney testify about an incident on July 17, 2019, during which Ms. Sydney claims that Mr. Sampson was angry with Ms. Reid and Ms. Sydney and, ultimately, convinced Ms. Reid to return to his unit.

89The evidence in relation to this event can be summarized as follows:

a. During the afternoon, Ms. Sydney received a phone call from Ms. Reid asking if Ms. Sydney could pick up some beer while Ms. Sydney was out.

b. Ms. Sydney purchased alcohol and returned to Mr. Sampson’s residence about 5:45 – 6:00 p.m. to drop off the beer.

c. Mr. Sampson and Ms. Reid were at Mr. Sampson’s residence, the mood seemed “fine”, and the three of them started drinking.

d. Mr. Sampson became upset about something fairly early on after Ms. Sydney arrived.

e. Ms. Sydney grabbed her drinks from the fridge.

f. Ms. Reid asked if she could go with Ms. Sydney.

g. Mr. Sampson was angry that Ms. Sydney was taking alcohol.

h. Ms. Reid and Ms. Sydney returned to Ms. Sydney’s unit, but due to the heat, they sat outside and had some drinks.

i. Within a few minutes, Mr. Sampson approached and was angry with Ms. Sydney stating that she had started everything. Mr. Sampson was yelling as soon as he came around the corner from unit 12 (by the fence line).

j. Ms. Sydney and Ms. Reid went into Ms. Sydney’s unit to get away from Mr. Sampson.

k. They could not stay inside because it was too hot.

l. They checked to see if Mr. Sampson was still outside and did not see him.

m. Ms. Sydney and Ms. Reid went back outside. They saw Mr. Sampson who was closer to unit 7.

n. At this point, Mr. Sampson tried to convince Ms. Reid to go with him back to his unit. Mr. Sampson was pleading with Ms. Reid, “sucking up”, and trying to “sweet talk” her into going with him.

o. Ms. Reid said that she did not want to go with him, but she could see this was upsetting Ms. Sydney and agreed to go.

p. Mr. Sampson did not come into contact with Ms. Reid during this event although he was very close to her.

90It is the view of this court that the evidence from Lorelei Sydney in relation to this incident is admissible for the following reasons:

a. The defence conceded the admissibility of this evidence. The defence argued that this evidence has the needed specificity and is relevant to the issues at trial. The defence pointed to the fact that there was no mention by Ms. Sydney of Mr. Sampson using force or threats to compel Ms. Reid to return to his unit.

b. Once again, this is an event that Ms. Sydney claims to have witnessed herself as opposed to something she heard about from someone else.

c. It is very proximate to the death; in that it is less than 48 hours from the time that Ms. Reid was found deceased.

d. Ms. Sydney has a reasonably detailed recollection of the event. Any issues with respect to her reliability or credibility in relation to this event can be effectively dealt with in cross-examination.

e. This evidence demonstrates that Ms. Reid was still spending time alone with Mr. Sampson in his unit at the Silver Swan shortly before her death. The dynamic between Ms. Reid and Mr. Sampson may suggest that they were continuing to be in an intimate relationship.

f. Ms. Reid voiced a desire to get away from Mr. Sampson, however, Mr. Sampson was persistent about getting her to come back to his unit. This may shed light on Ms. Reid’s mindset in the days / hours before she died.

g. This is probative of the nature of the relationship between Ms. Reid and Mr. Sampson. The evidence indicates that Ms. Reid left Mr. Sampson’s residence and that he came over to Ms. Sydney’s residence, fairly quickly, to get her to come back. Mr. Sampson seems determined in his efforts. This may demonstrate controlling behaviour on the part of Mr. Sampson toward Ms. Reid, which may be used by the jury to assess the defence position of whether Mr. Sampson would have stood idly by while Ms. Reid left his unit in the wee hours of July 19, 2019, contrary to his wishes.

h. The Crown will argue at trial that Ms. Reid was beaten by Mr. Sampson either in the unit or just outside the unit, somewhere between the unit and where she was found in the grassy alleyway. Accepting this is the Crown’s view, it is reasonable that Ms. Reid might have tried to escape that, leaving the question of whether Mr. Sampson would let her go without trying to stop her or making sure she was safe. This sheds light on those issues.

i. While controlling behaviour in the context of a domestic relationship can certainly be seen as bad character, this incident is fairly innocuous, relatively speaking. There is no physical violence.

j. The probative value of this evidence outweighs any prejudicial impact.

91It is worth noting that the anger at Ms. Sydney is less relevant, however it is difficult if not impossible to parse this out of the narrative. The evidence will not make sense without this piece of information. It is this court’s view that Mr. Sampson’s anger directed at Ms. Sydney is a very minor part of this event, is required for the narrative, and will have no prejudicial impact on Mr. Sampson.

92This evidence is admissible.

July 18, 2019 – conversation about new clothes

93On July 18, 2019, Ms. Sydney had a conversation with Ms. Reid about the fact that she obtained some new clothes and observed that Ms. Reid was in a good mood. Frankly, there is not a lot of hearsay wrapped up in this event, as it is mostly Ms. Sydney’s observation.

