COURT FILE NO.: CR-22-00000025-0000 DATE: 2023-10-16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING M. Purcell and T. Schuck, for the Crown Applicant

- and -

ARCHIE McKAY R. Amy and A. Anderson, for the Respondent Respondent

HEARD: August 22 and 23, 2023, at Kenora, Ontario Mr. Justice J.S. Fregeau

REASONS ON APPLICATION

INTRODUCTION

[1] Archie McKay (the “accused”) stands charged with five counts of first-degree murder arising from an early morning fire at a residence located at 854 Macheetao Road in the First Nation community of Kitchenuhmaykoosib Inninuwug (“KI”) on May 2, 2019 (the “fire”).

[2] Tragically, Geraldine Chapman and four young children died in the fire. The accused was the biological father of one of the child victims of the fire. The other child victims had been adopted by Ms. Chapman and lived with her at the 854 Macheetao Road residence.

[3] The accused, Ms. Chapman’s domestic partner in a years-long, on-off relationship preceding her death, also resided with Ms. Chapman at 854 Macheetao Road. However, the accused’s residence at 854 Macheetao Road during the relationship was intermittent and dependent on the status of their relationship, and the accused’s sobriety, at any given time.

[4] The Crown has indicated that it will advance three alternate “routes” to first-degree murder under the Criminal Code:

1. Section 231(2) – planned and deliberate murder;
2. Section 231(5)(e) – causing death while committing or attempting to commit the offence of forcible confinement; and
3. Section 231(6) – causing death while committing or attempting to commit the offence of criminal harassment.

[5] This application concerns only the section 231(6) route to first-degree murder.

[6] The Crown’s theory of the case is that the accused committed criminal harassment first-degree murder, vis-à-vis s. 231(6) of the Criminal Code. According to the Crown, the accused:

• Deliberately set fire to the residence at 854 Macheetao Road on May 2, 2019 and that each of the requisite elements of murder will be established at trial;
• The accused murdered the victims in the course of criminally harassing or attempting to criminally harass Ms. Chapman pursuant to s. 264 of the Criminal Code;
• The accused intended to cause Ms. Chapman to fear for her safety.

[7] The accused submits that whether the fire was deliberately set, and if so by whom, are very much in issue.

[8] On this application, the Crown seeks a ruling allowing the admission into evidence at trial of the contents of numerous police Occurrence Reports and 911 calls relating to incidents between Ms. Chapman and the accused. The Crown also applies to admit into evidence at trial Ms. Chapman’s ante-mortem statements to friends and family relating to incidents between Ms. Chapman and the accused during their relationship in the years preceding the fire.

[9] The Crown contends this evidence provides context and essential narrative about the nature of the relationship between the accused and Ms. Chapman and that it is probative of:

1. The underlying offence of criminal harassment;
2. The accused’s state of mind at the time of the fire (intent);
3. Motive and animus (in turn probative of identity).

[10] At the hearing of this application, the accused filed a Notice of Intention to Re-elect to be tried by a Superior Court judge sitting without a jury. The Crown consented to the re-election.

[11] Counsel have agreed on certain aspects of this application, summarized as follows:

1. The accused is not contesting the admissibility of Ms. Chapman’s statements to 911 operators and police officers and as contained in police Occurrence Reports on the basis that they are hearsay or on the basis that the prejudicial effect of this evidence exceeds its probative value. The accused contests the admissibility of this evidence on the basis that it is evidence of prior discreditable conduct and presumptively inadmissible.
2. The accused contests the admissibility of the ante-mortem statements of Ms. Chapman to Stewart Albany, Patsy Petiquan, Thyra Chapman, Tom Chapman and Cheryl Meekis on the basis that they are evidence of presumptively inadmissible prior discreditable conduct and that they are also presumptively inadmissible hearsay.
3. Counsel have agreed that the voir dire concerning the hearsay aspect of Ms. Chapman’s ante-mortem statements to these five individuals will proceed at trial but that these statements will be tendered by the Crown on this application in order to obtain a ruling as to their admissibility as “relationship evidence”; and
4. The Crown consents to the court transcripts relating to a January 28, 2015, incident being admitted for the court’s consideration on this application.