94The evidence in relation to this event can be summarized as follows:

a. Ms. Sydney was sitting outside her unit when Ms. Reid came along the fence line, past unit 11, and over to Ms. Sydney.

b. Ms. Reid had obtained some new clothes and she was showing Ms. Sydney.

c. Ms. Reid came back again later that same day with a different outfit, showing off her new clothes.

d. Ms. Reid seemed to be in good spirits.

e. Ms. Sydney did not see any injuries on Ms. Reid.

95It is the view of this court that this is certainly admissible. Frankly, the observations of Ms. Sydney are simply part of the narrative in the hours leading up to Ms. Reid’s death. Ms. Reid’s physical and mental state during that time would most certainly be relevant. This will help the jury understand what was happening in Ms. Reid’s life at the time and her general state of mind that evening. It is important that the jury have the best evidence about Ms. Reid’s life in the day before she passed, who she was spending time with, and where she was spending her time. There would appear to have been no injuries to Ms. Reid’s face, so this may establish a timeline for when the injuries occurred to Ms. Reid given the autopsy photos of Ms. Reid’s face. It would suggest that she had not been injured by that time.

96This is a very discreet event that will take very little time in the trial to describe. It appears to be a very spontaneous event, in that Tracy Reid came to Ms. Sydney, a friend, unannounced, to show off some new outfits. There would seem to be no reason for either Ms. Reid or Ms. Sydney to fabricate this scenario given its very innocent nature.

97There is no moral or reasoning prejudice stemming from this evidence.

98This evidence is admissible.

General Evidence about Mr. Sampson’s violence toward Ms. Reid

99The Crown seeks to have Lorelei Sydney testify that there were multiple times, between spring 2018, up until her death in July 2019, when Ms. Reid came to her and showed her bruises and injuries that Ms. Reid claimed were caused by Mr. Sampson hitting or punching her. Ms. Sydney claims that she and Ms. Reid discussed Ms. Reid going to the police. At the preliminary hearing, Ms. Sydney made the following comments that the Crown hopes to have her testify to at trial:

a. According to Ms. Sydney, Tracy Reid “would often come to me after they had a fight or something, and he’d beaten on her, and so that, those were a lot of times, a lot of times”.

b. Ms. Sydney noticed that Ms. Reid would be “black and blue”, which she described as “bruises, handprints on her arms or a black eye, or both, or bruises on her legs, or her rear end”.

c. Ms. Sydney would see Ms. Reid bruised up “at least twice a month”.

d. Ms. Reid showed Ms. Sydney “like a big kick mark on the back of her”.

e. Ms. Sydney questioned Ms. Reid about the marks on her body and Ms. Reid claimed it was “always Rob” and that “he got pissed off and beat her up”.

f. According to Ms. Reid, Mr. Sampson would “lose his temper”.

g. Ms. Sydney told Ms. Reid that she did not deserve to be treated this way and encouraged her to get police involved. However, Ms. Reid refused stating that she did not want to be a “snitch”.

At the pre-trial application, Ms. Sydney made the following comments that the Crown hopes to have her testify to at trial:

h. Ms. Sydney saw that Ms. Reid would have fingerprints on her arm, where it appeared she had been grabbed, and saw marks on her head.

i. Ms. Sydney testified that she lost track of exactly how many times Ms. Reid came to her to report injuries, but she estimated maybe 20-30 times.

j. Ms. Sydney stated that Ms. Reid reported injuries from Mr. Sampson fairly regularly, and thought it was more frequent in the summer.

k. Ms. Sydney stated that Ms. Reid was embarrassed about the injuries caused by Mr. Sampson and Ms. Reid did not want people to think of her as a victim.

l. The injuries started with what a person would not be able to see, but as time went on, the injuries seemed more evident.

m. Ms. Sydney claimed that she saw the following, which were reported by Ms. Reid to be caused by Mr. Sampson: bad bruising to the face, fingerprints all around her upper arm / bicep, injuries on her back side. She said that mainly the injuries were to Ms. Reid’s arms.

n. Ms. Reid told Ms. Sydney that Mr. Sampson hit her, pushed her, and smacked her.

o. Ms. Sydney told Ms. Reid that she did not have to put up with it, however Ms. Reid “waivered” because there were things about Mr. Sampson that she thought were good, such as he was good with her kids, her mom liked him, and she mentioned his “physical prowess”.

p. Ms. Sydney spoke to Ms. Reid about alerting the police. Ms. Reid specifically said to Ms. Sydney that, on one occasion, she had tried to get help from the police and found them unhelpful, therefore, she did not want to report to the police.

100The Crown acknowledged that great caution would need to be taken with the introduction of this evidence. For example, the Crown argued:

a. Ms. Sydney should not be permitted to testify about bruises and injuries that Ms. Reid did not report to her were willfully caused by Mr. Sampson.

b. Ms. Sydney should be permitted to testify about the escalating nature of what she saw and heard, but not her opinion that Mr. Sampson was becoming more “flagrant” in his abuse of Ms. Reid due to the nature of the injuries becoming easier to see.

c. Ms. Sydney should not be permitted to testify about Mr. Sampson’s denial to Ms. Sydney’s friend that he hit Ms. Reid on Canada Day.

101This court acknowledges the factors that were referred to earlier that point toward threshold reliability. There is evidence that Ms. Reid came to Ms. Sydney because Ms. Sydney did not judge her, which would lend reliability to her evidence. While Ms. Sydney did not witness these incidents herself, she claims to have seen injuries on Ms. Reid that would add to the reliability. This court accepts that there is no indication that Tracy Reid was contemplating the creation of a record for any purpose when making, seemingly, unprompted statements about significant, and perhaps embarrassing, events to a close friend and confidante – also adding to its reliability. Ms. Reid would have nothing to gain from Ms. Sydney, or from anyone, by saying these things. While there was this general notion that Ms. Sydney harbours negative views of Mr. Sampson, this can easily be dealt with in cross-examination and allow the jury to assess for themselves the ultimate reliability and credibility of Ms. Sydney. Having said this, Ms. Sydney stated that some of the particular injuries reported blur in her mind, which causes some concern about the reliability of this evidence.

102Ultimately, it is the view of this court that this general evidence is not admissible for the following reasons:

a. It is not clear to this court what this general evidence is relevant to or probative of in this trial. While it tends to suggest that Mr. Sampson would be physically assaultive toward Ms. Reid, it is not clear what his motive was for doing so on any of these occasions. There is no context to account for any of the injuries.

b. None of these events speak to Ms. Reid’s state of mind at the time the comments were made. There is no reported expression of fear, unhappiness, or desire to leave the relationship, as in some of the cases.

c. Ms. Sydney stated that some of the particular injuries reported blur in her mind, which causes concern about the reliability of this evidence, especially given that there were instances of Ms. Reid being injured without any involvement of Mr. Sampson.

d. The Crown acknowledged that Ms. Sydney should not be permitted to testify about bruises and injuries that Ms. Reid did not report to her were willfully caused by Mr. Sampson. Given the expressed confusion of Ms. Sydney, this court is not confident that Ms. Sydney will be able to parse out what was reported as being done willfully by Mr. Sampson. Any general evidence by Ms. Sydney that Ms. Reid was injured is not evidence that Mr. Sampson did anything but may leave the jury with the impression that he did, even though Ms. Sydney herself is not sure.

e. This evidence was too vague and general, as Ms. Sydney struggled to give any examples, apart from those dealt with otherwise in this application.

f. Allowing this evidence runs the risk of introducing Ms. Sydney’s opinions and interpretations in relation to events for which she was not present. Ms. Sydney had the tendency to stray into opinion easily.

g. Given that there are specific instances which will be admitted by this court, this general evidence, without specificity, is not necessary to provide the jury with the true nature of the relationship. This adds no further context that is not already provided by the specific instances, and risks great confusion and uncertainty.

h. This evidence creates a risk of an unfocused trial and potentially builds a chain of reasoning for the jury to infer guilt by general disposition or propensity which is improper.

i. A detailed and careful jury instruction can not cure the prejudice in relation to this evidence.

j. The probative value of this evidence is outweighed by its prejudicial effect.

103When this court raised concern about any prejudice that might flow from the number of incidents being discussed, the Crown suggested that this court could set a limit on the number of incidents to which Ms. Sydney could refer. With all due respect, this would be a completely improper position for the court to take. While it is true that the court can, and often does, restrict specific evidence from being discussed before the trier of fact, exactly the nature of what is being done on this application, the court cannot dictate the specifics of the evidence the witness gives to this degree. For example, Ms. Sydney has estimated on a previous occasion that Ms. Reid came to her to report injuries about 20-30 times. This court cannot direct her to stick with that number as the Crown suggests. Ms. Sydney is required to answer questions truthfully. What if this is no longer a truthful answer? While, of course, the court can direct that a witness not be asked about, or give evidence about, a particular event, or not give improper opinion evidence, if Ms. Sydney is asked how many times Ms. Reid reported abuse at the hands of Mr. Sampson, she can certainly not be directed by the court as to what number to give. The Crown’s suggestion cannot cure the prejudice.

104This evidence is not admissible.

Blocking Ms. Reid from leaving

105Ms. Sydney described an incident where Mr. Sampson kept Ms. Reid at his home and would not let her leave, despite Ms. Reid stating that she wanted to leave.