SUMMARY OF CONTESTED EVIDENCE

Occurrence Reports and 911 Calls

1. Occurrence Summary RM1300636 2:30 a.m. January 18, 2013 – Ms. Chapman called police and reported that the accused was intoxicated at her residence and that she wanted him removed because the children were sleeping. Police attended and found the accused to have been drinking and preparing to leave the residence. Police escorted the accused to his residence.
2. Occurrence Summary RM13055182 9:32 a.m. May 31, 2013 – Ms. Chapman called police and reported that the accused was at her residence and intoxicated. Police attended and learned that Ms. Chapman and the accused, who had been drinking and had left prior to police arrival, had been arguing over child support. There were no signs or reports of assault. The accused was located walking on the road and was driven to a residence across town.
3. Occurrence Summary RM14003373 11:40 p.m. January 11, 2014 – Ms. Chapman called police and requested that police remove the accused from her residence. Police attended and were advised that Ms. Chapman heard someone knocking on her door and then heard the accused’s voice, believing him to have been drinking because he was slurring his words. Ms. Chapman did not open the door for the accused and there had been no contact between Ms. Chapman and the accused. Ms. Chapman told the police that she did not want the accused at the residence when intoxicated but that he could return when sober. The accused was found at the residence and was cooperative with police, lodged in the police vehicle and transported to his residence.
4. Occurrence Summary RM14017467 3:00 p.m. February 22, 2014 – Ms. Chapman called police and requested that police remove the accused from her residence as he had been drinking and refused to leave. Police attended and observed the accused to have been drinking but not intoxicated. Police removed the accused without incident.
5. Occurrence Summary RM14032983 10:40 p.m. April 9, 2014 – Ms. Chapman refused to allow the accused, who was intoxicated, into her residence. The accused began yelling and cursing and broke a window with his hand and knocked over a stack of firewood. The accused was located by police at Ms. Chapman’s residence and was asked if he broke the window. The accused advised the police that “I was mad because it’s my house. I broke it with my hand”. The accused was arrested for mischief. The charge was later stayed.
6. Occurrence Summary RM14095968 3:05 a.m. October 17, 2014 – Ms. Chapman called police and reported that the accused was in her porch intoxicated and that she wanted him removed. Police attended and located the accused sitting in the porch of the residence, intoxicated and with his personal property packed. The accused was arrested without incident to prevent a breach of the peace.
7. Occurrence Summary RM14096450 9:45 p.m. October 18, 2014 – Ms. Chapman called police and reported that the accused was sitting in a vehicle outside of her residence and intoxicated. Police attended and could not locate the accused.
8. Occurrence Summary RM15007588 11:00 p.m. January 28, 2015 – Ms. Chapman called police following an argument she had with the accused at her residence. Ms. Chapman advised police that the accused had attended the residence after he had been absent for more than a day. Ms. Chapman was upset and did not want to allow the accused into the residence. The accused requested some of his belongings from Ms. Chapman and she provided them to him. When the accused was leaving the property, Ms. Chapman attempted to grab a sled from the accused that he had been using to transport his belongings and an argument ensued. Police located the accused at his mother’s residence and advised him not to attend the residence for a couple of days. The accused was compliant.
9. Occurrence Summary RM15039990 12:25 a.m. May 19, 2015 – Ms. Chapman called police and reported that she heard banging on the outside wall of the residence. The banging lasted only a few seconds. Ms. Chapman told the police that she was afraid to go outside and look. The police were unable to attend immediately. A later police patrol failed to locate anyone in the vicinity. Police then contacted the accused who acknowledged that it was him banging on Ms. Chapman’s wall as he became emotional while walking by her residence as he still had feelings for Ms. Chapman. Police spoke with Ms. Chapman and the accused at 854 Macheetao Road later that day and “made [the accused] understand repercussions of charging, ie. conditions not to attend residence, [Ms. Chapman] okay with warning”.
10. Occurrence Summary RM15043372 5:30 p.m. May 28, 2015 – Ms. Chapman reported to the police that the accused had returned home to pick up his son to spend time with him at his sister’s residence. Ms. Chapman reported that the accused “looked different when he walked by to the washroom…and he was mumbling something. So [she] followed him…into the washroom [and] closed the door behind me…”. When asked by Ms. Chapman what he was doing, the accused replied, “I’m pissed…someone pissed me off on Facebook”. When pressed by Ms. Chapman, the accused referenced Ms. Chapman seeing another man. The accused attempted to exit the bathroom and Ms. Chapman used her body to block him from doing so. The accused then tried to push Ms. Chapman out of the way and pulled the bathroom door off its hinges. The bag of clothes the accused was carrying then got caught on an exposed screw in the door frame. The accused, believing it was Ms. Chapman holding his bag, turned and raised his fist and made a motion to strike Ms. Chapman, stopping his fist 6” to 12” from Ms. Chapman’s face. In her statement to the police, Ms. Chapman expressed fear that the accused would assault or seriously injure her in the future.
11. Occurrence Summary TP15082757 1:00 a.m. September 25, 2015 – Ms. Chapman reported to police that the accused came to her residence to speak to her but that he was intoxicated so she told him to leave. The accused returned and banged on the door again and Ms. Chapman again refused to let him in. The accused then smashed the passenger side window of a truck parked in the driveway. Police located the accused walking back toward the residence in an intoxicated condition.
12. Occurrence Summary TP15096241 1:00 a.m. November 10, 2015 – Ms. Chapman reported to police that the accused was banging on the outside of her living room wall requesting that his clothing be returned to him. Once the clothing was returned to him, the accused left the area. He returned approximately one hour later and banged on the wall again. The report is contradictory as to whether the accused was intoxicated. In her statement to the police, Ms. Chapman states that she is scared of the accused when he is drinking and that she fears for the safety of herself and the children. At the time, the accused was bound by bail conditions not to attend Ms. Chapman’s residence.
13. Occurrence Summary TP16026931 5:08 a.m. April 10, 2016 – Ms. Chapman called 911 to report that the accused was at her residence trying to “cause trouble” and that he “threatened to trash my truck again. He trashed it before. The window before”. Ms. Chapman described the accused as “my boyfriend”. When asked if the accused had been drinking, she told the 911 operator that “he was drinking last night” and that “he’s still acting [drunk]”. When the 911 operator asked Ms. Chapman if the accused was being violent in any way, Ms. Chapman told the 911 operator that the accused is “violent when he’s drunk”, that he had not “done anything right now but he threatened to come back in an hour [to trash up my truck] if I don’t”. Ms. Chapman also told the 911 operator that the accused had an axe and was walking away from the residence. Police investigation revealed that Ms. Chapman and the accused had been arguing about a new washing machine that he had purchased for her and that he wanted a $400.00 contribution from her toward this purchase. The accused was charged with threatening to damage the property of Ms. Chapman and pled guilty to this charge on September 22, 2016. The facts alleged by the Crown on the guilty plea, and acknowledged by the accused, included that police were called to the “shared home” of Ms. Chapman and the accused on April 10, 2016.
14. Occurrence Summary TP16035117 6:13 a.m. May 6, 2016 – Ms. Chapman called 911 to report that the accused was “drunk” and outside of her residence while subject to conditions not to attend her residence. When asked by the 911 operator, Ms. Chapman advised that the accused did not have any weapons on him and was not “aggressive”, but that he “just woke me up. He was knocking on my window”. When police attended they observed the accused to be intoxicated, standing against the wall of the residence attempting to look in through the window. The accused was arrested for public intoxication and trespassing. A search incident to arrest did not reveal any weapons on the accused. On September 22, 2016, in relation to this incident, the accused pled guilty to breaching an undertaking by communicating with Ms. Chapman.
15. Occurrence Summary TP16075287 2:00 a.m. September 2, 2016 – Ms. Chapman called 911 to report that the accused was intoxicated and had been at her residence contrary to release conditions. Ms. Chapman further advised the 911 operator that she believed the accused was presently hiding behind the KI laundromat building. Police attended and located the accused standing behind 868 Macheetao Road in an intoxicated state. In a statement to police later the same day, Ms. Chapman stated that the accused had been sleeping in her teepee at her residence, that she woke him up and told him to leave, that he refused and began to yell at her and accused her of cheating on him with another man. When the accused continued to refuse to leave, Ms. Chapman struck the accused on the back with a piece of wood. The accused then left. The accused was charged with failing to comply with an undertaking by communicating with Ms. Chapman on this date. On September 22, 2016, he pled guilty to that charge and was convicted.
16. Occurrence Summary TP17031598 3:39 a.m. April 27, 2017 – Ms. Chapman called 911 to report that the accused was at her residence intoxicated and that he “just woke me up. Knocking on my window”. Ms. Chapman advised the 911 operator that the accused lived with her but that she “always tell[s] him not to come here when he’s drinking”. Ms. Chapman told the 911 operator that she was calling from the washroom of her residence but that she was comfortable with the call being terminated given that officers were enroute. When police attended, Ms. Chapman advised them that she locks the accused out of the residence when he is intoxicated and that he normally he sleeps in the teepee in the backyard. Police were unable to locate the accused.
17. Occurrence Summary TP17031645 9:40 a.m. April 27, 2017 – Ms. Chapman called 911 a second time this day to report that she just woke up and believed that the accused was sleeping in her attic. Police attended the residence and located the accused in the attic. He was removed through the interior access hole and found to be highly intoxicated. Ms. Chapman told the officers that the accused will become aggressive with her as soon as they leave. The accused was taken into custody to prevent a breach of the peace.
18. Occurrence Summary TP17039658 12:00 a.m. May 20, 2017 – Ms. Chapman called 911 to report that her “ex Archie McKay hasn’t been staying with us for over two weeks and he keeps coming here every night taunting us like a joke”. When asked where the accused was at that moment, Ms. Chapman replied “I don’t even know”. Police attended Ms. Chapman’s residence and were told by Ms. Chapman that her wood pile had been knocked over and the screws holding her shed/teepee door closed had been removed and that she suspected that the accused was responsible. Ms. Chapman requested that the police speak with the accused and warn him about harassing her. At approximately 12:45 a.m. on May 20, 2017, police located Mr. McKay and warned him about harassing/annoying Ms. Chapman. Mr. McKay stated that he understood.
19. Occurrence Summary TP17040052 2:51 a.m. May 21, 2017 – Ms. Chapman called 911 to report that the accused was “passed out under my porch snoring and [that she] want[ed] him to be removed”. When asked by the 911 operator if the accused gets violent, Ms. Chapman replied, “Yeah he destroys my stuff outside especially when he is drinking”. Police attended Ms. Chapman’s residence, noting in the related report that “there has been no proper remedy made to the living situation between the two since the ending of the relationship, both parties as of this date have colour of right to the property”. Police located the accused asleep under the porch. When awoken, he immediately identified himself and exited from under the porch. He was observed to be intoxicated.
20. Occurrence Summary TP17087750 12:24 a.m. October 3, 2017 – Ms. Chapman called 911 to report that the accused “is drunk banging on my wall sometimes” and that “he’s waking up my kids”. Police attended and located the accused “walking down the street near the residence…slightly intoxicated but…very cooperative with the police”. Police “deem the occurrence not to be a domestic, as there was no interaction between [the accused] and [Ms. Chapman]”.
21. Occurrence Summary TP17093044 10:50 p.m. October 17, 2017 – Ms. Chapman called 911 to report that her “boyfriend’s drinking again”. When asked by the 911 operator if he is being violent, Ms. Chapman responded, “I always tell him not to come here when he’s drinking…he wakes up my kids”. When further asked, “He didn’t hurt you though did he?”, Ms. Chapman responded, “No he's under my house. He crawled under there”. When asked if the accused “has been violent in the past at all?”, Ms. Chapman advised, “At first, but since not”. Ms. Chapman is again asked, “So he’s not violent tonight?” She responds, “He will be if he, if I don’t open the door for him”. Police attended and located the accused in the crawl space underneath the residence. The police noted that the accused had been drinking but was not intoxicated. It was further noted that there had been no physical or verbal altercation between the accused and Ms. Chapman on this date.
22. Occurrence Summary TP17099564 10:39 p.m. November 7, 2017 – Ms. Chapman called 911 to report that the accused “is drinking again” and that she wanted him removed. When asked by the 911 operator if the accused is being violent with her, Ms. Chapman responded that, “He tries but I don’t let him in here but I have little ones in here”. When asked if the accused is inside or outside, Ms. Chapman responds, “He’s making a lot of racket outside trying to crawl under my house again”. When then asked if she knew what he was doing, Ms. Chapman said, “No, but my heart is pounding”. Police attended and were unable to locate the accused at or around Ms. Chapman’s residence. Ms. Chapman advised police that the accused had left earlier in the day without telling her where he was going and that he had just returned prior to her calling 911 and that she believes that he had been drinking all day. She further advised police that she does not want him at the residence when he has been drinking because she has four children in the house. Finally, Ms. Chapman told police that there was nothing physical to report, that the accused had not entered the residence but that they had a brief verbal argument through the door about the accused’s drinking.
23. Occurrence Summary TP19000389 7:12 a.m. January 2, 2019 – Ms. Chapman called 911 to report that the accused had been at her house and that he “broke both my doors tryna’ break in”. When asked by the 911 operator if she was scared of the accused and whether he is violent, Ms. Chapman replied, “I’m scared when he’s drunk”. Police attended and failed to locate anyone outside the residence or in the area. Police noted signs of attempted entry at the back door of the residence. Police further noted that neither Ms. Chapman nor any of the children saw who was trying to get into the house. Police located the accused later in the day at a relative’s house. The accused told police that he had been at home all night and had not been at Ms. Chapman’s residence.

MS. CHAPMAN’S ANTE-MORTEM STATEMENTS TO FIVE INDIVIDUALS

Stewart Albany Statement to Police

[12] On May 6, 2019, four days after the fire and the death of Ms. Chapman, Stewart Albany gave a statement to the police and provided information as to what Ms. Chapman told him about her relationship with the accused. On July 12, 2021, Mr. Albany adopted the entirety of his May 6, 2019 statement under oath.

[13] Mr. Albany stated that he and Ms. Chapman had been friends since they were children. He described Ms. Chapman as his “best friend”. Mr. Albany stated that Ms. Chapman had, “over the years”, disclosed to him a lot of abuse that she had suffered at the hands of the accused, with the most recent disclosures having been three to five months prior to May 2019. Mr. Albany informed police that Ms. Chapman told him “about times that she was fearful of her life. He would get physical with her, and she told me he once threatened her with a knife. She did not go into details of when or how he had threatened her. She said he was always accusing her of cheating on him or talking to other guys”.

[14] Mr. Albany further informed police that Ms. Chapman told him that the accused had once threatened her with a knife, about another time when the accused had threatened her with a syringe and that he would sometimes “just hit her out of nowhere”. According to Mr. Albany, “there were times that [he knew] she was scared for her life because of the threats”. Mr. Albany further informed police that Ms. Chapman told him that the accused “threatened her a lot but she never went into detail”.

Patsy Petiquan Statement to Police

[15] Ms. Petiquan was Mr. Albany’s partner in May 2019. She gave a statement to the police on May 7, 2019. Among other things, Ms. Petiquan told police that about a month prior, she and others had been drinking with Ms. Chapman. Ms. Chapman told her about how the accused “gets mad so easily”. Ms. Petiquan told police that she advised Ms. Chapman to move and be happy and that Ms. Chapman replied, “yah I am trying to”.

Thyra Chapman Statement to Police

[16] Thyra Chapman is Geraldine Chapman’s only surviving child and was the oldest sibling of Ms. Chapman’s children. Thyra Chapman gave an audio/video recorded statement to the police on February 9, 2023.

[17] Thyra Chapman was approximately nine years old when her mother and the accused began their relationship. Thyra Chapman advised the police, among other things, that she observed a pattern of the accused drinking in the days following “payday and welfare”, spending all of his money and then returning home intoxicated and banging on doors trying to get back into the house. Thyra Chapman specifically recalled one occasion when her mother told the accused to “get out” and, as he was walking out the door, he punched Geraldine Chapman “in the chin”. Thyra Chapman then “threw him out [of the residence]”.

[18] Thyra Chapman also described how the accused would crawl up into the attic of 854 Macheetao Road because he “always thought that [her mother] was cheating on him and whatever or having guys inside the house”.

Tom Chapman Statement to the Police (synopsis)

[19] Tom Chapman is Geraldine Chapman’s uncle. Mr. Chapman provided an audio/video recorded statement to the police on September 17, 2021.

[20] In 2018, for a six-month period ending in November, Mr. Chapman served as Acting Deputy Chief for KI. At the time he otherwise resided in Sioux Lookout. Mr. Chapman advised police that during the period that he was in KI, he received calls from Ms. Chapman requesting his assistance regarding the accused. Mr. Chapman advised police that Ms. Chapman had told him that the accused was “stalking” her. Mr. Chapman further advised police that Ms. Chapman told him about the accused hiding/sleeping in her outhouse, shed, yard, crawlspace or in the yard down by the lake. He specifically recalled one occasion when he was asked to attend Ms. Chapman’s home and found the accused sleeping in the attic of the residence.

[21] Mr. Chapman also advised the police of general comments made to him by Ms. Chapman about the accused always being intoxicated and coming to the house and looking in or trying to get in and that she didn’t want him around her children when he was intoxicated.

Cheryl Meekis Statement to the Police

[22] Ms. Meekis was a neighbour to, and friend of, Ms. Chapman. Her residence is close in proximity to 854 Macheetao Road. Ms. Meekis provided a statement to the police on February 9, 2023.

[23] Ms. Meekis told police how she regularly observed the accused, during evenings and at night, around her residence, under stairs, sleeping in a derelict truck or sitting on the grass. When asked by police what she thought the accused was doing, Ms. Chapman replied “stalking Geraldine”.

[24] Ms. Meekis specifically recalled one occasion where she heard Thyra Chapman yelling at the accused to “get the fuck out of here. Leave my mom alone”. She then observed Thyra Chapman pushing the accused and telling him to “get the hell outta here. We don’t want you here”. Ms. Meekis told the police that the accused then walked away but “maybe around like after midnight, sometime we seen him again around [Ms. Chapman’s] store that time”.

[25] Ms. Meekis also specifically recalled sitting outside having a smoke with Ms. Chapman a few weeks before the fire and Ms. Chapman telling her that she and the accused had broken up. She added that she saw the accused “probably almost every day…every night… he was always around” between the date of this conversation with Ms. Chapman and the date of the fire.

Terrance Nanokeesic Statement to the Police

[26] Mr. Nanokeesic is the son of Cheryl Meekis. He was residing with his mother at the time of the fire.

[27] Mr. Nanokeesic gave a statement to the police on May 3, 2019. He told the police, among other things, that the accused “would always accuse [him] of sleeping with his girlfriend Geraldine [Chapman]…he last accused me of that like over a year ago now or so”.

THE POSITION OF THE CROWN

[28] The Crown’s theory of the case is that the accused, intoxicated and jealous at the time, deliberately started the fire that caused the deaths of Ms. Chapman and her four children on May 2, 2019, and that he did so while criminally harassing, or attempting to criminally harass Ms. Chapman, thus committing constructive first-degree murder contrary to s. 231(6) of the Criminal Code.

[29] The Crown anticipates that the accused will argue that the fire was not deliberately set or, that if it was, it was not him that did so. The Crown anticipates that the accused will argue, in the alternative, that if it is proven that he did start the fire, that he did not intend to do so and/or that he was not criminally harassing, or attempting to criminally harass, Ms. Chapman at the time.

[30] Ms. Chapman’s 911 calls and ante-mortem statements to friends, family and police are referred to by the Crown and the accused respectively as “relationship evidence” and “prior discreditable conduct evidence”. This body of evidence is hereinafter referred to in these reasons as “extrinsic misconduct evidence”.

[31] The Crown submits that its primary purpose in seeking to have the extrinsic misconduct evidence admitted at trial is to prove the underlying offence of criminal harassment. The Crown submits that its secondary purpose for introducing the extrinsic misconduct evidence is to provide necessary context and narrative by illustrating the nature of the relationship between the accused and Ms. Chapman. The Crown contends that its tertiary purpose for introducing the extrinsic misconduct evidence is to prove motive and animus which are relevant to and probative of identity and intent.