106The evidence in relation to this event can be summarized as follows:

a. After Ms. Reid moved in with Al Kimmerly, Ms. Sydney was with Ms. Reid in Mr. Kimmerly’s unit, Cabin C, watching a movie.

b. Ms. Reid went to get stuff she left at Mr. Sampson’s unit, and she did not come back. Mr. Kimmerly started getting angry.

c. Ms. Sydney decided to go to Mr. Sampson’s unit to see what was happening.

d. Upon attending Mr. Sampson’s unit, Ms. Sydney saw that Mr. Sampson was blocking Ms. Reid from leaving, thereby keeping Ms. Reid in his unit against her will.

e. Ms. Sydney stated that Mr. Sampson was a big guy, and this was a small place. All he had to do was put himself in the way of the door.

f. Ms. Reid kept saying, “let me leave”, and Mr. Sampson would not let her leave.

g. Ms. Reid was still at Mr. Sampson’s unit when Ms. Sydney left. Ms. Sydney went and told Mr. Kimmerly what happened.

107It should be noted that the Crown is not seeking to admit Ms. Sydney’s evidence that generally Mr. Sampson was controlling, angry, financially abusive, or that he kept Ms. Reid’s possessions. The Crown was concerned this was too general, as Ms. Sydney struggled to give examples.

108It is the view of this court that the evidence from Lorelei Sydney in relation to this incident is admissible for the following reasons:

a. While a bit more dated, this alleged event still occurred within the last year of Ms. Reid’s life. Ms. Reid was believed to be in a relationship with Al Kimmerly as of September 2018, so it was logically within that time. At the most, it was 10 months prior to her passing.

b. This is something that Ms. Sydney claims to have witnessed herself as opposed to something she heard about from someone else.

c. This evidence tends to show that Mr. Sampson had the physical ability to stop Ms. Reid from leaving his unit, simply by standing in the doorway.

d. This is probative of the nature of the relationship between Ms. Reid and Mr. Sampson. Ms. Reid’s movements are allegedly being dictated by Mr. Sampson, specifically movements in relation to leaving his residential unit. This may demonstrate controlling behaviour on the part of Mr. Sampson toward Ms. Reid, which may be used by the jury to assess the defence position of whether Mr. Sampson would have stood idly by while Ms. Reid left his unit in the wee hours of July 19, 2019, contrary to his wishes.

e. While controlling behaviour in the context of a domestic relationship can certainly be seen as bad character, this incident is fairly innocuous, relatively speaking. There is no physical violence.

f. It demonstrates Ms. Reid’s desire to get away from Mr. Sampson. This may shed light on Ms. Reid’s mindset at that time.

g. The evidence of Ms. Sydney on this event was mostly unchallenged. She has a reasonably detailed recollection of the event. Any issues with respect to her reliability or credibility in relation to this event can be effectively dealt with in cross-examination.

h. The probative value of this evidence outweighs any prejudicial impact.

109This evidence is admissible.

Evidence from Anne Reid, Tracy Reid’s mother

110Essentially, the Crown seeks to admit three sets of information through Anne Reid: 1) Tracy Reid telling her mother about the general day-to-day events in her life, the problems with unit 11 at the Silver Swan, her relationship with Al Kimmerly, and good and bad things that happened generally; 2) Tracy Reid telling her mother about things related to Robert Sampson; and 3) the discussion over text and video chat on July 18, 2019.

111All parties agree that Anne Reid is an honest and forthright witness. The defence conceded that Mrs. Reid was able to provide the court with both context and factual substance about the troubled life of her daughter. Mrs. Reid testified that she was her daughter’s confidante and the person that her daughter turned to when confronted with problems.

112The only real question is whether Tracy Reid was providing true and complete information to her mother. There is some concern that Tracy Reid was not always being truthful with her mother. This is certainly worthy of consideration. However, Anne Reid said that Tracy Reid would keep bad things from her, because she would worry herself sick about what was going on if she knew. On the basis of this evidence, there is no reason to believe that what Tracy Reid did tell her mother was exaggerated or made to sound worse than reality. If anything, Tracy Reid would withhold or minimize the bad things happening in her life. This is logical. Anne Reid clearly cared very deeply for her daughter. She was heavily invested in her life and her grandson’s lives. It makes sense that Anne Reid would worry when told bad things. It must be noted that Anne Reid had no specific examples of Tracy Reid lying to her. It would appear that Anne Reid was a “lifeline” for her daughter, assisting her when and where she could. Importantly, it is not for this court to decide ultimate reliability or credibility. This will be for the trier of fact.

General background and day-to-day events

113The Crown seeks to introduce information about Tracy Reid’s day to day life through her mother, Anne Reid. The anticipated evidence of Anne Reid can be summarized as follows:

a. Anne Reid can testify about events when Tracy Reid lived with them, and about how she came to be living in Orillia at the Silver Swan.

b. She can testify about the living conditions at the Silver Swan.

c. She can explain how and why her daughter’s three sons came back to live with their grandparents.

d. Anne Reid was aware that Tracy Reid had an alcohol issue. She had no idea if she had a drug issue.

e. Anne Reid was aware of the relationship between her daughter and Al Kimmerly, including physical incidents between them.

f. Anne Reid felt that Tracy Reid would keep a lot from her, as Tracy Reid did not want her mother to worry about anything, so she would not tell her mother the truth in order to hide the bad things.