[32] The Crown submits that to establish its case, it will be required to prove beyond a reasonable doubt, among other things, that the accused committed, or attempted to commit, the underlying offence of criminal harassment under s. 264 of the Code, including that Ms. Chapman’s fear was reasonable in all the circumstances, and the additional mental element under s. 231(6) of the Code, namely that the accused intended Ms. Chapman to fear for her safety.

[33] The Crown submits that criminal harassment can consist of a single act and that the added mental element in s. 231(6) of the Code can also be inferred from a single act. The Crown further submits that criminal harassment can also be both continual (a pattern of behaviour) and intermittent (where the pattern of behaviour is comprised of a series of discrete acts, which may be separated by days or weeks).

[34] The Crown’s position is that this entire body of extrinsic misconduct evidence is relevant and material to Ms. Chapman’s fear of the accused, the reasonableness of that fear, the accused’s state of mind at the time of the fire and the existence of animus and motive on the part of the accused. The Crown submits that the extrinsic misconduct evidence further provides the necessary context for the trial judge to understand the nature of the relationship between the accused and Ms. Chapman.

[35] The Crown submits that extrinsic misconduct evidence that shows or tends to show the relationship between the parties in a domestic homicide, including evidence of the accused’s prior discreditable conduct, is regularly admitted for the purposes of narrative and to provide context. The Crown suggests that extrinsic misconduct evidence is also admissible to prove the underlying offence of criminal harassment and help establish animus and motive on the part of an accused, which in turn may assist in proving the identity and state of mind of a perpetrator and that a homicide was, in fact, a murder.

[36] The Crown submits that the test for the admissibility of extrinsic misconduct evidence consists of four steps:

1. Specifically define the issue to which, or the purpose for which, the extrinsic misconduct evidence is suggested to be relevant in order to assess probative value;
2. Assess the probative value of the extrinsic misconduct evidence;
3. Identify the prejudicial effects of the extrinsic misconduct evidence; and
4. Weigh the probative value of the extrinsic misconduct evidence against the prejudicial effect.

[37] The Crown submits that all the extrinsic misconduct evidence at issue on this application should be admitted because it illustrates the nature of the relationship between the accused and Ms. Chapman in the six years preceding the fire and provides necessary narrative and context for the trier of fact. The Crown contends that this evidence clearly establishes a pattern of behaviour on the part of the accused and Ms. Chapman’s reaction to that pattern of behaviour, namely that the accused regularly attended at 854 Macheetao Road when he was intoxicated, usually late at night, often jealous and accusatory, and that the accused was not welcome at this residence when intoxicated.

[38] The Crown submits that it seeks to have the extrinsic misconduct evidence from 2013, which consists of nothing more than Ms. Chapman calling the police requesting that an intoxicated accused be removed from her residence, admitted to help explain the nature of the relationship and for narrative and to provide context.

[39] The Crown submits that the extrinsic misconduct evidence from 2014, in addition to providing narrative and context, begins to establish both Ms. Chapman’s fear of the accused and animus and motive on the part of the accused.

[40] The Crown contends that the extrinsic misconduct evidence from 2015, in particular the evidence relating to the May 28, 2015, incident in the bathroom of 854 Macheetao, is probative of the offence of criminal harassment and Ms. Chapman’s ongoing fear of the accused, related to his jealousy and threats of violence toward her and the damage of her property when the accused is intoxicated.

[41] The Crown suggests that the extrinsic misconduct evidence from 2016 provides essential narrative and context and assists in proving the underlying offence of criminal harassment, including Ms. Chapman’s ongoing fear of the accused. The Crown submits that the 2016 evidence also helps to establish motive and animus.

[42] The Crown submits that the extrinsic misconduct evidence from 2017 includes ongoing evidence of the accused attending Ms. Chapman’s home when intoxicated, damaging Ms. Chapman’s property, crawling into the attic and crawl space of 854 Macheetao Road when intoxicated and evidence of Ms. Chapman’s fear of the accused and her complaints to police of him harassing her. The Crown suggests that this evidence is probative of criminal harassment, Ms. Chapman’s continued fear of the accused and that it helps to establish motive and animus.

[43] The Crown submits that the single item of extrinsic misconduct evidence from 2019, in which Ms. Chapman called 911 to report that she heard banging at or near her door and believed it was the accused trying to get into her house, is probative of Ms. Chapman’s ongoing fear of the accused when he is intoxicated.

[44] The Crown submits that the contents of Stewart Albany’s May 6, 2019, statement to the police is material, relevant and highly probative evidence. The Crown submits that Mr. Albany and Ms. Chapman were close, lifelong friends and that Ms. Chapman confided in Mr. Albany over the years about her relationship with the accused, including as recently as three to five months before the fire.

[45] The Crown submits that Ms. Chapman told Mr. Albany that the accused had threatened her with a knife and syringe, that the accused lurked around 854 Macheetao Road after being locked out of the home, that the accused was continually accusing her of cheating on him, that the accused had hit her and was generally abusive and that Ms. Chapman was fearful of her life because of the accused’s conduct toward her.

[46] The Crown contends that this evidence clearly illustrates the nature of the relationship between Ms. Chapman and the accused over the years and is also probative of criminal harassment, including Ms. Chapman’s fear of the accused and the reasonableness of her fear in the circumstances. The Crown submits that this evidence also helps to establish animus and motive.

[47] The Crown submits that the evidence of Patsy Petiquan, who was told by Ms. Chapman approximately one month prior to the fire that the accused “gets mad so easily” and that she was “…trying to” break up with the accused, demonstrates animus and helps to establish motive and intent.

[48] The Crown submits that the evidence of Thyra Chapman helps to illustrate the ongoing, cyclical and escalating pattern of harassment and abuse of her mother by the accused, directly related to the accused’s intoxication and subsequent aggression toward Ms. Chapman.

[49] The Crown contends that Thyra Chapman also witnessed the accused punch her mother in the chin when Ms. Chapman kicked the accused out of the residence and that she described the accused crawling into the attic of the residence because he “always” thought Ms. Chapman was cheating on him.

[50] The Crown submits that this evidence of Thyra Chapman provides necessary narrative and context and is probative of the accused’s jealous and stalking behaviour and the reasonableness of Ms. Chapman’s fear of the accused.

[51] The Crown submits that the evidence of Ms. Chapman’s uncle, Tom Chapman, relating to a six-month period in 2018 when he resided in KI, is probative of the offence of criminal harassment, including the accused’s stalking behaviour, Ms. Chapman’s fear of the accused and the reasons for that fear. The Crown further submits that Mr. Chapman’s evidence provides narrative and context and is probative of animus and motive.

[52] Cheryl Meekis told police that the accused was “stalking” Ms. Chapman and that Ms. Chapman told her a few weeks before the fire that she and the accused had broken up. Ms. Meekis also told police that she observed the accused lurking around Ms. Chapman’s house between the date of that conversation and the date of the fire. The Crown submits that this evidence is probative of the underlying offence of criminal harassment and that it helps to establish animus and motive.

[53] Terrance Nanokeesic, who resided next door to Ms. Chapman with his mother Cheryl Meekis at the time of the fire, told police that the accused “always” accused him of sleeping with Ms. Chapman. The Crown submits that this evidence is probative of the accused’s jealous and controlling behaviour.

[54] The Crown submits that this entire body of extrinsic misconduct evidence is admissible to illustrate the nature of the relationship between the accused and Ms. Chapman. The Crown contends that this body of evidence is also relevant and probative of the central issues at trial, including identity and intent. The Crown suggests that the extrinsic misconduct evidence is probative of who started the fire at 854 Macheetao Road and why.

THE POSITION OF THE ACCUSED

[55] The accused submits that the admissibility of the extrinsic misconduct evidence that the Crown seeks to have admitted at trial must be analyzed on the basis that it is, as conceded by the Crown, evidence of prior discreditable conduct of the accused and presumptively inadmissible.

[56] The accused submits that evidence of prior discreditable conduct is admissible only if the Crown can establish on a balance of probabilities that the evidence is logically relevant to, and probative of, a fact in issue. As noted previously, on this application, given that this is now a judge alone trial, the accused is not contesting admissibility on the basis that the probative value of the extrinsic misconduct evidence exceeds its prejudicial effect.