114It is the view of this court that this background information to be adduced through Anne Reid is certainly admissible. Frankly, this is simply part of the uncontroversial narrative in the years leading up to Ms. Reid’s death, including issues at unit 11 and the relationship with Al Kimmerly. The evidence is not contentious in any way, and will help the jury understand Ms. Reid’s lifestyle, attitude, and people with whom she surrounded herself.

115The defence conceded that this evidence is admissible and in no way prejudicial to Mr. Sampson.

116This evidence is admissible.

Information Related to Robert Sampson

117The Crown seeks to introduce things that Tracy Reid told her mother about Robert Sampson. The anticipated evidence of Anne Reid can be summarized as follows:

a. Tracy Reid did not voice concerns about Robert Sampson initially. However, at some point, she told her mother that he was a bit jealous.

b. Tracy Reid reported an incident between her and Mr. Sampson involving a peanut butter jar and showed her mother a photo of her black right eye. Anne Reid was given the following information:

i. Tracy Reid told her mother on the phone that Mr. Sampson threw a jar of peanut butter that hit her in the face, specifically hit her in the eye.

ii. Anne Reid was not clear on when or where the “peanut butter jar” incident happened.

iii. Tracy Reid sent Anne Reid a picture of the injury to her face. Anne Reid deleted it as she did not want her husband, Tracey Reid’s father, to see it.

iv. Tracy Reid did not tell her mother why it happened.

v. Tracy Reid told her mother that she went to the hospital.

c. Anne Reid told her daughter multiple times that she would get hurt, to which Tracy Reid responded, “I’ll be okay”.

d. Tracy Reid reported to Anne Reid in the month or so before she died that Mr. Sampson pulled her by the hair and showed Anne Reid a photo of bruises to her back. The evidence of Anne Reid included:

i. After refreshing her memory from her statement, Anne Reid gave evidence about this incident.

ii. She said that it was difficult to recall because she found out her daughter had been murdered the day before she gave her statement to police

iii. She testified that her daughter was all bruised.

iv. Tracy Reid described being pulled or dragged and something about stairs or one step.

v. Tracy Reid told her mother that Mr. Sampson pulled her down the stairs by the hair and Anne Reid did not ask what stairs.

vi. Tracy Reid reported that she was all bruised and showed pictures of her injured back.

vii. Anne Reid admitted to being confused about what her daughter had told her about this incident. She questioned the fact that Mr. Sampson did not have stairs and considered whether the event had occurred at Al Kimmerly’s unit.

e. During Anne Reid’s phone calls with her daughter, she would hear Mr. Sampson in the background asking for his phone back. Tracy Reid used Mr. Sampson’s phone a lot.

f. Anne Reid would tell Tracy Reid to “get out of there” and they would get her a place to go. Tracy Reid told her mother that she was going to get a place and Robert Samson would say he was “coming too”.

g. Anne Reid asked Tracy Reid if she was dating Robert Sampson and Tracy Reid said “no”.

h. Tracy Reid told Anne Reid that she was not supposed to be at the Silver Swan.

118There are some areas of Anne Reid’s evidence that the Crown suggested are not admissible, such as:

a. Tracy Reid’s report of being injured on Mr. Sampson’s e-bike.

b. Tracy Reid’s trip to the hospital that Anne Reid was billed for at an unspecified time.

c. Mr. Sampson attending the Reid residence in Barrie to speak to Anne Reid after Tracy Reid’s death.

It is worth noting that the defence indicated it was possible that they would cover the first two of these areas in cross-examination, which may allow the Crown to re-examine.

119It is the view of this court that all of the evidence the Crown seeks to introduce in A to H above is admissible, with the exception of the “hair pulling” incident and the “peanut butter jar” incident. The nature of the relationship between Anne Reid and Tracy Reid is an indicator of reliability. Tracy Reid had nothing to gain by making statements to her mother. For the most part, the comments by Tracy Reid appear to be spontaneous and unprompted. Dealing with each area specifically:

a. The report that Robert Sampson was a bit jealous fits into the broader evidentiary fabric of him being controlling. This report by Tracy Reid to her mother is indicative of her impression of Mr. Sampson in the context of the relationship. Any bad character suggestion is minimal. The defence conceded that this is admissible.

b. The discussion between Anne Reid and her daughter, whereby Anne Reid would warn her daughter that she was going to get hurt there and Tracy Reid would say she would be ok, shows Tracy Reid’s willingness to “stick it” out in a volatile difficult situation. It may explain why she stayed in the circumstances in which she found herself. There is no prejudice to Mr. Sampson, in fact it may suggest that Tracy Reid felt everything was fine. The defence conceded that this is admissible.

c. Hearing Mr. Sampson in the background asking for his phone when speaking to Tracy Reid on the phone is important for a few reasons. It may or may not show control on the part of Mr. Sampson. Given the regular use by Tracy Reid of Mr. Sampson’s phone, it may also show that, on the night of July 18-19, 2019, Tracy Reid likely did not have her own phone and would have been unable to call for help. Finally, Mr. Sampson asking for his own phone back cannot possibly be viewed as bad character in and of itself. The defence conceded that this is admissible.

d. In relation to the instances where Mr. Sampson would interject and say he was “coming too” when there would be a discussion about getting Tracy Reid another place, it was not entirely clear whether Anne Reid was hearing this through Tracy Reid or from Mr. Sampson directly. Either way, it is this court’s view that it is admissible. If it is from Mr. Sampson directly, this is admissible for other reasons. If this is a comment made by Tracy Reid, reporting Mr. Sampson’s comments, this is hardly evidence of control to cast Mr. Sampson in a negative light. Any bad character suggestion is minimal

e. The denial by Tracy Reid that she was dating Mr. Sampson and her statement to Anne Reid that she was not supposed to be at the Silver Swan – this evidence would seem to add important information in the context of the narrative. As for the nature of the relationship, it either shows Tracy Reid’s true view of the nature of the relationship or that she did not want to tell her mother about the nature of the relationship. It would seem to be neutral evidence at best. As for not being allowed to be at the Silver Swan, it shows Tracy Reid’s awareness that she was not permitted to be at the Silver Swan, and explains why she was trying to “fly under the radar” at the Silver Swan. Neither of these pieces of evidence appear controversial. The defence conceded the admissibility of this evidence.

All of this evidence is clearly relevant and offers little to no bad character as it relates to Mr. Sampson. The fact that Mr. Sampson was reported as jealous, stated he was “coming too” if Ms. Reid moved to another location, and wanted his phone back, is all relevant to the dynamics in the relationship and Mr. Sampson’s alleged controlling ways. As for any minimal prejudice that would flow from this evidence, the jury can be instructed accordingly.

120As for the “hair pulling” incident, there was simply too much confusion and uncertainty to permit its admission. If this incident is related to Al Kimmerly, it is not relevant at this trial, and any suggestion that it is related to Robert Sampson in the face of this uncertainty is very prejudicial with no probative value. If this incident is the same as the Canada Day incident, then this evidence will already be before the jury through Ms. Sydney’s observations, which would logically be better evidence than someone receiving a report of the incident from someone else. This evidence through Anne Reid is not admissible.

121As for the “peanut butter jar” incident, this incident will be introduced through the 9-1-1 call of Ms. Reid herself as will be discussed below. There is no value to having Anne Reid testify about what her daughter told her about this incident when the 9-1-1 audio and transcript allows the jury to hear about the incident from Tracy Reid herself. Having another version of this incident adds nothing to the trial and may in fact amount to nothing more than a prior consistent statement which should not be permitted to bolster the credibility of Tracy Reid in relation to this incident. The picture that Anne Reid saw may have provided some admissible corroboration, something more than the 9-1-1 call, however, the picture is no longer available. Even though the defence conceded the admissibility of this evidence, this evidence is not admissible, and Anne Reid will not be permitted to testify about this incident.

Conversation on July 18, 2019

122The Crown seeks to adduce evidence through Anne Reid that she had a conversation with Tracy Reid on the phone on July 18, 2019, both over text and by video chat. The evidence can be summarized as follows:

a. Anne Reid confirmed that the screenshot of the text message that was put into evidence as Exhibit 8 on the application was from Tracy Reid on Mr. Sampson’s phone at 6:07 pm.

b. Anne Reid recalled speaking to Tracy Reid on the phone and then having a video chat with her.

c. Anne Reid was a little angry because Tracy Reid always told her mother that she was moving, and this did not appear to be the case.

d. Anne Reid recalled multiple phone calls coming from Mr. Sampson’s phone. She spoke to her daughter on the phone then Tracy Reid said she wanted to show her some things that she got from the Salvation Army, which led to the video chat.

e. Anne Reid thought the call happened after 7 p.m.

f. Mr. Sampson’s phone records show several short calls – consistent with calls not being answered – then a 4 minute 52 second call at 7:05 p.m.

g. Anne Reid stated that the video chat with Tracy Reid was grainy, and she could not see her face clearly. Ms. Reid was walking back and forth, showing her mother her new clothes, which Anne Reid said looked nice. Anne Reid told Tracy Reid that she could not clearly see her.

h. Tracy Reid told Anne Reid that the Salvation Army would help her send out resumes and Tracy Reid asked her mother for money for resumes and cigarettes. Tracy Reid told her mother that she was going to find a job, but her mother did not believe her.

i. Anne Reid transferred $40.00 to Tracy Reid that evening

j. Tracy Reid discussed a plan to come down to Barrie for a visit the following week.