[57] The accused submits that the court’s assessment of the probative value of the extrinsic misconduct evidence requires the Crown to identify the issue that the evidence is said to be relevant to. The probative value of the extrinsic misconduct evidence that is shown to be relevant to an issue is then determined by its tendency to establish the proposition that it is offered to prove, according to the accused. The accused further contends that if there is no evidentiary link between the extrinsic conduct evidence and the accused, the evidence is irrelevant and inadmissible.

[58] The accused further submits that where admissibility is dependent on probative value, the reliability of the extrinsic misconduct evidence must also be considered by a trial judge when exercising his gatekeeping function.

[59] The accused submits that the assessment of the probative value of the extrinsic misconduct evidence in relation to the inferences the Crown suggests ought to be drawn from it includes, but is not limited to consideration of the following factors:

• Proximity in time between the extrinsic misconduct evidence and the alleged offence;
• Similarity in detail between the extrinsic misconduct evidence and the alleged offence;
• Number of occurrences of the extrinsic misconduct evidence;
• Circumstances relating to the extrinsic misconduct evidence;
• Any distinctive features that unify the incidents;
• Any intervening events; and
• Any other factor that would tend to support or rebut the underlying unity of the acts.

[60] The accused acknowledges that if the purpose for the admission of the extrinsic misconduct evidence is to help establish motive, animus or to provide insight into the background and relationship between the accused and Ms. Chapman, and if the evidence genuinely helps to establish a bona fide theory of motive, such evidence may be probative even if dissimilar with the alleged offence. On the other hand, extrinsic misconduct evidence that is simply part of a speculative theory of motive serves no purpose other than to discredit the accused and ought to be excluded, according to the accused. The accused notes that the Crown has not articulated its theory of the accused’s alleged motive in its written material or oral submissions on this application.

[61] The accused submits that the assessment of the probative value of the extrinsic misconduct evidence on this application must include, within a consideration of intervening events and other factors that tend to rebut the unity of the acts, the fact that the accused and Ms. Chapman were in an on-off common law relationship and often resided together at 854 Macheetao Road in the years preceding the fire.

[62] The accused further submits that a general theme runs through the extrinsic misconduct evidence, namely that the accused was not welcome at 854 Mackeetao Road when he was intoxicated and that the accused was often absent from 854 Macheetao Road when he was drinking but that he frequently returned “home”, late at night and intoxicated to sleep and found himself locked out by Ms. Chapman. The accused contends that these facts are relevant to the analysis of the probative value of the extrinsic misconduct evidence.

[63] The accused submits that the extrinsic misconduct evidence relating to events on May 20, 2017, in which Ms. Chapman alleged the accused had knocked over her woodpile and removed the screws holding her shed/teepee door closed, and January 2, 2019, in which Ms. Chapman implicated the accused in attempting to break into her house, includes nothing to link the accused to these occurrences. Absent evidence linking the accused to these events, they are irrelevant and inadmissible, according to the accused.

[64] The accused contends that the two occurrences in 2013, both in which Ms. Chapman called the police because the accused was at her residence intoxicated and she wanted him removed, do not include any reference to assaultive behaviour, threats or harassing conduct on the part of the accused. The accused also notes that there is no temporal proximity between these occurrences and the fire and that there were numerous reconciliations/intervening events between these events and the fire. The accused submits that this evidence is irrelevant and of no probative value.

[65] The accused submits that the five occurrences in 2014 consist essentially of Ms. Chapman calling the police to remove the intoxicated accused from either her residence, her porch or a vehicle in her yard. The accused submits that these occurrences do not contain any allegations of actual or threatened physical harm to Ms. Chapman and that they are far removed in time from the fire. The accused suggests that these events cannot assist in establishing motive, animus or any of the elements of criminal harassment and that they are therefore irrelevant and of no probative value.

[66] The accused contends that the events of January 28, 2015, in which Ms. Chapman called police after she and the accused had an argument about his absence from the home, is simply irrelevant to any of the issues at trial. The accused also suggests that this incident indicates that the accused was living at 854 Macheetao Road on that date.

[67] The accused submits that the events of May 19, 2015, in which the accused acknowledged that he had banged on the walls of the residence, do not include any allegation of assaultive, threatening or harassing behaviour by the accused. They do not help to establish any fact in issue and are therefore irrelevant and of no probative value, according to the accused.

[68] The accused suggests that the incident of May 28, 2015, wherein Ms. Chapman blocked the accused from leaving the bathroom of the residence and he reacted by making a threatening gesture toward her with his fist, is a confrontation initiated by Ms. McKay in reaction to the accused packing his clothes and attempting to leave the residence. The accused submits that this cannot help in establishing any aspect of criminal harassment, animus or motive, rendering it irrelevant, of no probative value and inadmissible.

[69] The accused submits the events of September 25, 2015, in which the accused broke the window of Ms. Chapman’s vehicle after she refused to let him into the residence or to talk with him, does not include any suggestion of actual or threatened physical harm toward Ms. Chapman nor does it include any suggestion that Ms. Chapman was fearful of the accused. The accused suggests that this evidence does not advance any live issues and that it is therefore irrelevant and inadmissible.

[70] The accused acknowledges that the November 10, 2015, incident, wherein the accused returned to Ms. Chapman’s residence and banged on the walls on two occasions late at night, includes an indication that Ms. Chapman fears for her safety and the safety of the children when the accused is intoxicated. The accused contends, however, that this expression of fear is a bare statement without explanation and that it is far removed in time from the date of the fire.

[71] The accused submits that the genesis of the April 10, 2016, incident was an argument between Ms. Chapman and the accused over money which escalated into the accused threatening to “trash” Ms. Chapman’s vehicle. The accused submits that this incident was a threat to damage property and that Ms. Chapman’s expressed concern about the accused being “violent when he’s drunk” is clearly a reference to being violent to property and not to Ms. Chapman herself. The accused submits that a motive to kill simply cannot be inferred from threats to cause damage to personal property.

[72] The accused submits that the May 6, 2016, incident is another example of Ms. Chapman calling the police to remove the intoxicated accused from her home. The accused notes that Ms. Chapman specifically told the 911 operator that the accused did not have any weapons, was not aggressive and that he “just woke [her] up” by knocking on her window. The absence of any suggestion of aggression, threats or jealousy on the part of the accused or of Ms. Chapman’s fear of the accused on this occasion render this evidence irrelevant and of no probative value, according to the accused.

[73] The accused acknowledges that the September 2, 2016, incident contains allegations suggestive of criminally harassing behaviour and jealousy on the part of the accused. However, the accused also notes that on this date Ms. Chapman struck the accused with a piece of wood and that he then left without responding physically in any way or threatening to do so. The accused submits that this incident illustrates that Ms. Chapman was not fearful of the accused and that the accused had no animus toward Ms. Chapman.

[74] The accused submits that the first incident of April 27, 2017, is yet another example of Ms. Chapman locking the accused out of the residence when he is intoxicated and the accused knocking on a window trying to get in, without any direct contact between the two of them and without any threats, violence or harassing behaviour. The accused contends that the second incident on April 27, 2017, in which the accused is found in the morning sleeping in the attic of the residence and intoxicated, does not contain any allegations of threats, physical violence or even a verbal argument. The accused submits that this evidence does not assist in proving criminal harassment, animus or motive and that it therefore irrelevant and inadmissible.

[75] The accused submits that the incident of May 21, 2017, is nothing more than Ms. Chapman calling police to remove the accused from the residence because he was intoxicated and sleeping under her porch and snoring. The only reference to violence on this date is Ms. Chapman’s general statement that he “he destroys my stuff outside when he is drinking”. The accused submits that this evidence cannot assist in proving any facts in issue and that it irrelevant and inadmissible.

[76] The accused contends that the incident of October 3, 2017, is another complaint by Ms. Chapman about the intoxicated accused banging on her walls and waking up her children which does nothing to assist in proving the offence of criminal harassment or in establishing motive or animus. The accused submits that this evidence is of no probative value, irrelevant and inadmissible.