123It is the view of this court that this evidence is certainly admissible. Frankly, this is simply part of the narrative in the hours leading up to Ms. Reid’s death. In fact, Anne Reid is the last person known to have a conversation with Ms. Reid, apart from perhaps Mr. Sampson, before her death. The evidence is quite neutral, but will help the jury understand what was happening in Ms. Reid’s life at the time and her general state of mind that evening. It is important that the jury have the best evidence about her life in the day before she passed, including where she was, what she was doing, and her general state of mind. To enhance the threshold reliability of this evidence, there is a screenshot of a text message and phone records that support Anne Reid’s evidence. There is no prejudice that would flow from this evidence. The defence conceded that this should be admissible.

124This evidence is admissible.

Evidence from Sgt. Jordan Atkinson

125Sgt. Jordan Atkinson was a constable on duty on the evening of June 10, 2018, into the early morning of June 11, 2018. A summary of the evidence the Crown wishes to elicit from her is the following:

a. On June 10, 2018, at 11:55 p.m., Sgt. Atkinson received a dispatch about a disturbance in unit 11 at the Silver Swan. As a result, she and her partner, PC Carla Birnie, attended.

b. Sgt. Atkinson knocked on the door of the unit and received no response. She used her flashlight and looked through the front window, where she observed a male (Robert Sampson) on top of a female (Tracy Reid) on the couch.

c. Ms. Reid’s legs were “flailing” and it appeared as though she was trying to get up. Mr. Sampson appeared to be using his arms and weight to hold Ms. Reid down.

d. Sgt. Atkinson deemed the situation serious and entered the residence. She made multiple demands for Mr. Sampson to stop, and he eventually did get off of Ms. Reid.

e. Both Mr. Sampson and Ms. Reid were intoxicated.

f. Sgt. Atkinson separated the parties and noted that Ms. Reid had redness on her face and arms.

g. Ms. Reid told Sgt. Atkinson that she and Mr. Sampson had been drinking, and when Mr. Sampson drinks, he turns into a “dick”. Ms. Reid stated that they had a verbal argument which turned physical.

h. Ms. Reid declined further police assistance.

i. Mr. Sampson was arrested and removed.

j. These charges were withdrawn when Mr. Sampson entered a peace bond on September 18, 2018. The peace bond allowed for contact if Ms. Reid provided her written revocable consent. This was provided on December 4, 2018.

126It is the view of this court that this evidence is admissible for several reasons:

a. Sgt. Atkinson took timely notes of the events she witnessed. These notes serve to assist Sgt. Atkinson with recalling the finer details, however, she would appear to have a fairly clear recollection of the events without the use of her notes.

b. While Sgt. Atkinson was challenged about her perception of what was occurring, there was no serious challenge to Sgt. Atkinson about what she saw, as to the physical acts. Certainly, her credibility or reliability does not appear to be an issue.

c. Sgt. Atkinson observed redness on the face and arms of Tracy Reid, which was consistent with the actions she had observed.

d. This event occurred only 11 months before Ms. Reid died.

e. The event occurred at night and in Mr. Sampson’s residence, details which are similar to those alleged as part of the charge in question.

f. This event suggests that Mr. Sampson was capable of holding Ms. Reid down against her will when and if he chose.

127The defence suggested that issue estoppel would prohibit this event from going to the jury and suggested that this matter was dealt with in finality by a court.

128It is this court’s view that issue estoppel does not apply in these circumstances. The charge against Mr. Sampson was withdrawn, in exchange for a peace bond. In R. v. Mahalingan, 2008 SCC 63, Justice McLachlin for the majority clarified that the Crown is not prevented from leading evidence on any and all issues raised in a previous trial that resulted in an acquittal, but rather the Crown may not lead evidence for any issues that “were decided in the accused’s favour, whether on the basis of a positive factual finding or a reasonable doubt” in a previous trial, the burden being on the accused to show that the issue was previously decided. (para. 22). The requirements of issue estoppel are:

a. That the same question has been decided in a prior proceeding;

b. That the judicial decision which is said to create the estoppel was final; and

c. That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised.

See also R. v. Thompson, 2014 ONCA 43. The defence initially relied on R. v. Parks, [1988] O.J. No. 2152 (H.C.J.) to argue the application of issue estoppel in the case at bar. However, upon a careful review of the case, the defence conceded that it did not support his position but held to his position that a peace bond was a final conclusion and issue estoppel still applied.

129A peace bond is not equivalent to determining an issue in the accused’s favour on the basis of a positive factual finding or a reasonable doubt. Mr. Sampson did not wish to show cause why a peace bond should not be entered. It is not an admission of guilt to enter a peace bond in these circumstances. However, a justice of the peace did conclude, with no argument from Mr. Sampson, that there were reasonable grounds for the fear of Tracy Reid. While in these circumstances, the Crown chose not to pursue the prosecution any further, this would not negate what Sgt. Atkinson claims to have witnessed. Issue estoppel does not apply in these circumstances.

130The evidence of Sgt. Jordan Atkinson, relating to the events of June 10-11, 2018, including the fact that there was an arrest and charge of Mr. Sampson, is admissible. In addition, the withdrawal is obviously relevant, as is the 810 peace bond and the written revocable consent. The relevance of the written revocable consent will become obvious in the course of the discussion below about the 9-1-1 call. As for whether the withdrawal and peace bond are admitted through the transcript or by some other means, this court will leave it to counsel to decide how to present this evidence.