[77] The accused submits that the October 17, 2017, incident, in which Ms. Chapman called police to report the accused was intoxicated and that he had crawled under her porch, contains no suggestion of aggressive, harassing or threatening behaviour on the part of the accused, nor of any fear of the accused on the part of Ms. Chapman. It is therefore irrelevant and of no probative value, according to the accused.

[78] The accused acknowledges that the November 7, 2017, incident includes Ms. Chapman telling the 911 operator that her “heart was pounding” as a result of the accused attending at her home intoxicated. The accused notes, however, that this was in essence nothing more than a verbal argument between Ms. Chapman and the accused about his drinking, through the door of the residence and that Ms. Chapman specifically told the police that there was nothing physical to report. The accused submits that this is evidence of nothing more than the accused coming home drunk and being unwelcome and that it is incapable of supporting any of the inferences suggested by the Crown.

[79] The accused submits that the evidence of Stewart Albany, which includes allegations by Ms. Chapman about the accused having threatened her with a knife and syringe and that she feared for her life at the hands of the accused who was always accusing her of cheating on him, is lacking in detail as to when the accused is alleged to have acted as suggested. The accused submits that it cannot be assumed that either the threats of the accused or Ms. Chapman’s fear of the accused were proximate in time to the fire. The absence of any ability to gauge temporal proximity is fatal to the Crown’s argument in support of the admissibility of Mr. Albany’s evidence as extrinsic misconduct evidence, according to the accused.

[80] The accused submits that reliability is a factor in the analysis of extrinsic misconduct evidence and there are significant issues with the reliability of the evidence of Patsy Petiquan. The accused notes that Ms. Petiquan acknowledged in her statement to police that she has issues with memory loss and that she does not recall specifics about Ms. Chapman’s disclosures to her about the accused being abusive.

[81] The accused further notes that despite what appears to have been a relatively long-term friendship between Ms. Petiquan and Ms. Chapman, Ms. Petiquan told police that Ms. Chapman did not talk “negatively” about the accused until the night before the fire. However, at another point in her statement to the police, Ms. Petiquan recounted a conversation that she had with Ms. Chapman approximately one month before the fire in which Ms. Chapman described the accused as ungrateful and quick to anger. The accused submits that the internal inconsistencies in Ms. Petiquan’s evidence further detract from the reliability of her evidence.

[82] The accused submits that Thyra Chapman’s evidence of having seen the accused punch Ms. Chapman once on the chin lacks specificity as to when this occurred. The accused submits that evidence about a previous assault at an unknown point in time cannot support an inference of motive or animus in relation an alleged arson and homicide on May 2, 2019.

[83] The accused submits that the evidence of Tom Chapman lacks detail as to time and is too general in nature to assist in establishing the underlying offence of criminal harassment. This lack of detail discounts the suggested probative value to Mr. Chapman’s evidence, according to the accused.

[84] The accused submits that the evidence of Cheryl Meekis, in which she describes “lurking” and “stalking” behaviour of the accused, is also lacking detail as to when this is alleged to have occurred. The accused submits that this court is unable to consider either temporal proximity or intervening acts without some indication of when the alleged extrinsic misconduct is alleged to have occurred. The accused further submits that Ms. Meekis’ disclosures about the accused’s stalking behaviour is absent from an earlier statement she gave to the police and that the reliability of her evidence, and its probative value, is therefore significantly reduced.

[85] The accused submits that the May 3, 2019, statement of Terrance Nanokeesic, in which Mr. Nanokeesic told police that the accused “always” accused him of sleeping with Ms. Chapman, most recently “over a year ago now or so”, is far removed in time from the date of the fire and simply too general a statement to assist in drawing an inference from apparent jealousy to animus, motive and intent to murder Ms. Chapman.

DISCUSSION

The Applicable Law

[86] The burden on the Crown in establishing that the accused committed first degree murder pursuant to s. 231(6) of the Criminal Code is well established. To obtain a conviction, the Crown must establish each of the essential elements of murder beyond a reasonable doubt. The Crown is further required to prove beyond a reasonable doubt the underlying offence of criminal harassment under s. 264 of the Code, and the added element under s. 231(6) of the Code, that the accused intended the victim of the harassment to fear for her safety. It is not sufficient to prove that the victim feared for her safety: R. v. Faria, 2022 ONCA 608 at para. 30.

[87] The five essential elements of the offence of criminal harassment are:

1. The accused has engaged in the conduct set out in s. 264(a), (b), (c), or (d) of the Code;
2. The complainant was harassed;
3. The accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;
4. The conduct caused the complainant to fear for her safety or the safety of anyone known to her; and
5. The complainant’s fear was, in all the circumstances, reasonable.

R. v. Kosikar, [1999] O.J. No. 3569, at para. 19.

[88] In R. v. Penny, [2004] O.J. No. 5914, at para. 60, Watt J. set out the essential elements the Crown is required to prove beyond a reasonable doubt to establish that an accused committed criminal harassment first degree murder under s. 231(6) of the Code:

1. That the accused caused the death of the deceased;
2. That the accused caused the death of the complainant unlawfully;
3. That the accused’s unlawful killing of the deceased was murder;
4. That the accused did something in killing the deceased that was an “essential, substantial and integral part” of the killing of the deceased;
5. That the accused committed or attempted to commit criminal harassment;
6. That in committing or attempting to commit criminal harassment, the accused intended to cause the deceased to fear for his or her own safety, or the safety of anyone whom the deceased knew; and
7. That the criminal harassment, whether actual or attempted, and the murder were part of the same series of events.

[89] In R. v. Handy, 2002 SCC 56, at para. 55, the Supreme Court concisely stated the general exclusionary rule applicable to propensity evidence and the narrow exception of admissibility:

Similar fact evidence is…presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of a particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.

[90] At para. 73 of Handy, the Court noted that the probative value of propensity evidence “cannot be assessed in the abstract. The utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact”. At para. 74, the Court added that “the issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated. It is therefore incumbent on the Crown to identify the live issues in the trial to which the evidence of disposition is said to relate”. At para. 134, the Court further noted that where admissibility is dependent upon probative value, the credibility of the similar fact evidence is a factor that the trial judge, in exercising his or her gatekeeping function, is entitled to take into account.

[91] In R. v. Pasqualino, 2008 ONCA 554, the appellant appealed his conviction for second degree murder in the shooting death of his wife. The primary issue on appeal was the trial judge’s admission into evidence of a number of ante-mortem statements of the deceased, together with evidence of previous threats and acts of violence by the appellant toward the deceased. In finding that the trial judge did not err in ruling this evidence admissible, the court stated the following:

[I]t 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.

[92] In R. v. Cudjoe, 2009 ONCA 543, the appellant appealed his conviction for second degree murder in the stabbing death of his wife. One of the grounds of appeal was that the trial judge had erred in admitting evidence that the appellant had assaulted the deceased twice in the month preceding her death.

[93] At para. 64, Watt J.A. noted in general terms that in a murder prosecution, evidence of an accused’s prior abuse of the deceased may illuminate the nature of the relationship between the principals, demonstrate animus and establish a motive for the killing. Watt J.A. added that, “this circumstantial evidence, used prospectantly, may assist in proving complicity in an unlawful killing and in establishing the state of mind that accompanied it”.

[94] In dismissing this ground of appeal, at para. 68, Watt J.A. held that this evidence was relevant and material because it tended to show the true nature of the relationship between the appellant and deceased contemporaneously with her death. This evidence was also found to demonstrate animus and motive and was therefore relevant to prove the identity of the killer and the mental state that accompanied the killing.

[95] In R. v. Hindessa, [2009] O.J. No. 3837, the accused was charged with first degree murder in connection with the death of his “on and off again” dating partner. The Crown sought to tender in evidence several ante-mortem statements made by the deceased to others regarding the accused.

[96] In reviewing the test for the admissibility of this prior discreditable conduct evidence, Molloy J., at para. 19, observed that the assessment of the probative value of the proposed evidence includes a consideration of matters such as the strength of the evidence, the extent to which it supports the inferences sought to be made from it and the extent to which the matters it tends to prove are in fact at issue in the case. At para. 23, Molloy J. noted that evidence of a history of domestic violence is often admitted to establish animus against the victim of spousal violence and the state of mind of the accused at the time the violence was committed. At para. 27, Molloy J. found, when considering a body of evidence of prior discreditable conduct, that it was not an “all or nothing” ruling. Each item of such evidence must be considered in light of the criteria for admissibility.

[97] In R. v. Edwards, [2009] O.J. 3724, the accused was charged with uttering a death threat and criminal harassment in relation to a former spouse. The Crown sought to adduce evidence of six past incidents of discreditable conduct of the accused toward the complainant.

[98] In his ruling on the admissibility of this evidence, Boswell J. commented on, among other things, the need to identify the relevance of the evidence to an issue in the case in order to assess its probative value. Boswell J., at para. 15, stated the following as to relevance:

To determine relevance, it is necessary that the Crown first identify the issue in the case to which the propensity evidence is said to relate. Probative value is not to be determined in the abstract…once the live issue is identified by the Crown, the court can then begin to analyze how probative the proffered evidence is to that issue.

[99] At para. 17 of Edwards, Boswell J., citing Handy, noted that “the principal driver of probative value is “the connectedness of the prior disreputable conduct to the offences charged”. At para. 36, Boswell J., again citing Handy, identified “the connectedness of the proffered evidence with the circumstances of the charges as being the most significant factor in assessing the probative value of the evidence”. At para. 48, Boswell J. added that the reliability of the evidence is a feature that adds to its probative value.

[100] In R. v. Candir, 2009 ONCA 915, the appellant appealed his conviction for the first-degree murder of his wife. One of the grounds of appeal was that the trial judge erred in admitting ante-mortem statements of the deceased into evidence at trial. In reviewing the principles governing the admissibility of this evidence, Watt J.A. found it helpful to provide some comments on the basic principles of the law of evidence.

[101] At para. 47, Watt J.A. stated as follows in regard to relevance:

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.

[102] At para. 47, Watt J.A. noted that “the threshold for relevance is not high. To determine whether an item of evidence is relevant, a judge must decide whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence of a material fact more probable than it would be otherwise”.

[103] At para. 49, Watt J.A. commented on materiality:

Materiality 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. 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.

[104] In Candir, at para. 51, Watt J.A. noted that in a domestic homicide case, evidence of the relationship between the accused and deceased may be relevant and material because it may help to establish a motive or animus on the part of the accused. And, in turn, 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. Watt J.A. added, at para. 72, “evidence that a person had a motive to do an act, for example to unlawfully kill another, is relevant to prove that the person with the motive did the act and did so intentionally”.

[105] In R. v. Johnson, 2010 ONCA 646, one of the grounds on which the appellant appealed his conviction for second-degree murder was the trial judge’s admission of two items of similar fact evidence. In commenting generally on the evaluation of the probative value of propensity evidence, the court stated as follows at paras. 99, 100 and 101:

It is not sufficient for the Crown to identify some past conflict between an accused and a victim, and then speculate that it establishes animus and therefore motive…

[E]vidence of past misconduct that is woven into a speculative theory of motive does nothing more than bring in the bad character of the accused…

On the other hand, evidence that provides the trier of fact with real insight into the background and relationship between the accused and victim, and which genuinely helps to establish a bona fide theory of motive is highly probative, even in the absence of similarity with the charged offence.

[106] In R. v. Carroll, 2014 ONCA 2, the appellant appealed from two first-degree murder convictions. The victims were the appellant’s estranged wife and her new partner. The grounds of appeal included alleged errors by the trial judge in admitting ante-mortem statements of the deceased spouse in which she told witnesses about her fear of the appellant and the nature of their relationship as the marriage deteriorated.

[107] At para. 122, Watt J.A. stated as follows:

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.

[108] In dismissing this ground of appeal Watt J. A., at para. 125, held as follows:

First, the evidence was properly admitted on the basis of a substantial and unbroken line of authority in this province. Despite its incidental effect of showing that the appellant engaged in prior disreputable conduct, this evidence elucidated the nature of the Carrolls’ marital relationship. The nature of that relationship was relevant to proof of animus or motive. Evidence of animus or motive was relevant, in turn, to proof of the identity of the deceased’s killer and the legal character of the unlawful killing.

Analysis of Admissibility

[109] Each item of extrinsic misconduct evidence proffered by the Crown on this application must be analyzed individually to determine admissibility. As the accused is not contesting admissibility on the basis that the prejudicial effect of the evidence exceeds its probative value, the analysis will be limited to an assessment of relevance, materiality and whether a particular item of evidence has any probative value.

[110] The probative value of the extrinsic misconduct evidence must be assessed in relation to the issues at trial which the Crown suggests the evidence relates to and the defences reasonably anticipated. The reliability of the extrinsic misconduct evidence is also a factor to take into account in assessing probative value.

[111] The issues in this trial will include:

1. Was the accused criminally harassing, or attempting to criminally harass, Ms. Chapman on May 2, 2019;
2. Did the accused intend for Ms. Chapman to fear for her safety;
3. Was the fire intentionally set;
4. If the fire was intentionally set, did the accused do so; and
5. If the accused intentionally set the fire on May 2, 2019, what was his intent in doing so.

Statements of Ms. Chapman contained in Occurrence Reports and 911 calls

January 18 and May 31, 2013

[112] On these two occasions, Ms. Chapman called police because the accused was intoxicated at 854 Macheetao Road and she wanted him removed. These incidents are six years prior to the date of the fire and, in my view, include little to assist in establishing the nature of the relationship between the accused and Ms. Chapman. Nor do they assist with narrative or context, as suggested by the Crown. I find that these items of proposed evidence are irrelevant and inadmissible.

January 11 and February 22, 2014

[113] On these two dates, Ms. Chapman called police to remove the accused from the residence because he had been drinking. I fail to see how these incidents assist in establishing the underlying offence of criminal harassment, as suggested by the Crown. I also reject the Crown’s submission that these two relatively benign events, five years prior to the date of the fire, are relevant and therefore probative of animus and motive or that they assist in establishing the nature of the relationship. I find them to be irrelevant, of no probative value and therefore inadmissible.

April 9, 2014

[114] On this date, Ms. Chapman called the police because the accused, who was intoxicated, had broken her window when she refused to let him into the residence. The accused acknowledged to police that he had done so because he was “mad cause its my house”. I accept the submission of the Crown that this evidence is relevant and probative and that it begins to illustrate the nature of the relationship, including an animus of the accused toward Ms. Chapman. This evidence is therefore admissible.

October 17 and 18, 2014

[115] On these dates, Ms. Chapman called the police to remove the intoxicated accused. On the first attendance, the accused was found sitting in the porch and compliant. On the second attendance police were unable to locate the accused. I reject the Crown’s suggestion that these events are probative of animus and motive. I further do not accept that they are necessary for narrative, context or to establish the nature of the relationship between the accused and Ms. Chapman. In my view, the connection of the evidence to the issues at trial is strained. This evidence is inadmissible.

January 28, 2015

[116] On this date, Ms. Chapman was upset with the accused because he had been away from the home for an extended period of time and they argued as he was leaving with some of his belongings. Police were called simply to ask the accused not to attend the residence for a couple of days and the accused agreed. This incident has little probative value and only a tenuous connection to the issues at trial. It is inadmissible.

May 19, 2015

[117] The accused acknowledged that he had banged on the outside wall of 854 Macheetao Road late at night because he became emotional while walking by the residence. I accept the submission of the Crown that this incident, four years prior to the fire, assists with narrative and context and that it is relevant to assist in establishing animus and motive. This evidence is admissible.

May 28, 2015

[118] On this date, Ms. Chapman and the accused got into a verbal and physical altercation in the washroom of the residence, during which the accused pushed Ms. Chapman and gestured with his fist at Ms. Chapman as if to strike her. Ms. Chapman, in her statement, expressed her fear of the accused. I find this evidence to be relevant as it may assist the Crown in proving an increasing animus of the accused toward Ms. Chapman and the underlying offence of criminal harassment. This evidence is ruled admissible.

September 15, 2015

[119] On this date, the accused, late at night and intoxicated, returned to the residence twice and smashed a truck window when rejected by Ms. Chapman the second time. Once again, this evidence may assist the Crown in establishing an increasing animus and motive and I find that it is admissible for this purpose.