9-1-1 call on March 24, 2019 – Peanut Butter Jar Incident

131Tracy Reid contacted 9-1-1 on March 24, 2019 at 11:00 p.m. to report an incident between her and Mr. Sampson. The Crown seeks to admit this 9-1-1 call and related transcript at trial. The comments made by Tracy Reid during this call can be summarized as follows:

a. She was assaulted and wants to charge the person.

b. Gave the address of the person who assaulted her.

c. She was standing at the payphone in the parking lot at the Silver Swan at the time of the call.

d. She stated that it was Rob Sampson who assaulted her, and they are just friends.

e. She reported that she has big welts on her face but does not think that an ambulance is necessary.

f. She described big goose eggs all over her face.

g. She said they had both been drinking, but Mr. Sampson had more to drink than her.

h. Ms. Reid explained that she had “tried to leave and he hit me with a peanut butter jar right in the side of the head and face and then he did it again. Oh what, you don’t like that peanut butter, because then he threw my coat and my, um, purse outside.”.

i. She described three welts on her face.

j. She said that her head was pounding.

k. Ms. Reid stated that he had assaulted her before and explained there was a no contact order which was revoked, and then said, “but clearly I shouldn’t have”.

132It is the view of this court that this is admissible evidence for the following reasons:

a. The 9-1-1 call is an audio recording. It is an accurate representation of what was said by Tracy Reid. This points to threshold reliability.

b. The report being made by Tracy Reid seems to relate to an incident which had just occurred.

c. Tracy Reid made the report without any prompting or leading.

d. This is a significant event that one would expect to be reported.

e. While it is true that Ms. Reid admitted that she was drinking which might affect her reliability, the jury can assess that for themselves. They can hear her voice and determine whether she is intoxicated or not.

f. This is a contemporaneous complaint of an assault by Mr. Sampson at the Silver Swan four months before she passed.

g. The reported injury is to the head and face of Ms. Reid, similar to some injuries observed at autopsy.

h. Ms. Reid described her head pounding, which is an expression of bodily feeling at the time.

i. Ms. Reid gave a lot of, seemingly, accurate details, such as address, persons involved, and ages. She also referred to the written revocable consent for contact which had been signed in December 2018.

133This 9-1-1 call is admissible. As to the presentation of this evidence at trial, whether simply to be played, or whether the defence insists upon its introduction through the call taker, this court will leave that to be discussed amongst counsel.

134As for the fact of the arrest, charge, and withdrawal, the Crown argued that this was not necessary and, therefore, the admission of this evidence is not sought. For example, the Crown does not seek to admit the transcript of May 21, 2019, indicating the withdrawal of the charge. While this court appreciates that the arrest and charge may be somewhat prejudicial to Mr. Sampson, it is the view of this court that the jury might be left with a misleading impression if they are not given the complete picture, including the withdrawal of the charge. It is certainly open to the defence to present the arrest, charge, and withdrawal if they wish.

Conclusion

135In coming to its conclusion on this application, this court has considered the entirety of the circumstances as known at this time.

136It is the view of this court that this decision strikes the appropriate balance in this case. The evidence that will be admissible will allow the jury to know that Ms. Reid had an on-going tumultuous relationship with Mr. Sampson. The evidence will allow the jury to know that Mr. Sampson had, in the past, developed animus towards Ms. Reid which resulted in aggression, which could, circumstantially, identify Mr. Sampson as the person responsible. By limiting the evidence to only certain specific events, this will minimize the prejudice to Mr. Sampson, so that the jury is not overwhelmed by evidence of past conduct, a piling on effect, which could very well lead to improper reasoning. The jury can also be informed, by preliminary, mid-trial, and/or final instructions, as to the appropriate use of this evidence. For example, as to the prohibited use of the evidence, a trial judge might instruct the jury that they cannot convict Mr. Sampson on the basis of "bad personhood" (i.e. "moral prejudice"), and also that they cannot convict Mr. Sampson because they want to punish him for his uncharged prior discreditable conduct (i.e. "reasoning prejudice"). The jury must be kept aware that their task will be to determine whether Mr. Sampson is guilty, beyond a reasonable doubt, of the count on the indictment, and not whether he is guilty of the uncharged prior discreditable conduct.

137In this respect, prior to preliminary instructions to the jury, there must be a discussion with counsel, in the absence of the jury, about any necessary preliminary instructions. Further, before this evidence is introduced, there will be a discussion about mid-trial instruction. Obviously, during a pre-charge conference there will be discussion about final instructions on this evidence.

138It must also be noted that this decision is being made on the basis of the case as this court understands it to be at this time. If material issues in the case change, there may be a need to reconsider admissibility.

139It is expected that counsel will take care to control the flow of the evidence so that it comports with this ruling and minimizes the risk of prejudice.