November 10, 2015

[120] On this date, the accused, late at night, returned to the residence on two occasions, separated by approximately one hour, and banged on the outside walls. At the time, the accused was subject to release conditions not to attend the residence. Ms. Chapman told police that she feared for her safety and the safety of her children when the accused was drinking. I accept the submission of the Crown that this evidence assists with narrative and context and that it is probative of animus. This evidence is admissible.

April 10, 2016

[121] On this date at approximately 5:00 a.m. the accused, apparently still drunk from the night before and brandishing an axe, attended at 854 Macheetao Road displaying belligerence and aggression. He later pled guilty to threatening to damage Ms. Chapman’s vehicle. I accept the submission of the Crown that this incident, approximately three years prior to the fire, provides narrative and context and that it is probative of animus. I find this evidence to be admissible.

May 6, 2016

[122] At approximately 6:00 a.m. on this date, the accused, while subject to release conditions prohibiting him from communicating with Ms. Chapman, was found by police at 854 Macheetao Road intoxicated and attempting to look in a window. The accused pled guilty to a breach of his release conditions. I accept the Crown’s position that this evidence provides narrative and context and that it assists in establishing animus. I find this evidence to be admissible.

September 2, 2016

[123] At approximately 2:00 a.m. on this date, the accused was located by police standing behind a building close to 854 Macheetao Road. The accused was intoxicated and had been at 854 Macheetao Road in violation of his release conditions. The accused is alleged to have yelled at Ms. Chapman and accused her of cheating on him. The accused later pled guilty to breaching his release conditions. I accept the submission of the Crown that this evidence assists in establishing an increasing animus and possibly motive. This evidence is admissible.

April 27, 2017

[124] On this date, Ms. Chapman called the police about the accused twice, once at approximately 3:40 a.m. and a second time at approximately 9:40 a.m. On the second occasion, police located the accused sleeping in the attic of 854 Macheetao Road, highly intoxicated. Ms. Chapman expressed a general fear of the accused. I reject the Crown’s submission that these incidents are relevant because they assist in showing animus and in proving intent. Neither incident includes any suggestion of threats, aggression or even direct contact between the accused and Ms. Chapman. Nor do I find that they are necessary for narrative or context. This evidence is found to be inadmissible.

May 20, 2017

[125] On this date, Ms. Chapman suspects the accused of knocking her woodpile over and damaging her shed/teepee. However, there is no evidence to support Ms. Chapman’s suspicion and this evidence is of no probative value. It is inadmissible.

May 21, 2017

[126] On this date, at approximately 3:00 a.m., Ms. Chapman called police to request that they remove the accused from under her porch. Police attended and found the accused under Ms. Chapman’s porch asleep and intoxicated. He was removed without incident. I do not accept the submission of the Crown that this evidence is necessary for narrative purposes or to provide context. I fail to see how this evidence assists in proving animus or intent. This evidence is inadmissible.

October 3, 2017

[127] At approximately 12:30 a.m. on this date, Ms. Chapman reported to the police that the accused was drunk and banging on her walls. I accept the submission of the Crown that this incident is relevant as it could assist in establishing a continuing animus on the part of the accused toward Ms. Chapman. This evidence is admissible.

October 17, 2017

[128] On this date at approximately 11:00 p.m., police located the accused in the crawl space underneath 854 Macheetao Road. He had been drinking but was not intoxicated and there had not been any physical or verbal altercation between Ms. Chapman and the accused. I reject the Crown’s submission that this incident is relevant because it is probative of the elements of criminal harassment and animus and motive. In my view, it is irrelevant and of little probative value. It is therefore inadmissible.

November 7, 2017

[129] On this date, Ms. Chapman called the police because the accused was at her residence and intoxicated. Ms. Chapman told police that she and the accused had argued about his drinking and Ms. Chapman expressed her fear of the accused to the 911 operator. I accept the Crown’s submission that this evidence may assist in establishing the elements of criminal harassment and that it is therefore admissible.

January 2, 2019

[130] On this date, Ms. Chapman called police to report that the accused was trying to break into her house. However, Ms. Chapman did not see the accused on this date and police were unable to locate anyone in the area. When the police spoke to the accused, he denied that he had been at Ms. Chapman’s residence that night. I accept the submission of the accused that there is nothing to link the accused to this incident. As such, it is irrelevant, of no probative value and inadmissible.

Ms. Chapman’s Ante-Mortem Statements to Five Individuals

[131] As noted previously, the accused will be contesting the admissibility of this evidence at trial on the basis that it is hearsay and presumptively inadmissible. On this application, the accused disputes the admissibility of this evidence as prior discreditable conduct and therefore presumptively inadmissible. My rulings below in relation to this evidence will therefore be subject to an additional ruling as to admissibility at trial.

Stewart Albany

[132] Mr. Albany, a close, lifelong friend of Ms. Chapman, told police that Ms. Chapman confided in him about the abusive nature of her relationship with the accused, about the accused constantly accusing her of being unfaithful, about the accused having threatened her with a knife and syringe and about her fear for her life because of the accused’s conduct toward her. While Mr. Albany is vague as to dates, he did state that Ms. Chapman’s most recent disclosures were only three to five months prior to the fire. I accept the submission of the Crown that this evidence is material and relevant. It clearly elucidates the nature of the relationship between Ms. Chapman and the accused and may be helpful in establishing animus and motive and assist, in turn, in proving identity and intent. The evidence of Stewart Albany is therefore admissible.

Patsy Petiquan

[133] Approximately one month prior to the fire, Ms. Chapman told Ms. Petiquan that the accused “gets mad so easily” and that she was trying to break up with him. The threshold for relevance in this context is not high. I accept the submission of the Crown that this evidence is relevant because it may be probative of animus and motive. I am cognizant of the accused’s position that Ms. Petiquan’s evidence is unreliable. That issue can be more fully explored on the hearsay voir dire at trial. I find that the evidence of Ms. Petiquan is admissible on this application.

Thyra Chapman

[134] Thyra Chapman is the daughter of Ms. Chapman and witnessed the nature of her mother’s relationship with the accused over many years prior to the fire. I accept that the evidence of Thyra Chapman is relevant and material as to the general nature of this relationship. Her evidence may also assist in establishing animus and motive on the part of the accused which may, in turn, assist in proving identity and intent, both very much live issues at trial. Thyra Chapman’s extrinsic misconduct evidence is therefore admissible.

Tom Chapman

[135] Tom Chapman is Ms. Chapman’s uncle and resided in KI for six months in 2018, less than one year before the fire. Ms. Chapman confided in him about the accused’s stalking and harassing behaviour toward her. I accept the submission of the Crown that this evidence is material and relevant in that it may be probative of the elements of the offence of criminal harassment, including Ms. Chapman’s fear of the accused and the reasons for that fear. Tom Chapman’s extrinsic misconduct evidence is admissible.

Cheryl Meekis

[136] Ms. Meekis was a neighbour and friend of Ms. Chapman. She told police that she had observed what could be viewed as stalking behaviour on the part of the accused generally and proximate in time to the fire, the latter following Ms. Chapman having terminated the relationship. The accused takes issue with the general nature and reliability of Ms. Meekis’ evidence. In my view, reliability is better addressed at trial during the hearsay voir dire. I accept the submission of the Crown that the extrinsic misconduct evidence of Ms. Meekis is probative of criminal harassment and that it may assist in establishing animus and motive. This evidence is therefore admissible.

Terrance Nanokeesic

[137] Mr. Nanokeesic, a neighbour of Ms. Chapman at the time of the fire, told the police that the accused frequently accused him of sleeping with Ms. Chapman, most recently more than a year prior to the fire. I accept the submission of the Crown that this evidence is probative of the accused’s jealous behaviour, motive and identity. The extrinsic misconduct evidence of Mr. Nanokeesic is admissible.

[138] In conclusion, the Crown’s application is granted, in part, as set out herein. This is subject to a final ruling as to the admissibility of the evidence of Stewart Albany, Patsy Petiquan, Thyra Chapman, Tom Chapman and Cheryl Meekis, which the accused will be disputing at trial on the basis that it is hearsay and presumptively inadmissible.

“Original signed by”

The Hon. Mr. Justice J.S. Fregeau

Released: October 16, 2023